Fassett v. Delta Kappa Epsilon (New York)
| Decision Date | 25 September 1982 |
| Citation | 807 F.2d 1150 |
| Parties | , 6 Fed.R.Serv.3d 783, 36 Ed. Law Rep. 640 FASSETT, Anne v. DELTA KAPPA EPSILON (NEW YORK), The Villanova Chapter of Delta Kappa Epsilon, Poch, Christopher, Bacha, Michael, Troy, Christopher L., Turgis, Bruce E. and Zachea, Kevin. (Two Cases). The VILLANOVA CHAPTER OF DELTA KAPPA EPSILON v. EVANS, Corbin S., Dallesandro, Nicholas, Bacha, Jr., Michael, The Villanova Chapter of Delta Kappa Epsilon, and Its Individual Members as of |
| Court | U.S. Court of Appeals — Third Circuit |
Robert E. Slota (argued), Murphy and Slota, Bryn Mawr, Pa., for appellant Fassett.
John J. McAuliffe, Jr., Philadelphia, Pa., for appellant Buckley.
David L. Steck (argued), Clifford A. Goldstein, Rawle & Henderson, Philadelphia, Pa., for appellee Bacha.
Donald J.P. Sweeney, Sweeney, Sheehan & Spencer, Philadelphia, Pa., for appellees Flanagan, McEvoy, Brockwell and Wynne.
Benjamin E. Zuckerman, Sherr, Moses & Zuckerman, P.C., Norristown, Pa., for appellee Poch.
Joseph P. Connor, III, Connor and Weber, P.C., Philadelphia, Pa., for appellee Zacchea.
Edwin L. Scherlis, Margolis, Edelstein, Scherlis, Sarowitz and Kraemer, Philadelphia, Pa., for appellees Ackerman, Delaney, Dulcey, McGee and Rohrer.
John J. O'Brien, III (argued), O'Brien and O'Brien Associates, Philadelphia, Pa., for appellee Turgiss.
William F. Sullivan, Jr., Post & Schell, P.C., Philadelphia, Pa., for appellee D'Onofrio.
Charles W. Craven, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., for appellee Evans.
John A. Orlando, White and Williams, Philadelphia, Pa., for appellee Baltera.
Dean F. Murtagh, German, Gallagher & Murtagh, Philadelphia, Pa., for appellee Pacaro.
John F. Dougherty, Jr., Dougherty & Stonelake, Philadelphia, Pa., for appellee Hoffend.
David M. McCormick, Liebert, Short, Fitzpatrick & Hirshland, Philadelphia, Pa., for appellee Nauman.
Before ADAMS, STAPLETON, and GARTH, Circuit Judges.
The four cases before this court arise out of a tragic accident whose fact pattern is disturbingly common. In the early morning hours of Sunday, September 26, 1982, seventeen year old Anne Fassett, nineteen year old Monica Buckley and eighteen year old Corbin Evans were involved in a traffic accident when Evans, while driving his car, collided with a pickup truck operated by Nicholas D'Allessandro. Evans, Fassett, and Buckley had just left a fraternity sponsored party where Evans had allegedly consumed an indeterminate quantity of alcohol. Monica Buckley was killed in the accident, and Anne Fassett was rendered a quadriplegic.
Anne Fassett brought a diversity action in the Federal District Court for the Eastern District of Pennsylvania against Christopher Poch, Bruce Turgiss, Kevin Zacchea, Christopher Troy and Michael Bacha. John Buckley, Jr., the administrator of the estate of Monica Buckley, brought a similar suit against defendants Poch, Turgiss, Zacchea, Troy and Daniel Hoffend. 1 The two cases (before this court as appeals 85-1652 and 85-1653) were consolidated for purposes of trial before the Honorable Louis C. Bechtle. Fassett and Buckley sought to hold the named defendants liable for the injuries they suffered under Pennsylvania tort law.
The named defendants filed a series of cross claims against each other, and they also impleaded a number of third party defendants. Corbin Evans and Nicholas D'Allessandro, the drivers of the two vehicles, were joined as third party defendants in both actions.
In the Fassett action, Daniel Hoffend was joined as a third party defendant, and defendant Michael Bacha impleaded individual members of the Villanova Delta Kappa Epsilon fraternity.
Similarly, in the Buckley action, Christopher Troy impleaded Michael Bacha and numerous individual members of the Villanova Delta Kappa Epsilon fraternity.
Many of these first and third party defendants filed motions for summary judgment. The district court directed Fassett and Buckley (as well as any defendants who raised claims against third parties) to submit written "offers of proof" to explain the basis of their theory of liability against each of the defendants. These offers of proof were designed to assist the court in ruling on the summary judgment motions. Appendix at 80. After the written offers of proof were submitted, the court held a hearing at which it allowed these offers of proof to be supplemented orally.
The offers of proof alleged that Evans had been drinking while in the apartment leased by defendants Michael Bacha, Kevin Zacchea, Christopher Troy, and Bruce Turgiss, and that these four defendants had agreed to allow their apartment to be used as the site for a fraternity party where alcohol would be served to approximately 200 minors. More specifically, it was alleged that Troy was an organizer of the party and that he served as one of the bartenders. It was alleged that Turgiss was a "passive organizer" of the party and that he had worked the door. 2 It was alleged that Bacha, who was not a member of the Villanova Delta Kappa Epsilon fraternity, nevertheless acted in concert with his fellow roommates and invited the fraternity to use his apartment for a party during which intoxicants were served to minors.
It was alleged that Poch was the president of the fraternity and an organizer of the party. Additionally, it was alleged that he was one of the people who drove into Maryland to purchase alcohol for the party. Although Hoffend was not at the party, it was alleged that he was the treasurer of the fraternity and that he wrote a blank check to be used for the purchase of the alcohol consumed at the party. 3 The district court concluded that, as a matter of Pennsylvania law, a defendant would have had to have physically served (i.e. directly handed) an alcoholic beverage to Evans in order to be civilly liable. Therefore, as to each individual defendant, unless it was specifically alleged that he had acted as a bartender or otherwise served alcohol to guests on the night in question, the court on September 18, 1985 granted summary judgment in his favor. 4
Troy was the only remaining first party defendant in both cases. Rather than proceed to trial against Troy alone, Fassett and Buckley, pursuant to Fed.R.Civ.P. 41(a)(1),...
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