PENNSYLVANIA RECORD

One year ago, Gerald Ung was acquitted of attempted murder during a jury trial at Philadelphia Common Pleas Court.

The Feb. 15, 2010 verdict pleased many gun rights advocates, since it signalized increasing tolerance for those who resort to using deadly force with their firearms when they fear for their life.

Ung was then a 29-year-old Virginia transplant living in Philadelphia while attending his third year of law school at Temple University.

After a night out on the town in January 2010, he and a female companion got into an altercation in Philadelphia’s Old City neighborhood with Eddie DiDonato, Jr. and two of DiDonato’s buddies.

The altercation ended with Ung pulling his legal handgun and firing a half-dozen times at DiDonato.

Ung had argued that he feared for his life while being pursued by the three larger men; security camera footage confirmed Ung was backing away from the group at the time he pulled his gun and fired the shots.

DiDonato, a former lacrosse player, didn’t die; but he did sustain numerous injuries, including partial paralysis.

Ung was subsequently charged with attempted murder, aggravated assault and possession of an instrument of crime.

He was also initially charged with carrying a firearm without a license, but that charge was rescinded after police conceded that Ung’s Virginia-issued concealed carry permit is recognized in Pennsylvania.

The case mainly drew publicity because it involved the shooting of an unarmed man in what was deemed a self-defense situation.

After a trial in which Ung emotionally testified on his own behalf, the jury acquitted the law student on all charges.

The story seemed to be over – until now.

On Dec. 30, prominent Philadelphia personal injury lawyer Robert Mongeluzzi filed a lawsuit on behalf of DiDonato. The defendants named in the civil action are Ung and a handful of drinking establishments that served alcohol to Ung on the night the shooting occurred.

The suit alleges that the bars should be at least partially liable for what occurred to DiDonato given the fact that they allegedly acted negligently in over-serving either Ung or acquaintances of the plaintiff.

The lawsuit has caused some Internet chatter, with legal news bloggers and Second Amendment advocates alike questioning the validity of the complaint, for various reasons.

‘Castle Doctrine’

Last June, Gov. Tom Corbett signed so-called “Castle Doctrine” legislation into law. The bill, unanimously supported by both members of Pennsylvania’s legislative chambers, gives people the right to use deadly force outside of the home when they feel as though their lives are in danger.

Traditionally, people under threat outside the home would have to try and retreat from an attack as a first option; the old law only permitted deadly force inside one’s residence.

Gun rights supporters hailed the bill’s passage as a victory for self-defense; opponents warned of gunfights playing out in the streets over minor disputes.

The Ung case is interesting in that it may have the ability to test the Castle Doctrine’s effectiveness. At the same time, it’s unknown how things will play out in civil court, particularly because the shooting took place prior to the law’s passage.

The law has a built-in civil immunity provision, which is designed to make it extremely difficult for a plaintiff in a civil case to collect damages when it was determined that a shooting was done in self-defense.

In other words, if prosecutors rule a shooting justified, a plaintiff in a civil case, at least theoretically, will have a heavy burden to prove when it comes time for them to try and secure a favorable verdict or collect a settlement.

The thing about the Ung case is that while the shooting took place before the law’s passage, the lawsuit, which was filed at Philadelphia’s Common Pleas Court Dec. 30, comes well after the Castle Doctrine got Gov. Corbett’s signature.

The question now is, will the law be applied retroactively, so as to give Ung the civil immunity protections built into the self-defense bill?

Or will the courts rule that civil immunity is null and void, since Ung deployed deadly force before Castle Doctrine became law?

It’s anyone’s guess how things will turn out, but at this point, it appears the law is on DiDonato’s side.

No retroactive protection

A legislative staffer for state Rep. Scott Perry, the York County Republican who authored the Castle Doctrine legislation, told the Pennsylvania Record that the law is not retroactive, meaning that anyone involved in self-defense shootings prior to its passage would have had to prove they attempted to retreat from a threat first before deploying deadly force.

That also goes for the civil immunity provision, meaning Ung could be on the hook for compensatory damages should the case end up in a plaintiff’s verdict.

Some attorneys who specialize in Pennsylvania firearms laws are eagerly awaiting the civil case’s outcome.

“I just don’t think it’s going to be such a big player,” Quakertown, Pa. attorney Phil Kline said of the Castle Doctrine as it relates to the Ung suit.

One thing Kline, who is not directly involved in the litigation, does find interesting about the case is that DiDonato appears to be “throwing his companions under the bus.”

The lawsuit, while blaming the bars for over-serving patrons, also concedes that DiDonato’s friends, Thomas Kelly and Andrew DiLoretto, were “visibly intoxicated” during the night of the shooting.

Kelly, in particular, was mentioned in prior news reports as being the friend who seemed to have instigated, or at least escalated, the confrontation between both groups of people.

Kline said he finds it interesting that DiDonato’s two friends were not named as co-defendants in the civil suit, while the complaint seems to imply that the friends may have been a proximate cause of DiDonato’s injuries, something Kline said appears to be contrary to the allegations in the criminal case.

Jon Mirowitz, a Philadelphia attorney who specializes in firearms cases and helped push for the Castle Doctrine’s passage, said while the law appears to not be retroactive, attorneys on both sides of the court battle will surely try to prove why one side is more culpable than the other.

“The law isn’t what’s written,” Mirowitz said. “The law is what the judge says is written.”

Allegations

In total, the lawsuit names as defendants five Philadelphia restaurants and bars that the plaintiff claims over-served either Ung or the plaintiff's friends the night of the shooting, something DiDonato contends helped lead to the incident.

The establishments named are Eulogy Belgian Tavern, Khyber Pass Pub, Lucy’s Hat Shop, Paradigm Restaurant & Bar, Field House Sports Bar and EBT Businesses.

The lawsuit claims that the negligent sale of alcoholic beverages to either Ung or DiDonato's companions by the various businesses was a direct and proximate cause of DiDonato’s injuries. The suit alleges that the actions constitute violations of Pennsylvania's Dram Shop Act.

Eulogy and the Khyber Pass Pub are accused of over-serving Ung while Eulogy and the remaining defendant bars are accused of over-serving DiDonato's friends, Kelly and DiLoretto.

The suit contains an assault and battery claim against Ung, claiming that the defendant acted with reckless disregard for the welfare and safety of the plaintiff.

“Defendant, Gerald Ung, intended to cause a harmful contact with the body of plaintiff that directly resulted in harmful contact with the body of plaintiff,” the lawsuit reads.

The lawsuit also accuses Ung of negligence for escalating a dispute to the use of deadly force, failing to attempt to retreat from any perceived threat, failing to use appropriate, proportionate and/or reasonable force, shooting plaintiff when deadly force was neither required nor permitted, continuing to shoot plaintiff when [plaintiff] could not possibly have been a threat, carrying a firearm while intoxicated, shooting the person who was not the aggressor, and failing to attempt to flee the scene before inflicting deadly force.

The lawsuit claims that DiDonato sustained serious and debilitating injuries to his abdomen, left hand, left clavicle and back, back problems and other injuries, causing him financial loss for medical expenses.

DiDonato seeks compensatory damages in excess of $50,000 for each count listed in the complaint in addition to punitive damages and other related costs.

DiDonato is reportedly the son of prominent Philadelphia attorney Edward DiDonato, Sr., of the firm Fox Rothschild.

The case ID number is 11120385.