PHILADELPHIA – A New York man who allegedly suffered severe injuries after being struck in the face by a glass-wielding patron inside a Philadelphia nightclub has sued for damages, but defense counsel refutes the suit and says his only remedy is through the Dram Shop Act.
David Rubin of Brooklyn, N.Y. filed suit in the Philadelphia County Court of Common Pleas on Feb. 22 (along with amended versions on May 9 and June 14) versus The Trestle Inn, its owners Ian Cross and Josette Bonafino and Bianca De Pietro, all of Philadelphia, Gladurhar, LLC (doing business as “The Trestle Inn”) of Wallingford and B&B Partners, Inc. of Thorofare, N.J.
The suit says Rubin was a patron of the Trestle Inn in Philadelphia from the early evening hours of April 2, 2016, to the early morning hours of April 3.
“During the afternoon of April 2, 2016, defendant De Pietro arrived at The Trestle Inn, where her boyfriend was performing that evening as a DJ, and the agents, employees, service staff, and/or ostensible agents of Trestle defendants began serving defendant De Pietro alcoholic beverages,” the suit says.
“Near midnight on the date in question, defendant De Pietro, without justification, provocation, or reasonable basis, assaulted and/or battered plaintiff by striking him with a glass bottle, glass tumbler, and/or pint glass on the left side of his face while he was waiting in line to use the restroom in the premises known as The Trestle Inn.”
The litigation claims the Trestle defendants negligently sold De Pietro alcoholic beverages after she was visibly intoxicated, failed to properly train and supervise its employees from engaging in that practice, failed to prevent De Pietro from striking Rubin and failed to have adequate security staff on hand, among other violations.
In preliminary objections filed by defense counsel Kenneth J. Hardin II on July 3, Hardin said Rubin’s “exclusive remedy for recovery, if any, is the Pennsylvania Dram Shop Act because all such causes of action ultimately arise out of the alleged service of alcohol beverages to a visibly intoxicated De Pietro”, and thus, “all allegations of common law negligence against The Trestle Inn defendants must be dismissed and/or struck with prejudice.”
“In addition, named defendants Ian Cross and Josette Bonafino cannot be sued in their individual capacity because the plaintiff’s second amended complaint does not set forth allegations sufficient to (1) Pierce the corporate veil or (2) Invoke the participation theory of individual liability. As such, these defendants must be dismissed with prejudice,” Hardin said.
“Finally, plaintiff’s attempt to allege a cause of action for negligent and/or intentional infliction of emotional distress fails and must be dismissed with prejudice because it lacks specificity and does not contain any specific averments upon which a cause of action can be asserted against the Trestle Inn defendants.”
For counts of assault and battery, dram shop liability, negligence and negligent and/or intentional infliction of emotional distress, the plaintiff is seeking damages in excess of $50,000, with lawful interest thereon and costs of suit.
The plaintiff is represented by Mark W. Tanner and James P. Faunes of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig, in Philadelphia.
The defendants are represented by Kenneth J. Hardin II of Hardin Thompson, in Pittsburgh.
Philadelphia County Court of Common Pleas case 180202285
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com