PITTSBURGH – A state court judge has partially denied preliminary objections in wrongful death litigation against a New Kensington pub, in a lawsuit brought by the mother of a man killed in a shooting there in 2021 – one which insisted the pub’s alleged over-serving of alcoholic beverages to the shooter and failure to prevent the shooting, directly led to the plaintiff’s son’s death.
Angel Jenereaux (as Administratrix of the Estate of Randy Charles Jenereaux, deceased) of Vandergrift first filed suit in the Allegheny County Court of Common Pleas on Oct. 2, 2023 versus Woodpeckers Pub & Grub, Inc. (doing business as “Woodpeckers Pub & Grub”), of New Kensington.
“On the evening of Nov. 13, 2021, plaintiff’s decedent was a patron of and a business invitee at defendant Woodpeckers. Plaintiff’s decedent and his twin brother, Andy Jenereaux, were sitting at the bar at defendant Woodpeckers and had ordered food and beer. At the same time and place, defendant Woodpeckers sold, furnished, and/or gave liquor or malt or brewed beverages to its business invitee, Daniel Moles, while Mr. Moles was visibly intoxicated, in violation of the Pennsylvania Liquor Code. It is believed and therefore averred that Moles consumed the liquor or malt or brewed beverages on defendant’s premises, while visibly intoxicated,” the suit said.
“While at Woodpeckers, Moles consumed excessive amounts of alcohol to the extent that he became visibly intoxicated and severely impaired. Upon information and belief, it is averred that Moles was a person of known intemperate habits. Upon information and belief, at all times relevant hereto, Moles was a regular patron of defendant Woodpeckers. At all times relevant hereto, defendant knew or should have known that Moles carried a gun. Another patron of Woodpeckers, within view of defendant’s staff; was harassed by Moles at defendant Woodpeckers just prior to the shooting. Moles called her a liar and told her, ‘I am with the CIA and both your parents will be killed tonight.”
The suit added that on the date of the incident, another individual observed Moles’ mood and demeanor change while at Kinloch Fireman’s Club, and stated that he was staring at her and had a ‘crazy look’ in his eyes – which argues that Moles began consuming alcohol at Kinloch Fireman’s Club before arriving at defendant Woodpeckers hours prior to the shooting.
Furthermore, the suit said while at defendant Woodpeckers approximately one hour to one and half hours before the incident occurred, another patron of Woodpeckers encountered Moles who appeared to be highly intoxicated. The patron observed Moles mumble unintelligibly, had difficulty standing and staggered out of a restroom.
“Moles exhibited erratic behavior while at defendant Woodpeckers, which includes but is not limited to being unruly, staggering, stumbling, loud speech, making inappropriate comments, harassing other patrons, boasting to others that he carried a gun and arguing with defendant’s employees. Although Moles was visibly intoxicated, unruly, obnoxious, and/or intemperate, defendant Woodpeckers’ agents, servants, employees, and/or servants continued to serve Moles alcoholic beverages. At all times relevant hereto, Moles was boisterous, his remarks contained inappropriate language and he was prone to violent action, all of which conduct defendant Woodpeckers, its agents, servants, or employees knew or should have known. Despite this, defendant Woodpeckers’ agents, servants and/or employees continued to serve Moles alcoholic beverages while he was visibly intoxicated. At some point that evening, defendant Moles got into an altercation with a bartender while visibly intoxicated regarding his desire to consume more alcohol. Moles routinely carried a gun and holster on his person,” the suit stated.
“Despite the aforementioned visible intoxication and exhibited other erratic behavior for at least one hour prior, a bartender on duty finally made the decision to ‘cut off’ Moles from consuming more alcohol as he already appeared highly intoxicated. Despite the fact that he was intoxicated for a long period of time, defendant Woodpeckers agents, servants, and employees did not remove Moles from the premises nor ever requested him to leave. At said time, Moles negligently brandished a .45 caliber semiautomatic pistol from his person and negligently and carelessly aimed it at plaintiff’s decedent and his brother. Moles negligently and carelessly fired his gun and the first bullet hit a beer glass in front of plaintiff’s decedent, causing it to explode. The bullet then struck the decedent in the chest. Consequently, plaintiff’s decedent, his brother and other patrons, began to run towards the door of Woodpeckers to flee gunfire. Moles carelessly fired a second shot and struck the entrance door as patrons and the decedent attempted to flee. Plaintiff’s decedent died on Nov. 13, 2021 as a result of his injuries. Defendant Woodpeckers, by and through its employees, knew or should have known that Moles posed a clear danger to its patrons, including plaintiffs’ decedent.”
Moles is not a party to the suit in question.
In preliminary objections to the case filed on Nov. 8, the defendant pub argued that without Moles named as a defendant, the action has not been properly pled.
“Plaintiff has commenced the above-captioned action against the defendant for wrongful death and a survival action alleging that the defendant is liable under the Pennsylvania Dram Shop Act for a shooting on Nov. 13, 2021, by a patron Daniel Moles, which caused the death of another patron, Randy Charles Jenereaux. Noticeably absent from the plaintiff’s complaint as a named defendant is the actual shooter Moles. Defendant contends that Moles’ deadly actions created the dangerous condition resulting in the death of the decedent and maintain that without Moles’ intentional/unintentional shooting of the decedent, there would have been no negligent/unlawful taking of his life,” the objections stated.
“More significantly, plaintiff’s allegations under the Pennsylvania Dram Shop Act, including Moles’ consuming and/or drinking alcoholic beverages at other liquor establishments prior to the incident at the defendant’s location, which cannot be fully investigated and explored by the immediate defendant without Moles’ participation in the instant case as a party-defendant. Defendant would incur acute prejudice to the defense of its case, if Moles is not added as a party-defendant. Accordingly, Moles as the undisputed shooter of the decedent is critical to the merits of the case at hand which directly impact the defendant’s interest in plaintiff’s claims regarding its potential civil liability for the decedent’s death under the Pennsylvania Dram Shop Act. Moreover, defendant believes and avers that justice cannot be done without the joining of Moles as a party-defendant.”
The plaintiff filed an opposition brief to the defense’s preliminary objections on Feb. 1. Plaintiff counsel argued under the framework established in Mechanicsburg Area School District v. Kline that Moles was not necessary to the present case.
This framework is: 1) Do absent parties have a right or an interest related to the claim? 2) If so, what is the nature of that right or interest? 3) Is that right or interest essential to the merits of the issue? 4) Can justice be afforded without violating the due process rights of absent parties?
“Provided with plaintiff’s theory of liability, defendant has failed to identify exactly what right or interest that Daniel Moles has in the current action, other than being the shooter through the framework set forth in Mechanicsburg. As to the other considerations in Mechanicsburg, defendant has failed to identify the nature of any such right or interest held by Daniel Moles. No evidence has been presented that Moles has any rights interlocked with those of plaintiff in the adjudication of allegations concerning defendant Woodpeckers failure to have proper safety measures in place to protect business invitees, its failure to train its agents as to the appropriate policies and protocols to be in compliance with Pennsylvania law pertaining to the prohibition of serving visibly intoxicated patrons and/or persons of known intemperate habits, or failure to take appropriate action to handle individuals on the premises who posed foreseeable danger to patrons. Daniel Moles’ rights, in that regard, are not essential to a decision on the merits of the issues in plaintiff’s suit. Thus, no liability can be apportioned based on plaintiff’s cause of action since Moles cannot be considered to be the possessor land at issue or the owner of the establishment. Moles is not an indispensable party required to be included by plaintiff in this suit and justice can be afforded without violating Daniel Moles’ due process rights. The outcome of this civil action will not impinge upon his rights due to plaintiff’s theory of liability. Defendant further suggests that without Daniel Moles’ presence as a party defendant, plaintiff’s allegations regarding Daniel Moles’ alcohol consumption at other establishments prior to the subject incident allegedly ‘cannot be fully investigated and explored by the immediate defendant.’ This argument is unpersuasive,” the brief said, in part.
“Other than including a citation that failure to join an indispensable party goes to the court’s question of jurisdiction in an action, defendant does not specify its contention on lack of jurisdiction. Based on the case law cited, plaintiff assumes defendant is arguing that Daniel Moles absence allegedly ‘renders any order or decree of court null and void for want of jurisdiction.’ However, as set forth above, Daniel Moles is not an indispensable party to plaintiff’s action. Moreover, defendant has failed to meet its burden showing that plaintiff’s chosen forum, the Allegheny County Court of Common Pleas, is improper. Defendant has not produced any documentation whatsoever to substantiate their assertions and has not addressed venue other than simply citing to 1028(a)(1). Although defendant has failed to meet its burden, plaintiff will stipulate to transfer this instant action to the Westmoreland County Court of Common Pleas, following the outcome of defendant’s preliminary objections.”
UPDATE
On Feb. 8, Allegheny County Court of Common Pleas Judge Alan D. Hertzberg denied the preliminary objections as to Moles being named as a defendant, but approved the transfer of the case to Westmoreland County.
“Upon consideration of the foregoing plaintiff’s brief in opposition to defendant Woodpeckers Pub and Grub, Inc. (doing business as ‘Woodpeckers Pub and Grub’)’s preliminary objections, it is hereby ordered, adjudged and decreed that defendant Woodpeckers Pub and Grub’s preliminary objections are denied as to the indispensable party, but sustained as to venue. This case is transferred to the Westmoreland County Court of Common Pleas,” Hertzberg ordered.
For counts of negligence, survival and wrongful death, the plaintiff is seeking damages in excess of the applicable arbitration limits, plus punitive damages, exclusive of interest and costs.
The plaintiff is represented by George M. Kontos and Katie A. Killion of Kontos Mengine Killion & Hassen, in Pittsburgh.
The defendant is represented by Paul C. Schneider of Caputo & Caputo, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-011482
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com