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The Pennsylvania Superior Court has upheld a judgment of more than $37.8 million in a Dram Shop Act suit brought by a former highway construction worker who was left quadriplegic after he was struck by a drunken driver and thrown more than 100 feet. In Tuski v. Ivyland Caf� Ltd., a unanimous three-judge panel ruled that both the drunken driver and the tavern where he worked as a manager — and had served himself drinks on the morning of the accident — were properly held liable. In January 2004, a Philadelphia jury had awarded more than $75 million to plaintiff Joseph Tuski — including $25 million in punitive damages — but the award was later cut in half by the trial judge, Philadelphia Common Pleas Judge John Milton Younge. Now a Superior Court panel — Judges Joseph A. Del Sole, John T. Bender and Peter Paul Olszewski — has upheld all of Younge’s rulings. Plaintiffs attorney Robert Mongeluzzi of Saltz Mongeluzzi Barrett & Bendesky said Monday that when pre- and post-judgment interest are added, the judgment will swell to nearly $44 million. In the original verdict, both defendants were hit with punitive damage awards. The jury said the owners of the Ivyland Caf� should pay $5 million in punitive damages and that driver Michael Petaccio should pay $20 million in punitives. The jury also awarded Tuski more than $1.6 million for his past medical expenses, $18 million for future medical expenses, and $2 million for lost earnings. The verdict also included four awards of $7.25 million each — or $29 million — for pain and suffering, loss of life’s pleasures, embarrassment and disfigurement. In a post-trial ruling, Younge granted a defense motion for remittitur and cut every aspect of the jury’s award in half, leaving Tuski with an award of $25.34 million in compensatory damages and $12.5 million in punitive damages. On appeal, lawyers for the tavern argued it should not have been held liable under the Dram Shop Act for the conduct of an employee who was off-duty when he served himself liquor at a time when the bar was closed to the public. The Superior Court disagreed, saying “we recognize that the statute … does not directly speak to the situation here where a manager of a bar serves himself liquor during hours when the bar is closed for business. However, we find the broad terms of the act do not insulate a licensee from the results of such conduct where an employee serves himself liquor at a time when he is visibly intoxicated.” Although Ivyland Caf� insisted it had a corporate policy that prohibited employees from serving themselves liquor, the appeals panel noted that Petaccio had a key to the bar and “admitted that for many years he would serve himself both food and liquor.” As a result, the panel concluded the bar had effectively vitiated its stated policy by continuing to grant Petaccio free access despite violating the policy. Petaccio pleaded guilty in Bucks County, Pa., to a drunken driving charge in September 2001, but testified in the civil trial that his guilty plea was motivated by a desire to avoid jail time, and that he was not drunk at the time of the accident. Although his blood-alcohol level was high at the time of his arrest, Petaccio said prior to the accident he had consumed just 1 1/2 bottles of beer at the Ivyland Caf�, and that he had several drinks after the accident. On cross-examination, Mongeluzzi challenged Petaccio’s version, and argued to the jury that the evidence showed he must have drunk much more while at the bar. Mongeluzzi told the jury that Petaccio’s car was found later with a broken windshield and with empty beer containers in the front seat. Petaccio’s girlfriend testified in her deposition that Petaccio was a daily drinker and often drank to excess. She also said she tried to warn his family before the accident. According to court papers, on Jan. 17, 2001, Tuski was working as a flagman for Liberty Construction at a road-paving project in Warminster, Pa. One lane of the road was closed to traffic, and Tuski and another flagman were directing traffic. At the time of the accident, Tuski had several cars stopped in order to allow the oncoming traffic to proceed. Mongeluzzi told the jury that Petaccio passed the stopped cars on the shoulder and struck Tuski at more than 40 miles per hour, throwing him more than 108 feet and causing injuries that left him paralyzed from the neck down. After the accident, according to court papers, Petaccio fled the scene and drove to his nearby home where he smashed into pillars near his driveway. Mongeluzzi said Petaccio then persuaded his girlfriend to take him to his mother’s house in Philadelphia. When they discovered that his mother was not at home, they went to the home of Petaccio’s sister, who immediately called the police and informed them that her brother “was drunk and had been in an accident.” Police arrested Petaccio several hours after the accident and noted that he appeared intoxicated, Mongeluzzi said in court papers. But Petaccio at first denied drinking any alcohol in the six hours before his arrest and refused to submit to a blood test, Mongeluzzi said. After police obtained a search warrant, Petaccio’s blood was tested about 8 p.m. It showed a blood-alcohol level of 0.12 percent and a urine-alcohol level of 0.17 percent. At trial, Mongeluzzi and his co-counsel, Michael J. Hopkins, set out to prove that Petaccio was excessively drunk at the time of the accident. Charles Winek, a toxicologist who testified for the plaintiff, estimated that Petaccio’s blood-alcohol level at the time of the accident was at least 0.24 percent and possibly as high as 0.27 percent. In the appeal, lawyers for Ivyland Caf� argued the bar should not have been held liable because the Dram Shop Act requires proof that an employee of the bar gave liquor to someone who was “visibly intoxicated.” Since Petaccio served himself, the defense team argued, the plaintiff’s theory failed because the statute cannot be interpreted to impose liability where the liquor is served and consumed by the same individual. The defense team also argued that Petaccio himself could not observe whether he was “visibly intoxicated” and that the plaintiff had failed to present sufficient evidence that Petaccio was already visibly intoxicated while he was at the bar. The law, the defense team said, requires the presence of at least two people — the drinker and an observer. The Superior Court rejected all of those arguments, saying “there was sufficient circumstantial evidence to permit the jury to conclude that Petaccio was visibly intoxicated when he served himself liquor at the Ivyland Caf�.” And as for Petaccio’s claim that he had consumed just 1 1/2 beers prior to the accident, the appellate panel found that his testimony “was apparently not accepted by the jury.” The defense team also argued that Younge erred by allowing the jury to hear extensive evidence of Petaccio’s drinking habits and about another car accident he had just days before hitting Tuski. But the appellate panel concluded that Younge was correct in allowing the testimony because it was critical to understanding the expert witness’s testimony about blood-alcohol content and the fact that the rate of dissipation varies depending on whether a person is a moderate or “chronic” drinker. “Evidence of Petaccio’s drinking history allowed the jury to make an informed judgment of whether his blood-alcohol content at the time of the accident was as high as 0.40 percent based on the dissipation rate of a chronic alcoholic,” the panel said. The panel also found that such evidence was relevant to establishing punitive damages against both the bar and Petaccio “because it demonstrated both parties knowledge of Petaccio’s drinking habits.” In the final section of the opinion, the panel rejected Mongeluzzi’s argument that the jury’s award should not have been cut in half. The panel found that Younge was in the best position to rule on the defense request for remittitur and that “we are not free to substitute our judgment for that of the trial judge.” In an interview, Mongeluzzi said Ivyland Caf� had a $1 million insurance policy, but that the insurer had refused to offer the policy limit to settle the case. As a result, Mongeluzzi said, Ivyland Caf� has a valid bad faith claim to recover the excess verdict and that he expects the bar to assign its rights to that claim to Tuski. Neither of the bar’s appellate lawyers, Mark Aronchick and Barry L. Refsin of Hangley Aronchick Segal & Pudlin, could be reached for comment Monday. (At trial, the bar was represented by attorney John F.X. Monaghan Jr. of Monaghan Ferrante & Fortin.)

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