No. 01782 Philadelphia 1983, No. 01783 Philadelphia 1983, APPEAL FROM THE ORDERS ENTERED JUNE 7, 1983 AND JUNE 8, 1983 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, CIVIL NO. 81-14192 OF 1981
Joseph F. Van Horn, Jr., Philadelphia, for appellant.
James M. Marsh, Philadelphia, for J-B, appellee.
Margaret T. Murphy McKeown, Broomall, for Berkowitz, appellee.
Cirillo, Olszewski and Montgomery, JJ.
[ 338 Pa. Super. Page 505]
Appellant, John Konieczny, appeals from the trial court's order granting appellees', J-B Beverage Distributors, Inc. and Paul and Gloria Berkowitz, motions for summary judgment. We affirm.
On December 8, 1979, Matthew Capriotti, a minor, purchased a case of beer from J-B Beverage Distributors, Inc. (J-B), of which Paul and Gloria Berkowitz were owners and employees. At Capriotti's deposition, he testified that he alone purchased the beer, and that he had taken no medication, narcotics, or intoxicants prior to the purchase. James Matthews, another minor, waited in the car outside J-B while Capriotti obtained the beer.
Following the purchase, Matthews and Capriotti picked up appellant and proceeded to drive around while all consumed the beer. At appellant's deposition, he testified that he drank approximately five or six beers before he began to
[ 338 Pa. Super. Page 506]
drive the automobile. Five or ten minutes after he started driving, the automobile struck a tree. Matthews was fatally injured as a result of the collision.
The administrators of the estate of James Matthews initiated an action against appellant, J-B and the Berkowitzes. It was alleged, inter alia, that: (1) appellant's negligence in driving the automobile was the cause of the injuries resulting in Matthews's death; and (2) J-B and the Berkowitzes negligently failed to determine the age of the purchaser of the beer, violated a statute of the Commonwealth of Pennsylvania,*fn1 and failed to exercise due care under the circumstances.
In his answer and new matter, Konieczny filed cross-claims against J-B and the Berkowitzes. No additional facts were alleged; however, those portions of plaintiff's complaint which pertained to J-B and the Berkowitzes were incorporated by reference into the cross-claims. Thereafter, J-B and the Berkowitzes moved for summary judgment against the plaintiff and against appellant on his cross-claims. All motions were granted ...