No. 00553 Philadelphia 1983, APPEAL FROM THE ORDER ENTERED JANUARY 31, 1983 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, CIVIL NO. 81-08018
Marshall A. Bernstein, Philadelphia, for appellant.
Phillip B. Silverman, Philadelphia, for appellee.
Cirillo, Beck and Cercone, JJ. Beck, J., files a concurring opinion.
[ 338 Pa. Super. Page 329]
The present appeal comes from the grant of a motion for summary judgment. There is only one issue: whether a Pennsylvania Liquor Control Board licensee (appellee Friel's Beverages, Inc.) is liable to a third party (appellant Mancuso) for injuries caused by a minor drunken driver who was given illegally purchased beer. We hold that under the facts of this case and without a showing that the purchaser was visibly intoxicated at the time of sale, no liability can be attributed to the licensee. We therefore affirm the order of the Court of Common Pleas granting summary judgment for the appellee.
The facts of this case were stipulated for purposes of the summary judgment motion. They are as follows.
[ 338 Pa. Super. Page 330]
For the purpose of this Motion, William Magee (date of birth: August 2, 1961) purchased a case of beer from the defendant, Friel's Beverages, Inc., on March 6, 1981. Thereafter, approximately two six packs of beer purchased from the defendant, Friel's Beverages, Inc. were consumed by the defendant, Richard Bradshaw (date of birth: September 16, 1961).
On March 6, 1981, at approximately 9:45 P.M. the defendant, Richard Bradshaw was operating a motor vehicle that was involved in an accident with another motor vehicle operated by the plaintiff, Christina Mancuso. Defendant, Richard Bradshaw was intoxicated and unfit to operate a motor vehicle at the time of the accident in question which caused the injuries sustained by the plaintiff. A breathalyzer test was administered to defendant, Richard Bradshaw, following the accident and revealed a blood alcohol level of .20.
The complaint against the defendant, Friel's Beverages, Inc., avers that said defendant sold alcohol beverages to a minor and that the sale of these beverages was the proximate cause of the accident. There is no proof that William Magee was visibly intoxicated at all times material to this cause of action.
The Act of May 8, 1854 made it a misdemeanor to furnish intoxicating drinks to "any person of known intemperate habits, to a minor, or to an insane person . . . [or] to any person when drunk or intoxicated."*fn1 The Act also specifically provided a civil remedy for injuries to persons or property as a result of the furnishing of alcoholic beverages
[ 338 Pa. Super. Page 331]
in violation of "any existing law."*fn2 That Act was repealed in 1951 and replaced with our modern Liquor Code. See 47 P.S. §§ 1-101 through 9-902. The Liquor Code incorporated the misdemeanor provision of § 1 of the former Act*fn3 but did not adopt the civil liability provision of § 3 of that Act. The elimination of a civil liability statute did not however, ...