Appeal from the Order of the Court of Common Pleas of Philadelphia County, in case of Richard Allen Reber v. Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board and George Geaneotes, No. 2565 November Term, 1982.
Alan M. Feldman, with him, John J. McCarty, Raynes, McCarty, Binder, Ross & Mundy, for appellant.
Gary Stewart Selfin, Deputy Attorney General, with him, Theodore J. Chylack and Andrew S. Gordon, Deputy Attorneys General, and LeRoy S. Zimmerman, Attorney General, for appellees.
Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig.
[ 101 Pa. Commw. Page 399]
Richard Allen Reber appeals from an order of the Court of Common Pleas of Philadelphia County granting the defendant's motion for summary judgment in a civil action against the Pennsylvania Liquor Control Board (LCB). We vacate the order of the court and remand for a trial on the merits of Mr. Reber's negligence claim.
According to the pleadings, on August 16, 1982, Mr. Reber, who was then seventeen years old, asked Mr. Geaneotes, who was also seventeen years old, to purchase liquor from a state liquor store and gave him money to do so. The store employees did not question Mr. Geaneotes' age and sold him a fifth of liquor. Upon his return, Mr. Geaneotes and Mr. Reber drank the entire bottle of liquor that afternoon. Mr. Reber then mounted his motorcycle and drove to a friend's house. While en route, Mr. Reber became unconscious because of his intoxication and consequently lost control of his motorcycle. He was seriously and permanently injured.
Mr. Reber sued the LCB to recover damages based on the LCB's alleged liability for negligent sale of liquor to Mr. Geaneotes. The LCB moved for summary judgment claiming that, even if the allegations are true, no cause of action exists. The Court of Common Pleas of Philadelphia County agreed and granted the motion for summary judgment.
Of course, the granting of summary judgment is proper only when the case is free from doubt. The moving party must establish that there is no genuine issue
[ 101 Pa. Commw. Page 400]
of material fact and that it is entitled to judgment as a matter of law. Pennsylvania Funeral Directors Association v. State Board of Funeral Directors, 90 Pa. Commonwealth Ct. 175, 494 A.2d 67 (1985). Our scope of review, therefore, is to determine whether Mr. Reber's complaint contains averments which, when accepted as true, create a cause of action upon which relief could be granted.
Mr. Reber argues that the LCB is not entitled to summary judgment because he has two causes of action against the LCB: (1) an action based directly on a violation of section 493(1) of the Liquor Code,*fn1 47 P.S. § 4-493(1); and (2) an action in negligence. We may dismiss the first cause of action by noting that, although section 493(1), as a penal provision subjecting persons to a penalty, prohibits the board from selling liquor to minors, the Liquor Code does not thereby grant an explicit statutory civil remedy to injured members of the public.
However, Mr. Reber's alternative cause of action presents the general issue of this case: May a plaintiff plead a cause of action in negligence against the LCB for illegally selling liquor to a minor who, in turn, provides that liquor to the minor ...