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JAMES J. MATTHEWS v. JOHN KONIECZNY AND J-B BEVERAGE DISTRIBUTOR (06/02/87)

decided: June 2, 1987.

JAMES J. MATTHEWS, JR., AND ISABELLE R. MATTHEWS, ADMINISTRATOR OF THE ESTATE OF JAMES THOMAS MATTHEWS, DECEASED,
v.
JOHN KONIECZNY AND J-B BEVERAGE DISTRIBUTOR, INC. AND PAUL AND GLORIA BERKOWITZ. APPEAL OF JOHN KONIECZNY. CHRISTINA MANCUSO, A MINOR BY HER PARENT AND NATURAL GUARDIAN, LOUISE SMITH, INDIVIDUALLY AND IN HER OWN RIGHT, APPELLANTS, V. RICHARD DENNIS BRADSHAW, AND GARY D. FORD, AND DAVIS FORD, AND FRIELS, INC., D/B/A FRIEL'S BEVERAGE, APPELLEES



Appeal from the Orders of the Superior Court at Nos. 1782 and 1783 Philadelphia 1983, dated January 25, 1985, affirming the Order of the Court of Common Pleas of Delaware County, at No. 81-14192 dated October 4, 1983. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., files a concurring opinion. Nix, C.j., and Zappala, J., file dissenting opinions.

Author: Mcdermott

[ 515 Pa. Page 109]

OPINION

Though arising from unique factual circumstances these matters were consolidated because of the common issues they raise. The basic issue is whether a commercial licensee of alcoholic beverages can be liable to a person injured as a result of service of alcohol to a minor. A corollary issue is whether a statutory immunity is effective when the sale of alcohol was to a minor. Both matters are here by grant of allocatur from the Superior Court's affirmance of summary judgments entered by the Court of Common Pleas of Delaware County.

The facts and procedural history of the respective cases are as follows.

No. 120 E.D. Appeal Docket 1985

On December 8, 1979, Matthew Capriotti, then seventeen years old, purchased a case of beer from appellee, J-B Beverage Distributors, Inc. He was able to purchase the beer without being asked for verification as to his age. At the time of the purchase Capriotti was not intoxicated or under the influence of drugs.

While Mr. Capriotti purchased the beer another minor, James J. Matthews, Jr., waited in a car outside of the distributorship. Mr. Matthews never entered the store and was never seen by the owners of the store.*fn1 However, Matthews along with a third minor, John Konieczny, had contributed the money for the purchase of the beer.

After Capriotti returned to the car with the beer he and Matthews drove to Konieczny's house to pick him up. The three minors, along with three additional youths, then proceeded to drive around and drink the beer. At some point during their foray John Konieczny elected to be the driver. At that time Konieczny had already consumed five or six sixteen ounce beers. Shortly after he began driving, Konieczny

[ 515 Pa. Page 110]

    lost control of the car and struck a tree. Unfortunately, James J. Matthews, Jr., died as a result.

The administrators of the estate of James Matthews, Jr., initiated an action in trespass against John Konieczny, J-B Distributors, Inc., as well as Paul and Gloria Berkowitz. The claim against Konieczny was based on his alleged negligence in driving the car; the claims against J-B Distributors and the Berkowitzes were based upon their alleged failure to determine the age of the purchaser, and in selling alcohol to a minor. Accompanying his answer Konieczny filed cross-claims against J-B Distributors and the Berkowitzes, repeating the allegations made in the Matthews complaint.

J-B Distributors, and Mr. and Mrs. Berkowitz eventually filed motions for summary judgment against plaintiff Matthews and Konieczny. As noted above these motions were granted and that decision was affirmed by the Superior Court.

No. 121 E.D. Appeal Docket 1985

William McGee (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 (2) six-packs of the beer purchased from the defendant, Friel's Beverages, Inc., were consumed by the defendant, Richard Bradshaw (date of birth: September 16, 1962).

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 alcoholic beverages to a

[ 515 Pa. Page 111]

    minor and that the sale of these beverages was the proximate cause of the accident. There is no proof that William McGee was visibly intoxicated at all times material to this cause of action.*fn2

Christina Mancuso and Louise Smith, individually and in her capacity as parent and guardian, initiated an action in trespass against Richard Dennis Bradshaw, Gary D. Ford, and Doris Ford and Friel's, Inc. The claim against Bradshaw was based on his alleged negligence in driving the car; the claim against the Fords was based on their alleged negligence in permitting Ford to operate their car while intoxicated; and the claim against Friel's Beverages, was based upon failure to determine the age of the purchaser, and in selling alcohol to a minor.

Defendant, Friel's Beverages, filed a motion for summary judgment against plaintiffs. As in the Konieczny matter this motion was granted, and that decision was affirmed by the Superior Court. 338 Pa. Super. 328, 487 A.2d 990.

The threshold issue in these cases is whether a commercial licensee of alcoholic beverages can be held liable for damages caused by the service of alcohol to a minor.

In Congini v. Portersville, 504 Pa. 157, 470 A.2d 515 (1983), this Court held that a social host who serves alcohol to a minor "can be held liable for injuries proximately resulting from the minor's intoxication." Id., 504 Pa. at 163, 470 A.2d at 518. In the case of Orner v. Mallick, 515 Pa. 132, 527 A.2d 521 (1986), which we have decided this day, we reaffirmed our decision in Congini, and held that "the service of any alcohol to a minor" constitutes a breach of duty. Thus, we have already indicated that serving alcoholic beverages to a minor can form the basis of a finding of liability.

Appellees, however, seek to distinguish Congini, in that the present cases involve liquor licensees as opposed to a social host; and that the injured parties were not the persons to whom the beverages were served, as was the

[ 515 Pa. Page 112]

    case in Congini. These proposed distinctions are not compelling and they ignore the underlying rationale of our decision.

Firstly, the fact that Congini, involved a non-licensee while the present cases involve licensees is of little consequence. The Congini decision was grounded upon the per se negligence involved in an adult dispensing alcohol to a minor in violation of the Crimes Code. Since the Code's provisions apply with equal force to licensees as well as non-licensees, the rationale of Congini is equally applicable here. To hold otherwise would be to condone the anomalous situation whereby persons who sell alcohol are held to a lesser standard of care than the public at large. Such a situation can not be permitted, especially since those who sell alcoholic beverages can always protect themselves from liability by simply verifying the age of their customers.*fn3

As to appellees' second proposed distinction, there is nothing in Congini which implies that we intended the liability of a person who serves a minor to be limited to the person served. Indeed such an interpretation contradicts the obvious rationale of the General Assembly in prohibiting the service of alcohol to minors, i.e., "to protect both minors and the public at large from the perceived deleterious effects of serving alcohol to persons under twenty-one years of age." Congini, id., 504 Pa. at 163, 470 A.2d at 518 (emphasis supplied).

Thus, although the facts in Congini did not implicate a third party, the rationale expressed therein would definitely

[ 515 Pa. Page 113]

    permit a third party suit brought by one injured as a result of service to a minor.

Appellees also argue that because the ultimate actors in these accidents, i.e., John Konieczny and Richard Bradshaw, were not known to them at the time of the sale, that they owed no duty to them, and therefore no negligence action can lie. We cannot accept this argument.

The requisite elements of a negligence action are well recognized. They are:

     a duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct; a failure to conform to the standard required; a causal connection between the conduct and the resulting injury; and the actual loss or damage resulting to the interest of another.

Morena v. South Hills Health System, 501 Pa. 634, 642 fn. 5, 462 A.2d 680, 684 fn. 5 (1983) (citations omitted).

As was made clear in Congini, the duty of adults engaged in serving alcoholic beverages extends beyond the minor to whom the liquor was served; it also encompasses those who may be affected by the illegal service. Although the chain of events leading up to the damage inflicted is certainly relevant on the issue of causation, that is a separate issue from whether appellees' actions constituted negligence; for it is the service of a minor in violation of the statutorily dictated duty which forms the basis of a finding of negligence.*fn4 Accord, Orner v. Mallick, supra.

Thus, we conclude that as a matter of common law a commercial licensee of alcoholic beverages can be held liable to a third person for damages proximately caused by the service of alcohol to a minor.*fn5 We emphasize, however,

[ 515 Pa. Page 114]

    that such liability is not absolute and/or irrebuttable; and, as we explained in Congini, the defendants in a suit such as this can, where applicable, attempt to establish the comparative negligence of the actor(s) involved. Congini, 504 Pa. at 163, 470 A.2d at 518.

Our inquiry is not, however, at an end, for appellees contend that regardless of whether a common law cause of action exists the General Assembly has granted them an immunity from third party suits in all cases where the party served was not visibly intoxicated. This argument was accepted by the Superior Court.*fn6 We, however, reject it.

The immunity which appellees seek to proffer is contained in section 4-497 of the Liquor Code.*fn7 It provides:

No licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by the said licensee or his agent, servant or employe (sic) when the said customer was visibly intoxicated.

47 P.S. ยง 4-497.

In instances where the terms of a statute are in issue we are assisted in our analysis by the Statutory Construction Act of 1972.*fn8 Section 1903(a) of that Act provides:

(a) Words and phrases shall be construed according to rules of grammar and ...


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