and were an all-pervasive affirmative demand for more student rights. * * * These movements, taking place simultaneously with legislation and case law lowering the age of majority, produced fundamental changes in our society. * * * Regulation by the college of student life on and off campus has become limited. Adult students now demand and receive expanded rights of privacy in the college life. . . . College administrators no longer control the broad arena of general morals. * * * But today students vigorously claim the right to define and regulate their own lives.
* * *
Thus, for purposes of examining fundamental relationships that underlie tort liability, the competing interest of the student and of the institution of higher learning are much different today than they were in the past. The change has occurred because society considers the modern college student an adult, not a child of tender years. * * * The circumstances show that the students have reached the age of majority and are capable of protecting their own self interests. . . .
Bradshaw, 612 F.2d at 138-40 (footnotes omitted).
The Pennsylvania Superior court has addressed, and rejected, an argument strikingly similar to the current plaintiff's argument. In Millard v. Thiel College, No. 1075/1991 (Pittsburgh), 611 A.2d 715, 1992 Pa. Super. Lexis 1600 (June 17, 1992), decedent was an eighteen year old freshman at Thiel College who, after consuming some beer at a fraternity during the afternoon before a registered party, was killed when the motorcycle he was driving was hit head on by another motorist. Appellant Millard argued, inter alia, "the school aided and assisted the decedent in his consumption of alcohol by its policies and actions. * * * Although Thiel College had a longstanding alcohol policy, which policy gave rise to duty to control alcohol on its campus,  infractions of it received little or no discipline." Thiel College, 611 A.2d 715, 1992 Pa. Super. Lexis 1600 at 5-6.
The alcohol policy addressed therein was similar to Lehigh's Social Policy in the respect that both place responsibility upon the students, particularly the function's host. "It is clear that the college also accorded certain amounts of responsibility to college students as intelligent, responsible members of society. The host of the function is charged with ensuring that the laws of the commonwealth of Pennsylvania are complied with." Id. at 8. (footnote omitted) This was despite the fact that the college assumed certain specific responsibilities, such as checking invitation lists and attendance numbers, and making periodic inspections. Id.
Appellant also argued, as does plaintiff, that the college had a special duty to control its students by implementing an alcohol policy "and undertaking to enforce it." Id. at 16. The Superior Court held that under Alumni Association, a college was under no such obligation. The Superior Court concluded that
A college may not "control" the behavior of its students as may have been possible in the past. The fact that an alcohol policy was implemented to give the college the ability to allow alcoholic beverages to those who were of legal drinking age does not give rise to a special duty to control the actions of those students who are determined to acquire intoxicating beverages, even though they are underage.
Id. at 17-18.
As a federal district court, we are bound by the rulings from the United States Court of Appeals for the Third Circuit Court, even on matters of state law, unless or until the state's highest court has ruled. Although Alumni Association is such a later ruling from the state's highest court, we briefly discuss applicable Third Circuit cases. Subsequent to the decision in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (Pa. 1983), regarding social host liability towards minors, the Third Circuit, faced with issues similar to those now before us, had to speculate about the direction Pennsylvania courts would take. The cases of Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3d Cir. 1986) and MacCleary v. Hines, 817 F.2d 1081 (3d Cir. 1987), though arguably more expansive than the Pennsylvania Supreme Court's pronouncement in Congini, do not direct us to a different result since the Pennsylvania Supreme Court's decision in Alumni Association found the Third Circuit's interpretation to be consistent with Pennsylvania law.
In Alumni Association, the Pennsylvania Supreme Court wrote
We believe that [the Third Circuit's] interpretation does not offend our case law but merely restates our position that a social host must have "knowingly furnished" alcoholic beverages to a minor. * * * In both cases the Third Circuit held as potential social hosts individuals who had participated in the planning and the funding of social events where alcohol was consumed by minors. In each instance the social host was aware of the degree of consumption by the minors. [citation omitted] The Third Circuit correctly determined in both instances that we would not restrict the application of the social host theory to solely those instances where the defendant was alleged to have physically handed an alcoholic beverage to a minor.
Alumni Association, 572 A.2d at 1212-1213 (emphasis in original). The Pennsylvania Supreme Court declined to adopt a "known or should have known" standard since it would result in imposing a duty in loco parentis upon colleges. Id. The Pennsylvania Supreme Court found that the University was not involved in planning the party, or serving, supplying, or purchasing alcohol and thus its conduct was not sufficient to find liability. To have held otherwise, would have been to impose an in loco parentis duty upon the university. Id. at 1213.
In the instant matter, we too, cannot find that Lehigh acted in a manner consistent with imposing social host liability, i.e., Lehigh did not knowingly furnish alcohol, or knowingly aid or assist plaintiff's consumption of alcohol. Morover, taken one step further as plaintiff argues it should be, even if Lehigh knowingly failed to prevent alcohol consumption, we could not, nor would we, find a duty in loco parentis. If we were to hold that the Social Policy created a duty to prevent Lehigh students from engaging in underage drinking, we would be finding that Lehigh was potentially liable in loco parentis,7 despite clear decisions from the Pennsylvania Supreme Court that such cannot form the basis for imposing liability upon a college.
We do conclude, however, that Lehigh assumed no such duty as plaintiff construes it. The Social Policy is just that, a policy by which Lehigh hoped all members of its community would abide. By its very terms, responsibility for compliance with it and with state law at social functions falls upon a function's hosts. Plaintiff's assertion that "the University created a system of enforcement of these parties. They took the system away from the fraternity itself and rather set up a University enforcement procedure and then failed to enforce their own rules", (Brief in opposition at 12), is not supported by the record and goes far beyond the established facts. The Social Policy and the registration forms explicitly state, inter alia, that registration of a party does not constitute Lehigh University's approval of the party, and that the host is responsible for complying with applicable laws.
As to plaintiff's second argument, that Lehigh is liable under the Restatement § 318, and as the fraternities' landlord had a duty to exercise its ability to control the fraternities to prevent harm to plaintiff, we conclude that no potential liability could be imposed on Lehigh. Thiel College, 611 A.2d 715, 1992 Pa. Super. Lexis 1600 at 15-16.
Contrary to plaintiff's argument, the facts clearly show that Lehigh did not plan or control the parties; it did not approve the parties; Lehigh did not supply any of the alcohol or even remotely assist in plaintiff's underage drinking binge. Alumni Association, 572 A.2d at 1213. In short, Lehigh was not a social host for the parties in question. Even if we assume that Lehigh was aware that plaintiff was drinking alcohol by virtue of its understanding that underage drinking was common on college campuses, including its own, Pennsylvania imposes no duty upon its colleges to supervise private social functions on their campuses to ensure that no underage drinking occurs. C.f., Alumni Association, 572 A.2d at 1211. To require Lehigh to supervise its thousands of students would render null and void the freedoms won by adult students and place Lehigh in loco parentis. The Social Policy was not an assumption of such a duty but rather a policy statement that supposedly responsible adult students should be aware of their own behavior. As noted above, Lehigh's position, and rightly so, was to assume that the adult students were responsible enough to make their own decisions. Lehigh, being detached from the events in question, is not responsible for the indiscretions and poor judgment of one of its underage adult students.
ORDER - August 3, 1992, Filed
AND NOW, this 29th day of July, 1992, upon consideration of the Motion of Defendant Lehigh University for Summary Judgment (Doc. #24) and the response thereto, IT IS ORDERED that the motion is GRANTED and summary judgment is entered in favor of Defendant Lehigh University, only, and against Plaintiff.
E. Mac Troutman