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RACHMIL & ITKA ZYGMUNTOWICZ v. HOSPITALITY INVS.

June 28, 1993

RACHMIL and ITKA ZYGMUNTOWICZ Co-Administrators of the Estate of MICHAEL ZYGMUNTOWICZ, Deceased
v.
HOSPITALITY INVESTMENTS, INC., Individually and trading as POLO BAY and TOUCHE and HOSPITALITY INVESTMENTS OF MARGATE, INC., Trading as POLO BAY and L.B.O.W. CORPORATION



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 JOYNER, J.

 I. INTRODUCTION

 The Plaintiffs, Rachmil and Itka Zygmuntowicz, Co-Administrators of Michael Zygmuntowicz' estate, initiated this wrongful death action against Hospitality Investments of Margate, Inc., and its parent company, Hospitality Investments, Inc., under 42 Pa.C.S.A. § 8301. The Plaintiffs allege that pursuant to Pennsylvania Dram Shop laws, 42 Pa.C.S. 4-493, the Defendants served alcoholic beverages to Michael while he was visibly intoxicated and that it was this conduct that proximately caused his death.

 Before the Court is the Defendant's motion for summary judgment. The Defendant contends that New Jersey Dram Shop laws, rather than Pennsylvania's Dram Shop laws, should govern and that the present facts warrant the entry of summary judgment in favor of the defendant.

 II. BACKGROUND

 When viewing the evidence in the light most favorable to the plaintiff, the facts appear to be as follows. Michael and three friends, all Pennsylvania residents, drove down to the New Jersey shore for an evening on May 25, 1990. Once there, the four attended a "free drink" promotion offered at the Polo Bay Margate Nightclub, a club they had frequented often in the past.

 Within an hour and a half of arriving at the club, Michael drank approximately four beers, four shots of an unknown liquor and 6-7 mixed vodka drinks. Predictably, Michael became increasingly clumsy and raucous. At one point, he slammed a drink on the bar, spilling it and drawing the bartender's attention. The bartender asked an accompanying friend if he could control Michael. The friend replied that Michael was drunk. Nevertheless, that same bartender later served Michael one or two more alcoholic drinks. Later on that evening, Michael vomited on the beach and required assistance to walk. Shortly after midnight, the four left to return to Philadelphia. Michael slept for a majority of the trip waking only to vomit a second time. Upon arriving at Philadel-phia, Michael's friends questioned his ability to drive and unsuccessfully attempted to prevent him from driving home. Approximately ten miles later, Michael wrecked his car doing 111 mile per hour. His blood alcohol level at the time of death was .11%.

 III. DISCUSSION

 Before we can broach the Defendant's motion for summary judgment, we must first decide whether Pennsylvania or New Jersey law shall govern.

 A. Choice of Law

 In a diversity action, this Court applies Pennsyl-vania's choice of law rules. Tiernan v. Devoe, 923 F.2d 1024, 1033 (3d Cir. 1991) citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 . Therefore, we must first examine the policies and governmental interests underlying the competing laws in order to determine whether a "false conflict" exists. Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir. 1991). A false conflict exists where only one jurisdiction's interests would be impaired by applying the competing jurisdiction's law. Id.1 In such a case, we must apply the state's law whose interests would be hampered if its law were not applied. Id.

 We find that after comparing the competing dram shop laws, Pennsylvania's law favors finding liability and is better able to achieve both states' policies and interests. Additionally, the Defendant specifically targeted the Pennsylvania market and should, therefore, have expected and planned for possible suits under Pennsylvania law. Therefore, we must conclude that Pennsylvania's law governs in this case.

 Both Pennsylvania and New Jersey dram shop laws are similar in that both would find liability for the negligent service of alcohol. Pennsylvania's law is based upon the common-law principle that any violation of the statute constitutes negligence per se. Majors v. Brodhead Hotel, ...


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