Jefferis v. Commonwealth

537 A.2d 355, 371 Pa. Super. 12, 1988 Pa. Super. LEXIS 241

Opinions

HOFFMAN,

* Judge:

This is an appeal from the order of the lower court granting appellee’s, the National Chapter of Theta Chi Fraternity, motion for summary judgment. The appellant contends that the lower court erred in granting summary judgment because appellee was not entitled to judgment as a matter of law.¹ We agree, and, accordingly, reverse the order of the lower court and remand the case for proceedings consistent with this opinion.

Appellant, a minor, was injured after consuming liquor at a party hosted by a local chapter of Theta Chi Fraternity. Appellant filed an action in tort arguing that under the social host liability recognized in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), the fraternity as one entity was negligent per se for furnishing alcoholic beverages to a minor. Appellee, the national fraternity, filed a motion for summary judgment arguing that it did not exert sufficient control over the local chapter to be held liable as a matter of law. Ruling on other grounds, the trial court granted the motion. This appeal followed.

Appellant contends that the trial court erred in granting summary judgment in favor of appellees. We agree. In determining whether to grant a motion for summary judgment, a trial court must decide whether, under the facts averred, there is any genuine issue of material fact in the absence of which the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b). See also Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 573, 79 A.2d 262, 263 (1951). Because the effect of a summary judgment is to put one party out of court, it should be granted only in the clearest of cases. Mscisz v. Russell, 338 Pa.Superior Ct. 38, 41, 487 A.2d 839, 841 (1984). On review, we must examine the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of summary judgment. Harris by Harris v. Easton Publishing Co., 335 Pa.Superior Ct. 141, 152, 483 A.2d 1377, 1383 (1984).

Here, the trial court found, without articulating its reasons, that appellee could not be held liable as a matter of law. Lower Court Order, June 19, 1986. In its opinion, filed pursuant to Pa.R.A.P. 1925(a), the trial court referred us to its June 19th order, and, in support of that order, cited as precedent the then-recently announced federal case Fassett v. Poch, 625 F.Supp. 324 (E.D.Pa.1985). In Fassett, the district court interpreted our Commonwealth’s social host liability law to preclude recovery from any defendant who did not actually and physically serve alcohol to a minor. Id. at 336.² Because the trial court offered no basis for its opinion other than merely citing Fassett, we can only surmise that it granted summary judgment in favor of appellee under the reasoning used in that case.³ We disagree with the Fassett court’s interpretation of Pennsylvania’s social host liability law, and, accordingly, hold that the trial court erred in relying upon it as the basis for its ruling.⁴

It is the duty of the courts of Pennsylvania to interpret the laws of the Commonwealth. Our Supreme Court first addressed the issue of social host liability in the companion cases of Congini v. Portersville Valve Co., supra and Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983).⁵ Klein concerned plaintiffs injured in an automobile accident by a drunken adult driver. In addition to suing the driver for damages, the plaintiffs also sued the social hosts who had served the driver intoxicating beverages. Our Supreme Court concluded that it would not impose liability in a social host situation when an adult had been served alcohol. Id., 504 Pa. at 148, 470 A.2d at 516.

In Congini, however, the intoxicated driver who had been served by the social host was a minor. Congini v. Portersville Valve Co., supra 504 Pa. at 160, 470 A.2d at 516. The Congini court reasoned that liability may be found in social host situations involving minors because the legislature has “[M]ade a judgment that persons under twenty-one years of age are incompetent to handle alcohol.” Id., 504 Pa. at 161, 470 A.2d at 517 (citing 18 Pa.C.S.A. § 6308). This, the Court held, distinguished the case from the adult intoxicated driver situation in Klein. The Court further noted that a person may be criminally liable as an accomplice for furnishing a minor with alcohol, id. (citing 18 Pa.C.S.A. § 306), and that civil liability may be premised upon the requirements of a legislative enactment designed to protect a similar class of interests or individuals. Id. (citing Restatement (Second) Torts § 286 (1977)). The Court concluded that as the legislature had imposed a measure of criminal accomplice liability upon a person who furnishes a minor alcohol, the same principle would be imposed in civil situations. Id. The Court then held that social hosts who furnish a minor with alcohol were potentially liable for damages resulting from that minor’s intoxication. Id., 504 Pa. at 162, 470 A.2d at 518. While recognizing the existence of such liability, however, the Court did not determine the scope of liability for social hosts. That, therefore, is our task in this case.

As the basis of social host liability in Congini was premised upon the criminal accomplice statute, we must look to that statute to begin to define the limits of civil liability. The accomplice statute, in pertinent part, reads:

A person is an accomplice of another in the commission of an offense if:

(1) with the intent of promoting or facilitating the commission of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such person in planning or committing it____

18 Pa.C.S.A. § 306(c). The statute, therefore, mandates that in order to impose criminal liability upon a defendant under an accomplice theory, the Commonwealth must prove that the defendant both intended to act to promote or facilitate the commission of an offense, and that he or she did in fact act to promote or facilitate the offense. See Commonwealth v. Scoggins, 451 Pa. 472, 480, 304 A.2d 102, 107 (1973); Commonwealth v. Jones, 213 Pa.Superior Ct. 504, 508, 247 A.2d 624, 626 (1968). For example, mere presence at the scene of the crime will not establish accomplice liability. Commonwealth v. Smith, 490 Pa. 374, 377, 416 A.2d 517, 518 (1980). In our situation, the prohibited act is the consumption of alcohol by a minor. Accomplice liability attaches to those actors who furnish the alcohol to the minor, or promote that end. See Congini v. Portersville Valve Co., supra 504 Pa. at 161, 470 A.2d at 517.

Our analysis of the limits of liability in a social host situation involving a minor does not, however, end with our review of the pertinent criminal accomplice statute. Because the liability here is civil in nature, in order to make an accurate transition from criminal liability we must look to similar civil concepts involving liability in tort in situations where a person acts in concert with another. Section 876 of the Restatement (Second) Torts reads:

For harm resulting from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

Id.

Both the criminal accomplice statute and the Restatement require an intent to act and an act. The Restatement, however, adds the further element that the act must have been a substantial factor in assisting in the commission of the tort. Factors relevant to determining whether the defendant’s act was a substantial factor in the commission of the tort include, but are not limited to, the nature of the act encouraged, the amount of assistance given, the defendant’s presence or absence at the time of the tort, the defendant’s relation to the tortfeasor and the foreseeability of the harm that occurred. See Restatement (Second) Torts § 876 (1977), Comment on Clause (b). A synthesis of the criminal and civil elements provides us with the following test which we conclude should be used to determine the extent of liability in a social host situation involving an intoxicated minor:

(1) the defendant must have intended to act in such a way so as to furnish, agree to furnish or promote the furnishing of alcohol to the minor, and

(2) the defendant must have acted in a way which did furnish, agree to furnish, or promote the furnishing of alcohol to the minor, and

(3) the defendant’s act must have been a substantial factor in the furnishing, agreement to furnish, or the promotion of alcohol to the minor.

In light of the test announced in this case, the question to be answered by the trial court is whether the appellee, the National Fraternity, intentionally rendered substantial assistance to the minor appellant in his consumption of alcohol. Because of the trial court’s error of law and the resulting posture of this case, we cannot determine on the pleadings whether there is a genuine issue of fact the absence of which would entitle either party to summary judgment. Sun Ray Drug Co. v. Lawler, supra. We therefore reverse the order of the trial court granting summary judgment in favor of appellee and remand the case for proceedings consistent with this opinion.⁶

Reversed and remanded. Jurisdiction is not retained.

CIRILLO, President Judge, files a concurring opinion. ROWLEY, J., files a concurring and dissenting opinion.

This case was reassigned to this writer on January 26, 1988.

1 . Appellant lists six issues of alleged error. We express no opinion on any issue other than the one decided upon by the lower court.

2 . Because the trial court held that no party could be held liable who did not actually and physically provide the minor with alcohol the court did not reach the national fraternity’s argument that it did not exert sufficient control over the local fraternity to be held liable for its actions. We note that this question of agency may have to be reached at some point in this case.

3 . For this reason, we would prefer that a trial court state the rationale in support of its holding rather than simply citing precedent.

4 . The reasoning employed in Fassett is incorrect on its face in that the case recognizing social host liability in Pennsylvania involved a corporate defendant. See Congini v. Portersville Valve Co., supra. We additionally note that the Court of Appeals for the Third Circuit agreed with out assessment of the Fassett reasoning by reversing the District Court. See Fassett v. Poch, 807 F.2d 1150 (1986). We agree with Judge Garth’s opinion in that case, and employ much of his reasoning here.

5 . We note that our Supreme Court has recently reaffirmed the principle that social hosts who furnish a minor with alcohol are potentially liable for damages resulting from the minor’s intoxication in the companion cases Orner v. Mallick, 515 Pa. 132, 527 A.2d 521 (1987) and Matthews v. Konieczny, 515 Pa. 106, 527 A.2d 508 (1987). Neither case, however, directly affects our holding here.

6 . We note that the trial court may wish to consider any further evidence relevant to the test announced in this case proffered by the parties.