Matthews v. Konieczny

527 A.2d 508, 515 Pa. 106, 1987 Pa. LEXIS 718

• Court: Supreme Court of Pennsylvania
• Decided: June 2, 1987
• Docket: 120 E.D. Appeal Docket, 1985 and 121 E.D. Appeal Docket 1985
• Status: Published

Opinions

OPINION

McDERMOTT, Justice.

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.¹ 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 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 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.²

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 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.³

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 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.⁴ 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.⁵ We emphasize, however, 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.⁶ We, however, reject it.

The immunity which appellees seek to proffer is contained in section 4-497 of the Liquor Code.⁷ 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. § 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 1972.⁸ Section 1903(a) of that Act provides:

(a) Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning or are defined in this part, shall be construed according to such peculiar and appropriate meaning or definition.

1 Pa.C.S. § 1903(a). In addition, Section 1922 provides in relevant part:

In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:

(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.

(5) That the General Assembly intends to favor the public interest as against any private interest.

1 Pa.C.S. § 1922(1); (5). With these rules in mind we turn to an examination of section 4-497.

In the context of this case the operative word in section 4-497 is “customer.” The Superior Court interpreted this word broadly, to encompass anyone who would enter a licensee’s establishment. The question before us is whether a narrower definition was intended.

Initially we note that the word “customer” is not defined in the Liquor Code,⁹ nor in the general definition section of the Consolidated Statutes.¹⁰ Therefore we must consult secondary sources.

In Black’s Law Dictionary the term “customer” is defined as:

One who regularly or repeatedly makes purchases of, or has business dealing with a tradesman or business house; ordinarily one who has repeated business dealings with another; A buyer, purchaser or patron.

Black’s Law Dictionary, Fifth Ed., p. 348 (1979) (citations omitted, emphasis supplied.). The Oxford Dictionary provides a similar definition. See Oxford English Dictionary, Volume II, p. 1285 (1933).

Thus, although a single exchange can qualify one as a “customer”, the word connotes at least a capacity to regularly engage in transactions.

It is beyond question that in Pennsylvania minors do not have the legal capacity to regularly engage in transactions with purveyors of alcoholic beverages. Therefore, unless one accepts the rather absurd idea that the General Assembly intended to include within a statutory immunity those without capacity to legally engage in the described transactions, one must accept the conclusion that the immunity was intended only for service to legally competent customers.

Appellees, however, contend that an interpretation of the word “customer” which limits its meaning to “legal customer” is precluded by the interplay between sections 4-493(1) and 4-497 of the Code.

Section 4-493(1) provides in pertinent part that it shall be unlawful

For any licensee or the board, or any employe (sic), servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.

47 P.S. § 4-493(1). Appellees argue that the exception in section 4-497, which limits its applicability when the customer served was “visibly intoxicated”, becomes redundant if the term “customer” is limited to “legally competent customer”, since section 4-493 already makes it unlawful to serve a visibly intoxicated person. Therefore, appellees argue, in order to give effect to all terms of the statute “customer” was intended to have a broader meaning, so as not to render obsolete the explicit exception provided in section 4-497.

Appellees argument fails, for it ignores the touchstone by which we have determined who is and is not a legal customer. While it is true that section 4-493(1) describes unlawful customers under the Liquor Code,¹¹ our interpretation of legal customer is derived from the Crimes Code, the terms of which also apply to licensees, and which were known to the General Assembly when it approved this immunity. We simply cannot accept the contention that the General Assembly intended to provide immunity from suit to licensees who conduct their businesses in violation of the Crimes Code. Such a broad immunity would be without a rational basis, and certainly contrary to public policy. Therefore we hold that the statutory immunity provided in section 4-497 of the Liquor Code may not be asserted by a licensee unless the customer in question was of legal age.¹²

For the above stated reasons we reverse the order of the Superior Court and remand these cases to the Court of Common Pleas of Delaware County.

HUTCHINSON, J., files a concurring opinion. NIX, C.J., and ZAPPALA, J., file dissenting opinions.

1 . The owners of J-B Beverage were Paul and Gloria Berkowitz, who were named as individual defendants to this action. They are also appellees herein.

2 . This recitation of facts was stipulated to by the parties below.

3 . The General Assembly has supplied licensees absolute immunity from liability in instances where the licensee has taken good faith efforts to verify a prospective customer's age. The Liquor Code provides that in the case of a customer whose age may be in question a statutorily prescribed statement may be executed by the customer; and that statement

may be offered as a defense in all civil and criminal prosecutions for serving a minor, and no penalty shall be imposed if the Liquor Control Board or the courts are satisfied that the licensee or State Liquor Store employe acted in good faith.

47 P.S. § 4-495(e). Nothing we say today is intended to affect this statutory immunity.

4 . However, as we emphasized in Congini v. Portersville, 504 Pa. 157, 470 A.2d 515 (1984), a finding of negligence per se does no more than satisfy a plaintiff’s burden of establishing defendant’s negligence. It does not end the inquiry; for the plaintiff still bears the burden of establishing causation. Id., 504 Pa. at 163 n. 4, 470 A.2d at 518 n. 4.

5 . Our holding today is consistent with the national trend in cases of this sort. See Morris v. Farley Enterprises, Inc., 661 P.2d 167 (Alsk. 1983); Brannigan v. Raybuck, 136 Ariz. 513, 667 P.2d 213 (1983); Michnik-Zilberman v. Gordon Liquors, Inc., 14 Mass.App. 533, 440 N.E.2d 1297 (1982) aff'd, 390 Mass. 6, 453 N.E.2d 430 (1983); Kvanli v. Watson, 272 Minn. 481, 139 N.W.2d 275 (1965); Freeman v. Finney, 65 N.C.App. 526, 309 S.E.2d 531 (1983) review denied, 310 N.C. 744, 310 N.C. 748, 315 S.E.2d 702 (1984); Porter v. Ortiz, 100 N.M. 58, 665 P.2d 1149, cert. quashed, 100 N.M. 53, 665 P.2d 809 (1983); Sorensen v. Jarvis, 119 Wisc.2d 627, 350 N.W.2d 108 (1984); McClellan v. Tottenhoff, 666 P.2d 408 (Wyo.1983). See also collected cases Congini v. Portersville, 504 Pa. 157, 161-162, 470 A.2d 515, 517 (1983).

6 . Matthews v. Konieczny, 338 Pa.Super. 504, 488 A.2d 5 (1985); Mancuso v. Bradshaw, 338 Pa.Super. 328, 487 A.2d 990 (1985).

7 . Act of April 12, 1951, P.L. 90 art. I § 101.

8 . Act of December 6, 1972, No. 290 § 3.

9 . See 47 P.S. § 1-102.

10 . See 1 Pa.C.S. § 1991.

11 . The Liquor Code provides its own sanctions for violation of section 4-493(1). See 47 P.S. §§ 4 — 471; 4-494. The existence of these sanctions however cannot be construed as preempting the imposition of civil liability when the statutory violation which forms the basis of a finding of negligence per se is separate and apart from the Liquor Code. This fact is implicitly recognized in the statutory immunity provided in section 4-495(e), 47 P.S. § 4-495(e). See footnote 3 supra.

12 . Prior to our decision today the prevailing law on the proper application of section 4-497 was contained in the Superior Court decision of Simon v. Shirley, 269 Pa.Super. 364, 409 A.2d 1365 (1979). In that decision the court held that the grant of immunity was effective even when the customers were minors. Obviously our decision today renders that interpretation nugatory. We note that, adhering to the doctrine of stare decisis, the lower courts in the present case found Simon v. Shirley, id, to be controlling. As a matter of jurisprudence that was a sound decision, and we in no way intend our reversal of their decision to be interpreted as a criticism of their scholarship.