DocketNumber: 925
Citation Numbers: 613 A.2d 1250, 418 Pa. Super. 207
Judges: Beck, Tamilia and Hester
Filed Date: 3/24/1992
Status: Precedential
Modified Date: 8/29/2023
Stella Goldberg takes this appeal from the April 22, 1991 Order
This case arises from events which occurred at CMU during the weekend of February 6-8, 1987, culminating in the death of 20-year old Jeanne Goldberg. At this time appellee was an 18-year old freshman at CMU and the decedent, who came to CMU on Friday, February 6th, to attend a fraternity party, was a student at Robert Morris College. In the early morning hours of Saturday, February 7th, Brian Goldberg met the decedent at a Theta Xi fraternity party and shortly thereafter the couple retired to Brian’s room where they had consensual sexual intercourse and fell asleep. Brian and Jeanne spent Saturday together and that evening, at approximately 8:00 p.m., they went to a party held in Brian’s dormitory where beer and mixed drinks were available. Brian had previously paid $5 to attend the party. Brian and Jeanne stayed two hours, left to attend a movie and thereafter went to CMU’s Tartan Grill where they met Van Mastrigt, a passing acquaintance of Brian. The three returned to the dorm party at midnight, each had one drink and then went to Brian’s room where they each took five tokes on marijuana presented in a bowl and provided by Van Mastrigt. Brian defined a toke as one inhale and one exhale (N.T., 7/2/90, p. 66). At about 3:00 a.m., the trio got in Jeanne’s car and she drove them to another fraternity party where Brian had two beers and Jeanne and Van Mastrigt each had one-half of a beer. While at this particular party, Van Mastrigt and Jeanne conversed while Brian stood alone. At 4:00 a.m., Brian, Jeanne and Van Mastrigt joined a small party of 12 in an upstairs room where the decedent and Van Mastrigt consumed the bulk of a fifth of Southern Comfort whiskey. Van Mastrigt obtained the whiskey by trading marijuana with another person at the party. Everyone present also took two tokes of marijuana which was once again provided by Van Mastrigt. Brian, Jeanne and Van
Appellant argues the court committed an error of law by granting appellee’s motion for summary judgment and ruling, because he had not yet reached age 21, appellee could not be found negligent per se for providing alcohol and marijuana to another minor, herein the decedent. Appellant contends the court also erred by finding appellee’s actions were not a substantial factor in causing Jeanne’s death.
As an appellate court, we are bound to consider certain principles when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 557 A.2d 1064 (1989). The trial court must accept as true all well-pleaded facts relevant to the issues in the non-moving party’s pleadings, and give to him the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance Co., 380 Pa.Super. 167, 551 A.2d 283 (1988). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the court’s conclusion no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035; see Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). The court must ignore controverted facts contained in the pleadings and restrict its review
Appellant argues the holding in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), which imposed social host liability on adults who furnish alcohol to persons under the age of 21, should be extended to impose liability on persons between 18 and 21 years of age who provide liquor to persons between 18 and 21 years of age. Appellant argues two Third Circuit Court of Appeals cases suggest, if given the opportunity to address the issue, the Pennsylvania Supreme Court would hold an individual over the age of 18 can be criminally and civilly liable for the service of alcoholic beverages to those under 21 years of age. See Macleary v. Hines, 817 F.2d 1081 (3rd Cir., 1987), and Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3rd Cir., 1986). However, in a companion decision to this appeal, this Court affirmed an Allegheny County Court of Common Pleas decision wherein it was found, for the purposes imposing social host liability a person remains a minor until he reaches age 21. Kapres v. Heller, 417 Pa.Super. 371, 612 A.2d 987 (originally filed on 3/24/92 and refiled on 6/2/92). Therefore, a minor cannot, as a matter of law, be held liable as a social host for furnishing alcoholic beverages to another minor. Accordingly, we find the trial court committed neither an error of law nor abused its discretion by granting Brian Goldberg’s motion for summary judgment.
Although we find appellant’s arguments persuasive, this Court is not prepared to extend social host liability to persons under the age of 21. The Congini case, which is the seminal case in Pennsylvania establishing a cause of action by a minor against an adult social host, specifically limited social host liability to one who is lawfully entitled to possess and consume alcohol and furnishes it to one who is not so entitled. Appel
“At the time of the incident, Jeanne Goldberg, Brian Goldberg, and Darrell J. Van Mastrigt were older than eighteen and less than twenty-one. The issues raised by additional defendant’s motion for summary judgment are (1) whether a person between the ages of eighteen and twenty-one who furnishes alcohol to another person between the same ages can be liable as a social host and (2) whether one adult who assists a second adult in illegality procuring marijuana can be liable for injuries that the second adult sustains as a result of the use of the marijuana.
“In the case of Kapres v. Heller No. G.D. 88-4899, The Honorable David S. Cercone of this Court [Common Pleas Court of Allegheny County] rendered an opinion on November 30, 1990, which held that a nineteen year [old] who served alcoholic beverages to another nineteen year old cannot be held liable. Absent compelling circumstances, I am required to follow this opinion. Yadacufski v. Dept. of Transportation, [499 Pa. 605] 454 A.2d 923 (Pa.1982).
“I believe that this opinion is a correct reading of Pennsylvania law. I also believe that the rationale for the result in Kapres v. Heller bars a claim by one adult against another adult for injuries resulting from the first adult’s use of marijuana that was obtained with the assistance of the second adult.
“Under Pennsylvania law, there is no liability on the part of a social host for serving alcohol to adult guests. Herr v. Booten, [398 Fa.Super. 166] 580 A.2d 1115 (Pa.Super.1990); Klein v. Raysinger, [504 Pa. 141] 470 A.2d 507 (Pa.1983). However, in the case of Congini by Congini v. Portersville Valve Co., [504 Pa. 157] 470 A.2d 515 (Pa.1983), the Pennsylvania Supreme Court held that an adult who served alcohol to a visibly intoxicated eighteen year old was liable because*214 of the provisions of the Criminal Code making it a summary offense for someone under twenty-one years of age to purchase, consume, and possess alcohol (18 Pa.C.S. § 6308) and making a person guilty of an offense if that person is an accomplice of another person in the commission of the offense (18 Pa.C.S. § 306).
“The Court’s opinion specifically limited the imposition of liability to the circumstances in which a person lawfully entitled to possess alcohol furnishes the alcohol to a person who is not entitled to possess alcohol. The Congini opinion states that ‘an adult who furnishes liquor to a minor would be liable as an accomplice to the same extent as the offending minor’ (emphasis added) ([527 A.2d at] p. 517). Also see the opinion of Justice McDermott writing for the Court in Matthews v. Konieczny, [515 Pa. 106] 527 A.2d 508 (Pa.1987), which states that ‘[t]he Congini decision was ground upon the per se negligence involved in an adult dispensing alcohol to a minor in violation of the Crimes Code’ (emphasis added) ([527 A.2d at] p. 511) and the dissenting opinion of Chief Justice Nix which states that
“ ‘In Congini the basis of the duty of the social host to the minor was, as stated above, predicated on sections 306 and 6308 of the Crimes Code. Read together these sections prohibit an adult from furnishing liquor to a minor and make both the host and the minor criminally culpable.’ (emphasis added) ([527 A.2d at] p. 518)
“The term ‘adult’ as used by the Supreme Court in Congini means an adult within the meaning of the liquor laws.* See Kapres v. Heller, supra. Also the ‘minor’ to whom the ‘adult’ served liquor in Congini was eighteen years of age.
“The Supreme Court’s use of the term ‘adult’ who furnishes liquor to a minor rather than ‘person’ who furnishes liquor to a minor establishes that the Court imposed liability because of the responsibility that one who is lawfully entitled to possess alcohol owes to persons who are not entitled to possess alcohol. The argument that the plaintiff raises would mean that under Congini whenever one of several*215 joint participants in a criminal activity sustained damages as a result of the activity, liability would be imposed against the other participants. It would create a cause of action where two adults are involved in obtaining marijuana and one of the two sustains damages from its use. By using the term ‘adult’ in Congini, it appears that the Supreme Court did not intend to utilize the criminal laws in this fashion.”
(Slip Op., Wettick, J., 4/22/91, pp. 30-33.)
Based on the trial court’s well reasoned Opinion and the particular facts of this case, we agree with the trial court’s finding appellee was entitled to judgment as a matter of law.
Having found minor Brian Goldberg cannot be held liable as a social host, our discussion of the extent his participation in providing Jeanne with drugs and alcohol will be brief and is done solely in the interest of judicial economy.
In the case of Jefferis v. Commonwealth, 371 Pa.Super. 12, 537 A.2d 355 (1988), this Court listed various factors which would be taken into consideration when determining whether social host liability should apply. This Court articulated the following test for social host liability, based on the Restatement (Second) of Torts Section 876:
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;
2) The defendant must have acted in a way which did furnish, agree to furnish or promote the furnishing of alcohol to a 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.
If activities such as those described above are deemed to create a duty to protect on the part of Brian toward Jeanne, then we would indeed be opening a Pandora’s Box of potential liability. We cannot believe the legislature’s intent or the decisions promulgated in Congini, Fassett, Macleary or any of the other cases addressing social host liability was to proscribe attending parties with friends or passing alcoholic beverages to someone at a party. The record supports a finding minor Brian Goldberg’s participation in furnishing alcohol and/or drugs to the minor decedent was de minimis and not a substantial factor contributing to Jeanne’s untimely demise.
Based on the forgoing reasons of law and fact, we affirm the April 22, 1991 Order granting appellee’s motion for summary judgment.
Order affirmed.
. Although on praecipe judgment was entered for appellee on May 1, 1991, the April 22, 1991 Order granting summary judgment is the final Order from which this appeal is properly taken.
. Brian Goldberg is not related to Stella Goldberg or Jeanne Goldberg.
. None of the original defendants is party to this appeal. Delta Tau Delta, the Delta Beta Chapter of Delta Tau Delta and Carnegie Mellon University settled with appellant in return for joint tortfeasor releases. Darrell J. Van Mastrigt was convicted of first degree murder and is serving life imprisonment.