Matthews v. Konieczny

NIX, Chief Justice,

dissenting.

In Congini v. Portersville Valve Co., 504 Pa. 157 , 470 A.2d 515 (1983), this Court, based on sections 306 and 6308 of the Crimes Code, 18 Pa.C.S. §§ 306 and 6308, concluded that a social host who, knowingly or with reason to know, serves alcohol to a minor can be held liable for injuries to that minor where intoxication is found to be the legal cause of those injuries. From that rather straightforward and carefully circumscribed holding the majority proceeds today far beyond the authority provided by Congini , as well as the traditional rules governing tort liability, to provide a theory for recovery to the instant plaintiffs.

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. Thus, in Congini , the social host was held to be negligent per se.

Under well established common law principles of negligence the standard of care may be prescribed by statute and the social host’s violation of that statutory directive supplies the breach of the duty owed. Congini; see, e.g., Majors v. Brodhead Hotel, 416 Pa. 265 , 205 A.2d 873 (1965); Kaplan v. Philadelphia Transportation Co., 404 Pa. 147 , 171 A.2d 166 (1961); Corcoran v. McNeal, 400 Pa. 14 , 161 A.2d 367 (1960); Ashworth v. Hannum, 347 Pa. 393 , 32 A.2d 407 (1943). Since the legislative purpose was premised upon a conclusion that a minor was incompetent to ingest alcoholic beverages and that the consumption of such substances was likely to cause injury to himself or to others as *126 a direct result of such consumption, the duty element was properly found to have been satisfied in Congini. 504 Pa. at 162 , 470 A.2d at 517-18 . Since the injury to the minor in Congini was the direct result of the consumption, i.e., driving in an intoxicated condition, the causal relationship was also clear. Id. 504 Pa. at 163 , 470 A.2d at 518 . Thus, it was appropriate for this Court under the. facts presented in Congini to find that the complaint had alleged a valid cause of action under a theory of negligence.

However, the facts presented in the instant appeals differ significantly from the factual setting in Congini . In each instance in these appeals the suppliers were liquor licensees, not social hosts. Also, in the instant cases the injury was not sustained by the minor nor did it occur to a third party as a direct result of the consumption by the minor. Both of these distinctions are critical and require a finding that a valid cause of action has not been stated.

To say as the majority does that “the fact that Congini , involved a non-licensee ... is of little consequence,” at 511, ignores a clear legislative direction to the contrary. The legislature has expressly preempted the regulation of a liquor licensee under the Liquor Code (“Code”). Act of April 12, 1951, P.L. 90, as amended, 47 P.S. § 1-101 et seq. In section 493(1) of the Code, 1 the selling, furnishing or giving alcoholic beverages to a minor has been defined as an unlawful act. The Code also sets forth, in section 494, the penalty for the violation of that provision. 47 P.S. § 4-494. Within the same statutory scheme, the legislature in its wisdom has expressly limited liability of licensees for damages to third parties by providing as follows in section 497:

*127 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 when the said customer was visibly intoxicated. (Emphasis added.) 47 P.S. § 4-497.

There is presently no allegation that the minors who purchased the alcoholic beverages in these cases were “visibly intoxicated”, thus under this provision no civil liability can attach. The majority’s attempt to avoid the obvious impact of this provision by its convoluted interpretation of the word “customers” is singularly unimpressive. In section 493(1) the legislature expressly sets forth those persons to whom a licensee was prohibited from furnishing alcoholic beverages. Each group was expressly enumerated, i.e., (a) persons visibly intoxicated, (b) insane persons, (c) a minor, (d) habitual drunkards, or (e) persons of known intemperate habits. The fact that the legislature elected to define in the same Code the limit of civil liability without enumerating the five classifications set forth under section 493(1) or at least referring to the class of persons identified within that section cannot be ignored. See Pane v. Department of Highways, 422 Pa. 489 , 222 A.2d 913 (1966); Cali v. City of Philadelphia, 406 Pa. 290 , 177 A.2d 824 (1962); Commonwealth ex rel. Maurer v. Witkin, 344 Pa. 191 , 25 A.2d 317 (1942); Appeal of St. Paul Mercury Indemnity Co. of St. Paul, 325 Pa. 535 , 191 A.9 (1937). Employing the majority’s analysis each one of the five classes articulated in section 493(1) would not be a “customer” under section 497. 2 It is therefore inexplicable why the legislature would choose to express this intention in such a cryptic fashion.

*128 It is obvious that a legislative judgment was made in section 497 to limit civil liability to those instances of unpermitted sales to visibly intoxicated persons because by definition the violation is obvious. The licensee at the time of serving the minor, the insane person, or the person with intemperate habits may not be aware of the disability. 3

In addition to the majority’s obfuscation of the clear mandate of section 497 of the Code, the majority “as a matter of common law” has today created a standard of care for the commercial licensee far more expansive than that announced for the social host in Congini . As a matter of judicial policy the majority has concluded that a licensee is not only responsible for injury that a minor may cause to himself or to othérs because of his intoxication, but also should be liable for the results of that minor’s giving access to that substance to other minors who in turn may become intoxicated and cause injury to themselves or others. Thus the majority has seen fit to place upon a liquor licensee a far greater duty than that imposed upon the social host who serves a minor, even though the social host is more likely to be aware of the minority of the guest. 4

*129 The majority justifies the creation of this new tort with what they term to be a national trend. See at 113-114 n. 5. However, in this Commonwealth the legislature has for years carefully regulated the liquor industry. At this late date I believe it inappropriate for the judicial branch to intrude into an area where the legislature has attempted to regulate all aspects of that industry. As mentioned above, it is my view that the legislature in section 497 has precluded liability as to the cases herein involved. Even if we accept the majority’s interpretation of section 497 as not covering sales to minors, we should nevertheless leave to the legislative discretion the decision as to whether or not liability should be imposed and the extent of that liability. I have not been presented with any impressive demonstration that the legislative regulations are inadequate or that the safety of the public requires judicial intervention in this area.

For the foregoing reasons I am compelled to register my dissent.

. Section 493(1) provides that it shall be unlawful:

For any licensee or the board, or any employe, 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).

. The majority excludes a minor from the term "customer" as used in section 497 on the basis that such a sale is an illegal one. However, each of the classes set forth under section 493(1) are illegal sales and, therefore, under such reasoning, consistency would require us to conclude that members of any of these groups would not fit within the definition of "customer.” If that was in fact the intention of the legislature, that position could have simply been articulated by referring back to the earlier section of the Code and expressly including all *128 members of that group. The fact that the legislature expressly designated persons "visibly intoxicated" clearly reflects its intention to limit the scope of that provision to that particular class.

. Mr. Justice Hutchinson, in his concurring opinion, strains to find the licensee in the Matthews case not within the provisions of section 497 on the “theory” that the injured minor was an "active participant in the purchase of the beer.” The customer is normally considered as the individual who in fact makes the purchase and not someone who may have assisted in providing the funds for that purchase. The strained definition of the word "customer” as used in the Code is clearly at odds with the fundamental rule of statutory construction that words are to be given their ordinary meaning. 1 Pa.C.S. § 1903; Commonwealth v. Stanley, 498 Pa. 326 , 446 A.2d 583 (1982); Commonwealth v. Mumma, 489 Pa. 547 , 414 A.2d 1026 (1980). These mental gymnastics provide a gossamer veil to cloak the fact that the licensee is now being made an insurer against any untoward events resulting from such a transaction.

. In Congini we limited liability to the results that may flow from the intoxication of the minor who was furnished the alcoholic beverage. The newly announced standard in effect determines that a minor, regardless of how close he may be to reaching the age of majority, is incompetent to possess such a substance. It is not, as was the case in *129 Congini , dependent upon the resultant intoxication from the consumption of the substance by the original minor. Under the rule announced today liability would attach even though the original minor, who may have been over 20 years of age, gave the bottle to another youth without drinking any of its contents.