Jefferis v. Commonwealth

¶1concurring and dissenting:

¶2I concur in the majority’s decision to vacate the trial court’s order granting summary judgment in favor of appellee. However, I do not agree with the standard adopted by the majority for determining the vicarious liability of a corporation or organization for providing alcohol to a minor.

¶3The majority asserts that the basis for the social host liability to a minor announced in Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), is the criminal accomplice statute, 18 Pa.C.S. § 306. However, my reading of Congini convinces me that the accomplice provision of the Crimes Code was not the basis of the civil liability discussed in that case.

¶4In Congini, the Supreme Court stated:

Under Section 6308 of the Crimes Code 18 Pa.C.S. § 6308, a person “less than 21 years of age” commits a summary offense if he “attempts to purchase, purchases, consumes, possesses or transports any alcohol, liquor or malt or brewed beverages.” Furthermore under Section 306 of the Crimes Code, 18 Pa.C.S. § 306, an adult who furnishes liquor to a minor would be liable as an accomplice to the same extent as the offending minor.

¶5Id., 504 Pa. at 161, 470 A.2d at 517. While clearly the Court mentioned § 306 accomplice liability, the paragraph in which the Court set forth its holding manifests the basis of the holding as being only § 6308. The Court stated:

Section 6308 of the Crimes Code represents an obvious legislative decision 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. Thus, we find that defendants were negligent per se in serving alcohol to the point of intoxication to a person less than twenty-one years of age, and that they can be held liable for injuries proximately resulting from the minor’s intoxication.

¶6*21Id., 504 Pa. at 162-163, 470 A.2d at 518. This language indicates that the support for a per se finding of negligence when alcohol is made available to a minor is the legislative intent to protect minors and the public, rather than the legislative intent to make an adult liable as an accomplice. For this reason, I do not join in the majority’s conclusion that the limits of civil liability for serving alcohol to minors should be analyzed in light of criminal and civil accomplice principles.

¶7The basis for the per se liability established in Congini extends even to liquor licensees. In Matthews v. Konieczny, 515 Pa. 106, 527 A.2d 508 (1987), the Supreme Court stated that an adult who dispenses alcohol to a minor is per se negligent because the Crimes Code prohibits minors purchasing or consuming alcohol. The fact that the person making the alcohol available to the minor is a licensee is of little consequence. Matthews, Id.,515 Pa. at 112, 527 A.2d at 511. (“Since the code’s provisions apply with equal force to licensees as well as non-licensees, the rationale of Congini is equally applicable here.”) Therefore in order to analyze who may be liable for providing alcohol to a minor, we need not limit ourselves to those cases involving non-licensees.

¶8In the instant case, the issue is to what extent someone other than the actual server or provider of alcohol may be vicariously liable for the per se negligence of the one immediately responsible for making the alcohol available to the minor.1 Although this issue was not explicitly before *22the Court in either Congini or Matthews, in Congini the Court determined that it was error to grant the corporate employer’s preliminary objections in the nature of a demurrer because the corporate employer was potentially liable when a minor was served alcohol at a party the employer was hosting. Similarly, in Matthews, the Court held that summary judgment in favor of the corporate liquor licensee must be vacated because the corporate liquor licensee was potentially liable. In both cases, the Supreme Court remanded the case to the trial court, and yet in neither case did the Supreme Court direct the trial court upon remand to determine whether the corporations “intentionally rendered substantial assistance to the minor appellant in his consumption of alcohol,” even though technically it was not the corporations which immediately provided the alcohol to the minors but an individual working on behalf of the corporations.

¶9In Pennsylvania, one is ordinarily not liable for the negligent acts of another unless there is a relationship of master and servant or principal and agent. Fuller v. Palazzolo, 329 Pa. 93, 197 A. 225 (1938). However, a principal will be liable to third parties for the “frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances or misfeasances of his agent committed in the course of his employment, although the principal did not authorize, justify or participate in, or indeed know of, such misconduct, or even if he forbade the acts or disapproved of them.” Aiello v. Ed Saxe Real Estate, Inc., 508 Pa. 553, 562, 499 A.2d 282, 287 (1985). In Congini and Matthews, the corporate employer and licensee, respectively, undeniably had a relationship of master and servant with the person who actually provided the minors with alcohol in each case.

¶10Therefore, in my opinion, the test which should be applied to determine if a person or entity, other than the actual server or provider of alcohol to a minor, may be liable for serving the minor, is whether or not the person or entity is in a master/servant or principal/agent relationship with the *23actual server. Upon remand, I would direct the trial court to reconsider appellee’s motions for summary judgment in light of whether or not appellee was in the position of principal, master or employer with the individual who actually served appellant alcohol.

¶11Additionally, I think it is essential to note that whether appellee, Grand Chapter Theta Chi Fraternity, may be entitled to judgment as a matter of law on another issue raised by it, but not decided by the trial court, is not before us. The trial court has addressed the merits of no other argument advanced by the appellee as a basis for summary judgment in its favor, e.g., whether or not it is the party named as a defendant, and therefore whether or not it is even a party to the case. Therefore, I express no opinion, and I do not understand the majority to do so, as to the propriety or impropriety of granting summary judgment on any other basis. As I understand the majority Opinion, upon remand, the trial court shall reconsider appellee’s motion for summary judgment on the basis that it cannot be vicariously liable for the acts of the local Theta Chi Fraternity. If the trial court determines that summary judgment should not be granted on this basis, then it should consider the other grounds for summary judgment asserted in appellee’s original motion for summary judgment.