Kapres v. Heller , 417 Pa. Super. 371 ( 1992 )

TAMILIA, Judge:

Richard N. Kapres takes this appeal from the September 10, 1990, January 29, 1991, September 3, 1991 and September 4, 1991 Orders¹ granting summary judgment for appellees. The first two Orders pertain to student tenants while the September 3 and 4 Orders granted summary judgment to adult landowners. With regard to minor defendants Gregg Shapiro, Steve Amsdall, Brett Black, Michael DeCapua, Mike Flinchbaugh and Robert Pasko, the primary issue presented for our review is whether an individual under 21 years of age, who provides alcohol to a person also under age 21, can be held liable under the social host doctrine for injuries sustained by the minor as a result of his intoxication. In addition to his argument all of the aforementioned appellees must be held liable despite their minority, appellant argues appellees Black, Flinchbaugh, Pasko and Galeza, who is over 21 years of age, as tenants of one of the premises on which appellant allegedly consumed alcohol, were liable for his injuries on the theory they knew or should have known their premises were being used for underage drinking. The resolution of this second issue is, except as to Galeza, of course, dependent upon the validity of the theory social host liability extends to a minor who serves or furnishes alcohol to another minor.

Appellees Richard and Sharron Martin and Aldrich and Kifer, t/d/b/a Aldila Enterprises, are adult landowners who rented housing to the minor appellees. Specifically, the Martins were landlords to Pasko, Galeza, Amsdall, Black, Flinchbaugh and Cingle,² while none of Aldila’s tenants is a party to this appeal. Galeza, since he is an adult, is not considered in this discussion and will be dealt with separately-

Appellant argues the Martins and Aldila Enterprises, as the owners and landlords of the premises where he consumed alcohol, should be held responsible for his injuries on the theory of social host liability. Additionally, appellant argues these landowner/appellees are bound by a prior Order denying summary judgment to a similarly situated property owner/landlord on whose premises appellant had allegedly consumed alcohol on the night he was injured.

We will deal with the issues before us beginning with those pertaining to the minor defendants. On March 21, 1986, 19-year old appellant was struck by a car as he was walking home after attending a series of parties where he had been consuming alcohol. Appellees Shapiro, Amsdall, Black, DeCapua, Flinchbaugh and Pasko, who were alleged to either have served him intoxicating beverages or aided him in obtaining these beverages, were also all under 21 years of age at the time of the incident. The court found because the defendants were all under 21 years of age, and therefore minors, they owed no duty to appellant, could not be found liable under the social host doctrine and were entitled to judgment as a matter of law. The court reasoned, for the purpose of interpreting and enforcing the Liquor Code in the state of Pennsylvania, a minor has consistently been defined as an individual under the age of 21.

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 there from. 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 to material filed in support of and in opposition to a motion for summary judgment and to those allegations in pleadings which are uncontroverted. Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970 (1989). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988).

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. In support of this argument, appellant presents for our review and consideration two Third Circuit Court of Appeals cases which, appellant contends, 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). Both Fassett and Macleary reasoned persons under 21 but over the age of 14 were presumptively capable of negligence and, therefore, potentially liable as social hosts.

While at first blush the Third Circuit reasoning appears convincing, these decisions do not express Pennsylvania law on the particular issue involved in this appeal, to wit: whether a minor may be held liable for providing alcohol to another minor who is subsequently injured, and are not binding precedent for this Court. When speculating as to how our Supreme Court would rule given the opportunity, both Fassett and Macleary failed to explore the logic behind the compelling public policy of this Commonwealth to protect “those persons who are, at least in the eyes of the law, incompetent to handle the effects of alcohol.” Congini, supra 504 Pa. at 161, 470 A.2d at 517. We do not take issue with appellant’s argument it is the public policy of this state to eliminate access to alcohol by persons under the age of 21. We do, however, disagree with what appellant believes is the natural consequence of this policy; which is the imposition of social host liability on persons 18 years or older because under Pa.R.C.P. 76, Definitions, such persons are defined as adults and are subject to criminal prosecution for furnishing alcohol under the Crimes Code. Pa.R.C.P. 76; 18 Pa.C.S. § 6308. What appellant fails to include in his argument, however, is the fact Rule 76 states the definitions listed are applicable unless the context of the law indicates otherwise or the particular word is expressly defined in the specific chapter.

The legal drinking age in Pennsylvania is 21 years of age, and pursuant to the Crimes Code a person under 21 commits a summary offense if he attempts to purchase, purchases, consumes or possesses alcohol. 18 Pa.C.S. § 6308. When interpreting and applying this section of the Code, the Pennsylvania Courts have steadfastly maintained those persons under 21 years of age are minors and incompetent to handle the effects of liquor. Congini, supra; 18 Pa.C.S. § 6308. We disagree with appellant’s contention appellees are adults, as defined by Rule 76, and, therefore, can be found criminally liable under section 6308.

Appellant’s argument favoring a singular absolute age (herein age 18), defining when one reaches majority is not novel. To the contrary it is reminiscent of an argument voiced by all men between 18 and 21 years of age who live in a state where the legal drinking age is 21: If I can die for my country, why can’t I drink. Likewise, what divine wisdom is imparted to a teenager on his 16th birthday, which he didn’t have 24 hours earlier, which makes him capable of driving an automobile? The fact of the matter is there is no magic moment in any person’s life when he or she becomes omnipotent or, at the least, an expert in whatever activity he chooses to pursue. For this reason the legislature, in its wisdom, when promulgating laws assigning an age restriction on an activity, whether it be drinking, driving or voting, has taken into consideration a multitude of factors before imposing a “legal age.” In the matter before us we are concerned with at what crossroads in the average person’s life he reaches the point he becomes an adult and must be responsible for his actions with regard to providing and/or consuming alcohol. Our legislature has decided that level of maturity and accompanying degree of responsibility are achieved at age 21 and we find no compelling reason to lower that age. In the context of legislation related to underage drinking, the legislature has carved out an exception as to persons under 21 years of age, despite the fact that voting age, age for marriage and age for entering into contracts, has been set at 18, primarily due to the turbulence and guilt arising from sending 18-year old persons to war during the Vietnam era. Variable standards for determining age of capacity are not new to commonlaw or statutory law in Pennsylvania or elsewhere. At commonlaw in Pennsylvania, a female was competent to marry at the age of 12, whereas a male reached capacity at 14. 23 Pa.C.S. § 1103 Commonlaw marriage. See In Interest of Miller, 301 Pa.Super. 511, 448 A.2d 25 (1982). As a result of the fervor created by Miller (in which a female 14 years of age married her 36-year old teacher despite orders of court enjoining the relationship), the legislation provided for annulment, of commonlaw marriages by a party under 18 through a declaratory judgment proceeding by the minor’s parent or guardian. See 23 Pa.C.S. § 3303(b) Annulment void and voidable marriages.

Similarly, with statutory rape, the legislature has varied the age of minority-majority of both victim and offender to relate to the realities of the times. In 1976, the Crimes Code was amended to increase the age of the offenders from 16 to 18 years of age and reduce the age of the victim from 16 years to H years of age.

A person who is 18 years of age or older commits statutory rape, a felony of the second degree, when he engages in sexual intercourse with another person not his spouse who is less than 14 years of age. 1972 Dec. 6, P.L. 1482, No. 334 § 1, as amended 1976, May 18, P.L. 120, No. 53 § 1.

18 Pa.C.S. § 3122 Statutory rape. These and other provisions dealing with minors and adults have been dealt with frequently by the legislature so it is not possible to apply the simplistic three-step test as to competence of minors adopted by the Third Circuit Court of Appeals to determine the legislative intent under the social host legislation. Accordingly, appellant’s argument to lower the age of majority to 18 for purpose of imposing social host liability must fail.

Appellant’s argument is also flawed in that he attempts to treat similarly situated parties in two completely opposite manners. Appellant demands he enjoy the classification of a minor for the purpose of being furnished alcohol, yet argues the court must find the alleged suppliers of the alcohol to be adults despite the fact they too were under 21 at the time of the incident. This reasoning is illogical as well as fatal because, as pointed out by the trial court, if the appellees are found to be adults, the appellant would also be considered an adult and would be without a cause of action against his alleged social hosts. See Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983).

We find no basis on which to extend social host liability to persons under the age of 21 who are, in the eyes of the law, incompetent to handle the effects of alcohol. We hold, therefore, for the purpose of imposing social host liability, an individual is a minor until he reaches 21 years of age. Having so found, it is not necessary for this Court to address the issue of whether appellees, as minor tenants of the premises where appellant allegedly consumed alcohol, must be held liable for appellant’s injuries.

Based on the foregoing reasons of law and fact we agree with the trial court’s finding all persons under age 21 are incompetent in matters involving alcohol and, in keeping with the Supreme Court’s holding in Congini, a minor owes no duty to another minor for the furnishing of alcoholic beverages. Wherefore, we affirm the September 10, 1990 and January 29, 1991 Orders granting summary judgment in favor of the minor appellees.

We turn our attention now to appellant’s arguments directed to the adult landowner/appellees while keeping in mind the standard of review for appeals from Orders granting summary judgment. We first address the issue whether a subsequent trial judge, herein Judge David S. Cercone, is bound by another Common Pleas Court judge’s decision denying summary judgment in favor of a similarly situated landlord/property owner who had allegedly leased his premises to unnamed minor appellees.³ Appellant relies on Yudacufski v. Commonwealth of Pennsylvania Department of Transportation, 499 Pa. 605, 454 A.2d 923 (1982), for the proposition that absent compelling circumstances, a judge should follow the decision of a colleague on the same court when his decision is based on the same set of facts.

Yudacufski is procedurally distinguishable from the case before us. Yudacufski appealed from an Order denying his motion for a change of venue arguing only two weeks prior another Common Pleas Court judge had granted that request in a similar case which also involved the condemnation of property for construction of Interstate 81. The key distinction between Yudacufski and the present case, which prevents our finding Judge Cercone erred by granting summary judgment, is while in Yudacufski the appellant and the Superior Court had “President Judge Curran’s well-reasoned Seltzer opinion” upon which to rely, here Judge Louik did not pen an opinion addressing his reason for denying Miles’ motion and any conclusions as to his reasoning for denying summary judgment would be mere speculation on our part. Yudacufski, supra at 610, 454 A.2d at 925. Yudacufski is also factually distinguishable. While Yudacufski sued only one party, here we have multiple defendants and because appellant visited premises owned by the Martins, Aldila Enterprises and Miles, unique factual scenarios existed at all three premises precluding a blanket denial of summary judgment with regard to all property owner appellees.

Without being privy to the particular facts upon which Judge Louik’s Order was based, this Court cannot arbitrarily apply the Louik decision to the case now before us. In rendering his decision denying summary judgment, Judge Louik was bound by the same standard as Judge Cercone and, absent evidence to the contrary, we assume Judge Louik’s decision was sound and this Court will not speculate as to the basis for his decision. Therefore, we find appellant’s argument suggesting Judge Louik’s decision precluded Judge Cercone’s decision granting summary judgment devoid of merit.

We move now to appellant’s argument summary judgment was inappropriate based on the evidence presented in the pleadings. Appellant contends social host liability should exist for persons, such as the adult appellees, who owned the premises on which alcohol was provided to persons under the age of 21. Our Supreme Court has stated, in the context of a social host, liability cannot attach absent a showing an individual knowingly furnished alcohol to a minor. Alumni Association v. Sullivan, 524 Pa. 356, 572 A.2d 1209 (1990). The “knowingly furnished” standard requires actual knowledge on the part of the social host as opposed to imputed knowledge imposed as a result of the relationship between the parties. Id., 524 Pa. at 364, 572 A.2d at 1212. Judge Cercone relied on Sullivan when he granted summary judgment, finding there was no evidence appellees either knowingly provided alcohol to the minor appellant or were aware underage drinking parties were being held at the apartments they owned. (Slip Op., Cercone, J., 10/17/91, p. 2.) Appellant argues the Martins had actual knowledge of the parties because their lease allegedly gave them the right to terminate if the premises were being used for “keg parties.” Because the Martins failed to police the premises on a nightly basis, keeping an ever vigilant eye for beer parties, appellant contends appellees were negligent for failing to exercise control over the premises. Similarly, appellant contends Aldrich and Kifer negligently failed to “prevent their premises from being the scene of numerous alcoholic parties attended by more than 100 persons, many of them minors.” (Appellant’s brief at p. 12.)

The fact the Martins, landlords in a college town, included in their lease a clause wherein they could terminate the lease should they discover the premises were being used for beer parties is not unusual nor is it proof they had actual knowledge such activity was occurring. There is no Pennsylvania law which makes it incumbent upon landlords to police the activities, legal or otherwise, of their tenants. No evidence was presented the adult appellees were present on the premises the evening appellant willingly imbibed at parties hosted by the tenants. They did not plan the events nor were they involved in the supplying or purchasing of the alcohol served. The fact the parties appellant allegedly attended were held on property owned by the adult appellees is of no consequence considering their obvious detachment from the events leading to appellant’s tragic accident. We will impose no duty for what appellant argues appellees should have known. Because we agree with the trial court there is no genuine issue of material fact and adult appellants are entitled to judgment as a matter of law, we affirm the trial court’s grant of summary judgment in favor of the Martins and Kifer and Aldrich, t/d/b/a Aldila Enterprises.

As to Mr. Galeza, who was a co-tenant with the minor defendants in this case, while he does not escape liability on the theory addressed above, we agree with the trial court that summary judgment was properly granted as to him because the record fails to disclose any manner in which he participated or contributed to this “hospitable environment” upon which his liability could be assessed. Our careful review of the record on appeal likewise fails to establish the requisite connection necessary to present a factual issue before a jury. The complaint and affidavits merely allege the social host doctrine and the fact Galeza was a tenant with the other minor tenants. This is insufficient to establish his negligence under the accomplice theory announced in Congini, supra. The effect of Congini was to impose a per se rule of civil liability on adults who serve a minor for subsequent injuries suffered by the minor or third persons he injured as a result of his intoxication. Merely being a tenant, without evidence that Galeza participated in organizing the party, serving the beer or in some other fashion violating the criminal laws of Pennsylvania in relation to this activity, is insufficient to establish a civil cause of action, even under the liberal holdings of Fassett, supra which we have rejected.

Based on the foregoing we affirm the Orders of September 10, 1990, January 29, 1991, September 3, 1991 and September 4, 1991 granting summary judgment in favor of all appellees.

Orders affirmed.

BECK, J., dissents.

1 . These appeals were consolidated for our review by Orders dated September 10, 1991 and February 3, 1992.

2 . Defendants Brian Reese and Robert McCarthy were also tenants of the Martins but are not party to this appeal.

3 . As appellees Aldrich and Kifer noted in their brief, this argument is arguably waived for appellant’s failure to file a statement of matters complained of on appeal in accord with Pa.R.A.P. 1925(b) and as ordered by Judge Cercone on September 27, 1991. However, we will not penalize appellant for counsel’s failure to comply with the court Order.