Dinardo, S., Aplt. v. Kohler, C. ( 2023 )

[J-8A-2023 and J-8B-2023] [MO: Todd, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
SANDRA DINARDO A/K/A SANDRA : No. 22 EAP 2022
AFFATATO, AS POWER OF ATTORNEY :
ON BEHALF OF COSMO DINARDO, : Appeal from the Judgment of
: Superior Court entered on January
Appellant : 26, 2022, at No. 1905 EDA 2020
: affirming in part and reversing in
: part the Order entered on July 20,
v. : 2020, in the Court of Common
: Pleas, Philadelphia County, Civil
: Division, at No. 460 July Term 2019.
CHRISTIAN KOHLER, M.D., HOSPITAL OF :
THE UNIVERSITY OF PENNSYLVANIA, : ARGUED: March 7, 2023
UNIVERSITY OF PENNSYLVANIA :
HEALTH SYSTEM AND TRUSTEES OF :
THE UNIVERSITY OF PENNSYLVANIA, :
:
Appellees :
SANDRA DINARDO A/K/A SANDRA : No. 23 EAP 2022
AFFATATO, AS POWER OF ATTORNEY :
ON BEHALF OF COSMO DINARDO, : Appeal from the Judgment of
: Superior Court entered on January
Appellant : 26, 2022, at No. 1906 EDA 2020
: affirming and reversing the Order
: entered on July 20, 2020 in the
v. : Court of Common Pleas,
: Philadelphia County, Civil Division,
: at No. 460 July Term 2019.
CHRISTIAN KOHLER, M.D., HOSPITAL OF :
THE UNIVERSITY OF PENNSYLVANIA, : ARGUED: March 7, 2023
UNIVERSITY OF PENNSYLVANIA :
HEALTH SYSTEM AND TRUSTEES OF :
THE UNIVERSITY OF PENNSYLVANIA, :
:
Appellees :
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: NOVEMBER 22, 2023
I join the Majority Opinion’s analysis of the no felony conviction recovery rule and
the resulting disposition. I write separately to emphasize the distinct nature of the in pari
delicto doctrine. The majority correctly relies on in pari delicto only to “inform[] [its]
understanding of the no felony conviction recovery rule” as they “have similar origins, are
grounded in the same public policies, and are sometimes used interchangeably.” Majority
Opinion at 22-23. But, “many courts appear to use [in pari delicto and the no felony
conviction recovery rule] interchangeably rather than treating in pari delicto as ‘a specific
limited application’ of the general principle that ‘no court will lend its aid to a man who
grounds his action upon an immoral or illegal act.’” Albert v. Sheeley’s Drug Store, Inc.,
265 A.3d 442, 446 n.2 (Pa. 2021) (citation omitted). As both doctrines originate from, and
are designed to effectuate, that same maxim, understandable confusion — and at times
overlap in application — may arise.
But “[g]iven its Latin meaning (‘in equal fault’), the phrase in pari delicto seems
most apt when the plaintiff and the defendant commit a crime together[.]” Id. See, e.g.,
New York & Pennsylvania Co. v. Cunard Coal Co., 132 A. 828, 831 (Pa. 1926) (finding
the parties in pari delicto when both plaintiff and defendant engaged in illegal transaction);
and Palmer v. Foley, 157 A. 474, 476 (Pa. 1931) (finding grantor was not in pari delicto
with grantee as she was old, “feeble-minded,” and induced by the undue influence of the
grantee to make the fraudulent conveyance). Although some courts have apparently
“dispensed with the requirement that the relative degrees of fault, as between plaintiff and
defendant, must be indistinguishable (or the plaintiff’s responsibility is clearly greater). . .
. Pennsylvania law . . . has not followed a similar path.” Off. Comm. of Unsecured
Creditors of Allegheny Health Educ. & Rsch. Found. v. PriceWaterhouseCoopers, LLP,
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989 A.2d 313, 329 n.19 (Pa. 2010), citing Peyton v. Margiotti, 156 A.2d 865, 868-69 (Pa.
1959) (describing the at-least-equal-fault approach).
Pennsylvania law reflects the “classic formulation” of in pari delicto, under which
“courts must consider: (1) the extent of the plaintiff’s wrongdoing vis-à-vis the defendant;
and (2) the connection between the plaintiff’s wrongdoing and the claims asserted.”
Albert, 265 A.3d at 450. The plaintiff “must bear ‘substantially equal or greater
responsibility’ for the underlying harm as compared to the defendant” to be precluded
from recovery. Id. See also PriceWaterhouseCoopers, 989 A.2d at 329, quoting
McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 757 (3d Cir. 1990) (same). As
such, in pari delicto is triggered only when both the plaintiff and defendant voluntarily
participated in the underlying wrongdoing. Its application is thus not “interchangeable”
with the no felony conviction recovery rule, which precludes relief based solely on the
plaintiff’s wrongdoing. See, e.g., Majority Opinion at 17 (explaining in pari delicto
concerns “case[s] of mutual fault” whereas the no felony conviction recovery rule “focuses
on the illegality of the underlying act” by the plaintiff).
The dearth of case law explaining in pari delicto has perhaps allowed a “murky
area of the law,” PriceWaterhouseCoopers, 989 A.2d at 318, to be unintentionally
subsumed by the no felony conviction recovery rule, such that they are occasionally
treated as one and the same. Today’s opinion clarifies that they are not the same.
One final observation: because the case before us concerns a guilty plea to first-
degree murder, the majority appropriately declines to “address the applicability of the rule
where an individual’s actions are deemed to be less than intentional, such as in the
context of a judicial finding of insanity or a verdict of guilty but mentally ill, where the
calculus regarding the rule’s application may differ.” Majority Opinion at 27. Along similar
lines, I noted in Albert that “some jurisdictions recognize a ‘culpability’ exception to the
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wrongful conduct rule” — another name for Pennsylvania’s no felony conviction recovery
rule. Albert, 265 A.3d at 457 n.6 (Dougherty, J., dissenting); accord Majority Opinion at
19 (“our modern version of [the wrongful conduct rule is] known as the ‘no felony
conviction recovery rule’”). Such an exception “permits a plaintiff who has engaged in
illegal conduct to ‘still seek recovery against the defendant if the defendant’s culpability
is greater than the plaintiff’s culpability for the injuries, such as where the plaintiff has
acted under circumstances of oppression, imposition, hardship, undue influence, or great
inequality of condition or age.’” Albert, 265 A.3d at 457 n.6, quoting Orzel v. Scott Drug
Co., 537 N.W.2d 208, 217 (Mich. 1995).
As I remarked in Albert, “[t]his Court appears to have embraced a similar
exception” in our own jurisprudence. Id., citing Peyton, 156 A.2d at 868; Palmer, 157 A.
at 476; and Thomas v. Shoemaker, 6 Watts & Serg. 179, 183 (Pa. 1843). In an
appropriate future case, I believe we should more closely examine these decisions and
clarify whether they recognized a culpability exception within our law — either with respect
to the in pari delicto doctrine, the no felony conviction recovery rule, or both — and, if not,
whether we should adopt one.
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