Albert, D. v. Sheeley's Drug Store ( 2020 )

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2020 PA Super 154DALE E. ALBERT, INDIVIDUALLY AND AS IN THE SUPERIOR COURT
THE ADMINISTRATOR OF THE ESTATE OF PENNSYLVANIA
OF CODY M. ALBERT, DECEASED
Appellant
v.
SHEELEY'S DRUG STORE, INC. AND
ZACHARY ROSS
Appellees No. 853 MDA 2019
Appeal from the Order Entered April 25, 2019
In the Court of Common Pleas of Lackawanna County
Civil Division at No: 2016-5903
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
OPINION BY STABILE, J.: FILED JUNE 30, 2020
Appellant, Dale Albert, individually and as administrator of the estate of
Cody M. Albert, deceased, appeals from the order entered April 25, 2019,
granting Sheeley’s Drug Store, Inc.’s (“Sheeley’s”) motion for summary
judgment. We affirm.
The trial court summarized the factual and procedural background as
follows.
[Appellant] commenced this action by way of writ of summons on
October 17, 2016. In his complaint, [Appellant] alleges three (3)
counts, count 1 – negligence, count II – wrongful death, and count
III – survival action. In count I, [Appellant] asserts a claim of
negligence against [Sheeley’s]. Specifically, [Appellant] alleges
Sheeley’s allowed co-defendant, Zachary Ross, to pick up a
prescription for Fentanyl [a controlled substance], which had been
prescribed to his mother, a cancer patient. Mr. Ross, and the
decedent, Cody Albert (hereinafter “[D]ecedent”), had been
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friends for a few years. Mr. Ross and the decedent both ingested
a Fentanyl patch, and the decedent subsequently died from drug
overdose. On November 30, 2018, Sheeley’s filed a motion for
summary judgment. After careful consideration of the case law,
relevant statutes, submissions of the parties, and oral argument
heard on the motion, [the trial court] granted that motion.
Trial Court Opinion, 8/29/19, at 1-2 (footnote omitted) (slightly edited).
Several additional facts deserve mention. In the months leading up to
the decedent’s death, Ross and the decedent frequently ingested OxyContin
and marijuana. One week before the decedent’s death, he told Ross that he
was experiencing withdrawal symptoms from opiates. Appellee’s Motion For
Summary Judgment (“Motion”), ex. B., Ross dep., 7/19/18, at 14-17, 40. The
decedent referred to himself as “just a fuckin[g] drug addict with no money.”
Motion, ex. C, text messages.
On March 16, 2016, the decedent, a student at Kutztown State
University, informed his parents that he was not feeling well. The decedent’s
father drove to Kutztown and transported the decedent to a Scranton hospital,
where the decedent complained of flu-like symptoms. Despite his complaints,
he resumed texting with Ross about drugs and money while was in the
hospital, and the pair schemed about ways to obtain illicit drugs. Id.On March 17, 2016, following his discharge from the hospital, which
included a prescription for Percocet, the decedent returned to his home.
Motion, ex. E, Dep of Linda Albert, at 49. The decedent visited his family
practitioner that day and drove himself to the drugstore to have his
prescriptions filled, including the Percocet, which he took. Id. at 52-53.
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Ross’s mother had a prescription at Sheeley’s Pharmacy for Fentanyl
because she had multiple myeloma. Pretending to be his mother, Ross called
Sheeley’s to place an order for Fentanyl. On the evening of March 17, 2016,
Ross and the decedent texted one another about getting to the pharmacy
before 9:00 p.m. so that Ross could pick up the prescription. Motion, ex. C,
text messages. The decedent drove Ross to Sheeley’s and waited outside in
his car while Ross entered the pharmacy and obtained the drugs. Motion, ex.
I, Ross’s statement to police. Ross and the decedent then traveled to Ross’s
house, where the decedent ingested Fentanyl and fell asleep on the living
room couch. Later that night, Ross attempted to wake the decedent up, but
he was unresponsive. He was pronounced dead at the hospital.
The trial court granted summary judgment to Sheeley’s under the in
pari delicto doctrine. Following the grant of summary judgment, Appellant
took this appeal.1 Both Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellant argues the trial court erred in granting Appellee’s motion for
summary judgment based on the in pari delicto defense. According to
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1 During the pleadings stage of this case, Sheeley’s filed a complaint joining
Ross as an additional defendant and alleging that Ross was liable over to
Appellant. In order for Appellant to take this appeal, Appellant and Sheeley’s
stipulated that Appellant would discontinue his claims against Ross. Based on
this stipulation and the order granting summary judgment to Sheeley’s, we
construe this appeal as being from a final order under Pa.R.A.P. 341.
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Appellant, the defense is not applicable here because he did not engage in
anything that was immoral or illegal. We disagree.
Our standard of review of an order granting a motion for summary
judgment is well settled.
[A]n appellate court may reverse a grant of summary judgment if
there has been an error of law or an abuse of discretion. But the
issue as to whether there are no genuine issues as to any material
fact presents a question of law, and therefore, on that question
our standard of review is de novo. This means we need not defer
to the determinations made by the [trial court].
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citation
omitted). “To the extent that [an appellate court] must resolve a question of
law, we shall review the grant of summary judgment in the context of the
entire record.” Id.Additionally,
[i]n evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. . . . Lastly, we will view the record in the light
most favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
J.P. Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1261-62 (Pa.
Super. 2013).
The in pari delicto defense applies when the plaintiff is “an active,
voluntary participant in the wrongful conduct or transaction(s) for which [he]
seeks redress” and “bear[s] substantially equal or greater responsibility for
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the underlying illegality as compared to the defendant.” Official Committee
Of Unsecured Creditors of Allegheny Health Educ. and Research
Foundation v. PriceWaterhouseCoopers, LLP, 989 A.2d 313, 329 (Pa.
2010) (“AHERF”) (citation and internal punctuation omitted). This common
law doctrine “is an application of the principle that no court will lend its aid to
a man who grounds his actions upon an immoral or illegal act.” Joyce v. Erie
Ins. Exchange, 74 A.3d 157, 162 (Pa. Super. 2013).
Pennsylvania courts have applied the in pari delicto doctrine in tort
actions. See AHERF, 989 A.2d at 312 (in pari delicto applies in tort action by
corporation against auditors except in “scenarios involving secretive collusion
between officers and auditors to misstate corporate finances to the
corporation’s ultimate detriment”); Joyce, 74 A.3d at 162-66 (motorist, who
had been convicted in federal court of mail fraud and money laundering in
connection with insurance proceeds he had collected from automobile insurers
following his collision with another car, was barred by in pari delicto doctrine
from proceeding on bad faith and fraud claims against insurer, because
motorist’s suit necessarily was grounded in the very same conduct (i.e.,
representations to, and interactions with, insurance personnel) that the
federal courts deemed violative of United States Criminal Code).
We are not aware of any Pennsylvania decision where a court has
dismissed a tort action with facts similar to this case concerning the use of ill-
gotten drugs from a pharmacy under the in pari delicto doctrine. Other
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jurisdictions, however, have applied the in pari delicto rule (or similar
doctrines) to bar claims analogous to the claim brought here by Appellant.
See Inge v. McClelland, 725 Fed. Appx. 634 (10th Cir. 2018) (district court
properly dismissed plaintiffs’ action alleging that pharmacist filled thousands
of their prescriptions for powerful narcotic pills knowing that plaintiffs were
abusing them and that no medical necessity existed for these medications;
even if pharmacist engaged in illegal conduct, breached his duties to plaintiffs,
and benefited financially from his scheme, “[w]e see no error in the district
court’s inferring that [pharmacist’s] conduct cannot be said to have been a
greater cause of [plaintiffs’] injuries than [plaintiffs’] own unlawful behavior”);
Foister v. Purdue Pharma, L.P., 295 F.Supp.2d 693, 704-05 (E.D. Ky.
2003) (plaintiffs who procured and used OxyContin illegally could not recover
in tort action against pharmaceutical company, because plaintiffs inevitably
had to rely on their illegal actions to establish their claims); Price v. Perdue
Pharma Co., 920 So.2d 479, 481–86 (Miss. 2006) (plaintiff’s malpractice
claims against doctors and pharmacy were barred by wrongful conduct rule
because his injuries resulted from his own illegal conduct in misrepresenting
his medical history to obtain multiple prescriptions for controlled substance,
OxyContin); Kaminer v. Eckerd Corp. of Fla., Inc., 966 So.2d 452, 454–55
(Fla. Dist. Ct. App. 2007) (wrongful conduct doctrine prohibited recovery by
estate against pharmacy for failure to properly safeguard controlled
substances, where decedent voluntarily ingested OxyContin stolen from the
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pharmacy); Orzel v. Scott Drug Co., 449 Mich. 550, 537 N.W.2d 208, 217–
18 (Mich. 1995) (plaintiff’s negligence claim against pharmacist for honoring
her husband’s fraudulent prescriptions, which led to his death, was barred by
wrongful conduct rule, because his injuries resulted from his own wrongful
conduct of obtaining pills through co-workers and illegal prescriptions under
various names that were filled by pharmacists); Pappas v. Clark, 494 N.W.2d
245 (Iowa Ct. App. 1992) (plaintiff’s cause of action against his doctor and
pharmacist was barred by his own illegal conduct in using cocaine and
prescription drugs). These decisions provide persuasive authority for the trial
court’s decision in the present case to enter summary judgment against
Appellant. Farese v. Robinson, 222 A.3d 1173, 1188 (Pa. Super. 2019)
(although Superior Court is not bound by decisions from courts in other
jurisdictions, we may use such decisions for guidance to degree we find them
useful, persuasive, and not incompatible with Pennsylvania law).
The thrust of Appellant’s argument is that the record is devoid of
anything suggesting that Decedent engaged in illegal or immoral activity.
Appellant claims that the ingestion of controlled substances is not illegal, and
Decedent did not have any role in the fraud perpetrated by Ross. We disagree.
Decedent had a history of abusing drugs together with Ross. On the
day of Decedent’s death, Ross telephoned Sheeley’s and ordered Fentanyl by
pretending to be his mother, who had a prescription for Fentanyl due to her
bout with multiple myeloma. Decedent and Ross communicated about Ross’s
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need to get to the pharmacy by 9:00 to obtain this prescription. Decedent
then drove Ross to Sheeley’s and waited in the car while Ross obtained the
Fentanyl inside the pharmacy. This evidence demonstrates that Decedent
took part in Ross’s scheme to obtain this deadly controlled substance.
Appellant also fails to address, let alone rebut, a critical fact relied upon
by the trial court: Decedent possessed a controlled substance, Fentanyl, in
violation of 35 P.S. § 780-113(a)(16). As the trial court observed,
Fentanyl, a classified Schedule I controlled substance, is regulated
by the Pennsylvania Controlled Substance, Drug, Device and
Cosmetic Act. This Act’s purpose is to deter individuals from using
illegal drugs, not reward the unlawful possession of a controlled
substance. Here, the [D]ecedent and Mr. Ross were friends and
had a history of illegally ingesting controlled substance together,
as evidenced by the text messages between them. The
[D]ecedent knowingly ingested a Fentanyl patch that was not
prescribed to him. Tragically, he died as a result. Therefore,
[plaintiff cannot] recover for a harm caused by illegal drug use.
Trial Court Opinion, 8/29/19, at 11.
Guided by the trial court’s analysis and by the authorities gathered
above, we conclude that the trial court properly granted summary judgment
to Sheeley’s under the in pari delicto doctrine. No court will lend its aid to a
man who grounds his actions upon an immoral or illegal act. Joyce, 74 A.3d
at 162. By participating in the scheme to obtain the Fentanyl, and by illegally
possessing the Fentanyl at Ross’s house in violation of 35 P.S. § 780-
113(a)(16), the Decedent was “an active, voluntary participant in the wrongful
conduct or transaction(s) for which [Appellant] seeks redress” and “bear[s]
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substantially equal or greater responsibility for the underlying illegality as
compared to [Sheeley’s].” AHERF, 989 A.2d at 329.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/30/2020
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