Albert v. Sheeley's Drug Store, Inc.

• Decision Date: 30 June 2020
• Docket Number: No. 853 MDA 2019,853 MDA 2019
• Citation: 234 A.3d 820
• Parties: Dale E. ALBERT, Individually and as the Administrator of the Estate of Cody M. Albert, Deceased, Appellant v. SHEELEY'S DRUG STORE, INC. and Zachary Ross, Appellees
• Court: Pennsylvania Superior Court

234 A.3d 820

Dale E. ALBERT, Individually and as the Administrator of the Estate of Cody M. Albert, Deceased, Appellant

v.SHEELEY'S DRUG STORE, INC. and Zachary Ross, Appellees

No. 853 MDA 2019

Superior Court of Pennsylvania.

Argued January 22, 2020

Filed June 30, 2020

Michael D. Shaffer, Philadelphia, for appellant.

Gregory Clifford Kunkle, Allentown, for appellee.

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

OPINION BY STABILE, J.:

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 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.

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 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. , 606 Pa. 294, 997 A.2d 1152, 1159 (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 the underlying illegality as compared to the defendant."

Official Committee of Unsecured Creditors of Allegheny Health Educ. and Research Foundation v. PriceWaterhouseCoopers, LLP , 605 Pa. 269, 989 A.2d 313, 329 (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 339 (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 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...