J-A03022-20


                              2020 PA Super 154

DALE 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




____________________________________________


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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