HARRISBURG – A three-judge panel of the Superior Court of Pennsylvania upheld summary judgment from a Lackawanna County court which ruled because a man illegally possessed a controlled substance, his estate was prevented from seeking redress against the conduct of other parties to the action.
Superior Court judges Anne E. Lazarus, Victor P. Stabile and Alice Beck Dubow issued the ruling on June 30, in favor of Sheeley’s Drug Store and Zachary Ross and against the appellant, Dale E. Albert, as Administrator of the Estate of Cody M. Albert, who is deceased.
Albert initially filed a complaint against Sheeley’s and Ross in the Lackawanna County Court of Common Pleas on Oct. 17, 2016 with three counts, negligence, wrongful death and survival action.
In the first count, Albert asserts a claim of negligence against Sheeley’s, alleging it allowed Ross to pick up a prescription for controlled substance Fentanyl, which had been prescribed to his mother, a cancer patient. Ross and the decedent, Cody Albert, who had been friends for a few years, both ingested a Fentanyl patch and the decedent subsequently died from drug overdose.
On Nov. 30, 2018, Sheeley’s filed a motion for summary judgment and the trial court granted that motion.
“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. The decedent referred to himself as ‘just a f—–g drug addict with no money,” Stabile said.
On March 16, 2016, Cody, a student at Kutztown State University, told his parents that he was not feeling well. Dale drove to Kutztown and transported him to a Scranton hospital, where the decedent complained of flu-like symptoms. Despite his condition, Cody “resumed texting with Ross about drugs and money while was in the hospital, and the pair schemed about ways to obtain illicit drugs.”
After Cody left the hospital the next day with a prescription for Percocet, the decedent returned to his home, visited his family practitioner that day and drove himself to the drugstore to have his prescriptions filled, including the Percocet, which he took.
“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,” Stabile wrote.
“The decedent drove Ross to Sheeley’s and waited outside in his car while Ross entered the pharmacy and obtained the drugs. 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, which applies when the plaintiff is “an active, voluntary participant in the wrongful conduct or transaction(s) for which they seek redress” and “bear substantially equal or greater responsibility for the underlying illegality as compared to the defendant.”
Dale appealed the granting of that summary judgment.
“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,” Stabile stated.
According to Stabile, Pennsylvania courts have applied the in pari delicto doctrine in tort actions, but the Superior Court was not aware of any Pennsylvania decision where a court has dismissed a tort action with facts similar to the instant case, concerning the use of ill-gotten drugs from a pharmacy under the in pari delicto doctrine.
Stabile added other jurisdictions, however, have applied the in pari delicto rule (or similar doctrines) to bar claims similar to the claim brought here by Dale.
“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,” Stabile said.
Stabile referenced Cody had a history of abusing drugs together with Ross and 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 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,” Stabile said.
“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. Section 780-113(a)(16).”
Stabile and his colleagues from the Superior Court then affirmed the granting of summary judgment from the trial court in Lackawanna County.
“No court will lend its aid to a man who grounds his actions upon an immoral or illegal act. By participating in the scheme to obtain the Fentanyl, and by illegally possessing the Fentanyl at Ross’s house, the decedent was ‘an active, voluntary participant in the wrongful conduct or transaction(s) for which appellant seeks redress’ and substantially equal or greater responsibility for the underlying illegality as compared to Sheeley’s,” Stabile said.
Superior Court of Pennsylvania case 853 MDA 2019
Lackawanna County Court of Common Pleas case 2016-5903
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com