Opinion
No. 5 MAP 2021
12-22-2021
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
James Michael Beck, Esq., Reed Smith LLP / Conflicts - Business Intake Department, for Pennsylvania Defense Institute, et al., Amicus Curiae. Michael Howard Gaier, Esq., Michael D. Shaffer, Esq., Shaffer & Gaier, LLC, for Appellant. Gregory Clifford Kunkle, Esq., Thomas Thomas & Hafer LLP, for Appellee Sheeley's Drug Store, Inc. Zachary L. Ross, for Appellee Zachary L. Ross.
James Michael Beck, Esq., Reed Smith LLP / Conflicts - Business Intake Department, for Pennsylvania Defense Institute, et al., Amicus Curiae.
Michael Howard Gaier, Esq., Michael D. Shaffer, Esq., Shaffer & Gaier, LLC, for Appellant.
Gregory Clifford Kunkle, Esq., Thomas Thomas & Hafer LLP, for Appellee Sheeley's Drug Store, Inc.
Zachary L. Ross, for Appellee Zachary L. Ross.
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE WECHT The question in this appeal is whether claims brought against a pharmacy on behalf of a decedent who overdosed on illegally obtained prescription drugs are barred by the doctrine of in pari delicto . Because we conclude that the trial court correctly applied the in pari delicto doctrine, we affirm.
In late 2015, decedent Cody Albert ("Cody") reconnected with his old childhood friend, Zachary Ross ("Zachary"). Both Cody and Zachary were struggling with substance abuse issues, and the two often used OxyContin together. At the same time, Zachary's mother, April Kravchenko ("Kravchenko"), was suffering from multiple myeloma, a type of blood cancer. Kravchenko's doctors had prescribed her several opiate pain medications, which she filled at a small, independent pharmacy in Scranton called Sheeley's Drug Store ("Sheeley's"). Sheeley's is owned by pharmacist Lori Hart, but Donato Iannielli—Hart's father and the prior owner of Sheeley's—also works at the store part-time.
In early 2016, Kravchenko's health deteriorated and she was hospitalized. Kravchenko and her sister Debra Leggieri ("Leggieri") worried that Zachary would try to pick up (and use) Kravchenko's pain medication from Sheeley's while Kravchenko was in the hospital. To prevent this, Leggieri called Sheeley's and placed a restriction on who could pick up Kravchenko's prescriptions. Leggieri informed Sheeley's that Kravchenko was in the hospital and requested that her prescriptions not be released to anyone other than Kravchenko or her boyfriend.
On March 16, 2016, Cody was suffering from an unknown illness. Cody told his parents that he was experiencing flu-like symptoms, so they picked him up in Kutztown and drove him to a hospital in Scranton where he was diagnosed with a headache, given intravenous morphine, and discharged early the next morning. While Cody was in the hospital, he was simultaneously texting Zachary, saying things like "I just got a morphine drip haha try that out[.]" Sheeley's Motion for Summary Judgment, 11/30/2018, at Exh. C, p.10 (R.R. 612). Zachary told Cody that he was experiencing withdrawal symptoms, and the two exchanged text messages discussing various ways they could potentially obtain more drugs.
On the same day Cody was discharged, Zachary called Sheeley's pretending to be his mother and asked about refilling Kravchenko's OxyContin prescription. Iannielli, who was the pharmacist on-duty at the time, told "Kravchenko" that her OxyContin prescription could not be filled yet, but that she had a prescription for fentanyl patches ready to be picked up. "Kravchenko" told Iannielli that she wanted to send her son to pick up the patches, but stated that he did not have a driver's license or other form of identification. Iannielli told the caller that this would not be a problem, since he personally knew and would recognize Zachary.
Fentanyl patches are used to manage severe, around-the-clock pain, usually in opiate-tolerant patients. Once affixed to the skin, the patches slowly release fentanyl into the bloodstream over the course of two or three days, thus providing long-lasting pain relief. Though well-suited for chronic-pain management, the patches also carry a high potential for overdose and abuse, since the gel inside them can be removed and then ingested or injected, giving the user two- or three-days’ worth of medication all at once. See generally Fentanyl , Drug Enforcement Administration , https://www.deadiversion.usdoj.gov/drug_chem_info/fentanyl.pdf.
Zachary then sent Cody a text message asking him to drive him to Sheeley's, stating, "there [sic] supposed to give me something." Id. at Exh. C, p.14 (R.R. at 616). Cody agreed to drive Zachary to the pharmacy, and the two exchanged several more messages discussing whether they could make it to Sheeley's before it closed at 9:00 p.m. Cody then drove Zachary to Sheeley's, where Zachary successfully picked up Kravchenko's medication even though, according to Zachary, the pharmacy receipt explicitly stated, "[d]o not give to son." Deposition of Zachary Ross, 7/19/2018, at (R.R. at 345); see also id. ("And then even on the bag they gave me it said do not give [it] to me because I was a drug addict."). The two then went to a nearby Sheetz, where they unsuccessfully tried to purchase drugs from Cody's friend.
On the drive back to Zachary's house, Zachary punctured one of the fentanyl patches with a knife and consumed some of the drug. After arriving at Zachary's house, Cody at some point consumed fentanyl from one of the patches, smoked marijuana, and then fell asleep on the couch. Later that night, Zachary tried to wake Cody up, but he was unresponsive. Cody was later pronounced dead at a hospital. Zachary eventually pleaded guilty to involuntary manslaughter and multiple drug offenses in connection with Cody's overdose.
In October 2016, Cody's father, Dale Albert ("Albert"), filed a negligence suit against Sheeley's—both individually and on behalf of his son's estate—in which he sought wrongful death and survival damages. Albert's complaint alleged that Sheeley's negligently allowed Zachary to pick up his mother's fentanyl prescription, which proximately caused Cody's overdose and death. Sheeley's sought summary judgment, arguing that Albert's suit is barred by the wrongful conduct rule, otherwise known as the in pari delicto doctrine.
In pari delicto is an equitable doctrine that precludes plaintiffs from recovering damages if their cause of action is based, at least partially, on their own illegal conduct. Joyce v. Erie Ins. Exch ., 74 A.3d 157, 164 (Pa. Super. 2013) ("[O]ur law will not allow recovery when an action is grounded in illegal behavior."). The rule is rooted in the theory that courts should not lend their aid to a plaintiff whose cause of action stems from his or her own illegal conduct. See Official Comm. of Unsecured Creditors of Allegheny Health Educ. & Rsch. Found. v. PriceWaterhouseCoopers, LLP , 605 Pa. 269, 989 A.2d 313, 329 (2010) ("In this Commonwealth, as elsewhere, in pari delicto serves the public interest by relieving courts from lending their offices to mediating disputes among wrongdoers, as well as by deterring illegal conduct.").
Some jurisdictions call this doctrine the wrongful conduct rule, while others treat in pari delicto and the wrongful conduct rule as separate but related doctrines. Given its Latin meaning ("in equal fault"), the phrase in pari delicto seems most apt when the plaintiff and the defendant commit a crime together—as, for example, when two parties enter into an illegal contract. Still, many courts appear to use these terms interchangeably rather than treating in pari delicto as "a specific and 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." Feld & Sons, Inc. v. Pechner, Dorfman, Wolfee, Rounick, & Cabot , 312 Pa.Super. 125, 458 A.2d 545, 552 (1983) (quoting Fowler v. Scully , 72 Pa. 456, 467 (1872) ).
The trial court below entered judgment for Sheeley's, concluding that the in pari delicto doctrine bars recovery given that Cody's death was caused, at least partially, by his own criminal conduct: possessing and consuming a controlled substance that was not prescribed to him. Albert then appealed to the Superior Court, arguing that the in pari delicto doctrine is inapplicable because Cody did not engage in illegal conduct. In this regard, Albert claimed that "the ingestion of controlled substances is not illegal, and [Cody] did not have any role in the fraud perpetrated by [Zachary]." Albert v. Sheeley's Drug Store, Inc ., 234 A.3d 820, 824 (Pa. Super. 2020).
The trial court also held that Sheeley's did not owe a duty to Cody, a conclusion which Albert does not challenge before this Court.
At the pleadings stage, Sheeley's joined Zachary as an additional defendant in this action. Because Albert sought an immediate appeal of the trial court's order granting summary judgment, however, the parties stipulated that Albert would discontinue his claims against Zachary. In light of this stipulation, the Superior Court treated the appeal as being from a final order under Pa.R.A.P. 341.
The Superior Court unanimously rejected Albert's argument. Writing for the panel, Judge Stabile observed that the undisputed evidence establishes that Cody took part in Zachary's scheme to obtain his mother's fentanyl. Specifically, the record shows that: (1) the two exchanged text messages about needing to get to Sheeley's before 9 p.m. to obtain the prescription; (2) Cody drove Zachary to Sheeley's; (3) Cody waited in the car while Zachary obtained the fentanyl; and (4) Cody consumed some of the fentanyl after arriving at Zachary's house.
Moreover, Judge Stabile explained, Albert failed to rebut (or even address) the trial court's conclusion that Cody stood in pari delicto with Sheeley's because he possessed a controlled substance in violation of a criminal statute. Id. at 824 (citing 35 P.S. § 780-113(a)(16), which prohibits an individual from "knowingly or intentionally possessing a controlled or counterfeit substance ... unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner"). Given Cody's participation in the scheme to obtain fentanyl and his illegal possession of the drug in violation of Pennsylvania law, the court concluded that Cody "was an active, voluntary participant in the wrongful conduct or transaction(s)" for which Albert sought redress and therefore bore "substantially equal or greater responsibility" for the underlying illegality as compared to Sheeley's. Albert , 234 A.3d at 824. Thus, the panel affirmed the trial court's decision entering judgment for Sheeley's based on the in pari delicto doctrine. Albert then filed a petition for allowance of appeal with this Court, which we granted to consider whether the lower courts correctly applied the in pari delicto doctrine. Broadly speaking, Albert has three main arguments before this Court. First, Albert argues that the trial court had no basis to conclude, at the summary judgment stage, that Cody was an active participant in Zachary's scheme to deceive Sheeley's into releasing Kravchenko's medication. Second, he contends that the illegal possession of a controlled substance is not the sort of crime for which the in pari delicto doctrine was intended to bar recovery. Lastly, Albert claims that the Superior Court's decision conflicts with comparative negligence principles, given that the lower courts essentially weighed Cody's relative blameworthiness against that of Sheeley's. See Brief for Albert at 25 ("[Cody] did ingest the fatal drug, but this is an issue of comparative negligence, not an absolute bar to recovery.").
Judge Stabile also noted that, while Pennsylvania courts have applied the in pari delicto doctrine in tort cases, there do not appear to be any Pennsylvania decisions involving facts similar to those here. That said, Judge Stabile noted that other jurisdictions have applied the doctrine in factually similar cases. See , e.g. , Foister v. Purdue Pharma, L.P. , 295 F. Supp. 2d 693 (E.D. Ky. 2003) (plaintiffs who obtained and used OxyContin illegally could not recover in tort action against pharmaceutical company because plaintiffs necessarily had to rely on their own illegal actions to establish their claims); Price v. Purdue Pharma Co. , 920 So.2d 479 (Miss. 2006) (plaintiff's malpractice claims against doctors and pharmacy were barred by wrongful conduct rule because he obtained the OxyContin "through his own fraud, deception, and subterfuge by misrepresenting his medical history and ongoing treatment to those from whom he sought care"); Kaminer v. Eckerd Corp ., 966 So.2d 452 (Fla. Dist. Ct. App. 2007) (wrongful conduct doctrine barred recovery by estate against pharmacy for failure to appropriately safeguard controlled substances, where decedent voluntarily ingested OxyContin stolen from a pharmacy); Orzel v. Scott Drug Co ., 449 Mich. 550, 537 N.W.2d 208 (1995) (plaintiff's claim against pharmacy for negligently filling purportedly valid prescriptions was barred because it was premised, at least in part, on drug user's own illegal conduct). The panel regarded these decisions as persuasive authority supporting the trial court's entry of summary judgment against Albert.
Summary judgment is appropriate only when the record clearly demonstrates that there are no genuine issues of material fact, thus entitling the moving party to judgment as a matter of law. Yenchi v. Ameriprise Fin., Inc. , 639 Pa. 618, 161 A.3d 811, 818 (2017). When considering motions for summary judgment, trial courts must construe all facts and reasonable inferences from those facts in the light most favorable to the non-moving party. Id . In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party and may only grant summary judgment "where the right to such judgment is clear and free from all doubt." Id . Appellate courts may reverse a grant of summary judgment only if there has been an error of law or an abuse of discretion. Id .
Like many states, Pennsylvania follows the "classic formulation" of in pari delicto . Official Committee of Unsecured Creditors , 989 A.2d at 329 (quoting Bateman Eichler, Hill Richards, Inc. v. Berner , 472 U.S. 299, 306-07, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985) ). As explained above, the in pari delicto doctrine precludes plaintiffs from recovering damages if their cause of action is based at least partially on their own illegal conduct. Id. The theory underlying this rule is that allowing such suits to proceed to trial would: (1) condone and encourage illegal conduct; (2) allow wrongdoers to receive compensation for, and potentially even profit from, their illegal acts; and (3) lead the public to "view the legal system as a mockery of justice." Orzel v. Scott Drug Co ., 449 Mich. 550, 537 N.W.2d 208, 213 (1995) ; Official Committee of Unsecured Creditors , 989 A.2d at 329 ("In this Commonwealth, as elsewhere, in pari delicto serves the public interest by relieving courts from lending their offices to mediating disputes among wrongdoers, as well as by deterring illegal conduct."). In Oden v. Pepsi Cola Bottling Co ., 621 So.2d 953 (Ala. 1993), for example, a man was crushed and killed by a falling vending machine while he was trying to steal drinks from it. After his death, the man's estate sued both Pepsi and the vending machine manufacturer, arguing that the machine was defective because it lacked anti-theft mechanisms and anti-tilt brackets. In affirming the dismissal of that case, the Alabama Supreme Court explained:
A person cannot maintain a cause of action if, in order to establish it, he must rely in whole or part on an illegal or immoral act or transaction to which he is a party.... This rule promotes the desirable public policy objective of preventing those who knowingly and intentionally engage in an illegal or immoral act involving moral turpitude from imposing liability on others for the consequences of their own behavior. Even so, such a rule derives principally not from consideration for the defendant, but from a desire to see that those who transgress the moral or criminal code shall not receive aid from the judicial branch of government.
Id. at 954-55 (cleaned up).
Albert does not challenge these general principles. Instead, he objects to the Superior Court's conclusion that Cody was an active participant in Zachary's scheme to secure Kravchenko's medication under false pretenses. See Brief for Albert at 21 ("There is absolutely no evidence in the record that [Cody] had any knowledge that [Zachary] procured the prescription illegally or how he obtained the prescription for that matter."). According to Albert, Cody easily could have believed that he was simply "giving his friend a ride to a pharmacy." Id. at 19. Thus, Albert argues, the Superior Court improperly drew inferences in Sheeley's favor when it concluded that Cody "took part in [Zachary's] scheme to obtain this deadly controlled substance." Albert , 234 A.3d at 824.
The record contains undisputed evidence, in the form of text messages, showing that Cody and Zachary jointly were attempting to obtain opiates in the days and hours before Cody's death. Yet it remains somewhat open to interpretation whether Cody knew that Zachary had deceived Iannielli into releasing Kravchenko's fentanyl prescription. Regardless, the trial court correctly applied the in pari delicto doctrine because it is undisputed that Cody committed a crime that directly caused his death when he possessed (and then ingested) a controlled substance that was not prescribed to him. See 35 P.S. § 780-113(a)(16) (prohibiting an individual from "knowingly or intentionally possessing a controlled or counterfeit substance ... unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner").
Indeed, Albert concedes that Cody ingested Kravchenko's prescription fentanyl sometime before his death, and that he did not possess a valid prescription for the drug. Brief for Albert at 19, 23, 24-25. In Albert's view, however, "this is not the type of mistake that ‘in pari delicto ’ was created to prevent[.]" Id. at 19. According to Albert, the Superior Court's holding below improperly expanded the in pari delicto doctrine and will prevent plaintiffs from recovering damages whenever their own conduct is not "perfect under the circumstances." Id. at 17. To illustrate, Albert offers a hypothetical involving an unlicensed motorist who is struck and killed "by a drunk driver speeding down the road at a reckless and dangerous speed." Id. at 22. Albert claims that the Superior Court's holding below necessarily means that this hypothetical motorist's estate would be unable to recover damages from the driver simply because she was participating in an illegal act (i.e. , driving without a license) at the time of her death.
Contrary to Albert's suggestion, the Superior Court's holding will not inevitably lead to DUI accident victims being thrown out of court simply because they forgot to renew their driver's licenses. Under Pennsylvania's formulation of in pari delicto , 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. Official Committee of Unsecured Creditors , 989 A.2d at 330 n.19. With regard to the former, we have said that the plaintiff must bear "substantially equal or greater responsibility" for the underlying harm as compared to the defendant. Id. at 329 (brackets omitted). And, as for the latter, the plaintiff's cause of action must directly arise from or be "grounded upon" an illegal act. Joyce , 74 A.3d at 164 (quoting Feld & Sons, Inc. , 458 A.2d at 552 ). Furthermore, our precedent is clear that in pari delicto , like all equitable doctrines, "is subject to appropriate and necessary limits." Official Committee of Unsecured Creditors , 989 A.2d at 330.
Needless to say, we do not today nor have we ever endorsed the rule that in pari delicto applies "no matter the degree or seriousness of the [plaintiff's] illegality[.]" Dissenting Opinion at 454. Nor is our holding "breathtaking," "absolutist," "unwarranted," "draconian," or "irrational." Id. at 455, 456, 457. As we have explained, the doctrine contains clear limits that, by the Dissent's own admission, Albert does not argue apply here. Id. at 457–58, n.6. To put it succinctly, we opt today to apply the longstanding in pari delicto rule to the facts of this case, while the Dissent would instead create a vague and largely undefined exception to the rule for some (but not all) drug overdose cases. See id. at 459 ("Had the evidence demonstrated decedent's involvement in Ross's scheme to procure the release of the Fentanyl prescription, the scales would tip in favor of applying the rule.").
While the Dissent delivers a passionate plea for such an exception, it notably offers no clear limiting principle to distinguish drug overdose deaths from other criminal acts that result in death. See , e.g. , Oden , 621 So.2d at 953 (decedent killed by an allegedly defective vending machine that he was stealing from). Furthermore, the Dissent's arguments could just as easily apply to any of the many social ills that correlate with criminality, like poverty, lack of opportunity, and mental health issues. Accepting the Dissent's rationale wouldn't simply create a narrow exception to the rule for drug addicts; it would eviscerate the rule completely.
Given these clear doctrinal limits, we are unpersuaded by Albert's slippery-slope argument. Unlike in Albert's hypothetical, Cody's criminal conduct directly resulted in his death, while Sheeley's conduct—dispensing a controlled substance to Cody's friend—is several links removed in the chain of causation. In other words, the "connection between the plaintiff's wrongdoing and the claims asserted" here is far less attenuated than in the unlicensed-driver hypothetical. Id. at 330 n.19. Indeed, Albert does not cite, and we cannot find, a single decision from any court applying in pari delicto to a relatively minor status offense like driving without a license. And at least one court has explicitly declined to apply the doctrine under similar circumstances. See Matthews v. Republic W. Ins. Co. , 2000 WL 33406974, at *2 (Mich. Ct. App. 2000) (per curiam) ("[T]here is no dispute that plaintiff was driving with a suspended license. However, the connection between plaintiff's suspended license and his injuries is simply too attenuated to establish the causation requirement of the wrongful-conduct rule. ... That plaintiff's license was suspended at the time is only incidentally or collaterally connected to his cause of action.").
That brings us to Albert's claim that the lower courts’ decisions conflict with comparative negligence concepts. Albert's argument appears to be that, rather than disposing of this case at the summary judgment stage, the trial court should have allowed a jury to weigh Cody's relative fault against that of Sheeley's and then apportion any damages accordingly. Brief for Albert at 24 ("Here, it seems that the Superior Court is engaged in a comparative negligence analysis which is strictly left for the province of the Jury."). In other words, Albert regards the trial court's entry of summary judgment as a judicial usurpation of the jury's fact-finding and fault-apportionment roles.
As the Dissent notes, Albert discusses this issue several times in his appellate brief. Dissenting Opinion at 460 (collecting citations). To this we would add that Albert similarly raised the issue in his Petition for Allowance of Appeal. See PAA, 7/28/2020, at 18, 20, 21.
Albert misunderstands the relationship between comparative negligence and in pari delicto . Comparative negligence principles apply whenever a plaintiff is contributorily negligent, while in pari delicto applies whenever a plaintiff engages in criminal conduct that directly causes the harm for which he or she seeks redress. As we have explained in the past, in pari delicto "retain[s] relevance" in "cases involving intentional wrongdoing on the part of a plaintiff" despite Pennsylvania's comparative negligence and contribution statutes. Official Committee of Unsecured Creditors , 989 A.2d at 329 n.17 ; accord Barker v. Kallash , 63 N.Y.2d 19, 479 N.Y.S.2d 201, 468 N.E.2d 39, 41 (1984) ("[R]ecovery is denied, not because the plaintiff contributed to his injury, but because the public policy of this State generally denies judicial relief to those injured in the course of committing a serious criminal act[.]"). Furthermore, nothing in Pennsylvania's comparative negligence statute suggests that the General Assembly intended to abolish the common law in pari delicto defense. See generally 42 Pa. C.S. § 7102. And courts generally should not assume that the legislature intended to preempt the common law unless the statute explicitly says so. Metro. Prop. & Liab. Ins. Co. v. Ins. Comm'r of Pa ., 525 Pa. 306, 580 A.2d 300, 302 (1990) ("Under the [Statutory Construction] Act an implication alone cannot be interpreted as abrogating existing law."). Thus, we reject Albert's contention that the Superior Court's decision conflicts with comparative negligence concepts.
See 42 Pa.C.S. § 7102(a) ("[C]ontributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.").
While the result here may seem harsh, this lawsuit—where a plaintiff seeks recovery for injuries caused by his own criminal act—falls squarely within the in pari delicto doctrine. Albert's portrayal of Cody as "a troubled youth" who made "a fatal mistake" may be entirely correct. Brief for Albert at 18. And we certainly agree that "addiction is not a question of morality[.]" Id. at 24. But the purpose of the in pari delicto doctrine is not to punish Albert or reward Sheeley's. The rule exists principally because holding otherwise would force courts to condone and perhaps even encourage criminal conduct, thus diminishing the public's perception of the legal system. Litigants should be well aware that "the judiciary is not tolerant of fraud and illegality, and those who come before it seeking common-law redress relative to matters in which they bear sufficient culpability may suffer disadvantage as a consequence of their own wrongdoing." Official Comm. of Unsecured Creditors , 989 A.2d at 329.
Orzel , 537 N.W.2d at 213 ; Official Committee of Unsecured Creditors , 989 A.2d at 329 ("In this Commonwealth, as elsewhere, in pari delicto serves the public interest by relieving courts from lending their offices to mediating disputes among wrongdoers, as well as by deterring illegal conduct."); see also Holman v. Johnson , 98 Eng. Rep. 1120 (1775) ("The objection that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but is founded in general principles of policy, which the defendant has the advantage of, contrary to real justice as between him and the plaintiff; by accident, if I may so say.").
The Dissent contends that our ruling shields "bad actors in the healthcare industry," and it refers to Sheeley's conduct as "allegedly negligent (or even intentional)." Dissenting Opinion at 458 n.6, 458. It is worth noting, however, that the trial court explicitly held that Albert's negligence claim against Sheeley's fails on the merits, and Albert does not challenge that conclusion in this appeal. Albert v. Sheeley's Drug Store, Inc ., No. 2016 CV 5903, 2019 WL 10301131, at *6 (Pa. Com. Pl., Aug. 29, 2019) (holding that Sheeley's did not owe a duty to Albert).
We affirm.
Chief Justice Baer and Justices Saylor, Todd, and Mundy join the opinion.
Justice Dougherty files a dissenting opinion in which Justice Donohue joins in the result.
JUSTICE DOUGHERTY, dissenting
The issue presented is whether the common law wrongful conduct rule applies to preclude a tort recovery under the particular facts of this case. The rule generally bars recovery by a plaintiff who was injured while engaged in illegal conduct. The majority applies the rule to the following facts: Appellee Sheeley's Drug Store ("Sheeley's") released a Fentanyl prescription intended for April Kravchenko, a cancer patient, to her son, Zachary Ross, even though the pharmacy knew Ross was a drug addict and Kravchenko's prescription was listed in Sheeley's computer system with an express restriction against releasing it "to anyone but April." Deposition of Donato Iannielli, 9/12/2017 at 55. In addition, the prescription bag given by Sheeley's to Ross clearly stated "[d]o not give to son." Deposition of Zachary Ross, 7/19/2018 at 24. Appellant's decedent Cody Albert, a self-described drug addict, ingested some of Kravchenko's Fentanyl patch at Ross's house later that night, in violation of 35 P.S. § 780-113(a)(16), and died. According to the majority, this illegal conduct by decedent precludes tort recovery against Sheeley's by his estate and heirs. Because I do not believe the policies underlying the wrongful conduct rule are served by extending it to the present facts, and, moreover, because I question the rule's continued viability in the tort law arena given Pennsylvania's adoption of comparative negligence principles, I respectfully dissent.
Some jurisdictions refer to the wrongful conduct rule as the in pari delicto doctrine, among other names. See, e.g. , James W. Sprague, The Fault in in Pari Delicto: How Illegality Bars and Moral Culpability Collide with Tort Law , 10 Wake Forest L. Rev. Online 107, 111 (2020) ("While the definition of in pari delicto has remained relatively consistent in contract law ..., its definitions and applications in tort are inconsistent and confused.") (footnotes omitted); Brian A. Blum, Equity's Leaded Feet in a Contest of Scoundrels: The Assertion of the in Pari Delicto Defense Against a Lawbreaking Plaintiff and Innocent Successors , 44 Hofstra L. Rev. 781, 795 (2016) ("In the context of tort law, the ex turpi causa principle is manifested in the wrongful conduct rule (also known as the ‘unlawful acts’ or ‘unlawful conduct’ rule, or the ‘outlaw’ doctrine)[.]") (footnotes omitted). But as the majority cogently observes, the "in equal fault" concept embodied by the in pari delicto doctrine "seems most apt when the plaintiff and the defendant commit a crime together — as, for example, when two parties enter into an illegal contract." Majority Opinion at 446 n.2. Since that is not the situation presently before us, I prefer the phrase "wrongful conduct rule."
In this appeal from the grant of summary judgment, we view the facts in the light most favorable to appellant as the non-moving party. E.g. , Bourgeois v. Snow Time, Inc. , ––– Pa. ––––, 242 A.3d 637, 650 (2020).
Section 780-113(a)(16) prohibits "[k]nowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act ... unless the substance was obtained directly from, or pursuant to, a valid prescription order[.]" 35 P.S. § 780-113(a)(16).
A.
I begin by highlighting a critical difference between the majority's holding and that of the Superior Court panel below. In affirming the trial court's grant of summary judgment to Sheeley's, the panel reasoned as follows: "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 [d]ecedent was an active, voluntary participant in the wrongful conduct or transaction(s) for which [a]ppellant seeks redress and bears substantially equal or greater responsibility for the underlying illegality as compared to Sheeley's." Albert v. Sheeley's Drug Store, Inc ., 234 A.3d 820, 824 (Pa. Super. 2020) (internal quotations, citation, and brackets omitted). In other words, part of the panel's rationale for applying the wrongful conduct rule was its apparent belief decedent was a "participant" in the "scheme" or "transaction" to obtain the Fentanyl that ultimately contributed to his death. Id.
Significantly, the majority does not endorse this rationale. See Majority Opinion at 449 ("[I]t remains somewhat open to interpretation whether [decedent] knew [Ross] had deceived [Sheeley's] into releasing Kravchenko's [F]entanyl prescription."). The hesitation is understandable. But I would go further and explicitly reject the Superior Court's assessment in this regard, because the record plainly fails to support it. The panel recounted the evidence as follows:
Decedent had a history of abusing drugs together with Ross. On the day of [d]ecedent'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.
Albert , 234 A.3d at 824. The panel then abruptly concluded, "[t]his evidence demonstrates that [d]ecedent took part in Ross's scheme to obtain this deadly controlled substance." Id. I cannot agree.
The Superior Court's conclusion decedent was an active participant in the scheme to fraudulently procure Kravchenko's Fentanyl prescription, or that he was even aware of what Ross had done, is untenable on this record and given the applicable standards. As appellant forcefully argues, "[t]here is not a single citation from the record [demonstrating] that [d]ecedent knew Ross was procuring the prescription illegally." Appellant's Brief at 10. Rather, appellant correctly observes, the panel appears to have taken an inferential leap by presuming that because decedent and Ross had previously taken drugs together and decedent agreed to drive Ross to the pharmacy that day, he must have been aware of Ross's criminal plan. The problem with this theory, however, is that it draws "the exact opposite inferences" that are permissible at the summary judgment stage. Id. See, e.g. , Bourgeois , 242 A.3d at 650 ("trial court must evaluate all the facts and make reasonable inferences in a light most favorable to the non-moving party" and "resolve any doubts as to the existence of a genuine issue of material fact against the moving party"). Thus, concerning the first issue presented, I would hold the Superior Court undoubtedly erred to the extent it concluded there is "evidence in the record that the decedent participated in the scheme to procure the prescription drugs illegally." Albert v. Sheeley's Drug Store, Inc. , 243 A.3d 1293 (Pa. 2020) (per curiam ).
B.
In the absence of any evidence showing decedent's involvement in or knowledge of Ross's plot, the majority is forced to look elsewhere for some action on decedent's part that might trigger the wrongful conduct rule. To that end, the majority shifts its focus to events occurring several hours after Sheeley's alleged negligence had already occurred, and settles on the fact decedent ingested the Fentanyl, which was not prescribed to him, at some later point in the evening. See Majority Opinion at 449–50, citing Appellant's Brief at 19, 23-25. The majority then concludes: "[T]he trial court correctly applied the [wrongful conduct rule] because it is undisputed [decedent] committed a crime that directly caused his death when he possessed (and then ingested) a controlled substance that was not prescribed to him." Id. at 8, citing 35 P.S. § 780-113(a)(16). Again, I cannot agree.
"Virtually no courts have suggested that the [wrongful conduct rule] should automatically preclude recovery by every victim whose injury arises out of criminal conduct." Joseph H. King, Jr., Outlaws and Outliers Doctrines: The Serious Misconduct Bar in Tort Law , 43 WM. & MARY L. REV. 1011, 1070 (2002). Yet, that is what the majority's holding essentially does; it declares that any plaintiff who "seeks recovery for injuries caused by his own criminal act" — no matter the degree or seriousness of the illegality — is barred from bringing suit against a putative tortfeasor. Majority Opinion at 451. Even those jurisdictions that have applied the wrongful conduct rule in similar circumstances involving drug users have required far more than the bare fact of the plaintiffs’ illegal drug use before invoking the rule. See Appellant's Brief at 19-20 (distinguishing cases relied on by Superior Court on the basis that, in those cases, "it was the plaintiff who had an active role in procuring the illegal prescriptions") (emphasis added). Similarly, the few cases in this Commonwealth where the court applied the rule also appear to have involved more than just the identification of some illegal conduct by the plaintiff in the abstract; typically, the operative illegality involved a fraudulent or deceitful intent on the plaintiff's part from which he might profit if his civil claims were permitted. Accord Ritchie v. Summers , 3 Yeates 531, 538 (Pa. 1803) ("The rule in pari delicto is ... chiefly confined to cases of illicit trade, and transactions running counter to the statute law and general national policy[.]"), rev'd on other grounds , 30 Pa. 145 (Pa. 1858). See, e.g. , Official Comm. of Unsecured Creditors of Allegheny Health Educ. & Rsch. Found. v. PricewaterhouseCoopers, LLP , 605 Pa. 269, 989 A.2d 313, 316 (2010) (in pari delicto defense asserted where plaintiffs, who were officers of corporation, had allegedly engaged in the same fraud at issue in the suit by providing false financial statements to defendants); Pinter v. James Barker, Inc. , 272 Pa. 541, 116 A. 498, 498 (1922) (where "father acquiesced in his minor son's unlawful employment by defendant," he was "in pari delicto with the latter" and could not recover for injuries alleged to have been negligently inflicted upon his son by defendant corporation); Joyce v. Erie Ins. Exch. , 74 A.3d 157, 163 (Pa. Super. 2013) (applying in pari delicto where plaintiff's "claims in his complaint were based upon payment of insurance proceeds that [he] acquired through his illegal conduct"); Feld and Sons, Inc., v. Pechner, Dorfman, Wolfee, Rounick & Cabot , 312 Pa.Super. 125, 458 A.2d 545, 548 (1983) (where plaintiffs were convicted of perjury, in pari delicto precluded multiple civil claims against lawyers who advised plaintiffs to commit the perjury).
But, as discussed above, this case is different. The record here does not support the notion decedent was an active participant in Ross's fraudulent scheme to obtain the Fentanyl — he merely ingested the drugs later and accidentally overdosed. The majority's holding that this type of simple (albeit illegal) drug possession is sufficient to trigger the wrongful conduct rule and forever close the courthouse doors to an overdose victim's heirs, is a breathtaking proposition. It bears repeating that few courts have drawn the type of absolutist line the majority establishes here with respect to criminal conduct, and the results in those cases, like the result here, are as striking as they are unforgiving. See, e.g. , Symone T. v. Lieber , 205 A.D.2d 609, 613 N.Y.S.2d 404, 406 (1994) (approving application of the bar to a medical malpractice claim by a twelve-year-old rape victim who underwent an abortion if it were established that "she willfully submitted to an abortion which she knew to be illegal"); Zysk v. Zysk , 239 Va. 32, 404 S.E.2d 721, 722 (1990) (wife's participation in crime of fornication with her husband shortly before their marriage, during which she contracted herpes, barred her recovery in tort action against husband; "[t]he very illegal act to which the plaintiff consented and in which she participated produced the injuries and damages of which she complains"); see also Robinson v. City of Detroit , 462 Mich. 439, 613 N.W.2d 307, 314 n.10 (2000) (holding there is no duty owed to passengers injured in a vehicle fleeing a police pursuit if it is ultimately determined that those passengers were themselves also wrongdoers).
The majority candidly acknowledges the "harsh" consequence of its holding. Majority Opinion at 451. For my part, though, I respectfully fail to understand what compels the majority to expand this common law rule so drastically and with such disregard for matters of public policy implicated by the opioid epidemic. Cf. Official Comm. of Unsecured Creditors , 989 A.2d at 330 (rule "is subject to appropriate and necessary limits" and "permits matters of public policy to be taken into consideration in determining the defense's availability in any given set of circumstances"). Precedent surely doesn't require it. This Court has never decisively explained how, if at all, the wrongful conduct rule applies in the modern-day negligence setting, see id. at 328 n.17, let alone considered a factual scenario remotely like this one. And, as noted, most authority from other jurisdictions that could serve as persuasive guidance on this issue is largely off base because the plaintiffs in those matters engaged in subterfuge to obtain the illegal drugs that caused their harm; other courts have held the exact opposite of today's majority. See, e.g. , Wiest v. Breslaw , 8 A.D.3d 202, 203, 780 N.Y.S.2d 125 (N.Y. App. Div. 2004) (decedent's unlawful possession and ingestion of ecstasy at nightclub "not the type of offensive conduct that would preclude recovery under the in pari delicto doctrine," especially where defendant had, inter alia , "countenanc[ed] drug abuse on the premises") (italics added); Vincent v. Quality Addiction Mgmt., Inc. , No. 11-C-205, 2013 WL 5372336, at *5 (E.D. Wis. Sept. 24, 2013) ("While the exchange of the methadone for money and other drugs violated state criminal laws, [decedent]’s death was not the intended consequence of the drug transaction ... [and t]here is no allegation that [he] intended to overdose or to commit suicide by taking the methadone."). Absent factually similar guidance to support its draconian expansion of the wrongful conduct rule, the majority has nothing left to fall back on but public policy. But that proves even less helpful to the majority's position.
In Official Comm. of Unsecured Creditors , supra , Justice Saylor, writing for a unanimous Court, astutely observed "the recognition of a common-law in pari delicto defense is, in the first instance, a reflection of the judicial implementation of social policy." 989 A.2d at 331. As such, the defense is not "to be woodenly applied and vindicated in any and all instances in which the culpability of the plaintiff can be said to be at least equal to that of the defendant." Id. at 330 ; see also id. at 328 ("the just application of the broader maxim and its derivatives are integrally dependent on the setting"); id. at 331 n.21 (cautioning against "drawing broader-scale conclusions" from the Court's in pari delicto jurisprudence). Instead, "the judicious consideration of competing policies which may be implicated in the extension of the defense to novel settings remains within the appropriate purview of our courts." Id. at 331 ; see also Blum, supra , at 784 ("the widely-variant factual situations to which it is applied allow courts considerable discretion to apply the rule in a way that best achieves the goals that it is meant to serve").
Bearing these concepts in mind, I cannot support the majority's unwarranted expansion of the wrongful conduct rule, which serves none of the rule's traditional policy aims in this instance. As the majority explains, "[t]he theory underlying this rule is that allowing such suits to proceed to trial would: (1) condone and encourage illegal conduct; (2) allow wrongdoers to receive compensation for, and potentially even profit from, their illegal acts; and (3) lead the public to ‘view the legal system as a mockery of justice.’ " Majority Opinion at 448, quoting Orzel v. Scott Drug Co. , 449 Mich. 550, 537 N.W. 2d 208, 213 (1995) ; see also Official Comm. of Unsecured Creditors , 989 A.2d at 329 ("in pari delicto serves the public interest by relieving courts from lending their offices to mediating disputes among wrongdoers, as well as by deterring illegal conduct"). Although these justifications are beyond reproach, they lack any persuasive force here.
First, applying the wrongful conduct rule in the present context actually "undercuts the ‘condoning and encouraging’ argument, as it allows those parties who have acted wrongfully in facilitating the addiction of another to escape liability entirely for the damage they have helped cause[.]" Samuel Fresher, Opioid Addiction Litigation and the Wrongful Conduct Rule , 89 U. COLO. L. REV. 1311, 1328 (2018). And that damage is significant: we have recognized that "[o]pioid addiction has reached a crisis level in the United States, and Pennsylvania has not been immune from its effects." Int. of L.J.B. , 650 Pa. 266, 199 A.3d 868, 870 n.2 (2018). In fact, the situation has gravely worsened since we made this observation only three years ago. Of course, the primary focus of the "condoning and encouraging" justification is on the plaintiff's behavior, and I do not dispute that addicts are known to engage in illegal conduct to support their addiction, as decedent did here. But we should not forget that narcotic addiction is "an illness which may be contracted innocently or involuntarily." Robinson v. California , 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). For these reasons, I am persuaded that "[t]he neurological status and self-defeating aims of drug-addicted individuals undermines the application of wrongful conduct defenses in the context of opioid abuse as a means of altering behavior." Fresher, supra , at 1328; see id. at 1329 (it is clear "drug abusers lack the sophistication and legal knowledge of the medical providers [ ] that share fault for the opioid epidemic[,]" rendering the latter group "more responsive to attempts at behavioral modification than individual plaintiffs").
See Roni Caryn Rabin, Overdose Deaths Reached Record High as the Pandemic Spread , The New York Times , Nov. 17, 2021, available at https://www.nytimes.com/2021/11/17/health/drug-overdoses-fentanyl-deaths.html ("In the 12-month period that ended in April [2021], more than 100,000 Americans died of overdoses ..., mark[ing] the first time the number of overdose deaths in the United States has exceeded 100,000 a year, more than the toll of car crashes and gun fatalities combined."). Data available at https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm.
See also U.S. Dep't of Health and Human Services, Facing Addiction in America: The Surgeon General's Report on Alcohol, Drugs, and Health , (2016), available at https://addiction.surgeongeneral.gov/executive-summary.pdf (explaining that addiction is a chronic "brain disease that requires medical intervention, not moral judgment").
This case serves as a stark example. Practically speaking, decedent accidentally overdosed, so the only conduct the majority's ruling could conceivably influence would be that of other would-be drug users. But even with respect to that group, I am skeptical they would be deterred from accidentally overdosing on illegal drugs if they knew their heirs’ civil claims would be barred should they succumb to their addiction. The reason is simple: most addicts have no intention of overdosing. Even more broadly, if one accepts that addiction is a disease and the illegal conduct that occurred here is at least partially symptomatic of that disorder, it makes little sense to expect our ruling to impact drug users’ behavior in any significant way. Accord Fresher, supra , at 1328-29 ("One may question whether such a rational thought process can be expected from a neurologically compromised plaintiff engaging in such a manifestly self-defeating endeavor[.]"). In short, although the deterrence justification is an indisputably legitimate objective of the rule, it would be irrational to ignore the reality that its impact on those suffering from addiction will be marginal at best. Turning next to the "profiting wrongdoer" justification, it too is a poor fit when it comes to the type of negligent tort alleged in this case. The rationale makes perfect sense when applied, for example, to a gambler who sues to recover his winnings in an illegal gambling transaction, or where one thief sues another to recover his share of the stolen loot. In those cases it is clear the plaintiffs seek to profit from their own criminal wrongdoing — something the law in this Commonwealth has never tolerated. See, e.g. , Comm. v. Ohio & P.R. Co. , 1 Grant 329, 354 (Pa. 1856) ("But if profit and advantage ... are to result to the perpetrator of the fraud, surely, the law is not to be an instrument in his hands to enable him to reap the fruits of his iniquity."). Here, however, neither appellant nor his son sought to "profit" from the illegal overdose in the same way as the gambler and thief from their illegal actions. This is because "[i]n torts cases ... plaintiffs are not seeking profit, but compensation for losses they have suffered." Sprague, supra , at 116 (internal quotations and citation omitted); see id. at 115-16 (while the "profiting" rationale "may make sense in contracting or antitrust cases ... it certainly betrays a misunderstanding about the tenets of tort laws"). Put simply, decedent is not the type of "profiting wrongdoer" the rule historically has been concerned with in this Commonwealth.
Along these lines, I note some jurisdictions recognize a "culpability" exception to the wrongful conduct rule, which 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[.]" Orzel , 537 N.W.2d at 217 (internal quotations and citations omitted). This Court appears to have embraced a similar exception. See Peyton v. Margiotti , 398 Pa. 86, 156 A.2d 865, 868 (1959) ("The general doctrine is subject to a qualification or exception ... that, where the parties are not in equal fault ..., and where there are elements of public policy more outraged by the conduct of one than the other, then relief in equity may be granted to the less guilty."); Palmer v. Foley , 305 Pa. 169, 157 A. 474, 476 (1931) ("Where there are different degrees of guilt as between the parties to the fraudulent or illegal transaction, as when one party acts under circumstances of oppression, imposition, undue influence, or at great disadvantage with the other party concerned, so that it appears that his guilt is subordinate, the court will grant relief, as an exception to the general rule."); Thomas v. Shoemaker , 6 Watts & Serg. 179, 183 (Pa. 1843) ("That money obtained by oppression and by taking advantage of the distresses of others, in violation of laws made for their protection, may be recovered back in an action for money had and received, seems to be well settled; because in such case the parties are not in pari delicto .") (emphasis omitted). I believe there is a colorable argument that drug-addicted plaintiffs like decedent are not on equal footing with those in the healthcare industry whose allegedly negligent (or even intentional) actions exacerbate the addict's condition, thereby potentially qualifying for the "culpability exception" to the rule, but appellant has presented no such argument here.
Perhaps recognizing appellant does not stand to "profit" in the traditional sense even if his lawsuit against Sheeley's succeeds, the majority subtly but massively broadens the rule's policy aims to also guard against plaintiffs who seek nothing more than "to receive compensation for" injuries caused by a defendant's negligence. Majority Opinion at 448, citing Orzel , 537 N.W. 2d at 213. However, the state supreme court from which the majority borrows this language expressly acknowledged that "in Michigan, the principle that one may not profit from his own wrong has been extended to tort actions where plaintiffs seek compensation for injuries resulting from their own illegal activities." Orzel , 537 N.W. 2d at 213 n.9 ; see id. (collecting cases). Notably, the majority fails to point to a similar common law development of this principle in this Commonwealth.
The only justification that remains for applying the wrongful conduct rule here is the "public's perception of the legal system." Majority Opinion at 451. At most, however, this factor presents a mixed bag. See generally Blum, supra , at 788 ("where the parties’ guilt is more evenly balanced, the violation of the law is less outrageous, and the public interest in the refusal or denial of relief is more equivocal, the degree to which a particular resolution might advance respect for the law and public policy becomes less clear"). On the one hand, I recognize "some might recoil at the sight of courts granting relief to plaintiffs whose actions contributed so directly to their own harm." Fresher, supra , at 1329-30. But others might be equally or more offended by the majority's rule, which seemingly penalizes drug addicts while potentially "relieving bad actors in the healthcare industry of civil liability for their wrongs[.]" Id. at 1330. As appellant aptly observes, in light of "the opioid epidemic and knowing what we know about addiction in today's society, addiction is not a question of morality anymore." Appellant's Brief at 24. Given this development, I believe this case presents "elements of public policy more outraged by the conduct of" Sheeley's, which allegedly released someone else's deadly Fentanyl prescription to a known drug addict despite explicit instructions not to do it, than decedent, whose only crime was accidentally overdosing on the drug in the throes of his own addiction. Peyton , 156 A.2d at 868. Indeed, I am reluctant to believe the public would "view the legal system as a mockery of justice" if we permitted appellant's claims to move forward under these circumstances. Majority Opinion at 448 (internal quotations and citation omitted).
In contrast, the majority's holding may invite litigants to advance precisely the kind of moralistic attack against addicts that should be disfavored. This case is a perfect example. In its brief, Sheeley's goes to great lengths to paint decedent as a generally unsavory character not worthy of protection by the legal system. See Appellee's Brief at 6 (citing a text message sent a week before decedent's death in which he apologized for being a "drug addict with no money"); id. (highlighting three failing grades from decedent's college transcript and asserting he "was struggling in his second semester as a transfer student"); id. at 11 (asserting decedent lied to his parents about returning to college); id. at 15 (noting decedent had watched "episodes of the infamous television series Breaking Bad "). I fear the majority's rule will encourage even more defendants to engage in similarly irrelevant and improper character vilification in the hopes of securing summary judgment.
I conclude neither precedent nor the policies underlying the wrongful conduct rule — deterring illegal conduct, preventing wrongdoers from profiting from their crimes, and protecting the perception of the courts — carry much weight in this context. Had the evidence demonstrated decedent's involvement in Ross's scheme to procure the release of the Fentanyl prescription, the scales would tip in favor of applying the rule. But that is not the case. Accordingly, I would resolve the second question presented in this appeal by holding the Superior Court erred when it "improperly expand[ed] the doctrine ... to preclude [appellant]’s recovery" on the sole basis that "[d]ecedent was in possession of a controlled substance that was not his." Albert v. Sheeley's Drug Store, Inc. , 243 A.3d 1293 (Pa. 2020) (per curiam ). As the majority reaches the opposite conclusion, I respectfully dissent. C.
Although it is academic given the majority's extension of the wrongful conduct rule to any plaintiff who "seeks recovery for injuries caused by his own criminal act[,]" Majority Opinion at 451, I note that, if left to my own devices, I would favor refining the common law rule and requiring "the question of illegality [to] go beyond the simple determination of whether the transaction violates the law to consider whether that violation should result in the consequence of denial of remedy." Blum, supra , at 791. In this regard, I believe "[t]he degree and seriousness of the illegality" should have some bearing on the decision whether to apply the rule, as should the presence or absence of some fraudulent or deceitful intent to profit on the plaintiff's part. Id. These limits, taken together, would ensure the wrongful conduct rule is applied only in those appropriate situations where its laudable policy aims would be furthered rather than frustrated. Cf. Majority Opinion at 450 n.7 (suggesting my position "offers no clear limiting principle to distinguish drug overdose deaths from other criminal acts that result in death"). So, for example, the rule would not apply here because the illegality was relatively minor (simple drug possession) and there was no fraudulent or deceitful transaction involving the decedent from which he sought to profit. In contrast, the rule would apply in situations where the illegality is more serious or the plaintiff engages in some fraudulent conduct. See, e.g. , Oden v. Pepsi Cola Bottling Co. , 621 So.2d 953, 955 (Ala. 1993) (where decedent was killed by a vending machine that fell on him while he was stealing drinks from it, his estate's negligence claim was barred by wrongful conduct rule because suit was "a direct result of [decedent]’s knowing and intentional participation in a crime involving moral turpitude").
Notwithstanding my dissent for the reasons outlined above, another aspect of this case warrants discussion. Exactly four times in his brief appellant passingly refers to "comparative negligence" to support his two discrete claims of Superior Court error. See Appellants Brief at 22 ("The Superior Court, in essence, expanded the doctrine of comparative negligence to ... bar almost any recovery."); id. at 23 ("The Superior Court's analysis sounds like comparative negligence, not in pari delicto ."); id. at 24 ("Here, it seems that the Superior Court is engaged in a comparative negligence analysis which is strictly left for the province of the [j]ury."); id. at 25 ("Decedent did ingest the fatal drug, but this is an issue of comparative negligence, not an absolute bar to recovery."). These fleeting references are taken verbatim from appellant's petition for allowance of appeal, see PAA, 7/28/2020, at 18, 20-21, which notably lacks a standalone question relative to comparative negligence. Nevertheless, the majority interprets this handful of statements as raising a separate issue, and it then proceeds to decide that purported issue. See Majority Opinion at 450–51 (rejecting any claim that comparative negligence has displaced in pari delicto as it applies to torts based on this Court's statement in dicta that the doctrine " ‘retain[s] relevance’ in ‘cases involving intentional wrongdoing on the part of a plaintiff’ "), quoting Official Comm. of Unsecured Creditors , 989 A.2d at 329 n.17.
Initially, I conclude this distinct issue, which we did not grant allowance of appeal to consider and which is not fairly subsumed by those questions we did agree to hear, is not properly before us. See Commonwealth v. Metz , 534 Pa. 341, 633 A.2d 125, 127 n.4 (1993) ("on appeal we are limited to the issues as [they are] framed in the petition for allowance of appeal"), citing, inter alia , Pa.R.A.P. 1115(a)(3) ("Only the question set forth in the petition [for allowance of appeal], or fairly comprised therein, will ordinarily be considered by the court in the event an appeal is allowed."). Even if it was, I find the majority's brief analysis to be suspect on several fronts.
First, the majority's quotation above from Official Comm. of Unsecured Creditors is incomplete. Footnote 17 actually states:
As PwC develops, in pari delicto has also been referenced by courts in the negligence setting, for example, in cases involving personal injury or property damage. In this class of cases at least, however, the comparative negligence and contribution statutes serve to cover much of the ground formerly traveled by reference to the common-law maxim. See 42 Pa.C.S. § 7102(a) (prescribing, in such scenarios, "contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought , but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff" (emphasis added)); 42 Pa.C.S. § 8324(a) ("The right of contribution exists among joint-tortfeasors."). Thus, where these statutes are applicable, it is only in unusual cases involving intentional wrongdoing on the part of a plaintiff in which in pari delicto may retain relevance.
989 A.2d at 329 n.17 (bolded emphasis added). The majority emphasizes the second half of the final sentence while failing to mention the rest of the passage. In my view, however, there is obvious tension between the majority's preferred language and the remainder of the paragraph, particularly the bolded part above, which clearly states that "in the negligence setting ... in cases involving personal injury ... the comparative negligence and contribution statutes serve to cover much of the ground formerly traveled by reference to the common-law maxim." Id. Moreover, the majority omits the word "may" from the sentence it quotes. Cf. id. ("it is only in unusual cases involving intentional wrongdoing on the part of a plaintiff in which in pari delicto may retain relevance") (emphasis added). The use of the word "may" here suggests one of two things: (1) the issue of whether in pari delicto retains relevance concerning intentional wrongdoing on the part of a plaintiff remains unsettled; or (2) there are certain situations where a plaintiff's wrongdoing, even if intentional, does not trigger the rule. Either interpretation casts doubt on the majority's position.
Also at odds with the majority is a growing number of courts and commentators that view the wrongful conduct rule as incompatible with contemporary principles of comparative fault. See, e.g. , Tug Valley Pharmacy, LLC v. All Plaintiffs Below In Mingo Cty. , 235 W.Va. 283, 773 S.E.2d 627, 635 (2015) ("[T]his Court finds that our system of comparative negligence offers the most legally sound and well-reasoned approach to dealing with a plaintiff who has engaged in immoral or illegal conduct. We find that in cases where a plaintiff has engaged in allegedly immoral or criminal acts, the jury must consider the nature of those actions, the cause of those actions, and the extent to which such acts contributed to their injuries, for purposes of assessment of comparative fault."); Dugger v. Arredondo , 408 S.W.3d 825, 832 (Tex. 2013) ("We find no [ ] indication that the Legislature intended a plaintiff's unlawful conduct to be treated differently from the other common law defenses under the former contributory negligence scheme, or that the Legislature intended it to be an exception to proportionate responsibility. We hold that the unlawful acts doctrine fits within the categories of former common law defenses that are now exclusively controlled by [the] proportionate responsibility scheme."); Greenwald v. Van Handel , 311 Conn. 370, 88 A.3d 467, 483-85 (2014) (Eveleigh, J., dissenting) (arguing tort law should focus on the defendant's duty of care, not the plaintiff's wrongful conduct, and the wrongful conduct rule undermines comparative negligence principles and resuscitates the older doctrine of contributory negligence, under which the plaintiff was barred from recovery if his negligence contributed to the injury); Stolicker v. Kohl's Dep't Store, Inc. , 2012 WL 676391 at *6-7 (Mich. Ct. App. Mar. 1, 2012) (Gleicher, P.J., dissenting) (noting the wrongful conduct rule was abrogated when the legislature abolished contributory negligence in favor of comparative negligence); 1 Dan B. Dobbs, et al. , The Law of Torts § 228, p.816 (2011) ("After the adoption of comparative negligence ... a rule that bars the claim of the immoral plaintiff potentially conflicts with the comparative negligence system of apportionment, which would only reduce damages."); King, supra , at 1022 ("[M]any jurisdictions adopting comparative fault have opted for a modified version under which a plaintiff whose fault crosses a specified threshold is completely barred, thus obviating the need to invoke an independent serious misconduct bar to achieve a clean kill of the plaintiff's claim.").
The majority does not address these persuasive insights; it simply claims appellant "misunderstands the relationship between comparative negligence and in pari delicto ." Majority Opinion at 451. According to the majority, "[c]omparative negligence principles apply whenever a plaintiff is contributorily negligent, while in pari delicto applies whenever a plaintiff engages in in criminal conduct that directly causes the harm for which he or she seeks redress." Id. (emphasis and footnote omitted). As additional support, the majority asserts "nothing in Pennsylvania's comparative negligence statute suggests that the General Assembly intended to abolish the common law in pari delicto defense[.]" Id. at 12. I am not convinced.
Regarding the first point, in my respectful view, the majority's "logic seems little more than a stealth version of comparative fault, but with the court in control rather than the jury." King, supra , at 1055. As to the latter point, I note that, because appellant did not actually raise this issue, he naturally has not presented the Court with argument pertaining to Pennsylvania's comparative negligence statute, 42 Pa.C.S. § 7102(a). But this does not mean there is no viable argument to be made in this regard should the Court agree to consider the issue in an appropriate case. See, e.g. , Dugger , 408 S.W.3d at 832 (concluding state statutory proportionality scheme "controls over the unlawful acts doctrine" because "the statute indicates the Legislature's desire to compare responsibility for injuries rather than bar recovery, even if the claimant was partly at fault or violated some legal standard"). In any event, as the question of whether Pennsylvania's adoption of comparative negligence principles has displaced the common law wrongful conduct rule is not squarely presented, I would not decide it here.
Justice Donohue joins in the result of this dissenting opinion.