J-A07019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID GOULD IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
WEISSANG, INC. D/B/A FISHERS
PHARMACY AND JENNIFER LEIBFREID
Appellees No. 875 WDA 2016
Appeal from the Order Dated April 7, 2016
In the Court of Common Pleas of Bedford County
Criminal Division at No: No. 264-2013
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 27, 2017
Appellant David Gould, pro se, appeals from the April 7, 2016 order of
the Court of Common Pleas of Bedford County (“trial court”), which granted
Appellees Weissang, Inc. d/b/a Fishers Pharmacy and Jennifer Leibfreid’s
motion for summary judgment. Upon review, we affirm.
On March 5, 2013, Appellant initiated the instant action against
Appellees, asserting claims sounding in negligence. Appellant alleged that,
on March 1, 2012, he was hired by Aerotek, a temporary employment
agency. Appellant’s Complaint, 3/5/13, at ¶ 6. According to Appellant, as
part of the hiring process, he was subjected to a drug test, which he
allegedly passed. Id. at ¶¶ 6-7. Appellant further alleged that he began
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*
Retired Senior Judge assigned to the Superior Court.
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working as a temporary machinist at McLanahan through Aerotek. Id. at
¶ 8, 26. Appellant alleged that, on March 7, 2012, he was suffering from an
upset stomach and diarrhea. Id. at ¶ 9. As a result, Appellant alleged that
he took a dose of an over-the-counter intestinal mixture lot 61 (“Intestinal
Mixture”) that his mother, Joann Gould, had purchased from Appellees at
Appellant’s request. Id. at ¶¶ 4, 10. Two days later, according to
Appellant, he “suffered a work-related injury when a hot piece of metal
pierced his throat area and he suffered temporary breathing problems.” 1 Id.
at ¶ 11. Appellant was directed to go to a hospital for treatment. Id. at
¶ 12. At the hospital, Appellant was administered a drug test, which he
failed. Id. at ¶¶ 13-14. Appellant alleged that he was informed that his
drug test was positive for phenobarbital, a Schedule IV Controlled
Substance. Id. at ¶ 14. Appellant eventually reviewed the label of the
Intestinal Mixture and discovered that it was the source of the
phenobarbital. Id. at 17. Appellant alleged that he was unaware prior to
his review of the label that the Intestinal Mixture contained phenobarbital.
Id. at ¶ 10, 23. Because of the positive drug test, McLanahan terminated
Appellant’s employment on March 19, 2012, and Aerotek followed suit on
March 21, 2012. Id. at ¶¶ 18-19. Appellant alleged that, but for the
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1
Appellant did not allege that his ingestion of the Intestinal Mixture caused
the work injury.
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positive drug test, McLanahan would have hired him as a full-time machinist.
Id. at ¶ 20.
On June 19, 2013, Appellees moved for judgment on the pleadings on
the basis of the economic loss doctrine,2 asserting that Appellant failed to
allege any non-economic injuries caused by his ingestion of the Intestinal
Mixture. Appellees’ Judgment on the Pleadings, 6/19/13, at ¶¶ 6-7. On
August, 30, 2013, by agreement of the parties, the trial court granted
Appellant thirty days to file an amended complaint.
On September 27, 2013, Appellant filed his “First Amended
Complaint,” reasserting his negligence claims and asserting for the first time
violations of the State Board of Pharmacy (“Board”) regulation (49 Pa. Code
§ 27.18) and Section 201-2(4)(ii), and (vii) Unfair Trade Practice and
Consumer Protection Law (“UTPCPL”), 73 P.S. § 201–1, et seq. 3
On January 28, 2014, Appellees filed a renewed motion for judgment
on the pleadings. Appellees asserted that Appellant’s negligence claims
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2
As we recently explained in Dittman v. UPMC, 154 A.3d 318 (Pa. Super.
2017), “[t]he economic loss doctrine states that ‘no cause of action exists for
negligence that results solely in economic damages unaccompanied by
physical injury or property damage.’” Dittman, 154 A.3d at 325 (citation
omitted).
3
To the extent Appellant raises claims under Section 201-2(4)(v), (ix), (xi)
and (xxi) on appeal, we decline to review them. Appellant failed to assert
violations under these subsections of the UTPCPL in his complaint or before
the trial court and, as a result, he may not raise violations of these
subsections for the first time on appeal. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”).
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were barred by the economic loss doctrine and his claim for violation of the
Board regulation was not viable as there exists no private cause of action.
Appellees also asserted that Appellant’s claim for violation of the UTPCPL
was without merit because he was unable to “demonstrate the requisite
‘unfair and deceptive acts and practices’” because “he expressly alleges and
admits that the label on the [Intestinal Mixture] disclosed that it contained
phenobarbital, and that he did not read [the] label prior to ingesting the
product.” Appellees’ Renewed Motion for Judgment on the Pleadings,
1/28/14, at ¶ 22. Following a hearing, on March 27, 2014, the trial court
granted Appellant twenty days to file a second amended complaint and
dismissed as moot, and without prejudice, Appellees’ renewed motion for
judgment on the pleadings.
On April 16, 2014, Appellant filed a “Second Amended Complaint,” 4
once again asserting negligence claims, and violations of the UTPCPL. On
June 27, 2014, Appellees filed a “Second Renewed Motion for Judgment on
the Pleadings,” seeking dismissal of Appellant’s action. Specifically,
Appellees asserted that Appellant’s negligence claims continued to fail
because of the economic loss doctrine. Appellees also asserted that
Appellant was unable to establish unfair and deceptive acts or practices
under the UTPCPL because he admitted in his pleadings that the label affixed
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4
The factual allegations in the second amended complaint mirrored the
allegations raised in the previous complaints.
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on the Intestinal Mixture listed phenobarbital as an ingredient and that he
failed to read the label prior to ingesting the Intestinal Mixture. On October
29, 2014, the trial court granted in part and denied in part Appellees’ motion
for judgment on the pleadings. Based on the economic loss doctrine, the
trial court dismissed with prejudice the negligence claims. The trial court,
however, denied judgment on the pleadings on the UTPCPL claim. Discovery
ensued.
On December 15, 2015, Appellees moved for summary judgment on
the sole remaining claim, i.e., the UTPCPL claim. Appellees argued, inter
alia, that Appellant’s UTPCPL claim fails because Appellant failed to establish
that Appellees engaged in any deceptive conduct with respect to the
Intestinal Mixture. Specifically, Appellees argued that Appellant could not
establish that they deceived him about the contents of the Intestinal
Mixture. In this regard, Appellees pointed to Appellant’s admission, as set
forth in his second amended complaint and in his deposition testimony, that
the label affixed to the Intestinal Mixture listed phenobarbital as an
ingredient. On April 7, 2016, the trial court granted Appellees’ motion for
summary judgment as a matter of law, concluding that Appellant could not
establish the element of deception and misrepresentation under the UTPCPL
given his admission that the Intestinal Mixture listed phenobarbital as an
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ingredient on its label.5 Trial Court Order, 4/7/16, at ¶ 1 n.3. Appellant
timely appealed to this Court. The trial court directed Appellant to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant
complied. In response, the trial court issued a Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant raises two issues for our review:
[I.] Whether the lower court abused its discretion in
granting summary judgment in favor of [Appellees] and
dismissing [] Appellant’s complaint?
[II.] Whether the lower court abused its discretion in
deeming that [] Appellant did not meet his burden of proof or
that there was no material disputed facts for a review by a jury?
Appellant’s Brief at 7 (unnecessary capitalization omitted).
For purposes of disposition and clarity, we combine Appellant’s issues.
Appellant essentially argues that the trial court erred in granting Appellees’
motion for summary judgment because a dispute exists as to genuine issues
of material fact concerning whether the Intestinal Mixture listed
phenobarbital as an ingredient.6
Preliminarily, we recognize that Appellant is representing himself in
this appeal. Nonetheless, pro se representation does not excuse Appellant
of his duty to properly assert and develop his appealable claims. Smathers
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5
The trial court also concluded that Appellant could not establish that he
justifiably relied on Appellees’ alleged misrepresentation. Trial Court Order,
4/7/16, at ¶ 1.
6
Appellant does not challenge the trial court’s conclusion that he failed as a
matter of law to establish the element of justifiable reliance under the
UTPCPL.
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v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996). As we have
explained:
While this court is willing to liberally construe materials
filed by a pro se litigant, we note that appellant is not entitled to
any particular advantage because [he] lacks legal training. As
our [S]upreme [C]ourt has explained, “any layperson choosing
to represent [himself] in a legal proceeding must, to some
reasonable extent, assume the risk that [his] lack of expertise
and legal training will prove [his] undoing.”
Id. In this case, Appellant chose to proceed pro se and, consequently, he
cannot now expect this Court to act as his attorney when issues are not
properly preserved, raised and developed. Id.
With this in mind, and before we address the merits of his claim, we
note that Appellant raises a number of issues on appeal that he has failed to
preserve for our review. Thus, to the extent Appellant relies on the Federal
Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., to argue
that Appellees could not legally dispense the Intestinal Mixture, which
contained phenobarbital, without a prescription, we reject such argument as
waived. Appellant did not raise the applicability of the FDCA in the trial
court. See Pa.R.A.P. 302(a). Even if he had, he still would not be entitled
to relief because the FDCA does not provide for a private cause of action.
See In re Orthopedic Bone Screw Prod. Liab. Litig., 193 F.3d 781, 788
(3d Cir. 1999) (“It is well settled, however, that the FDCA [(21 U.S.C. §
337(a))] creates no private right of action.”); see also Cabiroy v.
Scipione, 767 A.2d 1078, 1081 (Pa. Super. 2001) (noting that the FDCA
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does not contain a private cause of action), appeal denied, 782 A.2d 541
(Pa. 2001).
Similarly, insofar as Appellant invokes causes of action for fraud,
negligent misrepresentation and breach of contract, we decline to entertain
them because Appellant failed to raise them in the trial court. See Pa.R.A.P.
302(a). We also reject as waived Appellant’s challenge to the trial court’s
grant of Appellees’ second renewed motion for judgment on the pleadings
dismissing his negligence claims. Appellant has failed to raise this issue in
the statement of question presented section of his brief. See Krebs v.
United Refining Co. of Pa., 893 A.2d 776, 797 (Pa. Super. 2006) (stating
that any issue not set forth in or suggested by an appellate brief’s statement
of questions involved is deemed waived under Pa.R.A.P. 2116(a)).
Additionally, even if we were to overlook Appellant’s noncompliance with
Rule 2116(a), we still would not be able to review meaningfully this issue
because he fails to develop his argument that the trial court erred in
applying the economic loss doctrine to dismiss his negligence claims. See
Pa.R.A.P. 2119; see also Umbelina v. Adams, 34 A.3d 151, 161 (Pa.
Super. 2011) (stating “where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived[]”) (citation omitted), appeal denied, 47 A.3d 848 (Pa. 2012).
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We now turn to Appellant’s argument that the trial court erred in
granting Appellees’ motion for summary judgment and consequently
dismissing his claims under Section 201-2(4)(ii), and (vii) of the UTPCPL.
It is well-settled that
[o]ur scope of review of a trial court’s order granting or denying
summary judgment is plenary, and our standard of review is
clear: the trial court’s order will be reversed only where it is
established that the court committed an error of law or abused
its discretion.
Summary judgment is appropriate only when the record clearly
shows that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. The
reviewing court must view the record in the light most favorable
to the nonmoving party and resolve all doubts as to the
existence of a genuine issue of material fact against the moving
party. Only when the facts are so clear that reasonable minds
could not differ can a trial court properly enter summary
judgment.
Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (quoting
Cassel-Hess v. Hoffer, 44 A.3d 80, 84-85 (Pa. Super. 2012)). Moreover,
“[w]here the non-moving party bears the burden of proof on an issue, he
may not merely rely on his pleadings or answers to survive summary
judgment.” Krauss v. Trane U.S. Inc., 104 A.3d 556, 563 (Pa. Super.
2014) (citation omitted). “Failure of a non-moving party to adduce sufficient
evidence on an issue essential to his case and on which he bears the burden
of proof establishes the entitlement of the moving party to judgment as a
matter of law.” Id. Finally, “[s]ummary judgment is proper where the
pleadings, depositions, answers to interrogatories, admissions, affidavits and
other materials show there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” 412 North Front
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Street Assocs., LP v. Spector Gadon & Rosen, P.C., 151 A.3d 646, 660
(Pa. Super. 2016) (citation omitted).
Here, Appellant argues that a dispute exists as to genuine issues of
material fact concerning whether the label affixed to the Intestinal Mixture
listed phenobarbital as an ingredient. Appellant contends that the Intestinal
Mixture did not feature “any clear notice that [it] in fact contained
[phenobarbital] that required a prescription.” Appellant’s Brief at 23. He
argues that “[b]ut for the mislabeling, [he] would not have swallowed the
[Intestinal Mixture] and fail[ed] a drug test.” Id. In essence, Appellant
argues that the Intestinal Mixture “did not state the true ingredients,” i.e.,
that it contained phenobarbital. Id. at 25.
“To bring a private cause of action under the UTPCPL, a plaintiff must
show that he justifiably relied on the defendant’s wrongful conduct or
representation and that he suffered harm as a result of that reliance.”
Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 2004)
(citations omitted). The UTPCPL provides in part:
(4) “Unfair methods of competition” and “unfair or
deceptive acts or practices” mean any one or more of the
following:
....
(ii) Causing likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval or certification of goods or
services;
....
(vii) Representing that goods or services are of a particular
standard, quality or grade, or that goods are of a particular style
or model, if they are of another[.]
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73 P.S. § 201-2(4)(ii), (vii).
Instantly, contrary to Appellant’s assertions on appeal, it is undisputed
that the label affixed to the Intestinal Mixture listed as an ingredient
phenobarbital. As Appellees point out, Appellant admitted this fact not only
in his complaint, but also during his deposition. Indeed, at his deposition,
Appellant testified:
Q. But if [the Intestinal Mixture] had said, contains
phenobarbital as one of the ingredients, [consumers] would have
known that, correct?
A. Well, if something came up that there was a question
that phenobarbital was causing a problem, they could have
found out because it would have been on the bottle. But without
having it on the bottle, you don’t know where it comes from. If
they had this labeled, this label on the bottle, I would have
never known that I had—you know, that I had gotten
phenobarbital in my system. The only reason I knew I did is
because they have it labeled there that it contains phenobarbital.
This bottle doesn’t say what it contains.
Q. Now, the bottle that’s labeled [Intestinal Mixture], that’s
the one that you took in March of 2012, correct?
A. Correct.
Q. And the label on that bottle does indicate that it
contains phenobarbital, doesn’t it?
A. Yes.
Deposition Testimony, 4/30/15, at 67-68. Moreover, Appellant testified that
he was able to read the label affixed to the Intestinal Mixture and, had he
read the label prior to ingesting the Intestinal Mixture, he would have
noticed that the Intestinal Mixture contained phenobarbital.
Q. Now, sir, you’ll agree with me that on the front—the
label on the front of the [] Intestinal Mixture, there is a list of
ingredients at the bottom that says, contains, correct?
A. Yes.
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Q. And then after the word, contains, there are four
ingredients, right?
A. Right.
Q. And you’re able to read that, correct?
A. Yes.
Q. So if you had looked at that at the time you took the
dose of [the Intestinal Mixture], you would have seen that it had
phenobarbital listed there, correct?
A. I would have seen that it had what it contained, but I
wouldn’t have known what phenobarbital was.
Q. And the list of what it contains includes the word,
phenobarbital, correct?
A. Correct.
Id. at 86. Also, our review of the record, especially Appellant’s deposition
testimony, reveals that he did not allege that Appellees ever advised him
that the Intestinal Mixture was bereft of phenobarbital. Id. at 86-87. Based
on the evidence of record, and in light of Appellant’s own admission, it is
undisputed that the label affixed to the Intestinal Mixture listed
phenobarbital as an ingredient, and that Appellees did not make any
statements to Appellant to the contrary. As a result, the trial court did not
err in concluding that no genuine issues of material fact existed with respect
to the ingredients of the Intestinal Mixture. Thus, viewing the record in the
light most favorable to Appellant, as the nonmoving party, and resolving all
doubts as to the existence of a genuine issue of material fact against
Appellees, we conclude that the trial court did not err in granting Appellees’
motion for summary judgment as a matter of law. In sum, Appellant cannot
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establish that Appellees misrepresented or deceived him regarding the
ingredients of the Intestinal Mixture.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2017
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