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DREXEL v. UNION PRESCRIPTION CTRS.

March 23, 1977

ROSE MARIE DREXEL, Administratrix of the Estate of EDWARD H. DREXEL, SR., Deceased, and ROSE MARIE DREXEL, in her own right
v.
UNION PRESCRIPTION CENTERS, INC.



The opinion of the court was delivered by: LUONGO

 This is an action for damages under the Pennsylvania Wrongful Death Act, 12 P.S. §§ 1601 et seq., and the Pennsylvania Survival Act, 20 Pa. C.S.A. §§ 3371 et seq. Jurisdiction is based upon diversity of citizenship, 28 U.S.C. § 1332(a)(1). *fn1" The case is before me on defendant's motion for summary judgment, Fed. R. Civ. P. 56. Affidavits and a deposition have been filed which form a record upon which this motion may be decided. See Fed. R. Civ. P. 56(c).

 The complaint alleges that plaintiff's husband, the decedent, had been given a prescription for the drug "Aldactone" which was properly filled on March 3, 1975 by a Reading, Pennsylvania, retail drug store known as Union Prescription Center. Decedent returned to that same drug store on April 14, 1975 to have the prescription refilled, but this time the prescription was filled with the drug "Coumadin" instead of "Aldactone." As a result of taking "Coumadin," "plaintiff's decedent sustained massive traumatic injuries from which he died on May 12, 1975." *fn2"

 On January 12, 1976, plaintiff, acting on behalf of herself and in her capacity as administratrix of decedent's estate, filed this action against Union Prescription Centers, Inc., charging it with "negligence and carelessness and malpractice" in improperly refilling the prescription.

 Defendant, Union Prescription Centers, Inc., filed this motion for summary judgment contending that it "was not, at any time material to plaintiff's cause of action, the owner, operator, possessor, or in control of the drug store" in which the prescription was filled. Defendant asserts that on October 15, 1974, it entered into a franchise agreement under which Joseph J. Todisco, Jr. purchased from defendant the right to acquire the retail drug store in Reading and to operate it under the Union Prescription Center name. Defendant alleges that Todisco is an independent contractor for whose acts it is not liable.

 In support of its motion for summary judgment, defendant has submitted the affidavits of Joseph J. Todisco, Jr., the franchisee, and James B. Young, Esquire, defendant's corporate counsel. These affidavits assert that Todisco was not and never had been a servant, employee or agent of defendant; that at no time relevant to plaintiff's cause of action had defendant supplied drugs or medication to Todisco; and that defendant neither controlled nor had the right to control the physical conduct of the local pharmacist, Todisco.

 Plaintiff has filed no countervailing affidavits to contest the franchise arrangement between defendant and Todisco, but instead has reiterated and relied upon the allegations of the complaint. It is plaintiff's position that defendant is vicariously liable for Todisco's alleged negligence, either because defendant retained sufficient control over the operation of the Reading store to make it liable under principles of respondeat superior, or because defendant "held itself out" to the public as the owner or operator of the Reading store.

 Plaintiff has cited several provisions of the franchise agreement between defendant and Todisco as evidence that there existed between them a master-servant or principal-agent relationship or that plaintiff held itself out as the store's owner: the franchisor provides "management and marketing advice throughout the franchisee's tenure" (Preamble, page 1); the retail store may only operate under the "Union Prescription Center" name and logo (Article I.A., B., page 2); defendant approves the location of each retail store and reserves the right to inspect the premises (Article IV.A., page 3); the retail store must adhere to defendant's "uniformly high standards of service, appearance, quality of equipment and proved methods of operation" (Article VI.C., page 4); the retail store must conform to inventory requirements and remain open for business a minimum of forty-six hours per week (Articles VIII, IX, page 5); the retail store must utilize advertising and promotional materials specified by defendant "to maintain uniformity of appearance, national recognition, point of purchase impact and full penetration of promotional opportunities" (Article XII. C., page 7); defendant has the right to terminate the agreement if the retail store does not comply with the agreement's provisions, in which case defendant can take possession of the store (Articles XV., XVI.B., page 9). In addition, plaintiff has submitted and relies upon the deposition (Document No. 16) of Joseph J. Todisco, Jr., the franchisee.

 DISCUSSION

 The moving party in a motion for summary judgment undertakes a twofold burden under Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) provides that:

 
"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

 The moving party thus has the burden to establish that there exists no genuine issue as to any material fact and that judgment in his favor is proper as a matter of law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748, 45 U.S.L.W. 3463 (1977); Felix v. Young, 536 F.2d 1126, 1130 (6th Cir. 1976). The evidence must be considered in a light most favorable to the opposing party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam); Goodman v. Mead Johnson & Co., supra, at 573. When the party opposing a motion for summary judgment has alleged facts in his pleadings which are supported by affidavits or other evidence, those facts must be taken as true in ruling on the motion. First National Bank of Cincinnati v. Pepper, 454 F.2d 626, 629 (2d Cir. 1972). Nevertheless, the opposing party cannot rest on mere allegations in the complaint, but instead he must come forth, through some evidentiary means, with specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Sound Ship Building Corp. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3d Cir.), cert. denied, 429 U.S. 860, 97 S. Ct. 161, 50 L. Ed. 2d 137, 45 U.S.L.W. 3253 (1976); Williams v. McAllister Bros., Inc., 534 F.2d 19, 23-24 (2d Cir. 1976); Season-All Industries, Inc. v. Merchant Shippers, 417 F. Supp. 998, 1002 (W.D. Pa. 1976).

 1. The Respondeat Superior Theory

 Negligence, vicarious or otherwise, cannot be predicated upon a set of circumstances which do not create a legal duty. Zayc v. John Hancock Mut. Life Ins. Co., 338 Pa. 426, 430-31, 13 A.2d 34 (1940); Boyce v. United States Steel Corp., 446 Pa. 226, 230, 285 A.2d 459 (1971). Under Pennsylvania law in order to hold a master/principal vicariously liable for the negligence of a servant/agent, it must be shown that the master has the right to control not only the results of the servant's work but also the very manner in which ...


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