the urine sample for
tampering and contamination, properly maintain testing devices for
accurate testing, use properly trained, educated, experience [sic] or
licensed personnel to test sample Plaintiff's urine sample, properly
maintain accurate records for the urine sample, and properly supervise
its personnel to ensure the tests were performed correctly, the sample
was not contaminated, and the records accurately showed the history for
the sample from the time it was received to end."
Dismissal for failure to state a claim is appropriate when it clearly
appears that the plaintiff can prove no set of facts to support the claim
which would entitle him or her to relief. See Conley v. Gibson,
355 U.S. 41, 45-46 (1957); Robb v. Philadelphia, 733 F.2d 286, 290 (3d
Cir. 1984). Such a motion tests the legal sufficiency of a claim
accepting the veracity of the claimant's allegations. See Markowitz v.
Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Sturm v. Clark,
835 F.2d 1009, 1011 (3d Cir. 1987). A claim may be dismissed when the
facts alleged and the reasonable inferences therefrom are legally
insufficient to support the relief sought. See Pennslyvania ex rel.
Zimmerman v. PepsiCo., Inc., 836 F.2d 173, 179 (3d Cir. 1988).
To state a negligence claim under Pennsylvania law, plaintiff must
allege a duty or obligation recognized by the law requiring the actor to
conform to a certain standard of conduct for the protection of others
against unreasonable risks; a failure on that person's part to conform to
the standards required; a causal connection between the conduct and a
resulting injury; and, actual loss or damage resulting to the interest of
another. See Ferry v. Fisher, 709 A.2d 399, 402 (Pa.Super. 1998). See
also J.E.J. v. Tri-County Big Brothers/Big Sisters, Inc., 692 A.2d 582 (
Pa. Super. 1997) ("[t]he elements of a cause of action based on
negligence are a duty, a breach of that duty, a causal relationship
between the breach and the resulting injury, and actual loss").
A drug laboratory owes no duty of care to a customer's employee when it
performs drug screening tests on the employee on behalf of the customer.
See Ney v. Axelrod, 723 A.2d 719, 722 (Pa.Super. 1999) (plaintiff cannot
sue drug laboratory and doctor who performed drug screening tests on
plaintiff for negligence as there was no physician-patient relationship
giving rise to duty of care). Similarly, a patient cannot maintain an
action in negligence against a physician where a third party has
sponsored the patient's examination. See Promubol v. Hackett, 686 A.2d 417,
420-21 (Pa.Super. 1996) (physician owed no duty of care to patient when
insurance company sponsored examination in connection with application
for life insurance); Tomko v. Marks, 602 A.2d 890, 892 (Pa.Super. 1992)
(plaintiff whose employer sponsored medical examination cannot maintain
negligence action against examining doctor as there was no doctor-patient
relationship or duty of care). See also Elia v. Erie Ins. Exchange,
581 A.2d 209, 212 (Pa.Super. 1990) (plaintiff cannot maintain claims for
fraud and deceit against doctor who examined plaintiff for insurance
company to determine fitness to work).
Drugscan tested plaintiff's urine on behalf of the Department. There
are no allegations of any other relationship between Drugscan and
plaintiff. Drugscan owed no duty of care to plaintiff. In the absence of a
duty of care, plaintiff cannot make out a negligence claim against
ACCORDINGLY, this day of June, 2001, upon consideration of defendant
Drugscan Inc.'s Motion to Dismiss Count VII of Plaintiff's Complaint
(Doc. #4) and plaintiff's response thereto,
IT IS HEREBY ORDERED that said Motion is GRANTED.