J-A27033-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
SANDRA COOPER, IN HER OWN : IN THE SUPERIOR COURT OF
RIGHT AND AS ADMINISTRATRIX OF : PENNSYLVANIA
THE ESTATE OF GENE M. COOPER :
:
Appellant :
:
:
v. :
: No. 627 MDA 2023
:
BRENNTAG NORTHEAST, INC. :
Appeal from the Order Entered March 31, 2023
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-15-08202
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: MARCH 6, 2024
Sandra Cooper (“Appellant”) in her own right and as administratrix of
the Estate of Gene M. Cooper, appeals from the March 31, 2023, order
granting summary judgment in favor of Brenntag Northeast, Inc. (“BNI”) in
Appellant’s wrongful death action. After careful consideration, we conclude
that a prior adverse judicial determination on the issue of whether Mr. Cooper
filed his underlying personal injury action after the expiration of the statute of
limitations collaterally estops Appellant from relitigating this issue.
Accordingly, we affirm.
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* Former Justice specially assigned to the Superior Court.
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The trial court opinion1 sets forth the pertinent facts and procedural
history, as follows:
I. FACTUAL SUMMARY
Mr. Gene M. Cooper began employment at Armstrong World
Industries, Inc. (“AWI”) in September 1974. During his
employment, he regularly used a solvent to degrease the
manufacturing equipment. [Plaintiff/Appellant] alleges that this
solvent was the brand-named Safety Solvent and that BNI
produced, sold, and distributed the product to AWI.[Fn] This
solvent contained methylene chloride (“MC”), Trichloroethylene
(“TCE”), and methyl ethyl ketone (“MEK”), and together these
three chemicals formed a toxic mixture.
[Fn] BNI denies that it ever produced, sold, or
distributed Safety Solvent.
While his duties at AWI exposed Mr. Cooper to the solvent on a
regular basis, he experienced a more significant exposure on
September 25, 2003, during a clean-up. This exposure
immediately and severely damaged Mr. Cooper’s brain. He
returned home from work on September 25, 2003, with an
uncontrollable cough, a splitting headache, and burning sinuses
(Third Am. Compl. ¶ 123). Mr. Cooper’s brain never recovered
from this exposure (Id. ¶ 124). By April 2004, Mr. Cooper was
unable to work at all. (Id. ¶ 129). He went on disability status
in May 2004, and from that point onward, [Appellant] “devoted
[her] time and efforts to get [her] husband’s brain damage
diagnosed and treated.” BNI Renewed Mot. Summ. J. Ex. G (“Pl.’s
Aff.”)
In October 2005, a doctor at Drexel Medical Center told
[Appellant] to “bring him back when you know what he was
exposed to.” (Id.) In July 2006, his disease progression forced
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1 Internal footnotes appearing in the trial court’s opinion are hereinafter
denoted by “[Fn]” and set off within our block quote of the trial court opinion.
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Mr. Cooper out of the family home, first into an assisted-living
facility and later into skilled-nursing care (Third Am. Compl. ¶¶
129-30). Dr. Stephen Gold diagnosed Mr. Cooper with work-
related toxic encephalopathy on December 17, 2007 (Third Am.
Compl. ¶ 273). [Appellant] filed a negligence action against BNI
in December 2009.[Fn] Mr. Cooper died on February 5, 2014 (Id.
¶ 145).
[Fn] Cooper II, docketed at Lancaster County Court
of Common Pleas Docket No. 15-08200, was
dismissed on summary judgment by [the trial court]
on October 13, 2017, based on the statute of
limitations. In Cooper II, [the trial court] noted that
Pennsylvania adopted in Wilson v. El-Daief[, 964
A.2d 354 (Pa. 2009)] the stricter notice standard for
determining when the statute of limitations period
begins to run. Based on the undisputed facts of
Cooper II, [the trial court] determined the plaintiffs
had notice in April 2004, August 2005, and “at the
very latest, . . . were put on notice in November 2007,
when Dr. Stephen Gold provided a diagnosis of work-
related toxic encephalopathy.” It was a final order
deciding the issue of statute of limitations and
resulting in the termination of the case. No timely
appeal of the court’s summary judgment order was
taken. However, Cooper II was appealed on other
grounds all the way to the Pennsylvania Supreme
Court, which denied allocator.
II. PROCEDURAL HISTORY []
The present action commenced with the filing of [Appellant’s]
complaint on October 22, 2014, in the Court of Common Pleas of
Philadelphia County at October Term, No. 02594 (141002594).
On September 23, 2015, the case was transferred to the Court of
Common Pleas of Lancaster County at Docket No. Cl-15-08202
(“present action” or “Cooper III”). The present action is the last
of a group of more than thirty cases involving numerous plaintiffs
who brought various claims primarily against former defendant
Armstrong World Industries, Inc., and current defendant BNI.
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The present action began in October 2014 as a wrongful death
and survival lawsuit against multiple defendants.[Fn] [Appellant]
filed her third amended complaint in the present action on October
6, 2017. [The trial court] sustained preliminary objections to the
third amended complaint on December 6, 2017, dismissing the
complaint with prejudice. [The trial court] relied on res judicata
grounds as to BNI.
[Appellant] appealed the dismissal of the complaint as to BNI on
the Wrongful Death claims only. The Superior Court reversed [the
trial court’s] decision as to Wrongful Death, determining res
judicata did not apply because Cooper II had been decided on
statute of limitations, not the merits of the case. [2] All other issues
on appeal were affirmed. Cooper III is now limited to Count I, a
wrongful death claim against BNI.
Thereafter, BNI filed an answer to the complaint and later a
motion for summary judgment on December 14, 2021, asserting
(1) the doctrine of collateral estoppel (issue preclusion) prevents
plaintiff from denying BNI’s affirmative defense of statute of
limitations, and (2) the independent facts of the case demonstrate
BNI is entitled to summary judgment based on the statute of
limitations. [Appellant] responded in opposition on January 14,
2022, arguing that whether the statute of limitations has run is a
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2 In our memorandum decision Cooper v. Armstrong World Indus., No.
117 MDA 2018 (Pa. Super. filed December 27, 2018) (non-precedential
decision), we reasoned that we were “constrained” to affirm in part, reverse
in part, and remand for further proceedings without addressing the discrete
limitations issue because the trial court had not addressed it. Instead, the
trial court erroneously applied the doctrine of res judicata, or claim preclusion,
to find that the court previously had rejected the wrongful death claim “on its
merits” when it applied the statute of limitations to find Appellant had filed it
out of time. We observed that finding a claim to have been filed out of time
under the applicable limitations period constitutes not a decision on the merits
of the claim itself but, instead, only a determination that a remedy for the
claim is no longer available in the jurisdiction imposing the corresponding
limitations period. Therefore, res judicata, or claim preclusion, does not result
from the application of the statute of limitations. As we discuss infra,
however, because the distinct issue of whether the statute of limitations bars
relief in Appellant’s action was addressed and decided on its merits in a
previous judicial determination, we find that collateral estoppel, or issue
preclusion, applies to defeat Appellant’s wrongful death claim.
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genuine question of material fact, that [BNI’s] motion is untimely,
and that two intervening appellate cases make summary
judgment inappropriate.
Trial Court Opinion, 3/31/23, at 1-4.
In the trial court’s March 31, 2023, order granting summary judgment,
it determined that Appellant’s wrongful death claim was barred by the statute
of limitations because Mr. Cooper’s underlying personal injury claim no longer
viable at the time of his death, the applicable two-year limitations period
having commenced no later than in November 2007 and expired no later than
November 2009, prior to the December 1, 2009, filing of Mr. Cooper’s
negligence action.3 This timely appeal followed.
Appellant raises the following issues for this Court’s review:
1. Where, as here, the Trial Court, on two separate occasions,
selected the accrual date of Appellant’s cause of action,
granted summary judgment and dismissed Appellant’s case
in its entirety, despite the existence of issues of fact
regarding the accrual date, and where this Court previously
rejected both attempts by the Trial Court to select the
accrual date of the cause of action for purposes of finding
that the statute of limitations had expired prior to the filing
of this and another case, whether the Trial Court erred in
holding (a third time) that the accrual date was identical to
the date which was twice previously rejected by this Court,
based on estoppel principles.
2. Where, as here, after the case was remanded from this
Court on December 27, 2018, no substantive discovery on
the issue of the statute of limitations took place (as the Trial
Court stayed all discovery), and, therefore, the Summary
Judgment Record on the issue of the statute of limitations
____________________________________________
3 See Section 5524(7) of the Judicial Code, 42 Pa.C.S. § 5524(7) (imposing
two-year statute of limitations period on an action sounding in tort).
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was identical to the record as it existed on December 27,
2018, with no new facts presented to the Trial Court
between December 27, 2018 and March 31, 2023, whether
the Trial Court erred in granting summary judgment in favor
of BNI, as its basis for granting summary judgment could
not be factually supported in any way other than with
reference to facts and legal arguments found in its
previously reversed December 6, 2017 Order?
Brief for Appellant, at 7-8.
In reviewing a trial court's grant of summary judgment,
[W]e apply the same standard as the trial court, reviewing all the
evidence of record to determine whether there exists a genuine
issue of material fact. We view the record in the light most
favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party. Only where there is no genuine issue
as to any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary judgment
be entered. All doubts as to the existence of a genuine issue of a
material fact must be resolved against the moving party.
Motions for summary judgment necessarily and directly implicate
the plaintiff's proof of the elements of [a] cause of action.
Summary judgment is proper if, after the completion of discovery
relevant to the motion, including the production of expert reports,
an adverse party who will bear the burden of proof at trial has
failed to produce evidence of facts essential to the cause of action
or defense which in a jury trial would require the issues to be
submitted to a jury. In other words, whenever there is no genuine
issue of any material fact as to a necessary element of the cause
of action or defense, which could be established by additional
discovery or expert report and the moving party is entitled to
judgment as a matter of law, summary judgment is appropriate.
Thus, a record that supports summary judgment either (1) shows
the material facts are undisputed or (2) contains insufficient
evidence of facts to make out a prima facie cause of action or
defense.
Upon appellate review, we are not bound by the trial court's
conclusions of law, but may reach our own conclusions.
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Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa. Super. 2006)
(internal citations and quotation marks omitted).
Appellant’s two issues coalesce to assert the trial court erroneously
granted summary judgment in favor of BNI and dismissed the case in the
absence of sufficient discovery on what she maintains is the continuing
genuine issue of material fact as to when Mr. Cooper knew or should have
known that the negligence of BNI in manufacturing, producing, selling, or
supplying the solvent to his employer was the cause of his work-related toxic
encephalopathy. Because this issue of material fact remained open beyond
November 2007 at the very least, Appellant argues, the two-year statute of
limitations could not have run out before December 1, 2009, the date on which
Mr. Cooper initiated his personal injury action against BNI. Therefore,
Appellant posits that Mr. Cooper’s underlying personal injury action was timely
filed, remained viable at the time of his death, and, it follows, capable of
sustaining Appellant’s wrongful death action filed after his passing.4
____________________________________________
4 “Although a third party's right of action in a wrongful death claim is an
independent statutory claim of a decedent's heirs and is not derivative of a
decedent's right of action, . . . ‘a wrongful death claim still requires a tortious
injury to succeed.’” Valentino v. Philadelphia Triathlon, LLC, 209 A.3d
941, 945 (Pa. 2019). In that vein, it is well-settled that a wrongful death
action is barred where a cause of action by the deceased at the time of death
would have been barred by the statute of limitations. See, e.g., Valentino
v. Philadelphia Triathlon, LLC, 150 A.3d 483, 492-93 (Pa. Super. 2016),
aff’d, 209 A.3d 941(Pa. 2019). See also Ingenito v. AC&S, Inc., 633 A.2d
1172, 1176 (Pa. Super. 1993) (observing “no action for wrongful death can
be maintained where the decedent, had he lived, could not himself have
recovered for the injuries sustained.”).
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BNI counters simply that the two-year statute of limitations on the
personal injury claim underlying the present wrongful death action started to
run by November 2007 at the latest and put Mr. Cooper out of time when he
filed his personal injury action more than two years later, on December 1,
2009. In support, BNI points to a timeline beginning with the immediate
manifestation of neurologic symptoms following Mr. Cooper’s clean-up of a
2003 solvent spill, his 2004 retirement because of debilitating injuries caused
by the work-related exposure, the 2005 diagnosis of cognitive disorder
possibly caused by the toxic exposure, and the November 2007 medical
diagnosis of work-related toxic encephalopathy.
Furthermore, BNI relies on the prior judicial determination of the trial
court which, in the Coopers’ underlying personal injury lawsuit, entered its
October 13, 2017, order adopting the above factual timeline to grant BNI’s
motion for summary judgment on the finding that the statute of limitations
had commenced in November of 2007 and expired before the Coopers filed
their December 1, 2009, personal injury action.5 BNI therefore argues that
application of the collateral estoppel (or issue preclusion) doctrine precludes
Appellant from prevailing on a decided predicate issue on which her wrongful
death claim necessarily depends. For reasons that follow, we conclude that
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5 This Court previously acknowledged that “Appellant Cooper did not seek
appellate review of the Order Granting M/SJ [motion for summary judgment]
and dismissing the Third Amended Complaint with Prejudice. . . . See Cooper
v. Brenntag Northeast, Inc., 249 A.3d 1164 (Pa. Super. 2021) (non-
precedential decision).
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the trial court properly deemed Appellant collaterally estopped from contesting
the prior, final judicial determination that the statute of limitations on the
underlying personal injury claim had expired in November 2009 at the latest.
This Court recently discussed the doctrine of collateral estoppel and its
proper application, as follows:
“The phrase ‘collateral estoppel,’ also known as ‘issue
preclusion,’ simply means that when an issue of law, evidentiary
fact, or ultimate fact has been determined by a valid and final
judgment, that issue cannot be litigated again between the same
parties in any future lawsuit.” Id. (citation omitted); see also
Chada v. Chada, 756 A.2d 39, 42 (Pa. Super. 2000) (doctrine of
collateral estoppel precludes litigation of claims and issues that
have previously been litigated).
An issue is actually litigated when it is properly raised,
submitted for determination, and then actually
determined. For collateral estoppel purposes, a final
judgment includes any prior adjudication of an issue
in another action that is sufficiently firm to be
accorded conclusive effect.
Brockington-Winchester, 205 A.3d at 1284 (citation omitted).
Collateral estoppel applies when:
(1) the issue decided in the prior case is identical to
one presented in the later case; (2) there was a final
judgment on the merits; (3) the party against whom
the plea is asserted was a party or in privity with a
party in the prior case; (4) the party or person privy
to the party against whom the doctrine is asserted had
a full and fair opportunity to litigate the issue in the
prior proceeding and (5) the determination in the prior
proceeding was essential to the judgment.
Chada, 756 A.2d at 42.
In re R.H.M., 303 A.3d 146, 151 (Pa. Super. 2023).
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The collateral estoppel question before us asks if there exists a prior,
final judgment on the merits of an essential, identical statute of limitations
issue that took the Coopers out of court after they had received a full and fair
opportunity to litigate the issue. BNI answers that such a judgment was
entered in the trial court’s order of October 13, 2017, granting BNI’s motion
for summary judgment and dismissing the original 2009 Lawsuit based on its
review of the factual record and its subsequent determination that the
“limitations period began to run at the very latest in November 2007. . . .
[and] Plaintiffs failed to commence their action within the statutory period, as
they did not file a writ of summons until December 1, 2009.” Trial Court Order
and Opinion, 10/13/17. The trial court thus entered this judgment after a
review of the fully litigated facts and authority pertaining to the issue of
whether Mr. Cooper’s cause of action was filed out of time. Furthermore,
Appellant failed thereafter to file a timely appeal challenging the trial court’s
decision on this determinative issue.
Therefore, there is no question that a final, adverse judicial
determination was made on the merits of the issue of whether Mr. Cooper
timely filed the personal injury claim against BNI. In the present wrongful
death action, Appellant Mrs. Cooper revisits the identical statute of limitations
issue, and she asks the court once again to review the same pertinent facts,
procedural history, and legal authority bearing on the limitations issue but to
reach a decision opposite to that previously reached by the trial court, whose
order entering summary judgment was not challenged by a timely appeal.
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Because the viability of the decedent’s personal injury claim is a
necessary predicate to the present wrongful death action,6 and there exists
adverse to Appellant’s interest a prior final, merits-based determination on
the issue of whether decedent’s personal injury claim was filed after the
accrual of the statute of limitations, we find the doctrine of collateral estoppel
applies to bar Appellant’s wrongful death action.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 3/6/2024
____________________________________________
6 See Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 492-93 (Pa.
Super. 2016), aff’d, 209 A.3d 941(Pa. 2019).
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