Cooper, S. v. Armstrong World Industries, Inc. ( 2016 )

J-A03033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SANDRA COOPER, IN HER OWN RIGHT IN THE SUPERIOR COURT OF
AND AS ADMINISTRATRIX OF THE PENNSYLVANIA
ESTATE OF GENE M. COOPER
Appellant
v.
ARMSTRONG WORLD INDUSTRIES, INC.,
ALAN J. HAY, M.D.
Appellees No. 632 EDA 2015
Appeal from the Order Entered February 2, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): August Term, 2013, No. 02452
SANDRA COOPER, IN HER OWN RIGHT IN THE SUPERIOR COURT OF
AND AS ADMINISTRATRIX OF THE PENNSYLVANIA
ESTATE OF GENE M. COOPER
Appellant
v.
ARMSTRONG WORLD INDUSTRIES, INC.,
ALAN J. HAY, M.D.
Appellees No. 633 EDA 2015
Appeal from the Order Entered February 2, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 2452 August Term, 2013
BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 15, 2016
Appellant, Sandra Cooper, in her own right and as administratrix of the
J-A03033-16
Estate of Gene M. Cooper, appeals from the orders entered in the
Philadelphia County Court of Common Pleas, which granted summary
judgment in favor of Appellees, Armstrong World Industries, Inc. (Appellee
AWI) and Alan J. Hay, M.D. (“Appellee Hay”). We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we will only briefly
summarize them. In September 2003, a chemical spill occurred at Appellee
AWI’s plant in Lancaster, Pennsylvania. Gene M. Cooper (“Mr. Cooper”) was
an employee of Appellee AWI and one of the workers assigned to clean up
the spill. Mr. Cooper developed a cough and severe sinus pain immediately
after his involvement in the cleanup. Within several months of the cleanup,
Mr. Cooper began a cognitive decline.
When his cognitive issues interfered with his work, Appellee AWI
referred Mr. Cooper to Appellee Hay for an evaluation. After evaluating Mr.
Cooper, Appellee Hay contacted Mr. Cooper’s primary physician, who
ordered neurological testing to diagnose Mr. Cooper’s condition. Due to Mr.
Cooper’s substantial cognitive issues, Appellee AWI placed Mr. Cooper on
disability in May 2004. Over the next several years, Mr. Cooper’s condition
rapidly deteriorated. The court deemed Mr. Cooper a totally incapacitated
person in June 2006. As Mr. Cooper’s then court-appointed legal guardian,
Appellant subsequently placed Mr. Cooper in a full-time assisted living
facility. After multiple evaluations of Mr. Cooper by many different doctors,
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Mr. Cooper was diagnosed in November 2007, with work-related
encephalopathy with consequent dementia.
In December 2007, Appellant filed a worker’s compensation claim on
Mr. Cooper’s behalf, which asserted that Mr. Cooper had developed
encephalopathy with dementia after toxic overexposure at work. During the
course of the worker’s compensation case, Appellant requested Mr. Cooper’s
chemical exposure documentation from Appellee AWI. Appellee AWI
supplied some of the pertinent information, but it claimed the rest of Mr.
Cooper’s relevant chemical exposure documentation had been inadvertently
lost or destroyed during a move to a new building. Appellant learned for the
first time, in 2009, of Appellee Hay’s evaluation of Mr. Cooper in 2004. After
numerous additional evaluations of Mr. Cooper by doctors, Appellant learned
that Mr. Cooper’s prognosis was poor and his injury was the result of
“occupational solvent exposure.” In October 2011, Appellant learned from
an employee of Appellee AWI that Mr. Cooper’s chemical exposure
documentation was stored on Appellee AWI’s computer system.
In the worker’s compensation action, the court determined Mr. Cooper
suffered from toxic encephalopathy caused by chronic solvent and chemical
exposure and acute exposure to toxic chemicals while working at Appellee
AWI’s manufacturing plant. As a result, in 2012, the court awarded Mr.
Cooper compensation benefits, interest, attorney’s fees, litigation costs, and
medical expenses incurred for the treatment of his toxic encephalopathy.
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On August 22, 2013, Appellant filed a tort action against Appellees.
On October 9, 2013, Appellant filed an amended complaint, which raised
claims of fraud, conspiracy, recklessness, negligent infliction of emotional
distress, and intentional infliction of emotional distress. Appellee AWI and
Appellee Hay filed preliminary objections on October 28, 2013, and October
29, 2013, respectively. The court overruled both Appellees’ preliminary
objections on November 29, 2013. Appellee Hay then filed an answer and
new matter to Appellant’s complaint on December 30, 2013, and Appellee
AWI filed an answer and new matter on January 8, 2014. Mr. Cooper died
on February 5, 2014.
On October 22, 2014, Appellant and her children filed a wrongful death
and survival action against Appellees. On October 25, 2014, Appellant filed
a motion to consolidate the 2013 tort action with the wrongful death and
survival action pursuant to Pa.R.C.P. 213(e)(1), which the court granted by
order dated November 26, 2014.
On December 1, 2014, both Appellees filed motions for summary
judgment in the 2013 tort action alleging, inter alia, the relevant statutes of
limitation barred Appellant’s claims raised in that action. After Appellant
filed answers to Appellees’ motions for summary judgment, the court
granted summary judgment on January 21, 2015, in favor of both Appellees
on Appellant’s negligent infliction of emotional distress and intentional
infliction of emotional distress claims and Appellee Hay on Appellant’s
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recklessness claim. The court then granted summary judgment in favor of
Appellees on all of Appellant’s remaining claims in the 2013 tort action by
order dated January 30, 2015, and docketed February 2, 2015. On February
10, 2015, Appellant filed a notice of appeal from the court’s order granting
summary judgment in favor of Appellees. The court ordered Appellant on
February 11, 2015, to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and Appellant complied on March 2,
2015.
On May 17, 2016, we quashed the appeal, based on this Court’s
decision in Malanchuk v. Tsimura, 106 A.3d 789 (Pa.Super. 2014) (en
banc), which defined the order on appeal as a non-final order; that case was
then pending review before the Pennsylvania Supreme Court. In the wake
of our Supreme Court’s reversal, however, we promptly withdrew our
disposition and sua sponte granted reconsideration of this appeal on May 26,
2016. See Malanchuk v. Tsimura, ___ A.3d ___, 2016 WL 3022688 (Pa.
filed May 25, 2016) (holding: where court consolidates two actions pursuant
to Pa.R.C.P. 213, cases retain their separate identities and require distinct
judgments unless complete consolidation is achieved; complete consolidation
occurs only when both actions involve same parties, subject matter, issues,
and defenses; absent complete consolidation, judgment entered in one case
is final, and party is entitled to immediate appeal as of right). Because the
trial court had consolidated this 2013 tort action with a wrongful death and
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survival action that involves different parties and diverse claims, complete
consolidation did not occur. See Kincy v. Petro, 606 Pa. 524, 531, 2 A.3d
490, 494 (2010). Thus, Appellant is entitled to an appeal as of right from
the trial court’s order granting summary judgment in the present case, and
this appeal is properly before us. See Malanchuk, supra.
Appellant raises one issue for our review:
DID THE [TRIAL] COURT IMPROPERLY INTRUDE UPON THE
PROVINCE OF THE FACT-FINDER BY CONCLUDING THAT
THE COOPERS HAD NOT EXERCISED REASONABLE
DILIGENCE AND THUS RENDERING THE DISCOVERY RULE
INAPPLICABLE TO THE STATUTE OF LIMITATIONS FOR
FRAUD AND CONSPIRACY?
(Appellant’s Brief at 4).
Our standard of review of an order granting summary judgment
requires us to determine whether the trial court abused its discretion or
committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344,
347 (Pa.Super. 2006).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a manner
lacking reason. Similarly, the trial court abuses its
discretion if it does not follow legal procedure.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)
(internal citations omitted). Our scope of review is plenary. Pappas v.
Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536
U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing a trial
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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.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the
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applicable law, and the well-reasoned opinion of the Honorable Ellen Ceisler,
we conclude Appellant’s issue merits no relief. The trial court opinion
comprehensively discusses and properly disposes of the question presented.
(See Trial Court Opinion, filed May 20, 2015, at 17-24) (finding: Appellant’s
claim that discovery rule tolled statute of limitations until Mr. Cooper’s
autopsy revealed exact nature of Mr. Cooper’s illness fails because perfect or
near-perfect diagnosis was not required to trigger statute of limitations;
likewise, lack of complete or exact diagnosis did not toll statute of limitations
for purposes of discovery rule; Appellant was aware, as early as September
25, 2003 (when Mr. Cooper told Appellant about cleanup of spill at work)
and no later than November 2, 2010 (when Appellant received letter about
Mr. Cooper’s illness and prognosis), that Mr. Cooper sustained serious injury
due to “occupational solvent exposure”; further, Appellant’s claim that
discovery rule should toll statute of limitation, because Appellees
“fraudulently” withheld critical documents, was undermined because (a)
Appellant knew as early as December 2005 that Appellee AWI was
withholding exposure documents in violation of Occupational Safety and
Health Act (“OSHA”), (b) Appellant learned in 2009 that Appellee Hay had
assessed Mr. Cooper in May 2004, and had failed to provide his notes to
Appellant during intervening time, and (c) between 2005 and 2010, no less
than eight doctors informed Appellant that Mr. Cooper suffered from work-
induced toxic encephalopathy and dementia; these facts establish that
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Appellant had actual or constructive notice between 2005 and 2010 that: (a)
Appellee AWI’s denial of Appellant’s request for Mr. Cooper’s exposure
records violated OSHA and prevented Appellant’s timely access to Mr.
Cooper’s exposure information, (b) Appellees hid from Appellant Dr. Hay’s
involvement with Mr. Cooper, and (c) Mr. Cooper’s progressively
deteriorating state was linked to 2003 chemical spill and other exposure to
chemicals at Appellee AWI’s plant; in light of Appellant’s notice of these
facts, November 2, 2010, was last possible date Appellant knew or should
have known, through exercise of due diligence, about Appellees’ tortious
conduct; pursuant to discovery rule, two-year statute of limitations began to
run on this date at the latest and required Appellant to file suit no later than
November 2, 2012; Appellant did not file present tort action until August 22,
2013, nearly ten months beyond applicable deadline; thus, Appellant’s
claims are time-barred, and court properly granted Appellees’ motions for
summary judgment).
We agree with the court’s decision but write separately to emphasize
the following points. First, the record discloses no dispute over whether Mr.
Copper suffered chronic solvent and chemical exposure and acute exposure
to toxic chemicals while working at Appellee AWI’s manufacturing plant.
Appellant’s fraud complaint does not allege that Appellee AWI denied the
direct connection between Mr. Cooper’s toxic exposure and his medical
diagnosis, deteriorating health, and death. Likewise, Appellant’s fraud
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complaint does not allege what additional information was needed for Mr.
Cooper’s diagnosis or how his diagnosis and treatment would have changed
or how the additional documents, on which the fraud claim rests, would have
altered the nature or cause of the workplace injury Mr. Cooper suffered. The
documents at issue purport to reveal additional information on the extent or
degree of Mr. Cooper’s exposure, which is not material to a statute of
limitations argument in the present context. Moreover, Appellant did not
assert that AWI intentionally exposed Mr. Cooper to the toxic solvents which
caused Mr. Cooper’s health problems. Instead, the intentional tort Appellant
asserted against Appellees centered on the alleged withholding of certain
documentation regarding the extent of Mr. Cooper’s chemical exposure,
although Appellant already knew about the exposure. In this respect, the
trial court’s analysis deserves to be directly quoted as follows:
In support of [the] effort to defeat the…summary
judgment motions, [Appellant] attempted to rebut
[Appellees’] statute of limitations argument by raising both
the discovery rule and the fraudulent concealment
doctrine, in essence maintaining that there are genuine
issues of material fact as to whether the filing window was
tolled, and whether their suit was thus initiated in a timely
fashion. First, [Appellant] claimed that it was not possible
to ascertain the precise nature of Mr. Cooper’s injuries
until he was autopsied at some point in 2014. Second,
[Appellant] argued that AWI and [Dr.] Hay conspired in a
series of [still ongoing] fraudulent acts, intentional
omissions, and deliberate [record] destruction, which
(depending on which of [Appellant’s] filings one happens to
be reading) prevented [Appellant] from learning of AWI’s
alleged duplicity until October 2011 or December 2011
and, independent of the federal preemption argument,
continues to toll the statute of limitations.
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Unfortunately, neither of these arguments provided a
sufficiently substantive counter to [Appellees’] requests for
relief. Regarding the former, actual notice of an injury via
a perfect, or nearly perfect, diagnosis is not required for a
relevant statute of limitations to run, and a lack thereof
does not, in itself, toll the period for filing suit; thus, the
fact that [Appellant] may not have known the exact nature
of Mr. Cooper’s malady until after his post-mortem
examination is irrelevant, especially when the Coopers
were aware as early as September 25, 2003 (i.e. the date
of the Top Foam spill), and no later than Dr. Martin’s
November 2, 1010 assessment letter to the Coopers’
attorney (which itself merely reinforced the diagnoses
offered by Drs. Chaudhry, Cho, Fochtman, Gold, Gur,
Newberg, and Thrasher), that Mr. Cooper had sustained a
serious injury due to “occupational solvent exposure.”46 As
to the latter, though the Coopers claimed that both AWI
and Dr. Hay fraudulently withheld (and continue to
withhold) critical documentation regarding Mr. Cooper’s
workplace exposure to chemicals, whatever merit this
argument may have is undermined by a triumvirate of
details: First, the Coopers requested these exposure
records as early as December 2005, only to be refused by
AWI, even though [OSHA] explicitly requires employers to
provide such documentation, upon request, to affected
employees; second, [Appellant] became aware in 2009
that Dr. Hay had assessed Mr. Cooper during a May 2004
office visit, allegedly doing so without her knowledge, and
had not provided either of the Coopers with his related
notes during the intervening time; third, between
November 17, 2007 and November 2, 2010, the Coopers
were informed by no less than eight separate doctors that
Mr. Cooper suffered from work-induced toxic
encephalopathy and dementia. Thus, even when viewing
the case record in the light most favorable to the Coopers,
it is evident that they gained actual or constructive notice,
at various points between late 2005 and late 2010, that:
(1.) AWI had violated [OSHA] by denying their
initial…requests for Mr. Cooper’s chemical exposure
history, and had therefore prevented the Coopers from
obtaining such information in a timely manner; (2.) Dr.
Hay’s involvement in this matter had been hidden from
[Appellant] for roughly five years after Mr. Cooper’s 2004
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office visit; and (3.) Mr. Cooper’s progressively
deteriorating state, on both a mental and physical level,
was inextricably linked to his participation in the Top Foam
spill cleanup, as well as to decades of chronic exposure to
solvents and other chemicals at the Facility. Accordingly,
this [c]ourt determined that there was no genuine issue of
material fact as to the latest possible date upon which the
Coopers knew, or should have known, each of these facts,
and thus be put on notice of Appellees’ allegedly fraudulent
and conspiratorial conduct: November 2, 2010 (i.e. the
date of Dr. Martin’s letter).
46
Moreover, …given the [Workers’ Compensation
Act’s] near-blanket prohibition against common law
actions based upon workplace injuries, the injuries
allegedly caused to Mr. Cooper by the Top Foam
spill, standing alone, could not form the foundation
of a permissible [common law tort] suit.
(Trial Court Opinion at 22-24) (most internal citations, footnotes, and
quotation marks omitted). The record supports the court’s analysis, which
we accept. Accordingly, we affirm on the basis of the trial court’s opinion
and our additional commentary.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2016
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i > ' • .,
Circulated 06/20/2016 01:51 PM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION
SANDRA COOPER, IN HER OWN RIGHT, SUPERIOR COURT
AND AS PLENARY GUARDIAN OF GENE M. : 632EDA2015
COOPER, and GENE M. COOPER 633 EDA2015
Plaintiffs-Appellants
COURT OF COMMON PLEAS
130802452
v.
ARMSTRONG WORLD INDUSTRIES, INC.
and DR. ALAN J. HAY, M.D.
Defendants-Appellants
OPINION /'
l
i'. : '
...., .·
~,:'.; ; 1
ELLEN CEISLER, J. DATE: May 20, 2015~;~,t , s
I. FACTS AND PROCEDURAL HISTORY
The instant appeals, filed by Plaintiffs-Appellants Sandra Cooper and Gene M. Cooper
("Mrs. Cooper," "Mr. Cooper," or, collectively, "The Coopers"), emanate from this Court's
orders, docketed on February 2, 2015, granting Defendants-Appellants Armstrong World
Industries, Inc. and Dr. Alan J. Hay's ("A WI" and "Dr. Hay," individually, and collectively
"Appellees") respective Motions for Summary Judgment. As will be discussed at length infra,
this Court respectfully maintains that the claims contained in the Coopers' suit are barred by the
relevant statute oflimitations, meaning that this Court properly granted summary judgment in
favor of both AWI and Dr. Hay, and that the Coopers' appeals should therefore be denied.
Cooper Elal Vs Armstrong Wond lndustnes -OPFLO
1
H . 1111111 IIIH 111111
13080245200158
A WI, a flooring and ceiling manufacturer located in Lancaster, PA, 1 hired Mr. Cooper ih-
April1974, initially assigning him to warehouse operations in its Lancaster facility ("Facility").2
.........
AWI's Motion for Summary Judgment, Ex. D Part I at 17 ("A WI MSJ"). Subsequently, Mr .
Cooper took an extended leave of absence starting in 1975, during which he served in the Armed
Forces and, in addition, married Mrs. Cooper. Id. at 17, 25. He returned to AWI in October 1979,
spending the bulk of the ensuing decades working in various capacities throughout the Facility,3
and eventually became a lead product inspector in A WI's "Corlon" department. Id. at 15, 17, 19.
As a consequence of his time working at AWI, Mr. Cooper was regularly exposed to industrial
cleaning solvents of varying toxicity, as well as certain inks that were used in the flooring
manufacturing process. Id. at 12-15, 22.
While this low-level exposure may have had, in the aggregate, some negative impact on
Mr. Cooper, see A WI MSJ, Ex. D Part I at 27 (Mrs. Cooper stating that, starting at some point in
2000, Mr. Cooper began to be regularly, and inexplicably, irritable), the true tipping point was in
September 2003, when a major chemical spill occurred at the Facility. On September 25, 2003, a
valve on a tank located within the Facility's Building 94, on the #6 Coating Line of AWi's
rotogravure division, was improperly left open by an A WI employee, allowing roughly 500 or
more gallons of"Top Foam"4 to spill out into the production area and the basement below. Id. at
31-32; Amended Complaint at 5. Though Mr. Cooper was working in A WI's Codon department,
at Table 10 in the Facility's Building 200, this spill was of a magnitude necessitating an "all
I
See generally Home, AWI Licensing Company, 2015, http://www.armstrong.com/ (AWI's website, which shows
AWI's location, as well as the nature of its business operations).
2
At one point, AWI's Lancaster operations contained "five different production areas," which sprawled over an area
110 acres in size that contained 220 buildings; however, due to downsizing and related layoffs, all that remains
today is AWI's rotogravure department, which is responsible for printing certain kinds of flooring products.~
Motion for Summary Judgment, Ex. D Part I at 17.
3
Mr. Cooper graduated from Millersville College (now Millersville University) in 1989, earning a bachelor's degree
in business and finance, and later "took courses [though Villanova University] toward[s] insurance certification
[and] selling securities," though he did not obtain enough credits to sit for the Series 7 licensing exam. AWI's
Motion for Summary Judgment, Ex. D Part I at 25-26.
4
According to Harold Zerger, an AWI employee, Top Foam "is the gel that [AWI coating department employees]
put on the top layer of [AWI] flooring [and is] made out of... paste, plastisols and sawdust," as well as an industrial
solvent known as "Solvesso" and arsenic. AWI's Motion for Summary Judgment, Ex. D Part I at 32-33; see also id.
at 23 (description ofSolvesso's ingredients, as well as its potential health hazards). AWi creates a "finished
linoleum flooring product" by soaking felt with Top Foam, and then letting the felt dry. Amended Complaint at 5.
2
hands on deck" response. See AWI MSJ, Ex. D Part I at 24-25 (testimony from Joseph
Rumberger, President" of United Steelworkers Local 285 and A WI employee who worked with
Mr. Cooper); id. at 32-33 (testimony from Harold Zorger, a form.er AWi employee).
Accordingly, Mr. Cooper was pulled from his normal post and was reassigned to the Top Foam
spill mitigation endeavor in Building 94's basement. Id. at 32-33; Amended Complaint at 5.5
Despite the fact that the basement area was a confined space with nonexistent ventilation, A WI
did not give Mr. Cooper or his co-workers proper protective gear, nor did it provide them with
post-remediation decontamination. A WI MSJ, Ex. D Part I at 33 (testimony from Harold
Zorger); id at 37 (testimony from David Clark, an AWi employee). These efforts "took days to
accomplish," and were ultimately completed only through the assistance of an outside contractor.
Id. at 33-34.
Mr. Cooper returned home after completing his role in the clean-up, at which point it was
transparently clear to his wife that he was in great distress. According to Mrs. Cooper, her
husband "walked in the door and it was like a barrage. He was screaming. He was swearing. He
had tears running down his face, his eyes were watering and he was coughing. I don't even know
how to explain the cough. I've never heard anybody cough like that. .. I asked him what was the
matter." Id. at 27. Though it seems that Mr. Cooper's cough rendered him nearly incapable of
speech, he was able to communicate to his wife that he and his coworkers had dealt with a major
spill of some sort, and that he was not happy with having been required to assist with the
cleaning. Id.; Cooper Affidavit at 2. 6 More than a week passed without any real improvement,
leading Mr. Cooper to seek treatment from Dr. Gary Gehman, his personal physician, who
prescribed a 10-day course of antibiotics in order to treat what Dr. Gehman apparently believed
was some sort of sinus infection. A WI MSJ, Ex. D Part I at 27; Cooper Affidavit at 2. When this
5
While Harold Zorger testified that he only saw Mr. Cooper assist with the clean-up in Building 94's basement on
September 26, 2003, Mrs. Cooper claims that Mr. Cooper was also involved on September 25, 2003. See A WI MSJ,
Ex. D Part I at 33-34; Coopers' Response to A WI MSJ. Mrs. Cooper Affidavit at 2-3 ("Cooper Affidavit").
6
During her husband's workers' compensation case, Mrs. Cooper testified that she could not remember the exact
date that this occurred, and could only narrow it down to the last week of September 2003. AWI MSJ, Ex. D Part I
at 27; however, in an affidavit dated December 30, 2014, Mrs. Cooper claimed that her husband went to work on
September 25, 2003 and returned later that day with an "an uncontrolled cough [which prevented him from speaking
clearly], a splitting headache, 'burning sinuses."' Cooper Affidavit at 2. This later recollection is at odds with Mr.
Zorger's testimony, given that Mr. Zorger participated in the clean-up on both days, but only saw Mr. Cooper in
Building 94's basement on September 26, 2003.
3
did not solve the problem, Dr. Gehman gave Mr. Cooper another round of antibiotics, though it
is unclear whether this had any effect, positive or negative, on Mr. Cooper's physical well-being.
AWI MSJ, Ex. D Part I at 27.
As the weeks and months rolled past, it became increasingly evident that the malady
afflicting Mr. Cooper was far more serious than a simple infection. Mrs. Cooper, as well as their
son and daughter, began to notice that, on occasion, Mr. Cooper would "bizarre[ly] [r]eferO to
one of the children as the wrong gender or something. It was really odd. It was almost like you
weren't hearing the right thing." Id. Mr. Cooper's cognitive problems continued to worsen and,
by November 2003, he was struggling with identifying individuals and "using proper names." As
recalled by Mrs. Cooper, "[h]e would try to explain something and say well, they went there and
they did that. He didn't know who it was; he didn't know where they going. And we just never
heard this before. The kids commented on it. Even our friends commented on it too." Id. These
issues subsequently bled over into Mr. Cooper's work life, and he began to have trouble keeping
track of his schedule at AWi. Id. at 27-28. In response, Dr. Gehman gave Mr. Cooper a
prescription for Paxil, an antidepressant, and scheduled him for an MRI; however, though Paxil
seemed to improve Mr. Cooper's demeanor, it did nothing to help his memory, something
remarked upon by his coworkers, who could not help but notice that Mr. Cooper was
consistently confused and forgetful, even in situations where he was only undertaking routine
tasks. See, e.g., A WI MSJ, Ex. D Part I at 21-22 (testimony from Dennis Keller, a former A WI
employee); id. at 34-35 (testimony from Harold Zorger); id. at 45 (testimony from Matthew
Furman, a former AWI employee); id. at 47-48 (testimony from Gary Benedick, a former A WI
employee). These cognitive lapses ultimately caused Mr. Cooper to have a series of unauthorized
absences from work, prompting AWi to move towards disciplining him in late April 2004. See
Coopers' Supplemental Brief in Support of Response to Defendant Alan J. Hay. M.D.'s Motion
for Summary Judgment at 16 ("Supplemental Brief #1 ");id.at Ex. 5 (Mr. Cooper's AWI
attendance report covering April 23, 2003 through April 23, 2004); id. at Ex. 44 (letter, and
attachments, from AWi's attorney to Workers' Compensation Judge Tina Rago).7
7
The Coopers claim, in Supplemental Brief#l, that AWI tried to fire Mr. Cooper in January 2004; however, this
averment clearly does not square with Mr. Cooper's attendance report, or the exhibits attached to the AWI attorney's
letter to the Honorable Workers' Compensation Judge Tina Rago, which show that the first unauthorized absence for
4
Before A WI could discipline Mr. Cooper, however, Joseph Rumberger, his co-worker
and the President of United Steelworkers Local 285, intervened and arranged to have him looked
at by Dr. Alan Hay, M.D., of Lancaster General Hospital's Department of Occupational
Medicine. Supplemental Brief #1 at 17;8 id. at Ex. 7. According to Dr. Hay, Mr. Cooper's
appointment was scheduled for at least four separate occasions, but Mr. Cooper repeatedly failed
to appear or to notify Dr. Hay that he would not be in attendance. Id. at Ex. 7. Because of this,
Matthew Fuhrman, Mr. Cooper's supervisor at A WI, had to accompany him during his May 13,
2004 visit to Dr. Hay's office. Id.; see also AWI MSJ, Ex. D Part I at 43-44 (noting Fuhrman's
job title at AWi in 2003 and 2004). Dr. Hay evaluated Mr. Cooper on that date, noting that he
"appear[ ed] to have difficulty processing information and coming up with appropriate answers to
specific questions," and opining that Mr. Cooper "definitely need[ed] a psychological assessment
to try and identify the problem and [get] a diagnosis established." Supplemental Brief #1 at Ex.
7. Dr. Hay found that Mr. Cooper had "a general awareness that things are not right at work, that
apparently when he is not doing something right that he has been trained to do[,] others get very
excited[. Mr. Cooper] does not quite understand why they get all upset and excited[,] except that
he is aware that this is not right and that he is the focus of something being wrong." Id. With
regard to treatment, Dr. Hay "got permission verbally from [Mr. Cooper] to talk with Dr.
Gehman ... with the purpose of trying to have [Dr. Gehman] refer [Mr. Cooper] to a specialist for
further evaluation and testing." Id. Dr. Hay shared the contents of this plan with Mr. Fuhrman,
who was then tasked with bringing Mr. Cooper back to the Facility. ld.9 Thereafter, at some
which Mr. Cooper was docked "points" did not occur until January 27, 2004, and state that discharge would not
happen until after an employee had accrued more than 10 such points during a running 12-month period.
8
The Coopers describe Dr. Hay as A Wl's "panel physician." Supplemental Brief#l at 17; however, it is unclear
what the Coopers mean to suggest by using such a designation (ex. an agency or employee relationship, an
independent contracting arrangement, etc.), nor did the Coopers provide any substantive evidence to flesh out Dr.
Hay's putative title.
9
Mrs. Cooper claims that she did not learn of her husband's visit to Dr. Hay, or about Dr. Hay's communications
with Dr. Gehman until some point in 2009. CoQPer Affidavit at 4-5; see also AWI MSJ, Ex. J Part I at 70- 71
(deposition testimony from Mrs. Cooper); A WI MSJ, Ex. J Part II at 9-10 (same). This lack of knowledge seems, in
part, to be due to Mr. Cooper's cognitive issues actively impeding his ability to communicate with his wife. See Dr.
Hay's Motion for Summary Judmens Ex. 1 at 8-9 ("Hay MSJ") ("[Dr. Hay's Attorney:] You were not aware
before May 13 of2004 that your husband was seen-had an appointment to see Dr. Hay, correct? [Mrs. Cooper:]
No, I didn't know. Q: And you didn't know on that day that your husband saw a doctor? A: Not till [sic] I think he
came home and said doctor something, but like I said, he was very hard to understand. I don't think I really had any
idea what had happened, you know, he couldn't really describe it, no.").
5
point in late May, AWi placed Mr. Cooper on disability. A WI MSJ, Ex. D Part I at 19 (testimony
from Robert Mattern, an AWI employee); id. at 28 (testimony from Mrs. Cooper). Subsequently,
Dr. Hay spoke to Dr. Gehman, informing him of Dr. Hay's concerns about Mr. Cooper.
Supplemental Brief#l at Ex. 7. Dr. Gehman responded by referring Mr. Cooper to Dr. Ed
Purzycki, a neuropsychologist; in contrast to his meeting with Dr. Hay, there is no doubt that
Mrs. Cooper contemporaneously knew of, and accompanied, Mr. Cooper to his ensuing
appointment with Dr. Purzycki. A WI MSJ, Ex. D Part I at 28 (testimony from Mrs. Cooper)."
On June 8, 2004, after being contacted by a disquieted Mr. Fuhrman, Dr. Hay again
reached out to Dr. Gehman, in order to get an update regarding Mr. Cooper's treatment.
Supplemental Brief#l at Ex. 7. Dr. Gehman allegedly told Dr. Hay that he was still waiting to
hear back from Dr. Purzycki, but that such a delay was not unexpected, given that the necessary
neuropsychological tests generally took a decent amount of time to both conduct and interpret.
Id. 11 Dr. Hay then called Mr. Cooper, who allegedly confirmed that he had indeed completed the
aforementioned testing, and that he was frustrated with his current situation. Id. Finally, Dr. Hay
got back in touch with Mr. Fuhrman, expressing his continued worry regarding Mr. Cooper's
mental well-being, as well as his belief that, given Mr. Cooper's state, it would be prudent for
Mr. Fuhrman or one of his associates to actively assist Mr. Cooper and his family, to ensure that
all of the necessary medical leave paperwork was properly completed and filed. Id. Though Dr.
Hay promised Mr. Fuhrman that he would be in touch once he had received additional
information regarding Mr. Cooper's prognosis, id., the case record is devoid of any other
substantive evidence regarding Dr. Hay's involvement with Mr. Cooper, and it appears that Dr.
Hay did not take part in evaluating or treating Mr. Cooper after June 8, 2004.
What followed throughout the ensuing years was a series of additional referrals and
examinations, as numerous medical professionals in both Lancaster and Philadelphia tried,
10
It is unclear exactly when this appointment with Dr. Purzycki occurred; however, given Dr. Hay's notes, and the
lack of evidence to the contrary, it is likely that it happened between May 13, 2004 (the date of Mr. Cooper's
appointment with Dr. Hay) and June 8, 2004 (when Dr. Hay reached out to Dr. Gehman for an update). See
Suwlemental Brief#l at Ex. 7 (note dated June 8, 2004 and authored by Dr. Hay).
11
Inexplicably, neither the Coopers nor the Appellees saw fit to provide this Court with evidence or testimony from
Dr. Gehman, i.e. the other party to this conversation.
6
without success, to pinpoint the precise etiology of (and appropriately treat) Mr. Cooper's
progressively deteriorating mental condition. See Hay MSJ, Ex. 7 (letter from Dr. V.
Mangeshkumar, M.D., to Dr. Gehman); A WI MSJ, Ex. D Part I at 28-29 (testimony from Mrs.
Cooper); SuRPlemental Brief#!, Ex. 6 (Dr. Paul A. Kettl, M.D. stating that at least five doctors
had "been unable to fully elucidate the cause of [Mr. Cooper's] dementia."); Cooper Affidavit at
6- 7. These efforts were complicated by A WI, which (according to the Coopers) refused to
release critical information regarding Mr. Cooper's chemical exposure history, purportedly
stonewalling their lawyer's repeated requests for such documentation in 2005 and 2006, 12 and
allegedly caused Mr. Cooper's employer-provided healthcare plan to be terminated without his
consent on June 8, 2005. See Coopers' Supplemental Brief in Support of Response to Defendant
AWi's Motion for Summary Judgment at 8-11, Ex. 11 ("Supplemental Brief#2"); Cooper
Affidavit at 6-7.13 Even so, Mrs. Cooper maintained the belief that her husband's affliction was a
direct result of his time with AWi, stating that she had "always suspected some form of toxic
exposure from his workplace[,] because of the sudden onset of his symptoms in the fall of2003."
Hay MSJ, Ex. 8 (letter from Mrs. Cooper to Dr. Gehman); see also id., Ex. 7 (letter from Dr.
Mangeshkumar to Dr. Gehman).
Indeed, Mrs. Cooper had, by this point, recognized that her husband was irreparably
injured and, accordingly, took steps to protect his long-term physical well-being, as well as their
collective financial and legal interests. According to his wife, Mr. Cooper
began to be suspicious of the neighbors he kept talking about these people ... I finally
realized that he was hearing voices and having [auditory] hallucinations[,] because he
kept saying the people were coming in the house ... He was aggressive with me on one
occasion. He thought I was keeping something from him. He thought people were living
in our house [and that they] were stealing the electricity ... [D]uring the electricity
episode he grabbed me by the throat and pushed me against the wall.
12
The Coopers claim that AWI's attorney, Jeffrey Sidebottom, Esq., told their lawyer in December 2005 that
"unless there's an active Worker's Compensation claim, [AWI will] not produce any [of Mr. Cooper's workplace
chemical] exposure information." SupplementalBrief #2 at 9. Assuming that Mr. Sidebottom made this statement,
AWI's refusal to release Mr. Cooper's exposure records prior to the Cooper's initiation of legal action flies directly
in the face of Occupational Safety and Health Act's ("OSH Act" or "Act") plain language. See 29 C.F.R. §
19l0.1020(e)-(D (discussing employers' duty under the Act to provide employees with workplace chemical
exposure and related medical records, and to do so in a timely fashion after such information has been requested by
either an affectedemployee or his designated representative).
13
According to Mrs. Cooper, this terminationdid not affect Mr. Cooper's receipt of disability or Medicare benefits.
See AWI MSJ, Ex. D Part I at 30.
7
AWI MSJ, Ex. D Part I at 29. This prompted Mrs. Cooper to seek appointment as her husband's
legal guardian, a request which was granted by the Honorable Jay J. Hoberg of the Court of
Common Pleas, Lancaster County on June 7, 2006, who deemed Mr. Cooper to be "a totally
incapacitated person." Supplemental Brief# 1 at 11, Ex. 15. Mrs. Cooper then had her husband
admitted to Magnolias of Lancaster, "a secure, adult assisted-living residence," where his decline
continued, unabated, despite receiving full-time care from medical professionals. See id.; AWi
MSJ, Ex. D Part I at 29-30.
Mrs. Cooper coupled these movements with legal action against AWI on behalf of her
14
husband. On November 17, 2007, Mr. Cooper was examined by Dr. Stephen Gold, M.D., who
diagnosed Mr. Cooper as suffering from work-related "encephalopathy with subsequent
dementia." Supplemental Brief# 1, Ex. 16. Having now been provided with a medical opinion
linking Mr. Cooper's illness to his time at AWI, Mrs. Cooper responded by filing a worker's
compensation claim petition ("Petition") on December 1 7, 2007, asserting therein that her
husband had been harmed during the course of his employment through "toxic overexposure"
that had caused "encephalopathy with dementia." A WI MSJ, Ex. A. 15
As the claim process moved forward before the Honorable Workers' Compensation
Judge Tina Rago, the Coopers reiterated their request to A WI, on multiple occasions, that it
release historical data regarding Mr. Cooper's exposure to chemicals in the workplace,
additionally asking for numerous material safety data sheets ("MSDS"). 16 In addition, they asked
for detailed documentation regarding Mr. Cooper's work duties, as well as A WI's Facility safety
14
Dr. Gold worked for Prudential Financial, who was Mr. Cooper's disability insurance carrier. See Supplemental
Brief#l at 11, Ex. 16.
is This Petition was amended on February 13, 2008, revising the initial cause-and-effect statement to claim that Mr.
Cooper's "chronic exposure to hydrocarbon distillates and halogenated hydrocarbons [had resulted in] irreversible
encephalopathy." AWI MSJ, Ex. B. On September 20, 2008, the Petition was modified a second time, to reflect that
Mr. Cooper had recently been diagnosed with work-related Parkinson's Disease. I.9.,,, Ex. C.
16
Now called a Safety Data Sheet, an MSDS must be promulgated by a chemical's "manufacturer, distributor, or
importer for each hazardous chemical to downstream users [in order] to communicate information on these
hazards [and] includes information such as the properties of each chemical; the physical, health, and
envirorunental health hazards; protective measures; and safety precautions for handling, storing, and transporting the
chemical." OSHA Brief-Hazard Communication Standard: Safety Data Sheem, Occupational Safety & Health
Administration, February 2012, https://www .osha.gov/Publications/OSHA3 514.html.
8
and maintenance procedures. See Supplemental Brief#l, Exs. 20-22. Based off of the
substantive evidence provided to this Court, it appears that the Coopers did receive some, or
most, of the sought-after information. See id., Exs. 23-30, 32 (communications between Coopers'
counsel and AWi's counsel); however, on November 13, 2008, AWi notified the Coopers that
"some of the previous [chemical] exposure records had been inadvertently lost or destroyed,"
something which allegedly had not been discovered prior to the Coopers' discovery requests. Id.,
Ex. 32; see also id., Ex. 31 (letter from Brent Davis to Jeffrey Sidebottom, Esq., A WI's lawyer).
A WI attempted to remedy this error by reconstructing these records to some degree, sending the
fruits of these efforts to the Coopers in lieu of the originals, and continuing to search for
additional, relevant information. Id., Ex. 32, 34-37.17
This claim of irreversible document destruction was later thrown into doubt in late
January 2011 after Paul Heisey, an AWi employee, discovered password-protected chemical
exposure records pertaining to Mr. Cooper on a networked computer hard drive at A Wl.18
Supplemental Brief#l, Ex. 39 at 42-45. The parties disputed the import of these newly-
unearthed records, as the Coopers claimed that their existence incontrovertibly revealed that
A WI had been withholding crucial information, while A WI claimed that they were simply
duplicative of other material that had already been provided to the Coopers. Id. at 48-51, 54-5 5.
Unfortunately, this debate was never ultimately resolved, as Judge Rago ended discovery without
requiring A WI to unlock these files, meaning that the precise nature of their contents remained
unexposed. Sup,plemental Brief# 1 at 21.
Despite these issues, and the very real possibility that A WI had not been entirely
forthcoming or transparent, this did not stop Mrs. Cooper from learning of Dr. Hay's post-spill
evaluation of Mr. Cooper. At an unspecified point during 2009, Mrs. Cooper discovered that Dr.
Hay had taken part in treating her husband at the behest of his employer and, accordingly,
obtained Dr. Hay's 2004 examination and follow-up notes. See Cooper Affidavit at 5. Mrs.
17
The parties failed to provide this Court with any of the reconstituted records. As such, this Court is unable to
opine as to the records' substance or sufficiency.
18 Mr. Heisey stated that he discovered the files on "the Tuesday prior to [his] retirement." Supplemental Brief#!,
Ex. 39 at 44-45. As Mr. Heisey retired on February 1, 2008, the previous Tuesday would be January 29, 2008. Id.
9
Cooper found these notes to be of little substantive value, as they "did not mention a diagnosis o,
cause of [her] husband's mental disability or any mention of brain damage or [her] husband's
toxic exposures at work," id., and ultimately came to believe that Dr. Hay had, in concert with
AWi, purposefully attempted to conceal the source and nature of Mr. Cooper's malady. See AWi
MSJ, Ex. J Part II at 8-19 (testimony from Mrs. Cooper regarding suspicions she had about the
conduct of Dr. Hay and AWi).
Nor were the Coopers prevented from finally understanding, to some degree of precision,
Mr. Cooper's illness. In February 2008, Dr. Ruben Gur, Ph.D.19 and his team at the University of
Pennsylvania determined, via differential diagnosis, that Mr. Cooper suffered from
"trichloroethylene'29 C.F.R. § 1910,1020, preempted Pennsylvania's two-year statute of
limitations pertaining to civil fraud suits; 4. The Cooper Affidavit created a genuine issue of material about when
Mrs. Cooper learned of Appellees' "fraud"; 5. Affidavits from the Coopers' medical experts created a genuine issue
of material fact about A WI's OSHA-based duties; The Cooper Affidavit created a genuine issue of material fact
regarding Mrs. Cooper's alleged reliance on A WI's willingness to give her Mr. Cooper's complete workplace
chemical exposure records; 7. Mrs. Cooper's deposition testimony about watching her husband suffer from
September 2003 onwards created a genuine issue of material fact regarding her negligent infliction of emotional
distress claim; and 8. The duties imposed upon AWI by OSHA 's EE:MR. regulations preempt the Workers'
Compensation Act. The Coopers aJso made virtually the same challenges against Dr. Hay's Motion for Summary
Judgment, with the exception of omitting their "law of the case" argument, and maintaining that the Cooper
Affidavit created a genuine issue of material fact regarding Mrs. Cooper's intentional infliction of emotional distress
claim against Dr. Hay.
34
This Court granted summary judgment for both A WI and Dr. Hay regarding Mrs. Cooper's emotional distress
claims, and for Dr. Hay only regarding the Coopers' "recklessness" claim. See Ceisler Order, 1/21/15 (AWD at l;
Cejsler Order. 1121/15 (Hay) at 1.
14
fil[ing] of record a supplemental brief covering or providing the following: a. A coherem,
detailed timeline of [their] efforts to obtain information from [A WI and Dr. Hay]
pertaining to [Mr.] Cooper's exposure to [trichloroethylene], backed by cites to the case
record and specific documentation; b. The specific provisions of 29 C.F.R. § 1910.1020that create a private cause of action and preempt the relevant statute of limitations,
coupled with case law specifically backing this legal argument; and, c. A coherent
explanation of how [their) remaining claims are not time-barred, when evidence in the
case record establishes that [the Coopers] were aware of [Mr. Cooper's] exposure to
[trichloroethylene] no later than February 2008.
Ceisler Order, 1/21/15 (AWi) at I; Ceisler Order, 1/21/15 (Hay) at 1. The Coopers reacted by
submitting supplemental briefs on January 25 and 27, 2015, in which they provided the requested
timeline, and asserted that summary judgment was not warranted under the circumstances
because, allegedly: 1. Mrs. Cooper did not get actual notice of Dr. Hay's or AWI's fraudulent
behavior until late 2011; 2. While 29 C.F .R. § 1910.102035 did not create a private cause of
action, it did impose a duty upon both Appellees to preserve, maintain, and readily off er access36
35 Administrative agency regulations, such as this one, have the force and effect of law by virtue of their publication
in the federal government's Code of Federal Regulations. See Beemus v. Interstate Nat'l, Dealer Svcs., Inc., 823
A.2d 979, 980 (Pa. Super. Ct. 2003). This specific regulation was promulgated by the federal Occupational Safety
and Health Administration ("OSHA") pursuant to its powers under the OSH Act.
36See29C.F.R.
§ 1910.1020(e)(l):(2)
("Access to records-
(l) General.
(i) Whenever an employee or designated representative requests access to a record, the employer
shall assure that access is provided in a reasonable time, place, and manner. If the employer cannot
reasonably provide access to the record within fifteen (15) working days, the employer shall
within the fifteen (15) working days apprise the employee or designated representative requesting
the record of the reason for the delay and the earliest date when the record can be made available.
(ii) The employer may require of the requester only such information as should be readily known
to the requester and which may be necessary to locate or identify the records being requested (e.g.
dates and locations where the employee worked during the time period in question).
(iii) Wheneveran employee or designated representative requests a copy of a record, the employer
shall assure that either:
(A) A copy of the record is provided without cost to the employee or representative,
(B) The necessary mechanical copying facilities (e.g., photocopying) are made available
without cost to the employee or representative for copying the record, or
(C) The record is loaned to the employee or representative for a reasonable time to enable
a copy to be made ...
(2) Employee and designated representative access--
(i) Employee exposure records.
(A) Except as limited by paragraph (t) of this section [pertaining to trade secrets], each
employer shall, upon request, assure the access to each employee and designated
representative to employee exposure records relevant to the employee. For the purpose of
this section, an exposure record relevant to the employee consists of:
(1) A record which measures or monitors the amount of a toxic substance or
harmful physical agent to which the employee is or has been exposed;
15
to Mr. Cooper's work-related medical records for at least 30 years beyond his last day of
employment at AWI.37 Accordingly, this regulation preempts Pennsylvania's two-year statute of
limitations for civil fraud suits; and 3. Even assuming that such preemption did not occur, this
statute of limitations was tolled until Mrs. Cooper knew the precise nature of Mr. Cooper's
affliction, which occurred only after he was autopsied at some unspecified point in 2014. See
Supplemental Brief #1 at 32-42; Supplemental Brief#2 at 22-32. This prompted additional
replies from both AWI and Dr. Hay, in which they each emphatically stated that the Coopers had
failed to put forth any meritorious arguments in these supplemental briefs, and reiterated their
belief that judgment should be granted in their respective favors. See AWI Reply Brief in
Support of Motion for Summary Judgment at 1-4; Hay Reply Memorandum of Law in Response
to Supplemental Brief# 1 at 1-10.
Ultimately, after deliberating over the parties' respective arguments, the case record, and
the relevant law, this Court determined that the Coopers' suit was time-barred, granting summary
judgment in favor of both A WI and Dr. Hay regarding the Coopers' remaining claims, doing so
via two orders docketed on February 2, 2015. See Ceisler Order, 1/30/15 (A WI) at 1; Ceisler Order,
1/30/15 (Hay) at 1. In response, the Coopers appealed these decisions to the Superior Court of
Pennsylvania on February 10, 2015.38 That same day, this Court ordered the Coopers to provide a
(2) In the absence of such directly relevant records, such records of other
employees with past or present job duties or working conditions related to or
similar to those of the employee to the extent necessary to reasonably indicate
the amount and nature of the toxic substances or harmful physical agents to
which the employee is or has been subjected, and
(3) Exposure records to the extent necessary to reasonably indicate the amount
and nature of the toxic substances or harmful physical agents at workplaces or
under working conditions to which the employee is being assigned or
transferred.
(B) Requests by designated representatives for unconsented access to employee exposure
records shall be in writing and shall specify with reasonable particularity:
(1) The records requested to be disclosed; and
(2) The occupational health need for gaining access to these records.").
37 With some exceptions, employers must "assure the preservation and retention of ... [e]mployee medical records ...
[e]mployee exposure records ... [and] analyses [done through the use ot] exposure or medical records ... for at least
thirty (30) years." I& at 19 l0.1020(d)(l)(i).(Hi).
38
For reasons unknown, the Coopers filed four separate appeals in this case on February 10, 2015, some of which
are duplicative. None of these appeals, however, challenged this Court's January 21, 2015 orders, the substance of
which is discussed in Note 34, supra. Thus, the Coopers' appeals only challenge this Court's decision to grant
16
!
Statement of Errors pursuant to Pa. R.A.P. 1925(b). Ceisler Order. 2/10/15 at 1. The Coopers.
response was received by this Court on March 2, 2015, and is attached to this opinion as Appendix
A.
II. DISCUSSION
This Court respectfully requests that the instant appeals be denied for the following
reasons:
1. The OSH Act does not preempt state law-based statute of limitations governing fraud
(and related conspiracy) claims;
2. Under Pennsylvania law, the Coopers were required to file suit within two years of
being capable, through the exercise of reasonable diligence, of knowing that they
potentially had a cause (or causes) of action against the Appellees;
3. Viewing the record in the light most favorable to the Coopers, this Court determined
that there was no genuine issue of material fact that November 2, 2010 was the last
possible date upon which the Coopers could be deemed to have enough information,
when coupled with such diligence, to ascertain that they had grounds for filing a fraud
and conspiracy-based suit against Appellees, meaning that the statute of limitations began
to run no later than that date;
4. As the Coopers failed to file such an action until August 22, 2013, or roughly ten
months after the statutory window had closed, their suit was thus time-barred.
Under Pennsylvania law, a trial court may grant a party's motion for summary judgment
when "there is no genuine issue of material fact as to a necessary element of the cause of action
or defense which could be established by additional discovery or expert report." Pa. R.C.P.
1035.2(1). In addition, such a motion can be granted in situations where "an adverse party who
will bear the burden of proof at trial has failed to produce evidence of facts essential to a cause of
action or defense in which a jury trial would require the issues be submitted to a jury." Id. at
1035.2(2). That having been said, the court's sole function when addressing a motion for
summary judgment is to determine whether there is a genuine issue of material fact to be tried,
summary judgment in favor of both Defendants regarding the Coopers' fraud and civil conspiracy counts, and for
AWI as to the Coopers' independent claim of"recklessness."
17
rather than to decide issues of fact. Fine v. Checcio, 870 A.2d 850, 862 (Pa. 2005). To that end, ~
trial court must resolve all doubts against the movant, examining the case record in the light most
favorable to the nonmoving party, and "may grant summary judgment only where the right to
such a judgment is clear and free from doubt." Id. at 857 (citation omitted). Accordingly, this
Court evaluated Appellees' motions for summary judgment through the lens of this stringent
standard.
Normally, the WCA would have precluded the Coopers from filing suit against A WI and
its agents, since it is "the sole and exclusive remedy for an employee who seeks to recover for an
injury sustained during the course of his ... employment." Snyder v. Pocono Med. Ctr., 656 A.2d
534, 536 (Pa. Super. Ct. 1995) (citing Wagner v. National Indemnity Co., 422 A.2d 1061, 1064
(Pa. 1980)). The WCA represents a compromise of sorts, which
limits an employer's tort exposure and grants an employee a statutory remedy for all
work related injuries. In exchange for the right to compensation without the burden of
establishing fault, employees gave up their right to sue the employer in tort for injuries
received in the course of employment. An employer must assume liability under the Act
regardless of fault in exchange for insulation from a potentially larger verdict in a
common law action. Where an employee's injury is compensable under the Act, the
compensation provided by the statute is the employee's exclusive remedy.
Soto v. Nabisco, Inc., 32 A.3d 787, 791 (Pa. Super. Ct. 2011) (quoting Snyder, 656 A.2d at 536-
37); see 77 P.S. § 481(a).39
However, the Pennsylvania Supreme Court has seen fit to craft an extremely narrow
exception to this rule, which allows an employee to file a common law-based suit against his
employer in situations where he can show that the employer has made some sort of fraudulent
misrepresentation, which then leads to the aggravation of the employee's pre-existing condition.
Martin v. Lancaster Battery Co., 606 A.2d 444, 448 (Pa. 1992).40 The "misrepresentation can
39
The liability of an employer under this act shall be exclusive and in place of any and all other liability to such
employes [sic], his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise
entitled to damages in any action at law or otherwise on account of any injury or death as defined in [77 P .S. §
411(1) and (2)) or occupational disease as defined [77 P.S. § 27.1].
40
See Mfil:tin, 606 A.2d at 447-48 ("Clearly, when the Legislature enacted the [WCA] in this Commonwealth, it
could not have intended to insulate employers from liability for [such] flagrant misconduct ... by limiting liability to
the coverage provided by the [WCA].").
18
take many forms[, as J fraud consists [ of] anything calculated to deceive, whether by single act oi.
combination, or by suppression of truth, or a suggestion of what is false, whether it be direct
falsehood or by innuendo, by speech or silence, word or mouth, of look or gesture. It is any
artifice by which a person is deceived to his disadvantage." Scaife Co. v. Rockwell-Standard
Corp., 285 A.2d 451, 454 (Pa. 1971) (quoting In re Reichert's Estate, 51 A.2d 615, 617 (Pa.
1947)). In order
to prove fraud, a plaintiff must demonstrate by clear and convincing evidence: (1) a
representation; (2) which is material to the transaction at hand; (3) made falsely, with
knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent
of misleading another into relying on it; (5) justifiable reliance on the misrepresentation;
and (6) the resulting injury was proximately caused by the reliance. Unsupported
assertions and conclusory accusations cannot create genuine issues of material fact as to
the existence of fraud.
Hart v. Arnold, 884 A.2d 316, 339 (Pa. Super Ct. 2005) (quoting Blumenstock v. Gibson, 811
A.2d 1029, 1034 (Pa. Super. Ct. 2002)). Thus, a great onus is placed upon an employee who
attempts to thread this needle, and our courts have not hesitated to dismiss a common law suit, or
enter judgment for an employer, where an employee has failed to satisfy his high evidentiary
burden. See, e.g., Kostryckyj v. Pentron Lab. Technologies. LLC, 52 A.3d 333, 340 (Pa. Super
Ct. 2012) (affirming trial court's grant of summary judgment in favor of employer because
Appellants "failed to present any evidence that [the employer) intended to mislead [the
employee] or deliberately misrepresented the dangers of beryllium to induce [the employee] to
continue working for [the employer]."); id. at 339 (listing string of cases which were dismissed
at various stages of litigation for failing to satisfy the Martin standard).
When seeking to avail himself of this exception, and regardless of whether he actually
presents a viable claim that falls within the exception's ambit, an employee must still comply
with the relevant statute of limitations by filing suit in a timely fashion. Generally speaking, such
statutes should be strictly applied, and "are designed to effectuate three purposes: (1)
preservation of evidence; (2) the right of potential defendants to repose; and (3) administrative
efficiency and convenience," Kingston Coal Co. v. Felton Min. Co., 690 A.2d 284, 288 (Pa.
Super. Ct. 1997) ( citations omitted). Accordingly, a statute of limitations "begins to run as soon
as the right to institute and maintain a suit arises; [a person's] lack of knowledge, mistake or
misunderstanding do not toll the[ir] running ... even though [he] may not discover his injury until
19
it is too late to take advantage of the appropriate remedy." Pocono Int'l Raceway. Inc. v. Poconc
Produce. Inc., 468 A.2d 468, 471 (Pa. 1983). This reflects the notion that "a party asserting a
cause of action is under a duty to use all reasonable diligence to be properly informed of the facts
and circumstances upon which a potential right of recovery is based[,] and to institute suit within
the prescribed statutory period." Id.Nonetheless, a court may, in certain instances and for equitable purposes, decline to
enforce a statute of limitations with such rigidity, taking into account a party's inability to
discern, in a timely manner, the source or existence of the harm visited upon him, or the effect of
obstruction on an individual's efforts to ascertain the root of his injury. In the former scenario,
the discovery rule "exclude[s] from the running of the statute of limitations that period of time
during which a party[,] who has not suffered an immediately ascertainable injury[,] is reasonably
unaware he has been injured, so that he has essentially the same rights as those who have
suffered such an injury." Fine, 870 A.2d at 858. In the latter, the doctrine of fraudulent
concealment tolls the statute of limitations "if through fraud or concealment, [a defendant has]
cause[ d] the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts,"
estopping the defendant from asserting such a defense relating to the time period during which
the fraud occurred. Id. at 860. Though this doctrine "does not require fraud in the strictest sense
encompassing an intent to deceive, but rather, fraud in the broadest sense, which includes an
unintentional deception ... [a party must still] prov[e that] fraudulent concealment [has occurred]
by clear, precise, and convincing evidence." Id. "Moreover, in order for fraudulent concealment
to toll the statute of limitations, the defendant must have committed some affirmative
independent act of concealment upon which the [injured party] justifiably relied." Kingston, 690
A.2d at 291 (citing Krevitz v. City of Philadelphia, 648 A.2d 353, 357 (Pa. Cmwlth. Ct. 1994)).
Despite these differences, neither the discovery rule nor the fraudulent concealment
doctrine can be invoked by a party who has not exercised reasonable diligence41 in learning, or
41
Reasonable diligence is viewed in an objective manner, and "a party's actions are evaluated to determine whether
he exhibited 'those qualities of attention, knowledge, intelligence and judgment which society requires of its
members for the protection of their own interest and the interest of others.'" Fine, 870 at 858 (quotingCrouse v.
Cyclops Industries, 745 A.2d 606, 611 (Pa. 2000)).
20
seeking to learn, "that he is injured and by what cause." Fine, 870 A.2d at 858, 861; see Wilson,
v. El-Daief, 964 A.2d 354, 363 (Pa. 2009) ("The suggestion that a plaintiff need not know that a
defendant's conduct is injurious is true, to the extent that the plaintiff has failed to exercise
diligence in determining injury and cause by another, but has limited relevance in scenarios in
which the plaintiff has exercised diligence but remains unaware of either of these factors.");
Scranton Gas & Water Co. v. Lackawanna Iron & Coal Co., 31 A. 484, 485 (Pa. 1895) ("The
question in any given case is not, what did the plaintiff know of the injury done him[,) but[] what
might he have known, by the use of the means of information within his reach, with the vigilance
the law requires ofhim?");42 Baselice v. Franciscan Friars Assumption BVM Province. Inc., 879
A.2d 270, 276 (Pa. Super. Ct. 2005) (quoting Haggart v. Cho. 703 A.2d 522, 526 (Pa. Super. Ct.
1997)) ("The statute begins to run in such instances when the injured party 'possesses sufficient
critical facts to put him on notice that a wrong has been committed and that he need investigate
to determine whether he is entitled to redress.'"). Indeed, the statute of limitations can be deemed
to have run, even in instances where a party does "not know the precise ... cause of [their]
injury ... [does] not apprehend that [the party who injured them] was negligent. .. and [does] not
understand [that they] have a cause of action." Wilson, 964 A.2d at 364 n. 10 (citations omitted).
Turning to the matter at hand, the Coopers challenge this Court's February 2, 2015
orders, which served to grant summary judgment in favor of both Appellees regarding the
Coopers' fraud and civil conspiracy claims, and for A WI as to the Coopers' claim of
"recklessness." See Ceisler Order 1/21/15 (A WO, at I; Ceisler Order 1/21/15 (Hay), at 1; Ceisler
Order 1/30/15 (A WI), at 1; Ceisler Order 1/30/15 (Hay), at 1. Under Pennsylvania law, each of
these claims is governed by the same statute of limitations, which gives a party two years from
the date of injury to initiate a suit based upon such arguments. See 42 Pa. C.S. §§ 5524(2). (7).43
42
It is normally the jury's role to determine whether a party has exercised reasonable diligence under the
circumstances. See m, 870 A.2d at 858, 861 (Pa. 2005). Thus, it is "[ o]nly where the facts are so clear that
reasonable minds could not differ ... [that] a court [may] determine as a matter of law[,] at the summary judgment
stage, the point at which a party should have been reasonably aware of his or her injury and its cause[,] and thereby
fix the commencement date of the limitations period." Gleason v. Borough of Moosic, 15 A.3d 479, 485 (Pa. 2011).
43
"It is well-settled that the statute of limitations for conspiracy is the same as that for the underlying action which
forms the basis of the conspiracy." Kingston, 690 A.2d at 287 (citing A.mmlun~ v. Cin, of Chester. 494 F.2d 811,
814-815 (3d. Cir.1974)). In addition, "[r]ecklessness, or willfulness, or wantonness refers to a degree of care [Dean]
Prosser describes as 'aggravated negligence.' Nevertheless, [these terms] apply to conduct which is still, at essence,
negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is to be
21
The Coopers argue that 29 C.F.R. § 1910.1020 overrides this time limit, due to the supremacy oi-
federal law, and extends the deadline for filing suit through May 2034. See, e.g., Supplemental
Brief#l at 39~40; Statement of Errors at 2; however, this contention is completely without merit
for several reasons. 44 First, the OSH Act neither expressly preempts Pennsylvania statutory or
common law. Kiak v. Crown Equip. Corp., 989 A.2d 385, 391 (Pa. Super. Ct. 2010) (quoting 29
U.S.C. § 653(b)(4)). Second, it is well-settled that the Act's "purpose ... is preventive rather than
compensatory" and, as admitted by the Coopers themselves,45 it "does not create a private cause
of action against an employer for a violation [thereof]," see Ries v. Nat'l R.R. Passenger Corp.,
960 F.2d 1156, 1164 (3d Cir. 1992) (citing numerous federal cases), meaning that the OSH Act
certainly does not establish, in any capacity, a congressional intent to occupy the field of tort
law. Finally, there is no conflict between 29 C.F.R. § 1910.1020 and the aforementioned two-
year statute of limitations, since the former tasks employers with ensuring that their employees
can access certain records throughout most or all of their lifetimes, which the latter does not
impede by merely establishing the time window within which someone must file suit. Thus, the
question before this Court was whether there was a genuine issue of material fact regarding
whether the Coopers had filed their suit within two years of when they could have known,
through reasonable diligence, of what they claim was A WI's and Dr. Hay's intentionally or
recklessly tortious conduct.
In support of their effort to defeat the aforementioned summary judgment motions, the
Coopers attempted to rebut the Appellees' statute of limitations argument by raising both the
discovery rule and the fraudulent concealment doctrine, in essence maintaining that there are
treated in many respects as if it were so intended ... Therefore, merely determining the degree of care is recklessness
does not give rise to a separate tort that must have been pied within the applicable statute of limitations." Archibald
y. Kemble, 971 A.2d 513, 519 (Pa. Super. Ct. 2009) (citations and quotation marks omitted).
44
"There are three ways in which a state law may be preempted. First, state law may be preempted where the United
States Congress enacts a provision which expressly preempts the state enactment. Likewise, preemption may be
found where Congress has legislated in a field so comprehensively that it has implicitly expressed an intention to
occupy the given field to the exclusion of state law. Finally, a state enactment will be preempted where a state law
conflicts with a federal law. Id. Such a conflict may be found in two instances, when it is impossible to comply with
both federal and state law, or where the state law 'stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress."' Office of Disciplinary Counsel v. Marcone, 855 A.2d 654, 664 (Pa.
2004) (citations omitted).
45
See Supplemental Brief#! at ("29 C.F.R. 1910.1020 does not provide a private right ofaction. Nor
do [the Coopers] assert a claim pursuantto ... 29 C.F.R. 1910.1020.").
22
genuine issues of material fact as to whether the filing window was tolled, and whether their suit
was thus initiated in a timely fashion. First, they claimed that it was not possible to ascertain the
precise nature of Mr. Cooper's injuries until he was autopsied at some point in 2014. See
Statement of Errors at 2; Supplemental Brief#! at 40-41. Second, they argued that "AWI and
Hay conspired in a series of [still ongoing] fraudulent acts, intentional omissions, and deliberate
[record] destruction," which (depending on which of the Coopers' filings one happens to be
reading) prevented Mrs. Cooper from learning of AWI's alleged duplicity until October 2011 or
December 2011 and, independent of the federal preemption argument, continues to toll the
statute of limitations. See Memorandum of Law in Summrt of AWi MSJ at 7; Su12plemental
Brief# 1 at 40-41 ; see also Statement of Errors at 2.
Unfortunately, neither of these arguments provided a sufficiently substantive counter to
the Appellees' requests for relief. Regarding the former, actual notice of an injury via a perfect,
or nearly perfect, diagnosis is not required for a relevant statute of limitations to run, and a lack
thereof does not, in itself, toll the period for filing suit; thus, the fact that Mrs. Cooper may not
have known the exact nature of Mr. Cooper's malady until after his post-mortem examination is
irrelevant, especially when the Coopers were aware as early as September 25, 2003 (i.e. the date
of the Top Foam spill), and no later than Dr. Martin's November 2, 2010 assessment letter to the
Coopers' attorney (which itself merely reinforced the diagnoses offered by Drs. Chaudhry, Cho,
Fochtman, Gold, Gur, Newberg, and Thrasher), that Mr. Cooper had sustained a serious injury
due to "occupational solvent exposure."46 As to the latter, though the Coopers claimed that both
AWI and Dr. Hay fraudulently withheld (and continue to withhold) critical documentation
regarding Mr. Cooper's workplace exposure to chemicals, whatever merit this argument may
have is undermined by a triumvirate of details: First, the Coopers requested these exposure
records as early as December 2005, only to be refused by A WI, even though the OSH Act
explicitly requires employers to provide such documentation, upon request, to affected
employees;47 second, Mrs. Cooper became aware in 2009 that Dr. Hay had assessed Mr. Cooper
46
Moreover, and as noted above, given the WCA's near-blanket prohibition against common law actions based
upon workplace injuries, the injuries allegedly caused to Mr. Cooper by the Top Foam spill, standing alone, could
not form the foundation of a permissible suit.
47
See note 3 6, supra.
23
during a May 2004 office visit, allegedly doing so without her knowledge, and had not provided·
either of the Coopers with his related notes during the intervening time; third, between
November 17, 2007 and November 2, 2010, the Coopers were informed by no less than eight
separate doctors that Mr. Cooper suffered from work-induced toxic encephalopathy and
dementia. Thus, even when viewing the case record in the light most favorable to the Coopers, it
is evident that they gained actual or constructive notice, at various points between late 2005 and
late 2010, that: 1. AWI had violated the OSH Act by denying their initial, pre-Petition requests
for Mr. Cooper's chemical exposure history, and had therefore prevented the Coopers from
obtaining such information in a timely manner; 2. Dr. Hay's involvement in this matter had been
hidden from Mrs. Cooper for roughly five years after Mr. Cooper's 2004 office visit; and 3. Mr.
Cooper's progressively deteriorating state, on both a mental and physical level, was inextricably
linked to his participation in the Top Foam spill cleanup, as well as to decades of chronic
exposure to solvents and other chemicals at the Facility. Accordingly, this Court determined that
there was no genuine issue of material fact as to the latest possible date upon which the Coopers
knew, or should have known, each of these facts, and thus be put on notice of the Appellees'
allegedly fraudulent and conspiratorial conduct: November 2, 2010 (i.e. the date of Dr. Martin's
letter).
Given this, and in light of the aforementioned two-year statute of limitations, the Coopers
were required to file their suit no later than November 2, 2012. Since the Coopers did not sue the
Appellees until August 22, 2013, or nearly ten months beyond this deadline, their action was thus
time-barred. As such, this Court properly granted each of the Appellees' respective Motions for
Summary Judgment.
24
III. CONCLUSION
For the aforementioned reasons, this Court respectfully requests that the instant appeals be
denied.
BY THE COURT:
J.
25
APPENDIX A
26
SANDRA COOPER, IN HER OWN RIGHT, AND AS
PLENARY GUARDIAN OF GENE M. COOPER, AND
AND GENE M. COOPER
PLAINTIFFS No. 02452
v.
JURY TRIAL DEMANDED
ARMSTRONG WORLD INDUSTRIES, INC. AND
ALAN J. HAY, M.D., AND LANCASTER GENERAL
OCCUPATIONAL MEDICINE
DEFENDANTS
SANDRA COOPER, IN HER OWN RIGHT,
AND AS ADMINISTRATRIX OF THE CIVIL ACTION - LAW
ESTATE OF GENE M. COOPER,
PLAINTIFFS OCTOBER TERM, 2014
vs. No. 02596
ARMSTRONG WORLD INDUSTRIES, INC., JURY TRIAL DEMANDED
ALAN J. HAY, M.D., AND LANCASTER
GENERAL OCCUPATIONAL MEDICINE
DEFENDANTS
Pa.R.A.P. 1925(b) Concise Statement oflssues Complained of on Appeal
COMES Plaintiffs/Appellants pursuant to the Order entered January 30, 2015, and attached hereto
as Exhibits 1 - 4, inclusive, and Pa.R.A.P. 1925(b) to respectfully file the herein Concise
Statement of Matters Complained of on Appeal:
I. Concise Statement oflssues Complained of on Appeal:
Case ID: 130802452
A. Whether a genuine issue of material fact exists in regard to Plaintiffs' notice of
Defendants' fraud in February, 2008.
B. Whether Defendants' fraud continued from 2008 through to December, 2014, thereby
tolling the two-year statute of limitations for Fraud to December, 2016.
C. Whether Defendants' fraud continued from 2008 through to February 6, 2015, thereby
tolling the two-year statute of limitations for Fraud to February 6, 2017.
D. Whether Plaintiffs-decedent's partial diagnosis of a brain injury in February, 2008
triggered the statute of limitations as to defendants' fraud to conceal the cause of
Plaintiffs-decedent's brain damage.
E. Whether Plaintiff, Sandra Cooper's Affidavit raised a genuine issue of material fact in
regard to Plaintiffs' notice of Plaintiffs-decedent's injury in February, 2008.
F. Whether the Trial Court erred by applying the two-year statute of limitations for Fraud
to defendants' acts that occurred in February and December, 2014 and February, 2015.
G. Whether the two-year statute of limitations for Fraud was tolled by Plaintiffs-
decedent's protections pursuant to 29 C.F.R. 1910.1020 and 35 P.S. §§ 7301-7320.
H. Whether Dr. Fredrick Fochtman's Affidavit raised a genuine issue of material fact in
regard to whether the two-year statute of limitations for Fraud was tolled by Plaintiffs-
decedent's protections pursuant to 29 C.F.R. 1910.1020 and 35 P.S. §§ 7301-7320.
Respectfully submitted:
Isl George Chada, Esq.
Law offices of George Chada
221 Summit Drive
Natrona Heights, PA 15065-9710
412 370 8780
gchada@chadalaw.com
Case ID: 130802452
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT
CIVIL TRIAL DIVISION
SANDRA COOPER, IN HER OWN RIGHT, AND AS
PLENARY GUARDIAN OF GENE M. COOPER, AND AUGUST TERM, 2013
AND GENE M. COOPER
PLAINTIFFS No. 002452
v.
JURY TRIAL DEMANDED
ARMSTRONG WORLD INDUSTRIES, INC. AND
ALAN J. HAY, M.D., AND LANCASTER GENERAL
OCCUPATIONAL MEDICINE
DEFENDANTS
SANDRA COOPER, IN HER OWN RIGHT,
AND AS ADMINISTRATRIX OF THE CIVIL ACTION - LAW
ESTATE OF GENE M. COOPER,
PLAINTIFFS OCTOBER TERM, 2014
vs. No. 02596
ARMSTRONG WORLD INDUSTRIES, INC., JURY TRIAL DEMANDED
ALAN J. HAY, M.D., AND LANCASTER
GENERAL OCCUPATIONAL .MEDICINE
DEFENDANTS
Certificate of Service
The undersigned hereby certifies that pursuant to Pa.R.C.P. 2054(0), a true and correct copy of the
herein Plaintiffs' IAppellants' Pa.R.A.P. 1925(b) Concise Statement of Issue Complained of on
Appeal was served on February 25, 2015 by email as set forth below and the undersigned further
hereby certifies that all unrepresented parties will be served in accordance with Pa.R.C.P. 440:
The Honorable Eileen Ceisler
City Hall, Room 229B
Philadelphia, PA 19107
Case ID: 130802452
Counsel for Defendant, Brenntag Northeast, Inc.
Montgomery, McCracken, Walker, Rhoads, LLP.
Attn: R. Hurst, Esq.
123 South Broad Street
Avenue of the Arts
Philadelphia, PA 19109
Attorney for Defendant, Armstrong World Industries, Inc.:
Barley Snyder
Attn: George C. Werner, Esq.
126 East King Street
Lancaster, PA 17602
Attorney for Defendant, Alan C. Hay, M.D.:
Eckerd Seamans Cherin & Mellott, LLC
Attn: Eileen Lampe, Esq.
Two Liberty Place
50 South 16th Street, 22nd Floor
Philadelphia, PA 19102
Isl George Chada, Esq.
Case ID: 130802452
Exhibit 1
Case ID: 130802452
Fl.ED
01 DEC 2014 10104 pm
ClvUAdmlnlatrlllon
A. WARRBN
SANDRA COOPER in her Own Rlght and
as Plenary Guardian of GENE M. COOPER Court of Common Pleas
and GENE M. COOPER,
Philadelphia County, Pennsylvania
Plaintiffs
v. August Term, 2013
ARMSTRONG WORLD INDUSTRIES, No: 24.52
ETAL., OOCMETl!D
Defendants FEB O 2 2015
F,CLARK
DAY FORWARD
+
~ of ``
AND NOW, this:Dtay
,s-
2ol( upon consideration of Motionfor
Summary Judgment of Defendant,Alan . Hay, M.D., and any response thereto, it is hereby,
ORDERED, that said Motion is GRANTED.
It is further ORDERED that the Amended Complaint is DISMISSED as against Dr. Hay,
WITH PREnJDICE.
BY THE COURT:
• J.
1111111111111111111111111
14100259600032
Case ID: I 30802452
Control No.: 14120375
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) F. BROWN-CLARK 02/06/2015
Case ID: 130802452
Exhibit 2
Case JD: 130802452
FILED
01 DBC 2014 10s04 pm
CMIAdmlnl*IIIOn
A. KARREN
SANDRA COOPER in her Own Right and
as Plenary Guardian of GENE M. COOPER Court of Common Picas
and GENE M. COOPER,
Philadelphia County, Pennsylvania
Plaintiffs
v. August Term, 2013
ARMSTRONG WORLD INDUSTRIES, No: 2452
ETAL., OOCKETBO
Defendants FEB O 2 2015
F.CLARK
DAY FORWARD
+ \,.
'1 "'"I\. ~ORDER I~
AND NOW, this,1.tiay of , 2ol( upon consideration of Motion/or
Summary Judgment of Defendant, Alon . Hay, MD., and any response thereto, it is hereby,
ORDERED, that said Motion is GRANTED.
It is further ORDERED that the Amended Complaint is DISMISSED as against Dr. Hay,
WITH PREJUDICE.
BY TIIE COURT:
• J.
Cooper Etat Vs Armstron-ORDER
l lf 11111111111111111 IU II
13060245200119
Case ID: 130802452
Control No.: 14120375
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) F. BROWN-CLARK 02/06/2015
Case ID: 130802452
FILED
01 DZC 2014 04:41 pm
l ! ClvRAdmird&IJIIIOn
S. MACQRIGOR
SANDRA COOPER in her Own Right and TN THE COURT OF COMMON PLEAS OF
& as Plenary Guardian of GENE M. PHILADELPHIA COUNTY, PENNSYLVANIA
COOPER, and GENE M. COOPER
Plaintiffs, , TERM AUGUST 2013
.
vs. 1 No. 2452
. DOCKETED
ARMSTRONG WORLD INDUSTRIES,
et al., ... H.B O 2 /~15
Defendants.
F.CLARK
DAY FORWARD
. +~ ORDER IS-
AND NOW, wZQ. day of ~ , :zo:t'4, upon consideration of
Armstrong World Industries, Inc. 's ~ Judgment and any response thereto,
this Court hereby GRANTS Armstrong World Industries, Inc. 's Motion and enters judgment in
favor of Armstrong World Industries, Inc. and against Plaintiffs.
BY~a__ }.
-----..
Cooper Eta! Vs Armstron-ORDER
Hllll13080245200120
1111111 IfBllf Ii JI
Cast: ID: 130802452
Control No.: 141206~ I
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) F. BROWN-CLARK 02106/2015
Case ID: 130802452
Exhibit 4
Case ID: 130802452
FILED
l
.!
S , MACGRllQOR
.
SANDRA COOPER in her Own Right and j IN THE COURT OF COMMON PLEAS OF
& as Plenary Guardian of GENE M. j PHILADELPHIA COUNTY.PENNSYLVANIA
COOPER, and GENE M. COOPER
Plaintiffs, j TERM AUGUST 2013
.
vs. i No. 2452
DOCKETED
ARMSTRONG WORLD INDUSTRIES,
et al., ''
Defendants. ' F£B O 2 7.015
f.CLARK
OAYFORWARO
-'"~ ORDER IS-
AND NOW, thiZQ. day of _..;,c.``=-----" 2~. upon consideration of
Annstrong World Industries, Inc.'s Motion or Summary Judgment and any response thereto,
this Court hereby GRANTS Armstrong World Industries, Inc, 's Motion and enters judgment in
favor of Armstrong World Industries. Inc. and against Plaintiffs.
Cooper !t11V,,Annl1nmgWOttd !-. I-ORO£R
11101111111111
IIIIIHI14100259600033
Case JD: 130802452
Control No.: 14120621
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) F. BROWN·CLAAK 02/06/2015
Case ID: 130802452