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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 MAY 17, 2016

     Appellant, Sandra Cooper, in her own right and as administratrix of the
J-A03033-16


Estate of Gene M. Cooper, appeals from the order 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”).    For the reasons that follow, we quash the

appeal.

     The relevant facts and procedural history of this case are as follows.

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 to be cognitively impaired.

     When his cognitive issues became a problem at 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 declined, and the court deemed Mr. Cooper a totally incapacitated

person in June 2006. Appellant, who was then Mr. Cooper’s court-appointed

legal guardian, 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   with   work-related   encephalopathy    with

subsequent dementia in November 2007.

      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.         In October 2011,

however, Appellant learned from an employee of Appellee AWI that Mr.

Cooper’s chemical exposure documentation was stored on Appellee AWI’s

computer system.

      In 2009, Appellant learned for the first time 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.”

Meanwhile, 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,


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and   medical     expenses    incurred   for   the   treatment   of   his   toxic

encephalopathy.

      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 Hays filed preliminary objections on October 28, 2013, and October

29, 2013, respectively.      The court overruled both Appellees’ preliminary

objections on November 29, 2013. Appellee Hays 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, along with her children, filed a

wrongful death and survival action against Appellees, which raised claims

related to the ones in the current action. 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, that the relevant

statutes of limitation barred Appellant’s claims. After Appellant filed answers

to Appellees’ motions for summary judgment, the court granted summary


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judgment on January 21, 2015, in favor of Appellees on Appellant’s

negligent infliction of emotional distress and intentional infliction of

emotional distress claims.     The court then granted summary judgment in

favor of Appellees on 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 orders granting

summary judgment in favor of Appellees. On February 11, 2015, the court

ordered Appellant 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.

        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).

        Preliminarily, we observe “[t]he appealability of an order directly

implicates the jurisdiction of the court asked to review the order.” Estate of

Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009).

“[T]his Court has the power to inquire at any time, sua sponte, whether an

order is appealable.” In re Estate of Cella, 12 A.3d 374, 377 (Pa.Super.

2010). “Generally, only appeals from final orders are eligible for appellate

review.”    Malanchuk v. Sivchuk, 106 A.3d 789, 792 (Pa.Super. 2014),

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J-A03033-16


appeal granted, ___ Pa. ___, 115 A.3d 310 (2015). Significantly:

        [An] appeal may be taken from: (1) a final order or an
        order certified as a final order (Pa.R.A.P. 341); (2) an
        interlocutory order as of right (Pa.R.A.P. 311); (3) an
        interlocutory order by permission (Pa.R.A.P. 312, 1311, 42
        Pa.C.S.A. § 702(b)); or (4) a collateral order (Pa.R.A.P.
        313).

In re Estate of Cella, supra (quoting Stahl v. Redcay, 897 A.2d 478, 485

(Pa.Super. 2006), appeal denied, 591 Pa. 704, 918 A.2d 747 (2007)).

     Pennsylvania Rule of Appellate Procedure 341 defines a final order as,

inter alia, any order that disposes of all claims and all parties.   Pa.R.A.P.

341(b)(1). Rule 341 further provides in pertinent part:

        Rule 341. Final Orders; Generally

        (a) General rule.—Except as prescribed in paragraphs
        (d), and (e) of this rule, an appeal may be taken as of
        right from any final order of a government unit or trial
        court.

        (b) Definition of final order.—A final order is any
        order that:

           (1) disposes of all claims and of all parties; or

                                 *    *    *

           (3) is entered as a final order pursuant to paragraph
           (c) of this rule.

        (c) Determination of finality.—When more than one
        claim for relief is presented in an action, whether as a
        claim, counterclaim, cross-claim, or third-party claim or
        when multiple parties are involved, the trial court or other
        government unit may enter a final order as to one or more
        but fewer than all of the claims and parties only upon an
        express determination that an immediate appeal would
        facilitate resolution of the entire case. Such an order

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J-A03033-16


          becomes appealable when entered. In the absence of such
          a determination and entry of a final order, any order or
          other form of decision that adjudicates fewer than all the
          claims and parties shall not constitute a final order.

Pa.R.A.P. 341(a), (b), and (c).

      The relevant portion of Pennsylvania Rule of Civil Procedure 213

states:

          Rule 213. Consolidation, Severance and Transfer of
          Actions and Issues within a County. Actions for
          Wrongful Death and Survival Actions

                                  *    *    *

          (e) A cause of action for the wrongful death of a
          decedent and a cause of action for the injuries of the
          decedent which survives his or her death may be enforced
          in one action, but if independent actions are commenced
          they shall be consolidated for trial.

            (1) If independent actions are commenced or are
            pending in the same court, the court, on its own
            motion or the motion of any party, shall order the
            actions consolidated for trial.

                                  *    *    *

Pa.R.C.P. 213(e)(1). Importantly, when cases are consolidated under Rule

213, an appealable order does not emerge until all claims against all parties

in all consolidated actions have been resolved. Malanchuk, supra at 795.

      Instantly, Appellant filed the 2013 tort action on August 22, 2013.

After Mr. Cooper’s death on February 5, 2014, Appellant and her children

filed a wrongful death and survival action on October 22, 2014, which raised

claims related to the claims raised in the earlier action.   On October 25,


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2014, Appellant filed a motion to consolidate the 2013 tort action with the

wrongful death and survival action pursuant to Rule 213(e)(1), and the court

granted Appellant’s motion on November 26, 2014.                A few days later,

Appellees filed separate motions for summary judgment in the 2013 tort

action, which the court granted.               While the court’s grant of summary

judgment in favor of Appellees disposed of all claims in the 2013 tort action,

it did not dispose of the claims in the wrongful death and survival action

consolidated with the 2013 tort action. Because those related claims remain

outstanding, we decline to review the summary judgment orders in favor of

Appellees at this time. See Malanchuk, supra; Pa.R.A.P. 341.1 Therefore,

we hold that the best resolution is to quash this appeal.           Appellant can

challenge those orders on appeal at the appropriate time, but no earlier than

the resolution of the consolidated wrongful death and survival action. 2

Accordingly, we quash this appeal.

       Appeal quashed.




____________________________________________


1
 We note that Malanchuk, supra is currently pending before our Supreme
Court.
2
   We further qualify our resolution of Appellant’s case because the record
also suggests the court consolidated the 2013 tort action with a products
liability action, which is still pending in the Lancaster County Court of
Common Pleas.



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J-A03033-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




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