Harris v. Ngk North Am. Inc.

• Decision Date: 09 June 2011
• Citation: 2011 PA Super 66,19 A.3d 1053
• Parties: Randall HARRIS, as Administrator of the Estate of Leonard P. Harris, Deceased and Louise Harris, Appellantv.NGK NORTH AMERICAN, INC. and NGK Insulators, Ltd. and NGK Metals Corporation and Yasuhito Niwa and Len Velky, and Cabot Corporation, Individually and as Successor in Interest to Cabot Berylco, Inc., Kawecki Berylco, Inc., a/k/a KBI Kawecki Berylco Industries, Inc. and the Beryllium Corporation and Spotts, Stevens & McCoy, Inc., Appellees.Randall Harris, as Administrator of the Estate of Leonard P. Harris, Deceased and Louise Harris,v.NGK North American, Inc. and NGK Insulators, Ltd. and NGK Metals Corporation and Yasuhito Niwa and Len Velky, and Cabot Corporation, Individually and as Successor in Interest to Cabot Berylco, Inc., Kawecki Berylco, Inc., a/k/a KBI Kawecki Berylco Industries, Inc. and the Beryllium Corporation and Spotts, Stevens & McCoy, Inc.Appeal of NGK Insulators, Ltd.
• Court: Pennsylvania Superior Court

19 A.3d 1053

2011 PA Super 66

Randall HARRIS, as Administrator of the Estate of Leonard P. Harris, Deceased and Louise Harris, Appellant

v.NGK NORTH AMERICAN, INC. and NGK Insulators, Ltd. and NGK Metals Corporation and Yasuhito Niwa and Len Velky, and Cabot Corporation, Individually and as Successor in Interest to Cabot Berylco, Inc., Kawecki Berylco, Inc., a/k/a KBI Kawecki Berylco Industries, Inc. and the Beryllium Corporation and Spotts, Stevens & McCoy, Inc., Appellees.Randall Harris, as Administrator of the Estate of Leonard P. Harris, Deceased and Louise Harris,

v.NGK North American, Inc. and NGK Insulators, Ltd. and NGK Metals Corporation and Yasuhito Niwa and Len Velky, and Cabot Corporation, Individually and as Successor in Interest to Cabot Berylco, Inc., Kawecki Berylco, Inc., a/k/a KBI Kawecki Berylco Industries, Inc. and the Beryllium Corporation and Spotts, Stevens & McCoy, Inc.Appeal of NGK Insulators, Ltd.

Superior Court of Pennsylvania.

Argued July 28, 2010.Filed March 30, 2011.Reargument Denied June 9, 2011.

Ruben Honik, Philadelphia, for Harris.Neil S. Witkes, Bala Cynwyd, for Cabot Corporation.James C. Stroud, Philadelphia, for NGK Insulators.Thomas C. DeLorenzo, Philadelphia, for NGK Metals.Stephen J. Imbriglia, Philadelphia, for Spotts.BEFORE: MUSMANNO, FREEDBERG, and FITZGERALD ^*, JJ.OPINION BY FREEDBERG, J.:

This matter is before the Court on the appeal of Randall Harris, as the administrator of the estate of Leonard P. Harris (“Estate”) and Louise Harris, widow of Leonard Harris, from orders entered by the Court of Common Pleas of Philadelphia County, granting summary judgment in favor of all Appellees. ¹ Appellee NGK Insulators, Inc. (“Insulators”) has also filed a cross-appeal relating to service and personal jurisdiction. We reverse in part and affirm in part.

The instant matter arises in relation to a beryllium ² plant operated by Appellees in Reading, Pennsylvania (“Reading plant”).³ Leonard Harris worked at the Reading plant for one year, and lived within six miles of the plant for approximately sixty-six years. Mr. and Mrs. Harris filed suit, alleging his diagnosis with chronic beryllium disease (“CBD”) was caused by occupational and residential exposure to beryllium. After Leonard Harris died, a second amended complaint was filed, substituting Randall Harris as administrator of the estate and adding wrongful death and survival claims.

CBD is a granulomatous lung disorder, which is caused by an immunologic response to beryllium in the lungs. Only individuals who have been exposed to beryllium and have a specific immune response to it, similar to an allergy, can develop CBD. See Pohl v. NGK Metals Corp., 936 A.2d 43, 45 (Pa.Super.2007), petition for allowance of appeal denied, 597 Pa. 733, 952 A.2d 678 (2008); Declaration of Craig S. Glazer, MD, MSPH, at 2–3. Mrs. Harris, who has not been diagnosed with CBD, bases her claims on her take-home ⁴ and residential exposure to beryllium and seeks medical monitoring in addition to loss of consortium damages.

Appellants raise four issues on appeal:

A. Whether the Trial Court erred in granting the Defendants' Motion for Summary Judgment as to [t]he Estate [of] Leonard Harris because of a fundamental misunderstanding about the nature of Mr. Harris' diagnosis and its implications for its disability consequences and physical impairment?

B. Whether the Trial Court correctly permitted Plaintiffs to serve NGK Insulators, Ltd. pursuant to Pennsylvania Rule of Civil Procedure 405.

C. Whether the Trial Court erred in granting the Defendants' motion for Summary Judgment as to Louise Harris' medical monitoring claims in the face of material questions of fact?

D. Whether the Trial Court erred in granting Spotts, Stevens, & McCoy, Inc.'s Motion for Summary Judgment in the face of material questions of fact?

Brief for the Appellants, at 3.

As to the third question presented, relating to Mrs. Harris' medical monitoring claim, we follow Pohl v. NGK Metals Corp., 936 A.2d 43 (Pa.Super.2007), appeal denied, 597 Pa. 733, 952 A.2d 678 (2008), to affirm the trial court's grant of summary judgment.

Appellants' fourth question relates to alleged negligence of Stevens, Spotts, & McCoy, an engineering company. Appellants' have adopted the argument set forth in the companion case of Reeser v. NGK North American, Inc., and we adopt the reasoning set forth in Reeser v. NGK North American, Inc., 14 A.3d 896 (Pa.Super.2011) ⁵, in affirming the trial court's grant of summary judgment.

Appellant's second question on appeal addresses the issues raised in the cross-appeal ⁶, in which Insulators asserts that the trial court improperly overruled its preliminary objections relating to service and personal jurisdiction. Insulators contends that it was not properly served and that the trial court lacks jurisdiction.

The appropriate standard of review was set forth in De Lage Landen Fin. Servs., Inc. v. Urban P'ship, LLC, 903 A.2d 586 (Pa.Super.2006), as follows:

Our standard of review of an order of the trial court overruling ... preliminary objections, is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court. Those substantive legal standards are as follows:

When preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt. Moreover, when deciding a motion to dismiss for lack of personal jurisdiction the court must consider the evidence in the light most favorable to the non-moving party.

Id. at 589 (internal citations and quotations omitted).

The trial court summarized the factual history of Appellants' attempts to serve Insulators as follows:

The [Appellants] twice attempted to serve NGK Insulators in 2003. On July 15, 2003, Ruben Honik, [Appellants'] counsel, sent a letter via registered mail to NGK Insulator's [sic] headquarters in Nagoya, Japan. The letter was returned as having been “refused.” A second letter sent by first-class mail on August 1, 2003, was also returned as “refused.” On October 10, 2003, [Appellants] filed a petition for alternative service. On October 24, 2003, this Court, pursuant to Pennsylvania Rule of Civil Procedure 430, granted the [Appellants'] petition for alternative service and ruled that the [Appellants] may serve the NGK Insulators by mailing a copy of the civil action to NGK North America and Yasuhito Niwa, NGK North America's vice president.

Moatz v. NGK Insulators, Ltd., 2008 WL 4690141, 2008 Phila. Ct. Com. Pl. LEXIS 236, *2–*3 (2008) (footnotes omitted).⁷ Appellants completed service by the alternative method on November 5, 2003. Insulators then filed preliminary objections, asserting that service was not proper and that the trial court lacked jurisdiction. The preliminary objections were overruled on August 13, 2004.

Insulators argues that the attempted service by registered mail violates “The Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters,” commonly referred to as the Hague Convention. ⁸ Insulators contends that allowing service in such a manner gives broader rights to Pennsylvania citizens suing a Japanese entity than Japanese citizens enjoy domestically and that its rights were not respected because the complaint was not translated into Japanese.

Article 10 of the Hague Convention provides:

Provided the state of designation does not object, the present Convention shall not interfere with—

(a) the freedom to send judicial documents, by postal channels, directly to persons abroad, (b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

(c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials, or other competent persons of the State of destination.

Japan has objected to subsections (b) and (c); it has not lodged any objections to subsection (a). At a 2003 Special Commission, Japan “clarified” its position on subsection (a), as follows:

Japan has not declared that it objects to the sending of judicial documents, by postal channels, directly to the addressees in Japan. As the representative of Japan made clear at the Special Commission of April 1989 on the practical operation of the Service and Evidence Conventions, Japan does not consider that the use of postal channels for sending judicial documents to persons in Japan constitutes an infringement of its sovereign power.

Nevertheless, as the representative also indicated, the absence of a formal objection does not imply that the sending of judicial documents by postal channels to addresses in Japan is always considered valid service in Japan. In fact, sending documents by such a method would not be deemed valid service in Japan in circumstances where the rights of the addressee were not respected.

“Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the Hague Apostille, Evidence and Service Conventions,” ¶ 57 (Oct. 28–Nov.4, 2003).

The instant dispute turns on what “send” in subsection (a) means. This issue has been raised in numerous courts, and there are two opposing views on the correct interpretation. One perspective, advanced by Insulators, is that the term “send” is used in subsection (a) in direct contrast to the term “service” used in subsections (b) and (c) because it applies only to the mailing of subsequent documents, after service has been properly effectuated through other means. See, e.g., Nuovo Pignone v. Storman Asia M/V, 310 F.3d 374 (5th Cir.2002); Bankston v. Toyota Motor Corp., 889 F.2d 172 (8th Cir.1...