Soto v. Nabisco, Inc.

• Decision Date: 21 November 2011
• Citation: 32 A.3d 787,2011 PA Super 249
• Parties: Roque SOTO, Appellant v. NABISCO, INC.; Nabisco Brands, Inc.; Nabisco Holdings Corp.; RJR Nabisco, Inc.; R.J. Reynolds Tobacco Holdings; RJR Nabisco Holdings Corp.; Nabisco Group Holdings Corp.; Reynolds American, Inc.; Nabisco Foundation; Altria Group, Inc.; Altria Corporate Services, Inc.; Reading Bakery Systems, Inc.; Reading Pretzel Machinery Corp.; Thomas L. Green & Company, Inc.; Thomas L. Green, LLC; Transmission Engineering Company, Inc.; and R.A. Jones & Company, Inc., Appellees.
• Court: Pennsylvania Superior Court

2011 PA Super 249

32 A.3d 787

Roque SOTO, Appellant

v.NABISCO, INC.; Nabisco Brands, Inc.; Nabisco Holdings Corp.; RJR Nabisco, Inc.; R.J. Reynolds Tobacco Holdings; RJR Nabisco Holdings Corp.; Nabisco Group Holdings Corp.; Reynolds American, Inc.; Nabisco Foundation; Altria Group, Inc.; Altria Corporate Services, Inc.; Reading Bakery Systems, Inc.; Reading Pretzel Machinery Corp.; Thomas L. Green & Company, Inc.; Thomas L. Green, LLC; Transmission Engineering Company, Inc.; and R.A. Jones & Company, Inc., Appellees.

Superior Court of Pennsylvania.

Argued Oct. 5, 2011.Filed Nov. 21, 2011.

Henry Yampolsky, Philadelphia, for appellant.

Ernest J. Bernabei, III, Philadelphia, for Nabisco, et al., appellee.

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., and GANTMAN, J.

OPINION BY GANTMAN, J.:

Appellant, Roque Soto, appeals from the final order encompassing a stipulation of dismissal, entered in the Philadelphia County Court of Common Pleas, which discontinued the case against the remaining defendants in this personal injury action. Specifically, Appellant challenges the court's earlier order dated May 4, 2010, which sustained the preliminary objections of Appellant's employer, Appellee, Kraft Foods Global, Inc. (“Kraft”), and dismissed the action against Kraft with prejudice. We hold Appellant's only recourse against Kraft for his injuries sustained in the workplace is under the Pennsylvania Workers' Compensation Act (“WCA”).¹ Accordingly, we affirm.²

The relevant facts and procedural history of this case are as follows. Appellant began employment with Nabisco at its Philadelphia Bakery sometime in 1999–2000. Through a series of negotiations, in July 2001, Nabisco merged into Kraft and ceased to exist as a separate company. Due to the merger, Appellant became an employee of Kraft. On November 1, 2007, Appellant injured his arm and hands while operating a Ritz Cracker Cutting Machine. There is no dispute that the accident occurred within the course and scope of Appellant's employment and caused amputation of his left arm and a de-gloving wound and avulsion injuries to his right hand.

In response to the complaint Appellant filed on October 29, 2009, Kraft filed preliminary objections in the nature of a demurrer, relying on the exclusive remedy of the WCA as a bar to Appellant's suit against Kraft. During discovery on the preliminary objections, documents revealed Nabisco had ceased to exist, after merging with and into Kraft.

By order dated May 4, 2010, and entered May 5, 2010, the trial court sustained Kraft's preliminary objections and dismissed Appellant's complaint against Kraft, based upon employer statutory immunity under the WCA. The court denied reconsideration as well as Appellant's request for certification for interlocutory appeal. The Superior Court later denied Appellant's petition for interlocutory review. By order entered April 18, 2011, the court dismissed the remaining defendants in the action per court-approved stipulation and without prejudice. Appellant timely filed a notice of appeal on May 10, 2011. The court did not order a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.

Appellant raises two issues for review:

WHETHER THE TRIAL COURT ERRED IN SUSTAINING THE DEMURRER OF [KRAFT] IF THERE WAS NO SHOWING WITH CERTAINTY THAT NO RECOVERY IS POSSIBLE BY [APPELLANT]?

WHETHER THE TRIAL COURT ERRED IN RULING THAT THE DUAL PERSONA DOCTRINE WAS INAPPLICABLE TOWARDS A SUCCESSOR IN INTEREST TO A MANUFACTURER OF A DEFECTIVE PRODUCT WHO ALSO HAPPENS TO BE [APPELLANT'S] EMPLOYER BECAUSE [APPELLANT] SUSTAINED INJURIES WHILE IN THE COURSE AND SCOPE OF HIS EMPLOYMENT?

(Appellant's Brief at 4).

Appellate review in this case implicates the following general principles:

Our review of a trial court's sustaining of preliminary objections in the nature of a demurrer is plenary. Such preliminary objections should be sustained only if, assuming the averments of the complaint to be true, the plaintiff has failed to assert a legally cognizable cause of action. We will reverse a trial court's decision to sustain preliminary objections only if the trial court has committed an error of law or an abuse of discretion.

All material facts set forth in the complaint as well as all inferences reasonably [deducible] therefrom are admitted as true for [the purpose of this review]. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Regarding a demurrer, this Court has held:

A demurrer is an assertion that a complaint does not set forth a cause of action or a claim on which relief can be granted. A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences. In ruling on a demurrer, the court may consider only such matters as arise out of the complaint itself; it cannot supply a fact missing in the complaint.

Where the complaint fails to set forth a valid cause of action, a preliminary objection in the nature of a demurrer is properly sustained.

Butler v. Charles Powers Estate, 29 A.3d 35, 38–39 (Pa.Super.2011) (emphasis in original).

Appellant argues the “dual persona” doctrine applies to this case to warrant reversal. Specifically, Appellant claims that under the “dual persona” doctrine Pennsylvania's WCA allows third-party tort recovery, although the employer is the ultimate payor, if the employer has a distinct and separate role that could subject it to liability for injuries to an employee. Appellant submits the federal courts in Pennsylvania have held that, under the “dual persona” doctrine, an employee can recover against his employer, who is also the successor in interest to the manufacturer of a defective product. Appellant defines Kraft's “dual persona” nature as (1) his employer and (2) the successor in interest to Nabisco, the manufacturer of the defective machine that caused Appellant's injuries at work. Appellant maintains Kraft's position as successor in interest to Nabisco exposes Kraft to third-party liability in this context.

Appellant insists many other states have adopted the “dual persona” doctrine, which would make Kraft responsible for all the liabilities of Nabisco where Kraft is the surviving corporation; and Kraft expressly assumed all Nabisco's liabilities. Appellant complains the court improperly relied on case law that addressed only the dual capacity doctrine when it decided the WCA precluded recovery to Appellant. Appellant avers the court was wrong to say Appellant could not recover under either the “dual capacity” or the “dual persona” doctrine. Appellant concludes the court erred when it sustained Kraft's preliminary objections to his cause of action, without the requisite degree of certainty and must be reversed. We disagree.

“In general, the [WCA] provides 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 Medical Center, 440 Pa.Super. 606, 656 A.2d 534, 536 (1995), affirmed, 547 Pa. 415, 690 A.2d 1152 (1997). See also Peck v. Del. County Bd. of Prison Inspectors, 572 Pa. 249, 254, 814 A.2d 185, 188 (2002) (stating same). The WCA sets forth the following exclusivity provision:

§ 481. Exclusiveness of remedy; actions by and against third party; contract indemnifying third party

(a) The liability of an employer under this act shall be exclusive and in the place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependents, next of kin or any one otherwise entitled to damages in any action at law or otherwise on account of any injury or death....

77 P.S. § 481(a).

This provision 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.

Snyder, supra at 536–37 (internal citations and quotations marks omitted).

The “dual capacity” doctrine provides:

Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as an employer.

Callender v. Goodyear Tire and Rubber Co., 387 Pa.Super. 283, 564 A.2d 180, 185 (1989) (quoting 2A Larson, Workmen's Compensation Law, § 72.80, at 14–112 (1976)). Generally, “the Pennsylvania Superior Court has taken an unfavorable view of the dual capacity doctrine.” Van Doren v. Coe Press Equipment Corp., 592 F.Supp.2d 776, 799 (E.D.Pa.2008) (citing Heimbach v. Heimbach, 401 Pa.Super. 119, 584 A.2d 1008 (1991); Callender, supra ).

The Pennsylvania Supreme Court has applied the “dual capacity” doctrine in only one case. Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982). That case involved a hospital employee who became ill while at work. Because there was no doctor on duty at Employee Health Services, the employee's supervisor instructed the employee to go to the general emergency room of the hospital for medical care. While on the x-ray table in the hospital emergency room, the employee was injured after the foot stand broke loose; and she fell to the...