Torres v. Brenntag Ne., Inc.

• Decision Date: 08 April 2021
• Docket Number: No. 1745 MDA 2019,J-A22031-20,1745 MDA 2019
• Parties: CARLOS TORRES AND ILONA BAIR Appellants v. BRENNTAG NORTHEAST, INC.; ARMSTRONG WORLD INDUSTRIES, INC; BARLEY SNYDER, LLP; AND ALAN J. HAY, M.D. Appellees
• Court: Pennsylvania Superior Court

CARLOS TORRES AND ILONA BAIR Appellants v. BRENNTAG NORTHEAST, INC.;ARMSTRONG WORLD INDUSTRIES, INC;BARLEY SNYDER, LLP; AND ALAN J. HAY, M.D. Appellees

J-A22031-20

No. 1745 MDA 2019

SUPERIOR COURT OF PENNSYLVANIA

APRIL 8, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order October 15, 2019

In the Court of Common Pleas of Lancaster County

Civil Division at No: Cl-18-05892

BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.:

Appellants, Carlos Torres and Ilona Bair, appeal a series of pretrial orders sustaining the preliminary objections of Barley Snyder, LLP ("Barley"), and Alan J. Hay, M.D. ("Dr. Hay") and granting the motions for judgment on the pleadings of Appellees, Brenntag Northeast, Inc. ("Brenntag") and Armstrong World Industries, Inc. ("Armstrong"). We affirm.

On July 24, 2018, Appellants filed a complaint against Appellees alleging that Appellant Torres was exposed to certain chemicals manufactured by Brenntag in the course of his employment with Armstrong from 1972 through 2006 and developed Parkinson's disease as a result of this exposure. He was diagnosed with Parkinson's disease on June 25, 2015.

While the complaint was far from clear, it seemed to allege that Barley, a law firm, was Armstrong's counsel, and that Dr. Hay was Armstrong's employee. The complaint included a count against Barley for fraud and a count against Dr. Hay for breach of physician-patient confidentiality.

All Appellees filed preliminary objections to the complaint. Barley asserted, inter alia, that the doctrine of judicial immunity precluded Appellant's claim of fraud. On December 20, 2018, the trial court sustained Barley's and Dr. Hay's preliminary objections, dismissed the complaint against them and ordered Appellants to file an amended complaint.

In early 2019, Appellants filed an amended complaint against Brenntag and Armstrong alleging negligence, product liability and battery claims. Brenntag and Armstrong filed preliminary objections to the amended complaint. The trial court sustained these preliminary objections in part, overruled them in part, and dismissed Appellants' claim against Armstrong for battery.

Brenntag and Armstrong filed answers to the amended complaint with new matter raising the affirmative defenses of, inter alia, waiver and the statute of limitations. Appellants filed a reply to new matter. Armstrong and Brenntag filed preliminary objections to Appellants' reply asserting that the reply contained scandalous and impertinent allegations.

On April 23, 2019, the trial court ordered all proceedings in the case stayed. On July 31, 2019, the trial court lifted the stay only to the extent that the parties were permitted to file motions for judgment on the pleadings afterdisposition of pending preliminary objections. On August 12, 2019, the court sustained Armstrong's preliminary objections and ordered Appellants to file an amended reply to new matter within twenty days.

On September 9, 2019, Armstrong filed a motion for judgment on the pleadings. On September 11, 2019, Brenntag filed a motion for judgment on the pleadings. On September 11, 2019, Appellants filed an unverified and untimely¹ amended reply to new matter claiming that "[Armstrong's] deliberate acts that concealed [] Torres' and the Torres Family's carcinogenic, neurotoxic and teratogenic exposures tolled the statute of limitations in this action." Amended Reply To New Matter, ¶ 81. On September 20, 2019, Appellants filed a response in opposition to Armstrong's and Brenntag's motions for judgment on the pleadings.

On October 15, 2019, the trial court issued an opinion and order granting judgment on the pleadings to Brenntag and Armstrong on all of Appellants' remaining claims. Appellants timely appealed to this Court, and both Appellants and the trial court complied with Pa.R.A.P. 1925.

Appellants raise the following issues in this appeal:

[1.] When it represented documents that it produced to [Appellants] as "exposure and medical records," did [Barley] make false representations concerning an existing fact?

[2.] Did the trial court erroneously dismiss a claim against [Dr. Hay] for breach of the duty of confidentiality imposed upon him, [Armstrong's] physician in charge, by OSHA?

[3.] Does an issue of fact exists as to when Carlos Torres knew or should have known that his exposure to chemicals at work resulted in neurological damage?

[4.] Was the allegation in [Appellants'] complaint that [Armstrong] knowingly exposed him to a toxic substance sufficient to plead a cause of action for battery by exposure to hazardous substances?

[5.] Did the trial court err by granting the motions for judgment on the pleadings before ruling on an outstanding recusal motion?

Appellants' Brief at 10-11.

Appellants first object to the trial court's order sustaining Barley's preliminary objections to the original complaint and dismissing Barley as a defendant. We hold that the trial court properly dismissed Barley, albeit for different reasons than the one given by the trial court.

In determining whether the trial court properly sustained preliminary objections granting a demurrer, we examine the averments in the complaint, together with the documents and exhibits attached thereto, to evaluate the sufficiency of the facts averred. The purpose of the inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven. Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 100 (Pa. Super. 2016) citing Yocca v. Pittsburgh Steelers Sports,Inc., 854 A.2d 425, 436 (Pa. 2004). We will reverse the trial court where there has been an error of law or abuse of discretion. Id. Because the trial court's decision to grant or deny a demurrer involves a matter of law, our standard of review is plenary. Id.

The original complaint alleged that Torres was exposed to several toxins during his employment with Armstrong from 1972 through 2006, and that he was diagnosed with Parkinson's disease in 2015. The fraud count against Barley alleged that Barley destroyed medical records ("Employee Exposure Medical Records" or "§ .1020 EEMR") in 2014 relating to Torres' exposure to various toxins. Complaint, ¶ 85. At some unspecified point, Torres served Armstrong with a request to produce these records. Id. at ¶ 89. Barley "intercepted" this request and, at another unspecified point, "responded with intentional and knowingly false statements about the existence of [] Torres' § .1020 EEMR and [Armstrong's] intent to produce [] Torres' § .1020 EEMR." Id. at ¶ 93. The complaint alleges that this was false because Barley had destroyed these records years earlier in 2014. Id., ¶¶ 85-86, 91, 93, 96. Appellants claim that they did not discover the cause of Torres' disease until July 2018 because Barley concealed the fact that the § .1020 EEMR had been destroyed. Id. at ¶ 97.

The elements of fraudulent misrepresentation are: (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. Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999).

The trial court held that the original complaint failed to plead fraud because it merely alleged that Barley promised to produce Torres' medical records in the future but failed to do so. The trial court held that this did not give rise to a cause of action because a promise to do something in the future does not constitute fraud. In our view, the complaint did not merely allege that Barley made a promise to perform a future act. The complaint alleged that Barley pretended to provide Torres with full and complete records while fraudulently omitting the fact that it destroyed some or all of Torres' records in 2014.

Nevertheless, we conclude that the action against Barley fails for two different reasons. See In Re A.J.R.-H., 188 A.3d 1157, 1175-76 (Pa. 2018) (appellate court may affirm trial court's decision on any basis supported by the record). First, Appellant Torres fails to state a cause of action for fraud, because the complaint only states that Appellant Bair, not Torres, justifiably relied on Barley's alleged false response to Torres' document requests. Second, the doctrine of judicial immunity defeats both Appellants' claims against Barley. The judicial privilege doctrine provides "absolute immunity for communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought."Bochetto v. Gibson, 860 A.2d 67, 71 (Pa. 2004). This privilege extends to statements made prior to judicial proceedings if they are "pertinent and material [to], and . . . issued in the regular course of preparing for, contemplated proceedings." Post v. Mendel, 507 A.2d 351, 356 (Pa. 1986). The judicial privilege often is relevant in defamation cases, but the privilege also bars actions for tortious behavior by an attorney other than defamation. Brown v. Delaware Valley Transplant Program, 539 A.2d 1372, 1374 (Pa. Super. 1988). In this case, Barley's alleged fraudulent communication to Torres took place in anticipation of future judicial proceedings because it concerned his request for medical records. Thus, the judicial privilege doctrine precludes Appellants' action for fraud.

Next, Appellants argue that the trial court erred by sustaining Dr. Hay's preliminary objections to the original complaint and dismissing the count against Dr. Hay for breach of physician-patient confidentiality. We disagree.

The lone count in the complaint against Dr. Hay accused him of breach of physician-patient confidentiality by turning over Torres' medical records to Barley at some unspecified point. Id. at ¶¶ 99-110. The complaint alleged that Dr. Hay owed...