Mercer, J. v. Newell, M. ( 2021 )

J-A08035-21
2021 PA Super 94JERRY A. MERCER, JR., AND JERRY : IN THE SUPERIOR COURT OF
A. MERCER, III : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 62 EDA 2020
MARTIN P. NEWELL, JR., AND M.P.N., :
Inc. d/b/a ACTIVE RADIATOR REPAIR :
Co.
Appeal from the Order Entered December 17, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 190607041
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: Filed: May 13, 2021
Appellants Jerry A. Mercer, Jr., (hereinafter “Mercer”) and Jerry A.
Mercer, III, (hereinafter collectively “Appellants”) appeal from the Order
entered in the Court of Common Pleas of Philadelphia County on December
17, 2019, sustaining Preliminary Objections filed by Appellees Martin P.
Newell, Jr., (hereinafter “Newell”) M.P.N., Inc. d/b/a Active Radiator Repair
Co., (hereinafter “Active Radiator”) (hereinafter collectively “Appellees”) and
dismissing Appellants’ Amended Complaint in its entirety. Following our
review, we reverse.
On June 29, 2019, Appellants filed a Complaint against Appellees
wherein they set forth allegations pertaining to Mercer’s exposure to lead while
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* Former Justice specially assigned to the Superior Court.
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employed with Active Radiator, a radiator plant. Appellees filed Preliminary
Objections to the Complaint, and, in response, Appellants filed an Amended
Complaint on October 1, 2019.
In their Amended Complaint, Appellants alleged that from May of 2015
until November 17, 2017, Mercer worked for Active Radiator where he
soldered parts into heavy-duty radiators and cooling devices.1 Amended
Complaint at ¶11. Newell owns and operates Active Radiator. Id. at ¶ 6.
During his employment, Mercer utilized an alloy of lead and cadmium when
assembling radiators. Id. at ¶ 12. As a worker exposed to lead and cadmium,
Mercer was entitled to health protections pursuant to the relevant
Occupational Safety and Health Administration (“OSHA”) regulations. Id. at
1¶¶ 4-14. Consequently, Active Radiator monitored Mercer’s lead and zinc
exposure through blood analysis and his cadmium level by urinalysis. Id. at
15-16.
On October 19, 2016, Mercer’s blood was tested. On November 2, 2016,
Dr. Andrew Bandulak at Jefferson Health in Philadelphia reviewed Mercer’s
zinc levels and directed Appellees to remove Mercer from further lead
exposure until he received a medical evaluation and a toxicology consult. Id.
at ¶ 30. The November 2, 2016, note provided Appellees with notice “that
lead was accumulating in Mercer’s brain.” Id. at 32.
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1Jerry A. Mercer, III, is Mercer’s son and resided with him throughout his
employment with Appellees. Amended Complaint at ¶ 2.
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In a corresponding letter from Appellees addressed to Mercer and dated
May 13, 2016, Anthony J. Coscia, Safety Manager, recommended that Mercer
see his doctor regarding his blood levels, and directed Mercer to contact Mr.
Coscia at Active Radiator or Dr. Barnes with any questions and listed the
doctor’s phone number. Id. at 35. However, the letter indicated that Mercer’s
blood lead level was at 35 mcg/dL and that the “action level” for OSHA blood
lead level exposure is 40 mcg/dL or greater. The letter did inform Mercer that
his Zinc Protoporphyrin level of 216 mcg/dL was abnormal and “could mean
[he had] low iron in [his] blood.” Mercer acknowledged receipt of the letter by
signing it in the bottom left corner. See Exhibit 1 to Amended Complaint, May
13, 2016, Letter.2
However, between November 2, 2016, and November 17, 2017,
Appellees concealed the fact that Dr. Bandulak had ordered Mercer to be
removed from further lead exposure and provided with Medical Removal
Benefits. Id. at ¶34. Instead, Romeo, an Active Radiator Employee, gave
Mercer a copy of the May 13, 2016, letter and threatened to fire Mercer if his
“zinc got any higher with no money.” Id. at 36. Believing his 216 zinc-level
was elevated but not harmful unless it increased, Mercer continued to work at
Active Radiator for another year until Appellees terminated his employment in
November of 2017. Id. at ¶¶ 37-38, 43.
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2 Since the letter predated the test results by 4 months, Appellants
acknowledge it appears the date of May 13, 2016, is a clerical error. See
Brief for Appellants at 11.
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Appellants maintained Appellees “fraudulently concealed from Mercer’s
[sic] Dr. Bandulak’s order that AR “REMOVE” Mercer “ASAP” from further lead-
exposure until AR provided Mercer with Medical Removal Benefits [].” Id. at
39. Appellants did not assert a claim for the initial accumulation of lead in
Mercer’s brain that allegedly occurred between May of 2015, to 2016; rather,
Appellants asserted that without notice of the elevated lead and zinc levels,
Mercer continued working which aggravated the accumulation of lead in his
brain to cause him permanent brain damage. Id. at ¶ 121. All of the actions
Active Radiator had taken were either done by Newell or at his express
direction. Id. at ¶ 120. As a result, Appellants sought compensatory and
punitive damages against Appellees as well as medical monitoring funding.
On November 20, 2019, Appellees filed Preliminary Objections to
Appellants’ Amended Complaint in the nature of a demurrer. Therein, they
asserted Appellants’ lawsuit is barred by the Workers’ Compensation Act
(WCA),3 which, aside from very limited circumstances, provides the exclusive
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3 Section 303 of the WCA provides, in relevant part, as follows:
(a) 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 section 301(c)(1) and (2) or occupational disease as defined in
section 108.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 481(a).
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remedy for any injury an employee sustains during the course of his
employment. On December 17, 2019, the trial court entered an Order
sustaining Appellees’ Preliminary Objections and dismissing the Amended
Complaint.
Appellants filed a timely appeal on December 18, 2019. The trial court
did not enter an Order pursuant to Pa.R.A.P. 1925(b); however, it filed a Rule
1925(a) Opinion on June 16, 2020.
In their brief, Appellants present the following Statement of Questions
Involved:
1. Did the [t]rial [c]ourt err by failing to evaluate [Appellants’]
Amended Complaint under the proper standard of review in the
context of preliminary objections in the nature of a demurrer when
it found that their Amended Complaint was legally insufficient to
establish a right to relief?
2. Did the [t]rial [c]ourt err in its holding that the Pennsylvania
Workers’ Compensation Act, 77 P.S. § 1, et. seq. (“WCA”),
specifically the “exclusivity provision” of the WCA, 77 P.S. 481(A),
applied to bar all of [Appellants’] claims thereby making their
entire Amended Complaint legally insufficient, where, as here and
in contravention of the holding in Martin v. Lancaster Battery Co.,
606 A.2d 444 (Pa. 1991), [Appellants] are not seeking damages
at law for a work related injury, but for an aggravation of a work
related injury due to Active Radiator’s fraudulent
misrepresentations?
3. Did the [t]rial [c]ourt err in finding that [Appellants’]
Amended Complaint against Appellee Martin P. Newell. Jr., was
legally insufficient despite its factual averments that Mr. Newell
ether personally participated in or expressly directed the
fraudulent misrepresentations by Active Radiator to Mr. Mercer
thereby aggravating his pre-existing work-related brain damage?
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Brief for Appellants at 5-6. As these issues are interrelated, we will consider
them together.
In determining whether a 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. “Where a doubt exists as to whether a demurrer
should be sustained, this doubt should be resolved in favor of overruling it.”
American Express Bank, FSB v. Martin, 200 A.3d 87, 93 (Pa.Super. 2018).
With regard to 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. When analyzing a demurrer, the
court need not consider the pleader's conclusions of law,
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unwarranted inferences from facts, opinions, or argumentative
allegations. To determine if the trial court properly sustained
preliminary objections, this Court examines the averments in the
complaint and the documents attached to the complaint to
evaluate the adequacy of the facts averred and to assess the legal
sufficiency of the complaint. 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. Where the
complaint fails to set forth a valid cause of action, a preliminary
objection in the nature of a demurrer is properly sustained.
Id. (citations and quotation marks omitted).
In their brief, Appellants state their civil action for damages arises out
of the aggravation of the work-related, initial lead exposure. They explain
Mercer suffered permanent brain damage as a result of his repeated exposure
to lead cadmium alloy due to Appellees’ failure to advise him of his abnormal
blood test results and remove him from lead exposure in November of 2016.
Brief for Appellants at 7. Specifically, Appellants state “Active Radiator was
told to remove Mr. Mercer from lead exposure and to have him evaluated by
a doctor and a toxicologist. And it failed to do so for at least 12 months from
November 2016, through November 2017, thereby causing an aggravation of
his prior work-related injury.” Id. at 16-17. Thus, Appellants contend the
fraudulent misrepresentations which form the basis of their action are not
barred by the WCA, and the matter should proceed to enable them to complete
full discovery and develop a factual record under the narrow exception set
forth in Martin v. Lancaster Battery Co., 530 Pa. 11, 606 A.2d 444 (1992).
Brief for Appellant at 7, 17.
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In Martin, the Pennsylvania Supreme Court observed an employee had
pleaded sufficient facts in his Complaint to support a cause of action for
fraudulent misrepresentation and in doing so reasoned as follows:
A cause of action for fraudulent misrepresentation is comprised of
the following elements: “(1) a misrepresentation, (2) a fraudulent
utterance thereof, (3) an intention by the maker that the recipient
will thereby be induced to act, (4) justifiable reliance by the
recipient upon the misrepresentation and (5) damage to the
recipient as the proximate result.” Scaife Co. v. Rockwell–
Standard Corp., 446 Pa. 280, 285, 285 A.2d 451, 454 (1971),
cert. denied, 407 U.S. 920, 92 S.Ct. 2459, 32 L.Ed.2d 806 (1972).
In the instant action, the appellees have averred that Mr.
Martin was regularly exposed to lead fumes and dust at his place
of employment. He was tested by his employer to monitor the
level of lead in his blood. His employer willfully and intentionally
withheld the test results from him or gave altered blood test
results to him. According to an attachment to the appellees’
complaint, the company policy was to closely monitor lead levels
in employees’ blood and to report the results to the employees so
that those with elevated levels of lead in their blood could transfer
to non-lead areas at LBC. This course of action was not followed
in Mr. Martin's case. Had Mr. Martin been told about the elevated
levels of lead in his blood when the tests first indicated such levels,
he could have promptly reduced his exposure to lead and received
timely and appropriate medical care. Consequently, the severity
of his condition would have been substantially reduced.
The appellees’ have averred, in a manner that will permit
the preparation of a defense and that does not constitute a
subterfuge, misrepresentation, fraudulent utterance, intention by
the maker that the recipient will act, justifiable reliance by
recipient upon the misrepresentation, and damages to the
recipient as a proximate result. Thus, the averments of appellees’
complaint set forth with particularity a cause of action for
fraudulent misrepresentation.
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Id. at 18–19, 606 A.2d at 448.4
Our Supreme Court ultimately held that the alleged aggravation of the
employee’s injury arose from and was related to the alleged fraudulent
misrepresentation of the employer; thus, the appellees were not limited to
their remedies under the WCA and were not precluded from bringing a
common law action against the employer for an aggravation to that injury as
the result of the employer's fraudulent misrepresentations. Id at 449.
Herein, in its brief Rule 1925(a) Opinion, the trial court acknowledged
the Martin exception applied to intentional and fraudulent misrepresentations
of information that causes a delay in an employee’s medical care which
aggravates his or her pre-existing, work related injury. See Trial Court
Opinion, filed 6/6/20, at 3. Yet, without explanation, the trial court baldly
held that it properly dismissed Appellants’ “claims of medical monitoring,
battery, and intentional infliction of emotional distress because the WCA
barred such claims against M.P.N., Inc., and the Martin exception did not
apply.” Id. at 4.
In addition, the trial court found Martin barred Appellants’ fraudulent
misrepresentation claim because the Amended Complaint failed to aver
sufficient facts to plead a misrepresentation or a delay in his medical care
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4 While in their reply brief Appellants maintained that the Martin case had
been decided on summary judgment, see Reply Brief for Appellant at 1-2, at
oral argument, Appellants correctly indicated that, in fact, Martin had been
decided following the filing of preliminary objections.
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which exacerbated his pre-existing, work related injury. The court further
observed that the exhibits attached to the complaint evince that he was on
actual notice of his blood test results and was urged to seek medical treatment
for his abnormal blood Zinc Protoporphyrin level. Id. The trial court also
concluded that since Appellants’ claims against Newell were pled against him
in his capacity as Active Radiator’s corporate officer, it properly dismissed the
claims against Newell as well. Id. at 5. Upon our review of the record, we
hold the trial court abused its discretion in reaching this result.
As stated previously, Appellants allege that in November of 2016 Dr.
Bandulak instructed Appellees to remove Mercer from lead exposure
immediately and have him seen by a physician and toxicologist as soon as
possible, but it failed to do so for at least 12 months resulting in the
aggravation of a prior work-related injury; these allegations are supported by
the November 2, 2016, letter attached to the Amended Complaint as Exhibit
3. Moreover, while the erroneously-dated May 13, 2016, letter from Safety
Manager Coscia advised Mercer of his blood levels, this document did not
indicate the levels were dangerous, nor did it instruct him to seek a medical
evaluation or inform him that Active Radiator’s physician had ordered that he
be removed from further lead exposure. Significantly, Appellees allegedly
took no steps to remove Martin from further lead exposure and this led to his
suffering permanent brain damage as a result of the exacerbation of the
previous lead exposure.
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As was the case in Martin, Appellants have alleged fraudulent
misrepresentation on the part of Appellees caused a delay in Mercer’s removal
from his further lead exposure which aggravated a previous, work related lead
accumulation in Mercer’s brain to permanent brain damage; Appellants are
not seeking compensation for the work-related injury itself in the instant
action, See Amended Complaint at ¶¶ 121; Martin, supra at 447. Thus, for
the above reasons and consistent with Martin, we find Appellants have
averred with particularity a cause of action for fraudulent misrepresentation,
and, therefore, the trial court erred in sustaining the Preliminary Objections’
demurrer. Consequently, we reverse the trial court’s December 18, 2019,
Order sustaining Appellees’ Preliminary Objections and remand this matter for
further proceedings.
Order Reversed. Remanded for further proceeding consistent with this
Opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/21
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