J-A28021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SANDRA COOPER, IN HER OWN 

RIGHT AND AS ADMINISTRATRIX OF 

THE ESTATE OF GENE M. COOPER 

Appellant

v.

ARMSTRONG WORLD INDUSTRIES, 

BRENNTAG NORTHEAST, INC., ALAN 

J. HAY, M.D., AND LANCASTER 

GENERAL OCCUPATIONAL MEDICINE

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 117 MDA 2018

Appeal from the Judgment Entered December 6, 2017

In the Court of Common Pleas of Lancaster County 

Civil Division at No(s): CI-15-08202

BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 27, 2018

Sandra Cooper (“Appellant”), in her own right and as administratrix of 

the Estate of Gene M. Cooper,

1 appeals from the December 6, 2017 order 

sustaining the preliminary objections filed by Brenntag Northeast, Inc.

(“Brenntag”).2 We are constrained to affirm in part, reverse in part, and 

remand for further proceedings consistent with this memorandum.

____________________________________________

1 We refer to Gene M. Cooper as “Cooper” and the Estate of Gene M. Cooper 

as “the Estate.”

2 Appellant filed suit against Brenntag, Armstrong World Industries, Dr. Alan 

J. Hay, and Lancaster General Occupational Medicine. All four defendants filed 
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Cooper worked for Armstrong World Industries beginning in 1974. On 

September 25, 2003, Cooper assisted with cleaning a chemical spill that 

occurred at Armstrong World Industries’ facility. Cooper used “Safety 

Solvent,” a chemical manufactured by Brenntag, to clean the spill. Safety 

Solvent contains three chemicals, including trichloroethylene. In November 

2007, Cooper was diagnosed with injuries allegedly related to 

trichloroethylene exposure.

As the procedural posture of a prior case is relevant to our disposition, 

we begin with a review of the history of litigation between the parties. On 

December 1, 2009, Appellant and Cooper filed suit against several defendants, 

including Brenntag (“the 2009 lawsuit”). Following Cooper’s February 5, 2014

death, on November 25, 2014, Appellant filed an amended complaint in the 

2009 lawsuit alleging that Cooper’s death resulted from exposure to 

trichloroethylene. On October 13, 2017, the trial court granted Brenntag 

summary judgment in the 2009 lawsuit. The trial court concluded that the 

claims were barred by the statute of limitations because Cooper was aware 

that his injuries were caused by trichloroethylene in November 2007. 

Appellant did not appeal that decision in the 2009 lawsuit. 

____________________________________________

preliminary objections. On December 6, 2017, the trial court sustained all 

four sets of preliminary objections and dismissed all claims against all parties. 

On appeal, however, Appellant challenges only the order sustaining Brenntag’s 

preliminary objections. 
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On October 22, 2014, Appellant filed the instant lawsuit, on her own 

behalf and as administratrix of the Estate, in the Court of Common Pleas of 

Philadelphia County. That court transferred the case to the Court of Common 

Pleas of Lancaster County. On October 6, 2017, Appellant filed a third 

amended complaint in this case. As is relevant to this appeal, the third 

amended complaint included three counts against Brenntag alleging wrongful 

death3 and one count against Brenntag alleging fraudulent concealment. On 

October 24, 2017, Brenntag filed preliminary objections. On December 6, 

2017, the trial court sustained Brenntag’s preliminary objections. It concluded 

that Appellant’s three wrongful death claims were barred by the doctrine of 

res judicata. In addition, the trial court held that Appellant’s fraudulent 

concealment claim was not pled with sufficient particularity. This timely 

appeal followed.4

Appellant presents four issues for our review: 

1. Did the [trial] court err by dismissing [Appellant’s wrongful 

death claims]?

2. Did the [trial] court err by dismissing [Appellant’s fraudulent 

concealment claim]?

____________________________________________

3 The third amended complaint included survival claims against Brenntag; 

Appellant, however, has waived all arguments related to those survival claims

by failing to raise them on appeal. See Pa.R.A.P. 2119(a).

4 Appellant and the trial court complied with Pennsylvania Rule of Appellate 

Procedure 1925.
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3. Even if the [fraudulent concealment] claim was not [pled] with 

sufficient particularity, did the [trial] court err by not allowing 

[Appellant] to file a fourth amended complaint?

4. [Should Brenntag’s application for sanctions be granted]?

Appellant’s Brief at 4.

We review an order sustaining preliminary objections de novo and our 

scope of review is plenary. Caltagirone v. Cephalon, Inc., 190 A.3d 596, 

599 (Pa. Super. 2018), appeal denied, 2018 WL 5013765 (Pa. Oct. 16, 2018). 

Essentially, the trial court concluded that Appellant’s wrongful death claims 

were barred by res judicata because the trial court previously decided, in the 

2009 lawsuit, that the statute of limitations had expired. To unpack the ruling, 

we begin with a review of wrongful death claims:

At common law, an action for personal injury did not survive a 

person’s death. To counter this, our legislature enacted a survival 

statute providing that all causes of action or proceedings, real or 

personal, shall survive the death of a plaintiff. All actions that 

survive the decedent, however, must be brought by or against the 

personal representative of the decedent’s estate. Likewise, 

Pennsylvania law provides that an action may be brought, under 

procedures prescribed by general rules, to recover damages for 

the death of an individual caused by the wrongful act, neglect, 

unlawful violence, or negligence of another. This wrongful death 

action exists only for the benefit of a decedent’s spouse, children 

or parents. As with survival actions, an action for wrongful death 

may only be brought by the personal representative of a decedent 

for the benefit of those persons entitled by law to recover 

damages for the decedent's wrongful death.

Bouchon v. Citizen Care, Inc., 176 A.3d 244, 258 (Pa. Super. 2017), appeal 

denied, 189 A.3d 993 (Pa. 2018) (cleaned up). “Moreover, a wrongful death 

action . . . is dependent upon the decedent’s cause of action being viable at 
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the time of death.” Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 658 

(Pa. Super. 2013), appeal denied, 86 A.3d 233 (Pa. 2014) (cleaned up). 

Hence, “no action for wrongful death can be maintained where the decedent, 

had he lived, could not himself have recovered for the injuries sustained.” 

Ingenito v. AC & S, Inc., 633 A.2d 1172, 1176 (Pa. Super. 1993), appeal 

denied, 668 A.3d 1133 (Pa. 1995). Because more than two years had expired 

since Cooper’s diagnosis, the trial court concluded (at the summary judgment 

stage) that the statute of limitations barred Appellant’s claims in the 2009 

lawsuit. The trial court uses this ruling as the basis for claiming that res 

judicata bars Appellant’s claims in this case.

Appellant argues that her claims were not barred by res judicata

because the 2009 lawsuit was not decided on the merits. “The law provides 

that where there has previously been rendered a final judgment on the 

merits by a court of competent jurisdiction, the doctrine of res judicata will 

bar any future suit on the same cause of action between the same parties.” 

Milby v. Pote, 189 A.3d 1065, 1078 (Pa. Super. 2018) (emphasis added). 

Because a judgment based on the statute of limitations is not a judgment on 

the merits, a case dismissed on statute of limitations grounds cannot serve as 

the basis for res judicata. Weinar v. Lex, 176 A.3d 907, 916 (Pa. Super. 

2017), appeal denied, 189 A.3d 994 (Pa. 2018). Hence, Appellant’s claims 

were not barred by the doctrine of res judicata because the 2009 lawsuit was 
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not decided on the merits.5 We decline to attempt to affirm on a basis that 

was not raised at the trial court level. Accordingly, we are constrained to 

reverse the trial court’s order sustaining Brenntag’s preliminary objections as 

to the three wrongful death counts and remand with instructions for Brenntag 

to file an answer. 

In her second issue, Appellant argues that the trial court erred by 

dismissing her fraudulent concealment claim brought pursuant to Restatement 

(Second) of Torts § 550. See Sevin v. Kelshaw, 611 A.2d 1232, 1236 (Pa. 

Super. 1992) (citations omitted) (Pennsylvania has adopted section 550).

Section 550 provides that, “One party to a transaction who by concealment or 

other action intentionally prevents the other from acquiring material 

information is subject to the same liability to the other, for pecuniary loss, as 

though he had stated the nonexistence of the matter that the other was thus 

prevented from discovering.” Restatement (Second) of Torts § 550. 

Most of Appellant’s fraudulent concealment count is completely 

irrelevant to fraudulent concealment.6 By its very nature, a fraudulent 

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5 The trial court and Brenntag cite an exception which permits res judicata to 

be raised as a preliminary objection instead of as new matter. This exception, 

however, does not address the distinct issue of whether a dismissal based on 

statute of limitations grounds can be used to assert res judicata because it is 

not a ruling on the merits. 

6 As noted by the trial court, this is because Appellant’s claim is a thinly-veiled 

attempt at pursuing an independent spoliation claim. Pennsylvania, however, 
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concealment claim relates to actions that occurred prior to an injury. 

Appellant’s complaint, however, details actions Brenntag took after Cooper 

was exposed to trichloroethylene. These allegations cannot form the basis for 

Appellant’s tort claim because Appellant is unable to show reliance. See 

Woodward v. Dietrich, 548 A.2d 301, 311 (Pa. Super. 1988) (requiring 

reliance in a fraudulent concealment case); see also In re 1983 Audit 

Report of Beharry, 544 A.2d 514, 523 (Pa. Cmwlth. 1988) (en banc) (same). 

This inability to show reliance could not be cured by filing an amended 

complaint. 

We conclude that the trial court properly found that Appellant failed to 

plead, with the necessarily particularity, that Cooper was prevented from 

acquiring the requisite safety information. Specifically, the only allegation in 

Appellant’s third amended complaint that remotely addresses the issue was 

that:

At relevant times, Brenntag engaged in a concerted action with 

[Armstrong World Industries] through [an Armstrong World 

Industries’ employee] to selectively dispose of Brenntag’s [s]afety 

[d]ata [s]heets to prevent [Cooper] and other USWA Local 285 

members from determining that the warnings on Brenntag’s 

Safety Solvent labels failed to conform to the requirements 

of [the Occupational Safety and Health Administration’s]

[h]azard [c]ommunications [s]tandard.

____________________________________________

does not recognize such a cause of action. Pyeritz v. Commonwealth, 32 

A.3d 687, 692–697 (Pa. 2011).
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Appellant’s Third Amended Complaint, 10/6/17, at 75 (emphasis added). 

Again, there was no reliance because Appellant did not allege that Brenntag’s 

actions prevented Cooper from learning about the safety risks of Safety 

Solvent. Instead, she only alleged that Brenntag’s actions prevented Cooper 

from learning that Brenntag supposedly violated OSHA standards. 

This was insufficient to plead the necessary elements of a fraudulent 

concealment claim. Appellant was required to plead that Brenntag’s 

fraudulent concealment prevented Cooper from learning of the relevant safety 

information and that Cooper’s failure to learn of the relevant safety 

information caused Cooper to use the Safety Solvent. Her failure to do so was 

fatal to her fraudulent concealment claim. 

Moreover, Appellant failed to plead that Cooper’s failure to learn of the 

dangers of Safety Solvent caused Cooper’s injuries. The portions of the third 

amended complaint Appellant cites in her brief fail to allege that Cooper was 

injured as a result of his trichloroethylene exposure. Hence, we agree with 

the trial court that Appellant failed to plead damages resulting from Brenntag’s 

fraudulent concealment. Thus, for two independent reasons, the trial court 

correctly sustained Brenntag’s preliminary objections with respect to 

Appellant’s fraudulent concealment claim and we affirm that portion of the 

trial court’s order.

In her third issue, Appellant argues that the trial court erred by 

dismissing her fraudulent concealment claim without granting her leave to 
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amend her complaint. This argument is waived for at least two reasons. In 

order to preserve a claim that the trial court erred in dismissing a complaint 

after the filing of preliminary objections without leave to amend, a plaintiff 

must request such leave to amend before the trial court. See Pa.R.A.P. 

302(a). Hence, Appellant was required to include the location of preserving 

the issue in her brief. Pa.R.A.P. 2117(c). Appellant’s failure to do so waived 

this claim of error. Commonwealth v. Baker, 963 A.2d 495, 502 & n.5 (Pa. 

Super. 2008), appeal denied, 992 A.2d 885 (Pa. 2010) (citations omitted). 

Moreover, our review of the certified record reveals that Appellant did not 

request leave to amend in her response to Brenntag’s preliminary objections 

or in her brief filed in support of that pleading. Hence, this issue is also waived 

under Rule 302(a).7

In her final issue, Appellant argues that we should deny Brenntag’s 

application for sanctions. We agree. As set forth above, Appellant is entitled 

to relief in this appeal. We will not award sanctions against a prevailing party.

Brenntag’s application denied. Appellant’s application for permission to 

file post-submission communication is denied as moot. Order affirmed in part 

and reversed in part. Case remanded. Jurisdiction relinquished. 

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7 Even if Appellant preserved this issue, we conclude that the trial court did 

not abuse its discretion by refusing to grant Appellant leave to file a fourth 

amended complaint for the reasons stated in our analysis of Appellant’s 

second issue. 
J-A28021-18

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/27/2018