J-A27033-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

SANDRA COOPER, IN HER OWN 

RIGHT AND AS ADMINISTRATRIX OF 

THE ESTATE OF GENE M. COOPER 

Appellant

v.

BRENNTAG NORTHEAST, INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 627 MDA 2023

Appeal from the Order Entered March 31, 2023

In the Court of Common Pleas of Lancaster County Civil Division at 

No(s): CI-15-08202

BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: MARCH 6, 2024

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

the Estate of Gene M. Cooper, appeals from the March 31, 2023, order 

granting summary judgment in favor of Brenntag Northeast, Inc. (“BNI”) in 

Appellant’s wrongful death action. After careful consideration, we conclude

that a prior adverse judicial determination on the issue of whether Mr. Cooper

filed his underlying personal injury action after the expiration of the statute of 

limitations collaterally estops Appellant from relitigating this issue. 

Accordingly, we affirm.

____________________________________________

* Former Justice specially assigned to the Superior Court.
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The trial court opinion1 sets forth the pertinent facts and procedural 

history, as follows:

I. FACTUAL SUMMARY

Mr. Gene M. Cooper began employment at Armstrong World 

Industries, Inc. (“AWI”) in September 1974. During his 

employment, he regularly used a solvent to degrease the 

manufacturing equipment. [Plaintiff/Appellant] alleges that this 

solvent was the brand-named Safety Solvent and that BNI 

produced, sold, and distributed the product to AWI.

[Fn]

 This 

solvent contained methylene chloride (“MC”), Trichloroethylene 

(“TCE”), and methyl ethyl ketone (“MEK”), and together these 

three chemicals formed a toxic mixture.

[Fn] BNI denies that it ever produced, sold, or 

distributed Safety Solvent.

While his duties at AWI exposed Mr. Cooper to the solvent on a 

regular basis, he experienced a more significant exposure on 

September 25, 2003, during a clean-up. This exposure 

immediately and severely damaged Mr. Cooper’s brain. He 

returned home from work on September 25, 2003, with an 

uncontrollable cough, a splitting headache, and burning sinuses 

(Third Am. Compl. ¶ 123). Mr. Cooper’s brain never recovered 

from this exposure (Id. ¶ 124). By April 2004, Mr. Cooper was 

unable to work at all. (Id. ¶ 129). He went on disability status 

in May 2004, and from that point onward, [Appellant] “devoted 

[her] time and efforts to get [her] husband’s brain damage 

diagnosed and treated.” BNI Renewed Mot. Summ. J. Ex. G (“Pl.’s 

Aff.”)

In October 2005, a doctor at Drexel Medical Center told 

[Appellant] to “bring him back when you know what he was 

exposed to.” (Id.) In July 2006, his disease progression forced 

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1

Internal footnotes appearing in the trial court’s opinion are hereinafter 

denoted by “[Fn]” and set off within our block quote of the trial court opinion. 
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Mr. Cooper out of the family home, first into an assisted-living 

facility and later into skilled-nursing care (Third Am. Compl. ¶¶ 

129-30). Dr. Stephen Gold diagnosed Mr. Cooper with workrelated toxic encephalopathy on December 17, 2007 (Third Am. 

Compl. ¶ 273). [Appellant] filed a negligence action against BNI 

in December 2009.[Fn] Mr. Cooper died on February 5, 2014 (Id. 

¶ 145).

[Fn] Cooper II, docketed at Lancaster County Court 

of Common Pleas Docket No. 15-08200, was 

dismissed on summary judgment by [the trial court]

on October 13, 2017, based on the statute of 

limitations. In Cooper II, [the trial court] noted that

Pennsylvania adopted in Wilson v. El-Daief[, 964 

A.2d 354 (Pa. 2009)] the stricter notice standard for 

determining when the statute of limitations period 

begins to run. Based on the undisputed facts of 

Cooper II, [the trial court] determined the plaintiffs 

had notice in April 2004, August 2005, and “at the 

very latest, . . . were put on notice in November 2007, 

when Dr. Stephen Gold provided a diagnosis of workrelated toxic encephalopathy.” It was a final order 

deciding the issue of statute of limitations and 

resulting in the termination of the case. No timely 

appeal of the court’s summary judgment order was 

taken. However, Cooper II was appealed on other 

grounds all the way to the Pennsylvania Supreme 

Court, which denied allocator.

II. PROCEDURAL HISTORY

[]

The present action commenced with the filing of [Appellant’s] 

complaint on October 22, 2014, in the Court of Common Pleas of 

Philadelphia County at October Term, No. 02594 (141002594). 

On September 23, 2015, the case was transferred to the Court of 

Common Pleas of Lancaster County at Docket No. Cl-15-08202 

(“present action” or “Cooper III”). The present action is the last 

of a group of more than thirty cases involving numerous plaintiffs 

who brought various claims primarily against former defendant 

Armstrong World Industries, Inc., and current defendant BNI.
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The present action began in October 2014 as a wrongful death 

and survival lawsuit against multiple defendants.[Fn] [Appellant] 

filed her third amended complaint in the present action on October 

6, 2017. [The trial court] sustained preliminary objections to the 

third amended complaint on December 6, 2017, dismissing the 

complaint with prejudice. [The trial court] relied on res judicata

grounds as to BNI. 

[Appellant] appealed the dismissal of the complaint as to BNI on 

the Wrongful Death claims only. The Superior Court reversed [the 

trial court’s] decision as to Wrongful Death, determining res 

judicata did not apply because Cooper II had been decided on 

statute of limitations, not the merits of the case. [2] All other issues 

on appeal were affirmed. Cooper III is now limited to Count I, a 

wrongful death claim against BNI.

Thereafter, BNI filed an answer to the complaint and later a 

motion for summary judgment on December 14, 2021, asserting 

(1) the doctrine of collateral estoppel (issue preclusion) prevents 

plaintiff from denying BNI’s affirmative defense of statute of 

limitations, and (2) the independent facts of the case demonstrate 

BNI is entitled to summary judgment based on the statute of 

limitations. [Appellant] responded in opposition on January 14, 

2022, arguing that whether the statute of limitations has run is a 

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2

In our memorandum decision Cooper v. Armstrong World Indus., No. 

117 MDA 2018 (Pa. Super. filed December 27, 2018) (non-precedential 

decision), we reasoned that we were “constrained” to affirm in part, reverse

in part, and remand for further proceedings without addressing the discrete 

limitations issue because the trial court had not addressed it. Instead, the 

trial court erroneously applied the doctrine of res judicata, or claim preclusion, 

to find that the court previously had rejected the wrongful death claim “on its 

merits” when it applied the statute of limitations to find Appellant had filed it 

out of time. We observed that finding a claim to have been filed out of time

under the applicable limitations period constitutes not a decision on the merits 

of the claim itself but, instead, only a determination that a remedy for the 

claim is no longer available in the jurisdiction imposing the corresponding

limitations period. Therefore, res judicata, or claim preclusion, does not result 

from the application of the statute of limitations. As we discuss infra, 

however, because the distinct issue of whether the statute of limitations bars 

relief in Appellant’s action was addressed and decided on its merits in a 

previous judicial determination, we find that collateral estoppel, or issue 

preclusion, applies to defeat Appellant’s wrongful death claim.
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genuine question of material fact, that [BNI’s] motion is untimely, 

and that two intervening appellate cases make summary 

judgment inappropriate. 

Trial Court Opinion, 3/31/23, at 1-4.

In the trial court’s March 31, 2023, order granting summary judgment, 

it determined that Appellant’s wrongful death claim was barred by the statute 

of limitations because Mr. Cooper’s underlying personal injury claim no longer 

viable at the time of his death, the applicable two-year limitations period 

having commenced no later than in November 2007 and expired no later than 

November 2009, prior to the December 1, 2009, filing of Mr. Cooper’s 

negligence action.3 This timely appeal followed.

Appellant raises the following issues for this Court’s review:

1. Where, as here, the Trial Court, on two separate occasions, 

selected the accrual date of Appellant’s cause of action, 

granted summary judgment and dismissed Appellant’s case 

in its entirety, despite the existence of issues of fact 

regarding the accrual date, and where this Court previously 

rejected both attempts by the Trial Court to select the 

accrual date of the cause of action for purposes of finding 

that the statute of limitations had expired prior to the filing 

of this and another case, whether the Trial Court erred in 

holding (a third time) that the accrual date was identical to 

the date which was twice previously rejected by this Court, 

based on estoppel principles.

2. Where, as here, after the case was remanded from this 

Court on December 27, 2018, no substantive discovery on 

the issue of the statute of limitations took place (as the Trial 

Court stayed all discovery), and, therefore, the Summary 

Judgment Record on the issue of the statute of limitations 

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3 See Section 5524(7) of the Judicial Code, 42 Pa.C.S. § 5524(7) (imposing 

two-year statute of limitations period on an action sounding in tort).
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was identical to the record as it existed on December 27, 

2018, with no new facts presented to the Trial Court 

between December 27, 2018 and March 31, 2023, whether 

the Trial Court erred in granting summary judgment in favor 

of BNI, as its basis for granting summary judgment could 

not be factually supported in any way other than with 

reference to facts and legal arguments found in its 

previously reversed December 6, 2017 Order?

Brief for Appellant, at 7-8.

In reviewing a trial court's grant of summary judgment,

[W]e apply the same standard as the trial court, reviewing all the 

evidence of record to determine whether there exists a genuine 

issue of material fact. We view the record in the light most 

favorable to the non-moving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved 

against the moving party. Only where there is no genuine issue 

as to any material fact and it is clear that the moving party is 

entitled to a judgment as a matter of law will summary judgment 

be entered. All doubts as to the existence of a genuine issue of a 

material fact must be resolved against the moving party.

Motions for summary judgment necessarily and directly implicate 

the plaintiff's proof of the elements of [a] cause of action. 

Summary judgment is proper if, after the completion of discovery 

relevant to the motion, including the production of expert reports, 

an adverse party who will bear the burden of proof at trial has 

failed to produce evidence of facts essential to the cause of action 

or defense which in a jury trial would require the issues to be 

submitted to a jury. In other words, whenever there is no genuine 

issue of any material fact as to a necessary element of the cause 

of action or defense, which could be established by additional 

discovery or expert report and the moving party is entitled to 

judgment as a matter of law, summary judgment is appropriate. 

Thus, a record that supports summary judgment either (1) shows 

the material facts are undisputed or (2) contains insufficient 

evidence of facts to make out a prima facie cause of action or 

defense.

Upon appellate review, we are not bound by the trial court's 

conclusions of law, but may reach our own conclusions.
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Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa. Super. 2006) 

(internal citations and quotation marks omitted).

Appellant’s two issues coalesce to assert the trial court erroneously 

granted summary judgment in favor of BNI and dismissed the case in the 

absence of sufficient discovery on what she maintains is the continuing 

genuine issue of material fact as to when Mr. Cooper knew or should have 

known that the negligence of BNI in manufacturing, producing, selling, or 

supplying the solvent to his employer was the cause of his work-related toxic 

encephalopathy. Because this issue of material fact remained open beyond 

November 2007 at the very least, Appellant argues, the two-year statute of 

limitations could not have run out before December 1, 2009, the date on which 

Mr. Cooper initiated his personal injury action against BNI. Therefore, 

Appellant posits that Mr. Cooper’s underlying personal injury action was timely 

filed, remained viable at the time of his death, and, it follows, capable of 

sustaining Appellant’s wrongful death action filed after his passing.4

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4 “Although a third party's right of action in a wrongful death claim is an 

independent statutory claim of a decedent's heirs and is not derivative of a 

decedent's right of action, . . . ‘a wrongful death claim still requires a tortious 

injury to succeed.’” Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 

941, 945 (Pa. 2019). In that vein, it is well-settled that a wrongful death 

action is barred where a cause of action by the deceased at the time of death 

would have been barred by the statute of limitations. See, e.g., Valentino 

v. Philadelphia Triathlon, LLC, 150 A.3d 483, 492-93 (Pa. Super. 2016), 

aff’d, 209 A.3d 941(Pa. 2019). See also Ingenito v. AC&S, Inc., 633 A.2d 

1172, 1176 (Pa. Super. 1993) (observing “no action for wrongful death can 

be maintained where the decedent, had he lived, could not himself have 

recovered for the injuries sustained.”).
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BNI counters simply that the two-year statute of limitations on the 

personal injury claim underlying the present wrongful death action started to 

run by November 2007 at the latest and put Mr. Cooper out of time when he 

filed his personal injury action more than two years later, on December 1, 

2009. In support, BNI points to a timeline beginning with the immediate 

manifestation of neurologic symptoms following Mr. Cooper’s clean-up of a 

2003 solvent spill, his 2004 retirement because of debilitating injuries caused 

by the work-related exposure, the 2005 diagnosis of cognitive disorder 

possibly caused by the toxic exposure, and the November 2007 medical 

diagnosis of work-related toxic encephalopathy.

Furthermore, BNI relies on the prior judicial determination of the trial 

court which, in the Coopers’ underlying personal injury lawsuit, entered its 

October 13, 2017, order adopting the above factual timeline to grant BNI’s 

motion for summary judgment on the finding that the statute of limitations 

had commenced in November of 2007 and expired before the Coopers filed 

their December 1, 2009, personal injury action.5 BNI therefore argues that 

application of the collateral estoppel (or issue preclusion) doctrine precludes 

Appellant from prevailing on a decided predicate issue on which her wrongful 

death claim necessarily depends. For reasons that follow, we conclude that 

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5 This Court previously acknowledged that “Appellant Cooper did not seek 

appellate review of the Order Granting M/SJ [motion for summary judgment]

and dismissing the Third Amended Complaint with Prejudice. . . . See Cooper 

v. Brenntag Northeast, Inc., 249 A.3d 1164 (Pa. Super. 2021) (nonprecedential decision).
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the trial court properly deemed Appellant collaterally estopped from contesting 

the prior, final judicial determination that the statute of limitations on the 

underlying personal injury claim had expired in November 2009 at the latest. 

This Court recently discussed the doctrine of collateral estoppel and its 

proper application, as follows:

“The phrase ‘collateral estoppel,’ also known as ‘issue 

preclusion,’ simply means that when an issue of law, evidentiary 

fact, or ultimate fact has been determined by a valid and final 

judgment, that issue cannot be litigated again between the same 

parties in any future lawsuit.” Id. (citation omitted); see also 

Chada v. Chada, 756 A.2d 39, 42 (Pa. Super. 2000) (doctrine of 

collateral estoppel precludes litigation of claims and issues that 

have previously been litigated).

An issue is actually litigated when it is properly raised, 

submitted for determination, and then actually 

determined. For collateral estoppel purposes, a final 

judgment includes any prior adjudication of an issue 

in another action that is sufficiently firm to be 

accorded conclusive effect.

Brockington-Winchester, 205 A.3d at 1284 (citation omitted).

Collateral estoppel applies when:

(1) the issue decided in the prior case is identical to 

one presented in the later case; (2) there was a final 

judgment on the merits; (3) the party against whom 

the plea is asserted was a party or in privity with a 

party in the prior case; (4) the party or person privy 

to the party against whom the doctrine is asserted had 

a full and fair opportunity to litigate the issue in the 

prior proceeding and (5) the determination in the prior 

proceeding was essential to the judgment.

Chada, 756 A.2d at 42.

In re R.H.M., 303 A.3d 146, 151 (Pa. Super. 2023).
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The collateral estoppel question before us asks if there exists a prior,

final judgment on the merits of an essential, identical statute of limitations 

issue that took the Coopers out of court after they had received a full and fair 

opportunity to litigate the issue. BNI answers that such a judgment was 

entered in the trial court’s order of October 13, 2017, granting BNI’s motion 

for summary judgment and dismissing the original 2009 Lawsuit based on its

review of the factual record and its subsequent determination that the 

“limitations period began to run at the very latest in November 2007. . . . 

[and] Plaintiffs failed to commence their action within the statutory period, as 

they did not file a writ of summons until December 1, 2009.” Trial Court Order 

and Opinion, 10/13/17. The trial court thus entered this judgment after a 

review of the fully litigated facts and authority pertaining to the issue of 

whether Mr. Cooper’s cause of action was filed out of time. Furthermore, 

Appellant failed thereafter to file a timely appeal challenging the trial court’s 

decision on this determinative issue. 

Therefore, there is no question that a final, adverse judicial 

determination was made on the merits of the issue of whether Mr. Cooper 

timely filed the personal injury claim against BNI. In the present wrongful 

death action, Appellant Mrs. Cooper revisits the identical statute of limitations

issue, and she asks the court once again to review the same pertinent facts, 

procedural history, and legal authority bearing on the limitations issue but to 

reach a decision opposite to that previously reached by the trial court, whose 

order entering summary judgment was not challenged by a timely appeal. 
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Because the viability of the decedent’s personal injury claim is a 

necessary predicate to the present wrongful death action,

6 and there exists 

adverse to Appellant’s interest a prior final, merits-based determination on 

the issue of whether decedent’s personal injury claim was filed after the 

accrual of the statute of limitations, we find the doctrine of collateral estoppel 

applies to bar Appellant’s wrongful death action.

Order affirmed. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 3/6/2024

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6 See Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 492-93 (Pa. 

Super. 2016), aff’d, 209 A.3d 941(Pa. 2019).