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Michael Kostryckyj and Chrystyna v. Pentron Laboratory Technologies

July 27, 2012

MICHAEL KOSTRYCKYJ AND CHRYSTYNA RAKOCZY, H/W APPELLANTS
v.
PENTRON LABORATORY TECHNOLOGIES, LLC, HUBERT C. JASINSKI DENTAL LABORATORY, INC. D/B/A NEWTECH DENTAL LABORATORY, HACKMAN DENTAL LABS, INC. APPELLEES



Appeal from the Order Entered May 23, 2011 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): February Term, 2009, No. 02360

The opinion of the court was delivered by: Gantman, J

J-A06014-12

BEFORE: GANTMAN, J., SHOGAN, J., and WECHT, J.

OPINION BY GANTMAN, J.:

Appellants, Michael Kostryckyj and Chrystyna Rakoczy ("Husband" and "Wife"), appeal from the order entered in the Philadelphia County Court of Common Pleas, marking this case settled, discontinued, and ended. The order made final the court's previous summary judgment in favor of Appellee, Hubert C. Jasinksi Dental Laboratory, Inc. d/b/a Newtech Dental Laboratory, in this toxic tort case.*fn1 Husband and Wife ask us to determine whether the trial court erred in granting Appellee's motion for summary judgment, where material facts were in dispute and the court misapplied Martin v. Lancaster Battery Co., 530 Pa. 11, 606 A.2d 444 (1992) (setting forth exception to exclusivity of Pennsylvania Workers Compensation Act ("WCA")). We hold that Husband and Wife failed to set forth a prima facie case of fraudulent misrepresentation necessary to satisfy the Martin exception to the exclusivity of the WCA. Accordingly, we affirm.

The trial court opinion fully and correctly set forth the relevant facts of this case as follows:

[Husband] has worked as a dental technician for nearly 30 years for several different dental laboratories. Specifically, from 1980 until 1982, he performed various procedures including, but not limited [to], casting, cutting, grinding and polishing dental alloys containing beryllium.*fn2 These alloys were allegedly manufactured by Defendant Pentron and sold under the brand name Rexillium III. From 1984 until 1995, [Husband] operated his own dental laboratory known as Crowning Glory. The complaint does not mention whether during the 11 years he operated

Crowning Glory, he handled beryllium-containing alloys. The complaint indicates that sometime in 1995, he began reusing Rexillium III.

In 1998, [Husband] commenced experiencing increased shortness of breath and sought treatment with Edward Schuman, M.D., a pulmonologist at Holy Redeemer Hospital. On October 21, 1998, he was diagnosed with sarcoidosis, a chronic inflammatory disease of the lungs of unknown origin.

In 2000, [Husband] started working with [Appellee], as a dental ceramist, where allegedly he was exposed to respirable beryllium dust, fumes, and particulate matter from using Rexillium III.

In 2002, [Husband] began treatment with Dr. Jennifer Weibel at Thomas Jefferson University Hospital. Diagnostic studies performed by Dr. Weibel between December 2002 and March 2008, confirmed the diagnosis of sarcoidosis.

In 2003, [Husband] left [Appellee] and began working with Defendant Hackman, where allegedly he continued to be exposed to beryllium.

On September 15, 2008, [Husband] was seen by Milton Rossman, M.D., in the Sarcoidosis and Interstitial Lung Disease Program at the Penn Lung Center. Dr. Rossman ascertained that despite [Husband's] occupational history, he had never been fully evaluated for any beryllium- related conditions. Dr. Rossman noted that Dr. Schuman had previously diagnosed [Husband] with sarcoidosis based on a bronchoscope and a chest CT study, and no other sign or symptom of the disease. As a follow up, Dr. Rossman ordered additional studies including, a [bronchoalveolar] lavage lymphocyte proliferation test (BAL-LPT) and a lung biopsy. On October 16, 2008, Dr. Rossman diagnosed [Husband] with chronic beryllium disease.

(Trial Court Opinion, filed October 19, 2011, at 2-3) (internal footnotes omitted).

Procedurally, Husband and Wife filed their initial complaint on February 17, 2009, including one count against Appellee for "Intentional Conduct with a Substantial Certainty of Causing Injury." On April 3, 2009, Husband and Wife amended their complaint and the count against Appellee revising it as a claim for fraudulent misrepresentation. Appellee filed an answer to the amended complaint on May 8, 2009. Following completion of discovery, Appellee filed a motion for summary judgment on February 7, 2011. The trial court opinion continues:

[Appellee's] motion for summary judgment was granted on May 9, 2011. [Husband and Wife] did not file a motion for reconsideration, but instead, on May 16, 2011, advised the [court] that the May 17, 2011 pre-trial conference was no longer necessary because a settlement had been reached with Defendants Hackman and Pentron, and...summary judgment had been granted in favor of [Appellee]. On May 23, ...


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