Smith, A. v. BMW of North America ( 2014 )

J-A20041-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AMY R. SMITH, Executrix of the Estate : IN THE SUPERIOR COURT OF
of Paul A. Rowland, Deceased, : PENNSYLVANIA
:
Appellant :
:
v. :
:
BMW OF NORTH AMERICA LLC, :
INDIVIDUALLY AND OWNER OF :
AND/OR PARENT OF AND/OR :
SUCCESSOR TO AND/OR F/K/A MINI, :
BORG-WARNER CORPORATION, :
INDIVIDUALLY AND SUBSIDIARY OF :
AND/OR PARENT OF AND/OR A/K/A :
AND/OR F/K/A BORG & BECK, FORD :
MOTOR COMPANY, GENUINE PARTS :
COMPANY, HONEYWELL :
INTERNATIONAL, INC., AS :
SUCCESSOR-IN-INTEREST OF ALLIED :
SIGNAL, INC., SUCCESSOR TO BENDIX :
CORPORATION AND BENDIX MINTEX :
PTY, LTD., JAGUAR LAND ROVER :
NORTH AMERICA, LLC, INDIVIDUALLY :
AND ITS PREDECESSORS, :
SUCCESSORS, PRESENT AND/OR :
FORMER PARENTS, SUBSIDIARIES :
AND/OR DIVISIONS, NISSAN NORTH :
AMERICA, INC., THE PEP BOYS :
MANNY, MOE & JACK, PNEUMO ABEX, :
LLC, SUCCESSOR-IN-INTEREST TO :
ABEX CORPORATION AND QUAKER :
CITY MOTOR PARTS COMPANY, :
:
Appellees : No. 3352 EDA 2013
Appeal from the Orders entered on October 21 and 22, 2013
in the Court of Common Pleas of Philadelphia County,
Civil Division, No. 01814 September Term 2011
BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 27, 2014
J-A20041-14
Amy R. Smith, Executrix of the Estate of Paul A. Rowland, Deceased
-Warner
1
- We affirm.
The trial court set forth the relevant factual and procedural history in
its Opinion, which we adopt herein by reference. See Trial Court Opinion,
1/24/14, at 1-4.
and Borg-Warner, Rowland filed a timely Notice of Appeal.2
On appeal, Rowland raises the following questions for our review:
1. Did the [t]rial [c]ourt err in granting summary judgment in
favor of Ford [] with respect to its liability as the apparent
manufacturer of the asbestos-
FOMOCO (i.e., Ford []) brand brakes and clutches at issue in
1
On October 21, 2013, the trial court entered an Order, dated October 17,
ion for Summary Judgment based on
Eckenrod v. GAF Corp., 544 A.2d 50 (Pa. Super. 1988), and Gregg v. V-J
Auto Parts, 943 A.2d 216 (Pa. 2007). On October 22, 2013, the trial court
entered an Order, dated October 17, 2013, granting Borg-
for Summary Judgment Based on No Liability of Borg & Beck, Company,
the proper entry dates for these Orders.
2
In this multi-
granting summary judgment in favor of Ford and Borg-Warner did not
become final and appealable until October 30, 2013, when the trial court
entered a notation on the docket indicating that the case was closed. Thus,
appeal.
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J-A20041-14
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trademark by a wholly[-]owned subsidiary of Ford, whose
actions were dominated and controlled by Ford; (b)
reasonable end-users of such products would have believed
that such products were manufactured by, or under the
putation
as an assurance of the quality of the products; (c) Ford
allowed and, indeed, required the products to be labeled
identified Ford, as opposed to its wholly[-]owned subsidiary,
had significant involvement in and exercised significant
control over, the manufacture of such products?
2. Did the [t]rial [c]ourt err in granting summary judgment in
favor of Borg-Warner [] with respect to its liability as the
apparent manufacturer of the asbestos-
-containing
products were sold under Borg-
trademark by Borg-
reasonable end-users of such products would have believed
that such products were manufactured by, or under the
control of, Borg-Warner and, accordingly, relied on Borg-
products; (c) Borg-Warner allowed the products to be labeled
-Warner had
significant involvement in and exercised significant control
over, the manufacture of such products?
3. Did the [t]rial [c]ourt err in granting summary judgment in
its wholly[-]owned s
where: (a) these asbestos-containing products were sold
-]owned
subsidiary of Ford, whose actions were dominated and
over its wholly[-]owned subsidiary was such that the wholly
[-]owned subsidiary operated as a mere department and
the alter ego of Ford []?
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Brief for Appellant at 2-4.
motion for summary judgment, 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. Summary judgment is properly
entered only where there is no genuine issue as to any material
fact and it is clear that the moving party is entitled to judgment
as a matter of law. Our scope of review is plenary, and our
de novo.
Barnett v. SKF USA, Inc., 38 A.3d 770, 776 (Pa. 2012) (internal citation
omitted).
Initially, Rowland contends that the trial court erred by ignoring
chanic in Great Britain,
used Ford asbestos-containing brakes and clutches, dressed in Ford
that it is of no import that Ford did not manufacture or supply these
products because Ford authorized and permitted its name and trademark
(i.e., FOMOCO) to be displayed on the products, thereby causing product
tion. Id. at 18.
Rowland further contends that Ford implemented a world-wide FOMOCO
and prohibited any indication of the company or country of origin, such that
product users would not know that a particular part had been manufactured
by Ford/Britain rather than by Ford. Id. at 19, 24. Additionally, Rowland
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J-A20041-14
asserts that Ford retained the exclusive right to control the quality of any
product on which the FOMOCO or Ford trademarks were used, and controlled
the warnings placed on all FOMOCO products sold, including those
manufactured and sold by Ford/Britain. Id. at 22. Based on this evidence,
Rowland contends that the trial court erred by finding that Ford had little
control over the brakes and clutches manufactured by Ford/Britain, the
products. Id. at 25-26.
The trial court set forth the r
claim in its Opinion. See Trial Court Opinion, 1/24/14, at 7-10. We agree
with the reasoning of the trial court and adopt its holding with regard to this
issue. See id.
In the second claim, Rowland contends that the trial court erred by
misapprehending Borg-
asbestos-containing clutches as Borg-Warner products. Brief for Appellant
at 26. Rowland contends that disputed issues of material fact existed as to
Borg-
manufactured by Borg & Beck/Britain. Id. at 26-27. Rowland asserts that it
is of no import that Borg-Warner did not manufacture or supply the clutches
because it authorized and permitted its Borg & Beck trademark to be
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J-A20041-14
displayed on the clutches, thereby causing product users to use the clutches
in reliance upon Borg- Id. at 27.
Additionally, Rowland claims, Borg & Beck/Britain manufactured
clutches using Borg- chnology, specifications and methods of
manufacture. Id. at 30-31. Further, Rowland contends, Borg-Warner
retained the right to test and inspect the clutches to ensure that Borg &
Beck/Britain maintained Borg- Id. at 30, 32.
Rowland claims that the evidence presented established either that Borg-
Warner was the apparent manufacturer of the clutches, or that disputed
issues of material fact exist as to its liability as the apparent manufacturer of
the clutches. Id. at 33.
The
second claim in its Opinion. See Trial Court Opinion, 1/24/14, at 7-10. We
agree with the reasoning of the trial court and adopt its holding with regard
to this issue. See id.
In the third
Ford/Britain was widespread and pervasive, and that Ford/Britain is simply
an instrumentality and arm of Ford. Brief for Appellant, at 34, 35. Rowland
claims that Ford dominated and controlled al
corporate activities, such that its separate corporate existence was
meaningless. Id. at 42, 45. Rowland asserts that the trial court
misinterpreted the evidence and, therefore, misconstrued the relationship
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between Ford and Ford/Britain. Id. at 44, 45. Rowland contends that the
record evidence was more than sufficient to support a finding that
Ford/Britain was the alter ego of Ford or, at a minimum, to raise issues of
material fact regarding this issue. Id. at 46, 48.
The t
claim in its Opinion. See Trial Court Opinion, 1/24/14, at 5-6. We agree
with the reasoning of the trial court and adopt its holding with regard to this
issue. See id.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2014
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