Superior Court of Pennsylvania
Burnley, D. v. Loews Hotel
370 EDA 2023·Judge: Lane; King; Beck; Bowes; Lazarus; Sullivan0 citations·
Summary of the case Burnley, D. v. Loews Hotel
Dana Burnley suffered a severe ankle fracture after tripping on a defective cable protector at a Philadelphia hotel in 2014. The Burnleys sued for negligence and strict liability, alleging the cable protector was defective. Checkers Industrial Products, LLC, appealed the judgment in favor of the Burnleys, arguing they were unaware of the defect when purchasing IAT's assets. The court affirmed the judgment, finding the cable protector had a manufacturing defect known to IAT and FallLine before the accident.
Key Issues of the case Burnley, D. v. Loews Hotel
- Negligence in creating hazardous conditions
- Strict liability for defective product
Key Facts of the case Burnley, D. v. Loews Hotel
- Mrs. Burnley tripped on a defective cable protector
- Checkers purchased IAT assets after the defect was known
Decision of the case Burnley, D. v. Loews Hotel
Affirmed judgment in favor of the Burnleys
Opinions
J-E01004-25 2026 PA Super 43
DANA BURNLEY AND RALPH : IN THE SUPERIOR COURT OF
BURNLEY, H/W : PENNSYLVANIA
:
:
v. :
:
:
LOEWS HOTEL, PHILADELPHIA :
HOTEL OPERATING COMPANY, INC., : No. 370 EDA 2023
TWELFTH STREET HOTEL :
ASSOCIATES, AUDIO VISUAL :
SERVICES GROUP, INC. D/B/A PSAV :
PRESENTATION SERVICES, LAWALL :
COMMUNICATIONS, CHECKERS :
INDUSTRIAL PRODUCTS, CHECKERS :
SAFETY GROUP, CHECKERS :
INDUSTRIAL SAFETY PRODUCT, :
FIREFLY CABLE PROTECTORS, :
LINEBACKER CABLE MANAGEMENT :
AND ASCENDANT VENTURES, INC. :
:
:
v. :
:
:
INDUSTRY ADVANCED :
TECHNOLOGIES, INC., ASCENDANT :
VENTURES, INC., FALLINE :
CORPORATION, FOH PRODUCTIONS, :
EVAN ANDREWS, EVAN ANDREWS :
DESIGN AND ALLEN PRICE, PRICE :
PRODUCTIONS, LLC AND :
CHRISTOPHER HASSFURTHER :
:
:
APPEAL OF: CHECKERS INDUSTRIAL :
PRODUCTS, LLC :
Appeal from the Judgment Entered January 10, 2023
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 160901257
DANA BURNLEY AND RALPH : IN THE SUPERIOR COURT OF
BURNLEY, H/W : PENNSYLVANIA
:
J-E01004-25
Appellants :
:
:
v. :
:
: No. 485 EDA 2023
LOEWS HOTEL, PHILADELPHIA :
HOTEL OPERATING COMPANY, INC., :
TWELFTH STREET HOTEL :
ASSOCIATES, AUDIO VISUAL :
SERVICES GROUP, INC. D/B/A PSAV :
PRESENTATION SERVICES, LAWALL :
COMMUNICATIONS, CHECKERS :
INDUSTRIAL PRODUCTS, CHECKERS :
SAFETY GROUP, CHECKERS :
INDUSTRIAL SAFETY PRODUCT, :
FIREFLY CABLE PROTECTORS, :
LINEBACKER CABLE MANAGEMENT :
AND ASCENDANT VENTURES, INC. :
v. :
:
:
INDUSTRY ADVANCED :
TECHNOLOGIES, INC., ASCENDANT :
VENTURES, INC., FALLINE :
CORPORATION, FOH PRODUCTIONS, :
EVAN ANDREWS, EVAN ANDREWS :
DESIGN AND ALLEN PRICE, PRICE :
PRODUCTIONS, LLC AND :
CHRISTOPHER HASSFURTHER :
Appeal from the Judgment Entered January 10, 2023
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 160901257
BEFORE: LAZARUS, P.J., BOWES, J., PANELLA, P.J.E., DUBOW, J.,
McLAUGHLIN, J., KING, J., SULLIVAN, J., BECK, J., and LANE, J.
OPINION IN SUPPORT OF PER CURIAM ORDER TO AFFIRM BY LANE, J.:
FILED MARCH 5, 2026
Checkers Industrial Products, LLC (“Checkers”) appeals from the
judgment entered in favor of Dana Burnley (“Mrs. Burnley”) and Ralph Burnley
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(“Mr. Burnley”) (collectively, “the Burnleys”) in this products liability action,
and the Burnleys cross-appeal from the judgment. After careful review, we
affirm.
The trial court summarized the relevant factual and procedural history
of this matter, as follows:
On September 26, 2014, . . . [Mrs.] Burnley attended a
conference at a hotel in Philadelphia. She tripped and fell on a
defective “cable protector” (a device laid on the hotel ballroom
floor to protect temporary audiovisual cables and wiring) and
badly fractured her ankle. This serious injury led to
hospitalizations, surgeries[,] and other medical procedures, and
has . . . cause[d] debilitating, permanent pain.
****
The Burnleys filed suit in . . . September . . . 2016, asserting
claims for negligence[ and] strict liability . . .. The Burnleys
alleged that some of the defendants . . . had negligently created
the hazardous condition in the ballroom where Mrs. Burnley fell.
[The Burnleys further] alleged that Checkers and related entities
. . . were strictly liable because they had manufactured,
distributed, or sold the cable protector involved in Mrs. Burnley’s
injury, and that the cable protector was defective.
. . . Checkers filed a joinder complaint against Industrial
Advanced Technologies, Inc. (“IAT”), Ascendant Ventures, Inc.
(“Ascendant”), and FallLine Corporation (“FallLine”), alleging that
IAT had manufactured and/or distributed the cable protector,
Ascendant had distributed it, and FallLine had manufactured it at
IAT’s direction. Checkers alleged that its only connection with the
cable protector was that it had purchased certain IAT assets seven
months after Mrs. Burnley’s accident. Checkers also filed
crossclaims against a number of other defendants.
IAT and Ascendant filed preliminary objections [which the
trial court] sustained . . ., dismissing IAT and Ascendant from the
action. . . . [As] the case approached trial . . ., six defendants
remained: Checkers, FOH Productions [(“FOH”)], and FallLine,
which were allegedly strictly liable for the cable protector, and
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Lawall Communications [(“Lawall”)], Loews Hotel, and Evan
Andrews Productions, which allegedly negligently created the
condition in the ballroom that caused Mrs. Burnley’s fall. [Each of
these remaining defendants, other than Checkers, reached a
settlement with the Burnleys, leaving Checkers as the sole
defendant to appear at trial.]
****
Checkers filed a motion for extraordinary relief [and a
motion in limine] . . . asking for an emergency continuance of the
August 22[, 2022] trial date [on the basis] that the Burnleys had
surprised Checkers with two last-minute disclosures: that Mrs.
Burnley had lost her job because of pain from her injuries, and
that she was scheduled to have surgery to implant a spinal cord
stimulator two weeks before trial. Checkers argued that it needed
time to conduct discovery on these issues in order to adequately
prepare for trial. Checkers repeated this request in [an additional
motion in limine.] The Burnleys responded that prior discovery
and expert reports had put Checkers on notice that the job loss
and surgery were likely to occur. . . . The Honorable Linda
Carpenter [(“Judge Carpenter”)] entered an order requiring Mrs.
Burnley to produce medical records from the spinal cord
stimulator placement . . . and to appear for a Zoom deposition,
limited to the topics of [her] termination . . . and her surgery[,]
and . . . submit . . . employment records.
. . . Judge Carpenter entered an order formally denying the
motion for extraordinary relief . . .. At argument [before
Honorable Michele Hangley (“Judge Hangley”)] o[n] the
continuance[-]related motions in limine, Checkers’ counsel told
[Judge Hangley] that that he had received [Mrs. Burnley’s]
medical records and some, but not all, of [her] employment
records, and had deposed Mrs. Burnley. [Judge Hangley] denied
relief, finding that Judge Carpenter had adequately addressed the
late-disclosure issue.
****
The parties agreed that the cable protector Mrs. Burnley
stepped on had a manufacturing defect. At the time the cable
protector was manufactured, IAT produced Firefly brand cable
protectors by supplying molds to FallLine, which poured
polyurethane into the molds to form the two pieces of the cable
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protector. At times, FallLine also assembled the hinging
mechanism and shipped the finished cable protectors to
customers. For part of this relationship, IAT provided molds made
of urethane; these molds, in turn, had been made from an
aluminum master. At one point, however, IAT asked FallLine to
manufacture a second mold, using IAT’s aluminum master.
FallLine did so, using a material that (as it turned out) was less
prone to shrinking than the materials IAT had been using. The
result was that some of the parts that FallLine produced were
smaller than other Firefly parts, which meant that some
assembled Firefly cable protectors had a top layer that was slightly
shorter than the bottom layer. At trial, there was conflicting
evidence of whose fault this was—IAT’s for giving FallLine
incorrect molds, or FallLine’s for pouring and assembling
misaligned cable protectors. It was not in dispute, however, that
about [fifty] Firefly cable protectors had a manufacturing defect
and that IAT and FallLine knew about this defect by January 2014.
. . . [I]n 2014—after IAT and FallLine learned about the
defect, but before Mrs. Burnley’s accident—IAT and FallLine
shipped a batch of the defective cable protectors to . . . FOH . . ..
After that, FOH . . . rented a batch of cable protectors to Lawall
for the conference Mrs. Burnley attended.
There was no evidence that Checkers knew about the
defective batch of cable protectors when it purchased IAT’s assets
in 2015. There was also no evidence that Checkers ever used the
mismatched molds or produced cable protectors with the same
manufacturing defect.
****
[Throughout the litigation, Checkers argued that it could not
be liable to the Burnleys under a successor liability theory because
IAT manufactured the defective cable protector and Checkers
merely purchased the assets of IAT without assuming any of IAT’s
debts or liabilities. In response, the Burnleys argued that the
product line exception applied, which permitted application of
successor liability for defective products despite Checkers’ mere
purchase of assets from IAT.] At trial, the jury heard the following
evidence relevant to the successor liability and product-line
exception issues:
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On April 1, 2015, about eight months after Mrs. Burnley’s
accident, Checkers and IAC entered into an Asset Purchase
Agreement (“APA”). Under the APA, Checkers purchased IAT’s
cable protector business. Although Checkers contends that [it]
purchased only one product line (the Firefly brand cable
protectors), Checkers’ corporate designee, William Eaton
[(“Eaton”)], agreed that Checkers had purchased “all Firefly
inventory” and “all of IAT’s equipment,” “IAT’s customer list,” “all
of IAT’s intellectual property,” “all of the molds for cable protectors
. . . the patents for cable protectors, [and] the trade shows and
trade names concerning Firefly.” The APA included a non[-
]compete clause, which prohibited IAT from manufacturing,
marketing, or selling cable protectors.
After the transaction, Checkers announced that it had
“acquire[d] Firefly cable protectors” and that “[t]his acquisition
brings together two leaders in the cable management industry.”
Checkers continued to produce Firefly cable protectors with the
Firefly logo and “IAT” stamped into the tread. Checkers’ corporate
representative agreed that “after the acquisition and merger of
IAT and Checkers[,] . . . Checkers continue[d] to market itself as
an ongoing enterprise that manufactured and sold the Firefly
product line.” He testified that Checkers handled customer
complaints about defective Firefly products (including,
presumably, those manufactured before the asset purchase).
In the APA, IAT agreed to retain all liabilities arising before
the sale, including “product liability.” The APA disclosed a single
judgment against IAT that related to the cable protector business,
for $15,558.08, and total IAT indebtedness of less than $100,000
in commercial debt and a $40,000 capital loan from a relative of
IAT’s owners, plus $418,330.00 of shareholder paid-in capital. In
exchange for the assets it was purchasing, Checkers agreed to
pay IAT $160,000 immediately, plus [sixty] months of “Earnout
Payments,” calculated as a percentage of sales.
The evidence showed that IAT remained in business after
the transaction. In the APA, IAT agreed that it would not dissolve
for at least two years after the sale. Testimony of IAT’s CEO[,
Philip Berardi (“Berardi”),] confirmed that IAT was still in business
as of August 2, 2018, [distributing] intelligent camera cranes. The
Burnleys presented several pieces of evidence in an attempt to
show that despite IAT’s continued existence, the Burnleys had no
remedy against IAT. First, the Burnleys pointed to IAT’s
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representation in the APA that at the time of the asset sale, IAT
had “no insurance with respect to its properties, assets and
operation of its [cable protector] business.” Second, the Burnleys
presented the testimony of FallLine’s owner, Erik York [(“York”)],
that he had considered buying the Firefly line of products in 2014,
had reviewed IAT’s books, and had determined that IAT’s only
assets were the Firefly brand and the associated inventory,
trademarks, and intellectual property. . . . York also testified that
IAT owed FallLine about $13,000, although he conceded that IAT
had paid about half of that debt in 2015 or 2016 . . ..
****
Th[e trial] court had a several discussions with counsel
about how the verdict sheet should allow the jury to allocate
liability among [Checkers and the settling] strictly liable and
negligent defendants. The problem, th[e] court stated, was that
“the negligence defendants get allocated by their relative liability;
the strictly liable defendants are allocated pro rata.” [The trial]
court told the parties that it would list all the defendants on the
verdict sheet, ask the jury to assign each liable defendant a
“percentage of liability,” “and then mold the verdict to apply the
correct percentages.” [The trial] court stated that it intended to
take the total percentage of liability the jury assigned to the
strictly liable defendants, “put that into one pot and divide that up
equally.” Both parties agreed to that organization of the verdict
sheet, noting that they would deal with the issue of how to mold
the verdict after the jury returned.
****
[Throughout the trial, the court asked the parties for their
views on whether the judge or the jury should determine the facts
relevant to the product line exception and whether the exception
should apply. Checkers argued that the judge should determine
the facts and address whether, taken together, they justified
application of the product line exception. The Burnleys contended
that both of these tasks were for the jury. The day before closing
arguments, the trial court informed the parties that it was going
to allow the jury to weigh all of the factors relevant to the product
line exception and decide whether the exception applied to
Checkers.]
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The jury returned its verdict on the morning of August 31,
2022. The jury [determined that Checkers was a successor
corporation,] . . . the product[]line exception applie[d] to
Checkers[,] . . . the cable protector was defective . . ., that the
defect had harmed Mrs. Burnley . . ., and that . . . FOH . . . and
FallLine, as well as Checkers, had manufactured, distributed, or
sold the cable protector . . .. [The jury] also found that Lawall
and Evan Andrews Productions were negligent and that their
negligence was a factual cause in bringing harm to Mrs. Burnley .
. .. When asked to attribute percentages of liability, however, the
jury found Checkers 100% liable and the other defendants 0%
liable . . ..
The jury awarded Mrs. Burnley $2.7 million for future
medical expenses, $11,250.00 for past loss of earnings, $2.4
million for future loss of earnings, and $10 million in noneconomic
damages. It awarded Mr. Burnley $3 million for loss of
consortium. [The total amount awarded by the jury to the
Burnleys was $18,111,250.] . . . [The trial court thereafter
molded the verdict to $5,037,083.33 to Mrs. Burnley and
$1,000,000.00 to Mr. Burnley.]
****
Checkers timely filed a post-trial motion, seeking judgment
notwithstanding the verdict [(“JNOV”)] or a new trial. The
Burnleys timely filed a motion for delay damages. The Burnleys
[filed a motion for delay damages but] did not seek any other
relief other than delay damages. Importantly, the Burnleys did
not ask th[e trial] court to reconsider its decision to apportion
liability among the three strictly liable defendants.
On January 10, 2023, th[e trial] court [entered an order]
den[ying] Checkers’ motion for post-trial relief[, granting] the
Burnleys’ motion for delay damages on the award “on [Mrs.]
Burnley’s claims, as molded by the court,” but den[ying] the
motion for delay damages on the award for Mr. Burnley’s loss of
consortium claim. [On that same date, the trial court] entered
judgment against Checkers for $7,354,716.83.
Trial Court Opinion, 7/10/23, at 1, 3-8, 10-12, 14, 16-17 (citations, footnotes,
and unnecessary capitalization omitted). Checkers filed a timely notice of
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appeal and the Burnleys filed a timely notice of cross-appeal. The parties and
the trial court complied with Pa.R.A.P. 1925.
In its appeal, Checkers raises the following issues for our review:
A. SHOULD THIS COURT VACATE THE JURY’S VERDICT AND ENTER
[JNOV] IN FAVOR OF CHECKERS, BECAUSE THE SUPREME COURT
HAS NOT ADOPTED THE PRODUCT LINE EXCEPTION TO SUCCESSOR
LIABILITY, BECAUSE [THE BURNLEYS] FAILED TO MEET THEIR
BURDEN OF PROVING THAT THE EXCEPTION APPLIES TO CHECKERS,
AND WHERE THE JUDGE IMPROPERLY ALLOWED THE JURY TO
DECIDE THIS ISSUE?
B. IN THE ALTERNATIVE, SHOULD THIS COURT GRANT A NEW TRIAL,
BECAUSE THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
DENYING CHECKERS’ MOTION FOR A MISTRIAL AND IN ALLOWING
INTO EVIDENCE A PORTION OF CHECKERS’ [APA] WITH IAT, WHICH
INDICATED THAT IAT HAD NO INSURANCE WITH RESPECT TO THE
ASSETS AT ISSUE AT THE TIME OF THE AGREEMENT’S EXECUTION?
C. SHOULD THIS COURT GRANT A NEW TRIAL, BECAUSE THE TRIAL
COURT COMMITTED REVERSIBLE ERROR IN ALLOWING CO-
DEFENDANT, FALL[]LINE, TO PROVIDE IRRELEVANT AND
PREJUDICIAL TESTIMONY REGARDING THE ASSETS OF IAT AT THE
TIME FALL[]LINE EXPLORED PURCHASING IAT’S CABLE PROTECTOR
LINE?
D. SHOULD THIS COURT GRANT A NEW TRIAL, BECAUSE THE TRIAL
COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE
INTRODUCTION OF EVIDENCE PRODUCED BY [THE BURNLEYS]
SHORTLY BEFORE TRIAL, WHICH INCLUDED NEW ALLEGATIONS
WITH REGARD TO THE MEDICAL, WAGE LOSS, AND LOSS OF
CONSORTIUM CLAIMS, FOR WHICH CHECKERS WAS DENIED
SUFFICIENT OPPORTUNITY TO REFUTE SUCH NEW ALLEGATIONS?
E. SHOULD THIS COURT GRANT A NEW TRIAL, BECAUSE THE TRIAL
COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO UTILIZE
CHECKERS’ PROPOSED DETAILED VERDICT SLIP AFTER THE COURT
DECIDED THE JURY WOULD DECIDE THE PRODUCT LINE EXCEPTION
ISSUE?
F. SHOULD THIS COURT GRANT A NEW TRIAL, DUE TO THE JURY’S
INCONSISTENT VERDICT?
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Checkers’ Brief at 2-3 (capitalization in original).
In their cross-appeal, the Burnleys raise the following issue for our
review:
Whether the trial court erred in molding the verdict to
impose judgment for only one-third of the total verdict awarded
against . . . Checkers, where the jury’s verdict expressly [found]
Checkers 100 percent liable for [the Burnleys’] damages as a
matter of law made [sic] Checkers liable for the full amount of the
jury’s verdict?
Burnleys’ Brief at 10.
We first address the issues raised in Checkers’ appeal. In its first issue,
Checkers challenges the trial court’s denial of its motion for JNOV. Our
standard of review of the denial of a JNOV is well-settled:
Appellate review of a denial of JNOV is quite narrow. We
may reverse only in the event the trial court abused its discretion
or committed an error of law that controlled the outcome of the
case. Abuse of discretion occurs if the trial court renders a
judgment that is manifestly unreasonable, arbitrary or capricious;
that fails to apply the law; or that is motivated by partiality,
prejudice, bias[,] or ill-will.
When reviewing an appeal from the denial of a request for
[JNOV], the appellate court must view the evidence in the light
most favorable to the verdict[-]winner and give him or her the
benefit of every reasonable inference arising therefrom while
rejecting all unfavorable testimony and inferences. . . . Thus, the
grant of a [JNOV] should only be entered in a clear case and any
doubts must be resolved in favor of the verdict[-]winner.
Furthermore, [i]t is only when either the movant is entitled to
judgment as a matter of law or the evidence was such that no two
reasonable minds could disagree that the outcome should have
been rendered in favor of the movant that an appellate court may
vacate a jury’s finding.
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Phillips v. Lock, 86 A.3d 906, 919 (Pa. Super. 2014).
Generally, when one corporation sells or transfers all of its assets to a
successor corporation, the successor corporation does not acquire the
liabilities of the transferor corporation merely because of its succession to the
transferor’s assets. See Dawejko v. Jorgensen Steel Co., 434 A.2d 106,
107 (Pa. Super. 1981). However, there are several well-recognized
exceptions to the general rule regarding a successor corporation’s non-liability
following an asset purchase, including: (1) the successor corporation
expressly or impliedly agrees to assume such liability; (2) the transaction
amounts to a consolidation or merger; (3) the successor corporation is merely
a continuation of the transferor corporation; or (4) the transaction is
fraudulently entered into to escape liability. See id.
In Dawejko, a three-judge panel of this Court adopted another
exception to the general rule regarding a successor corporation’s non-liability
following an asset purchase, known as the “product line exception.” The
product line exception was first articulated by the Supreme Court of California
in Ray v. Alad Corp., 560 P.2d 3 (Cal. 1977). Under the product line
exception, “where one corporation acquires all or substantially all the
manufacturing assets of another corporation, even if exclusively for cash, and
undertakes essentially the same manufacturing operation as the selling
corporation, the purchasing corporation is strictly liable for injuries caused by
defects in units in the same product line, even if previously manufactured and
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distributed by the selling corporation or its predecessor.” Dawejko, 434 A.2d
at 110 (quoting Ramirez v. Amsted Industries, Inc., 431 A.2d 811, 825
(N.J. 1981)).
After surveying case law from other jurisdictions, the Dawejko Court
identified several factors discussed by other courts as relevant to the question
of whether the product line exception should apply, including whether the
successor corporation: purchased the goodwill and contract obligations of the
transferor corporation; advertised itself as an ongoing enterprise; profited
from and exploited all of the accumulated goodwill which the products have
earned; continued to produce the same kind of product in essentially the same
way, using the same equipment and designs; maintained the same product,
name, management, personnel, physical location, property, and clients;
solicited the predecessor’s customers through the same sales representatives
with no outward indication of a change in ownership; or continued the
operations of the predecessor corporation while the predecessor corporation
ceased its ordinary business operations. See id. at 108-09.
Additionally, the Dawejko Court paid particular attention to the three
factors identified by the California Supreme Court in Ray as justification for
the product line exception:
(1) the virtual destruction of the plaintiff’s remedies against the
original manufacturer caused by the successor’s acquisition of the
business, (2) the successor’s ability to assume the original
manufacturer’s risk-spreading role, and (3) the fairness of
requiring the successor to assume a responsibility for defective
products that was a burden necessarily attached to the original
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manufacturer’s good will being enjoyed by the successor in the
continued operation of the business.
Dawejko, 434 A.2d at 109 (quoting Ray, 560 P.2d at 8-9).
Notwithstanding its recognition of these various pertinent
considerations, the Dawejko Court declined to adopt a finite set of factors
which must be satisfied in order for the product line exception to apply, opting
instead to frame the exception in general terms, stating: “[w]e . . . believe it
better not to phrase the new exception too tightly. Given its philosophical
origin, it should be phrased in general terms, so that in any particular case
the court may consider whether it is just to impose liability on the successor
corporation.” Id. at 111.
Ultimately, the Dawejko Court summarized the product line exception,
to be applied in Pennsylvania, as follows:
The various factors identified in the several cases discussed
above will always be pertinent -- for example, whether[:] the
successor corporation advertised itself as an ongoing enterprise;
or whether it maintained the same product, name, personnel,
property, and clients; or whether it acquired the predecessor
corporation’s name and good will, and required the predecessor
to dissolve. Also, it will always be useful to consider whether the
three-part test stated in [Ray] has been met. The exception will
more likely realize its reason for being, however, if such details
are not made part of its formulation.
Dawejko, 434 A.2d at 111 (citations omitted).
Notably, the Pennsylvania Supreme Court has not expressly adopted the
product line exception or decided whether a jury or a judge should decide
whether the product line exception applies. See Schmidt v. Boardman Co.,
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11 A.3d 924, 946 (Pa. 2011) (holding that because the appellant had waived
the issue, it could not address the question of whether the product line
exception should be maintained in Pennsylvania, or the question of whether
application of the exception should be decided by the judge or the jury). 1
However, when passing upon the specific instruction provided by the trial court
to the jury for it to decide whether to apply the product line exception, the
____________________________________________
1 In the instant matter, the trial court looked to our High Court’s decision in
Schmidt, and concluded that the jury instruction on the product line exception
at issue in that case set forth six factors which “a trier of fact must consider.”
Trial Court Opinion, 7/10/23, at 8-9 (emphasis added). The trial court referred
to those factors as “the Schmidt factors,” and enumerated them as follows:
(1) whether the corporation advertised itself as an ongoing enterprise; (2)
whether the corporation acquired the predecessor corporation’s goodwill; (3)
whether the corporation maintained the same name, clients, and product; (4)
whether the corporation deliberately exploited the original manufacturer’s
established reputation; (5) the virtual destruction of plaintiff’s remedies
against the original manufacturer caused by the successor’s acquisition of the
business; and (6) the successor’s ability to assume the original manufacturer’s
risk spreading role and the fairness of requiring the successor to assume
responsibility for defective products that were a burden attached to the
original manufacturer’s goodwill being enjoyed by the successor in the
continued operation of the business. See id. at 8-9 (quoting Schmidt, 11
A.3d at 946). Notably, each of these factors was initially identified by the
Dawejko Court. Moreover, because the Schmidt Court did not expressly
adopt the product line exception, it repeatedly recognized Dawejko as “the
seminal product[]line [exception] decision,” and determined that the jury
instruction was “entirely faithful to Dawejko,” used “the operative language
of Dawejko,” and listed “the factors identified in Dawejko.” Schmidt, 11
A.3d at 944-45. Thus, as these factors originate entirely from Dawejko,
which remains the seminal product line exception case in this Commonwealth,
we decline to refer to these factors as the Schmidt factors and, instead, refer
to them as the Dawejko factors. We additionally emphasize that, pursuant
to Dawejko, there is no finite set of factors which must be satisfied in order
for the product line exception to apply. See Dawejko, 434 A.2d at 111.
Thus, the exception, as adopted in Dawejko, is not limited to these six
factors, nor are any factors mandatory, as incorrectly stated by the trial court.
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High Court held that “under the most appropriate reconciliation of presently
prevailing Superior Court precedent, the trial court did not err in its main
instruction to the jury – under Dawejko - concerning the product-line
exception.” Id.2
As an en banc panel of this Court, we are not bound by a prior decision
made by a three-judge panel of this same Court. See McGrath v. Bureau
of Prof'l & Occupational Affairs, 173 A.3d 656, 661 n.7 (Pa. 2017) (holding
that an en banc panel of an intermediate court is authorized to overrule a
three-judge panel decision of the same court). Instead, we may make an
independent determination regarding the issues presented and, accordingly,
accept or reject the reasoning and rulings made by a prior three-judge panel.
See id. As such, we may accept or reject the Dawejko Court’s decision to
adopt the product line exception in this Commonwealth. See id.
Notwithstanding this latitude, however, we find no reason to overrule
____________________________________________
2 Despite the High Court’s finding in Schmidt that the trial court did not err
with respect to the content of the jury instruction on the product line
exception, as well as the fact that the Court could not reach the question of
whether the application of the product line exception should be decided by the
judge or the jury, the Schmidt Court nevertheless commented in a footnote
that the appellees’ characterization of the exception as “‘an equitable remedy’
suggests that it might more appropriately be determined by a judge.”
Schmidt, 11 A.3d at 946 n.24. The High Court further observed that the
“‘philosophical origin’ and the looseness engrafted on the exception by
Dawejko, encompassing the task of balancing a litany of factors (as
contrasted with deciding factual matters in the context of a clearly articulated
framework), also appears to militate in favor of allocating the decision to a
judge.” Id.
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Dawejko or displace the product line exception as part of the established
jurisprudence in this Commonwealth. Accordingly, we hold that Dawejko
continues to provide the controlling parameters of the product line exception,
as adopted in this Commonwealth.
Turning to the arguments presented on appeal, we initially address
Checkers’ issues. In its first issue, Checkers argues, without meaningful
discussion or citation to pertinent legal authority, that it was entitled to JNOV
because the Pennsylvania Supreme Court has not expressly adopted the
product line exception to the general rule regarding successor liability
following an asset purchase.3
We find no merit to this argument. This Court has consistently held
that, as long as a decision of this Court has not been overturned by our
Supreme Court, it remains binding precedent. See Marks v. Nationwide
Ins. Co., 762 A.2d 1098, 1101 (Pa. Super. 2000). Thus, as Dawejko has
not been overturned by our Supreme Court, it remained binding precedent
throughout the lower court proceedings. The fact that our Supreme Court has
____________________________________________
3 We note that, pursuant to our appellate jurisprudence, “the argument portion
of an appellate brief must include a pertinent discussion of the particular point
raised along with discussion and citation of pertinent authorities.” Estate of
Lakatosh, 656 A.2d 1378, 1381 (Pa. Super. 1995); see also Pa.R.A.P.
2119(a). “This Court will not consider the merits of an argument which fails
to cite relevant case or statutory authority.” Iron Age Corp. v. Dvorak, 880
A.2d 657, 665 (Pa. Super. 2005). Failure to cite relevant legal authority
constitutes waiver of the claim on appeal. See Eichman v. McKeon, 824
A.2d 305, 319 (Pa. Super. 2003).
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not independently adopted the product line exception does not detract from
the fact that the trial court in the instant matter was bound to follow Dawejko.
Accordingly, we find no merit to this argument.
Checkers alternatively claims that it was entitled to JNOV because the
Burnleys failed to prove that they had no remedy against the transferor
corporation, IAT, which designed and/or manufactured the cable protector
involved in Mrs. Burnley’s fall. Checkers asserts that, pursuant to the APA, it
purchased from IAT only those items related to the design, manufacture,
distribution, and sale of cable protectors, and that IAT retained all product
liability, all returns, and all warranty liability with respect to sales made by
IAT. Checkers contends that it did not assume any liabilities that were caused
by IAT’s actions or inactions occurring prior to the execution of the APA in
April 2015, including Mrs. Burnley’s 2014 accident.
Checkers further points out that, pursuant to the APA, IAT was not
permitted to file for dissolution for at least two years, and that Checkers would
continue to make payments to IAT for five years after the execution of the
APA. Checkers claims that the 2018 deposition testimony of Philip Berardi,
the corporate designee for IAT, establishes that IAT was still in business in
2018, and was distributing intelligent camera cranes. Checkers also points to
the testimony of Erik York, the corporate designee for FallLine, that FallLine
was able to recover money from IAT in 2015 or 2016. Checkers maintains
that the APA, as well as the testimony of the corporate designees for IAT and
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FallLine, indicate that IAT remained in business until at least 2018, was
entitled to receive payments under the APA from Checkers through 2020, and
specifically retained all product liability for products sold by IAT, such as the
cable protector involved in Mrs. Burnley’s accident.
Checkers contends that the public policy behind the product line
exception is to protect plaintiffs left without a remedy due to corporate
purchases. Checkers argues that, because IAT continued to exist and the
Burnleys simply failed to seek a recovery against that company, the main
rationale for the application of the product line exception is absent. Checkers
additionally contends that, because there was no evidence that Checkers knew
or could have known of the manufacturing defect, the policy justification for
the product line exception has less force, and the interests of justice, fairness,
and considerations of public policy further weigh against the application of the
product line exception.
Finally, Checkers asserts that the trial court erred in permitting the jury
to decide the issue of whether the product line exception should apply.
Checkers observes that, although the trial court initially indicated that it would
weigh, at least, the fairness factor in deciding whether the product line
exception applied, it ultimately allowed the jury to make this determination.
Checkers claims that the trial court’s failure to make a firm decision as to who
would decide whether the product line exception applied caused the parties to
be prejudiced and the jurors to be confused, as they did not learn of the
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concept of the product line exception until the trial court provided a single jury
instruction and read a single jury interrogatory regarding this issue on the last
day of trial. Checkers contends that the complex weighing of equitable factors
involved in determining whether the exception should apply is a matter for a
judge rather than a jury.
The trial court considered Checkers’ first issue and determined that it
lacked merit. The court determined that the evidence was sufficient to support
the jury’s decision to apply the product line exception, explaining:
First, the evidence was sufficient to show that Checkers was
a “successor” to IAT[.] That is, that it had “acquire[d] all or
substantially all of the manufacturing assets” of IAT. Although
there was evidence that Checkers had acquired only certain IAT
product lines, the testimony of Checkers’ corporate designee that
Checkers had purchased IAT’s equipment, intellectual property,
and customer lists was sufficient to allow the jury to make that
finding.
The evidence was also sufficient to show . . . “whether the
corporation advertised itself as an ongoing enterprise . . . whether
the corporation acquired the predecessor’s [sic] corporation’s
goodwill . . . whether the corporation maintained the same name,
clients, and product . . . [and] whether the corporation
deliberately exploited the original manufacturer’s established
reputation.” The jury heard the testimony of Checkers’ corporate
designee that Checkers had purchased all assets relating to IAT’s
cable protector business, that Checkers had continued to market
its cable protectors using the “Firefly” brand and IAT’s molds and
logos, that Checkers announced that the purchase “[brought]
together two leaders in the cable management industry,” and that
“Checkers continue[d] to market itself as an ongoing enterprise
that manufactured and sold the Firefly product line.”
The Burnleys did not, on the other hand, present evidence
sufficient to prove . . . “the virtual destruction of plaintiff’s
remedies against the original manufacturer caused by the
successor’s acquisition of the business.” Uncontested evidence
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showed that IAT continued to exist, do business as a manufacturer
of intelligent camera cranes, and pay creditors for at least three
years after it sold its cable protector business to Checkers (and at
least two years after the Burnleys filed suit). IAT received a
substantial payment from Checkers for the cable protector
business, plus the right to a future stream of income, and there
was no evidence that these proceeds were diverted or dissipated
outside IAT. Most importantly, the Burnleys did not show that
they had tried to seek compensation from IAT. It is difficult to see
how a plaintiff can demonstrate the “virtual destruction of [its]
remedies” without introducing evidence that it had pursued those
remedies; the Burnleys certainly did not make that showing here.
The evidence that the Burnleys point to on the issue of
“virtual destruction of remedies” is not helpful to them. The
representation in the APA that IAT did not have “insurance with
respect to its properties, assets and operation of its [cable
protector] business” as of April 1, 2015, without more, cannot be
read to mean that IAT lacked insurance, at the relevant times,
that would have covered liability for a product sold more than a
year earlier. The APA also cannot be read to show that IAT did
have insurance coverage at some point that ceased to exist
because of the asset sale. Similarly, Mr. York’s testimony as to
what he saw in IAT’s books in early 2014 is not sufficient to show
that the sale to Checkers “virtually destroyed” the Burnleys’
remedies. Mr. York’s review occurred eighteen months before the
substantial cash infusion that IAT received from Checkers and,
possibly, before the significant shareholder investment disclosed
in the APA.
With respect to . . . “the successor’s ability to assume the
original manufacturer’s risk-spreading role and the fairness of
requiring the successor to assume responsibility for defective
products that were a burden attached to the original
manufacturer’s goodwill being enjoyed by the successor in the
continued operation of the business,” the evidence was mixed.
One policy justification for the product[]line exception (and,
indeed, for strict liability in general) is that the company that
purchases a product line and continues to manufacture it is better
able than a consumer to identify defects in the product and guard
against them. This policy justification seems logical in the case of
a design defect; a purchasing company will be better able than a
consumer to identify and correct such a defect. In this case,
however, where the defect arose from a one-time manufacturing
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error and there was no evidence that Checkers knew or could have
known of that error, the policy justification has less force. A
second policy justification is that the purchasing company enjoys
the prior manufacturer’s accumulated good[]will, and should also
have to accept the burdens that go along with that good[]will.
That policy justification does have some force in this case, where
Checkers marketed its Firefly cable protectors as a continuation of
IAT’s products.
Taking all . . . factors together, and viewing the evidence in
the light most favorable to the verdict winners, as it must, this
court cannot say that the jury’s verdict was not supported by
sufficient competent evidence. While the Burnleys’ inability to
prove that Checkers’ purchase of IAT assets virtually destroyed
their remedies certainly weakens their argument that the
product[]line exception should apply, there was significant
evidence to support the other factors . . .. Reasonable minds
accordingly could disagree as to whether Checkers is entitled to
relief. This court cannot second guess the jury’s weighing of the
various factors. Therefore, it did not err in denying Checkers’
request for [JNOV].
Trial Court Opinion, 7/10/23, at 24-27 (citations, footnotes, and unnecessary
capitalization omitted).
The trial court additionally found no merit to Checker’s claim that the
judge, and not the jury, should have decided whether the product line
exception applied. The trial court explained:
At trial, [the Schmidt Court’s] footnote, and the concerns
it expresses, gave this court pause about whether it, or the jury,
should decide the product[]line exception issue. [This court]
concluded, however, that given the Superior Court’s approval of
the trial court’s jury instruction in Schmidt, and taking into
account the Burnleys’ right to a jury trial, it should allow the jury
to decide the issue. This decision was not an error of law or a
palpable abuse of discretion.
****
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Checkers further argues that even if this court’s decision to
submit the issue to a jury was proper, this court erred by
postponing that decision until the end of trial. Checkers waived
this issue by failing to raise it during the trial. Moreover, Checkers
cannot show that it was prejudiced by the timing of this court’s
decision. The court announced the decision the day before closing
arguments, giving the parties ample time to organize their
presentations to the jury.
Trial Court Opinion, 7/10/23, at 23 (unnecessary capitalization omitted).
Based on our review, we conclude that the trial court did not err or abuse
its discretion in denying Checkers’ motion for JNOV. In challenging the trial
court’s denial of its motion for JNOV, the gravamen of Checkers’ argument
focuses on the first Ray factor, which involves a consideration of whether the
successor corporation’s acquisition of the predecessor corporation’s assets
caused the virtual destruction of the plaintiff’s remedies against the original
manufacturer. Checkers essentially argues that, because the trial court
determined that the Burnleys failed to prove that their remedy against IAT
was virtually extinguished following Checkers’ acquisition of IAT’s assets,
Checkers was entitled to JNOV as a matter of law.
Importantly, as explained above, the Dawejko Court declined to
establish a finite set of factors that must be met in order to apply the product
line exception, and specifically declined to make the Ray factors mandatory.
Instead, the Dawejko Court opted to identify various considerations that are
“pertinent” to this inquiry. Dawejko, 434 A.2d at 111. With respect to the
Ray factors, the Dawejko Court stated that while “it will always be useful to
consider whether the three-part test stated in [Ray] has been met[, t]he
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exception will more likely realize its reason for being, however, if such details
are not made part of its formulation.” Id.
Although the Pennsylvania Supreme Court did not expressly adopt the
product line exception, it has nevertheless confirmed that none of the Ray
factors is mandatory, noting that “[i]n fact, the Dawejko panel took pains to
clarify that it was adopting the Ramirez test as the core, governing standard,
subject to more flexible consideration of other relevant factors, including those
identified in Ray.” Schmidt, 11 A.3d at 944. Moreover, our Supreme Court
expressly overruled this Court’s decisions in Schmidt v. Boardman Co., 958
A.2d 498 (Pa. Super. 2008), and Hill v. v. Trailmobile, Inc., 603 A.2d 602
(Pa. Super. 1992), to the extent that those decisions misinterpreted Dawejko
and improperly elevated the Ray factors to mandatory status. See Schmidt,
11 A.3d at 945 (holding that “the Schmidt panel’s elevation of the Ray factors
to mandatory status was based on a plain misreading of the seminal
product[]line decision in Dawejko. Thus, the most appropriate approach to
reconciling governing Superior Court precedent is to correct Hill’s mistake and
to revert to Dawejko”).4 Based on this established precedent, we conclude
that the trial court’s concern that the Burnleys failed to present sufficient
____________________________________________
4 By implication, the Schmidt Court also overruled this Court’s decision in
Keselyak v. Reach All, Inc., 660 A.2d 1350, 1354 (Pa. Super. 1995),
wherein a panel of this Court relied on federal caselaw to elevate the first Ray
factor to mandatory status and to hold that a claimant’s inability to recover
from the original manufacturer is a prerequisite for use of the product line
exception.
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evidence for the jury to find in their favor on the first Ray factor is not
dispositive, and does not provide a basis for reversal of the order denying
Checker’s motion for JNOV.5
With respect to Checkers’ claim that the trial court erred in allowing the
jury to decide the issue of whether to apply the product line exception, the
only basis for its claim of error is our High Court’s decision in Schmidt. As
explained above, the Pennsylvania Supreme Court has not addressed the
question of whether application of the product line exception is a matter for
determination by the judge or the jury. Although the Schmidt Court included
a footnote observing that the appellees’ characterization of the exception as
an “‘equitable remedy’ suggests that it might more appropriately be
determined by a judge,” and that the “‘philosophical origin’ and the looseness
engrafted on the exception by Dawejko, encompassing the task of balancing
a litany of factors (as contrasted with deciding factual matters in the context
of a clearly articulated framework), also appears to militate in favor of
____________________________________________
5 Checkers directs this Court to decisions from other states and federal
jurisdictions, including our federal counterparts in this Commonwealth,
wherein the courts have refused to apply the product line exception when the
plaintiff’s remedy against the original manufacturer was not extinguished by
the asset acquisition. However, Checkers reliance on those cases is
unavailing, as they are not binding on this Court. See Willard v. Interpool,
Ltd., 758 A.2d 684, 686 (Pa. Super. 2000) (explaining that, while decisions
of the lower federal courts have a persuasive authority, they are not binding
on Pennsylvania courts even where they concern federal questions); see also
id. (explaining that decisions from other states with identical issues are not
binding on Pennsylvania courts).
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allocating the decision to a judge,” those comments can only be regarded as
dicta, given that the question was not before the Court. See Schmidt, 11
A.3d at 946 n.24.6 As a result, we are not bound by Schmidt on this issue.
We additionally note that, in Dawejko, the jury was asked to decide
whether the successor corporations, which had acquired the assets of the
original product manufacturer, could be held liable under a theory of strict
products liability. In adopting the product line exception, the Dawejko Court
affirmed the trial court’s denial of the successor corporations’ motion for JNOV,
and determined that, on the factual record before the Court, “the jury was
entitled to find the facts as appellees have stated them.” Dawejko, 434 A.2d
at 112 (emphasis added). Importantly, in defining the parameters of the
product line exception, the Dawejko Court had the opportunity to designate
the inquiry as a question of law for a judge to decide. However, the Dawejko
Court did not do so. Instead, it affirmed the decision by the jury to impose
liability on the successor corporation based on the product line exception. See
id.; see also Schmidt, 958 A.2d at 514 (affirming the trial court’s denial of
the successor corporation’s motion for JNOV, and determining that “the
____________________________________________
6 Checkers also relies on the Third Circuit Court of Appeals’ decision in McLaud
v. Indus. Res, 715 Fed. Appx. 115, 119 (3rd Cir. 2017), wherein the Third
Circuit looked to the dicta provided by our High Court in Schmidt, and
concluded, based on such dicta, that the product line exception inquiry is a
question of law for the judge to decide. As noted previously, while we may
consider federal case law for its persuasive value, we are not bound to follow
it. See Willard, 758 A.2d at 686.
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evidence was sufficient to support the jury’s finding that [a]ppellants were
liable as the product[]line successor to [the predecessor corporation]”
(emphasis added)). Thus, we discern no error by the trial court with respect
to its decision to permit the jury to decide whether the product line exception
should apply to Checkers.7
This Court’s analysis is further cabined by our well-established standard
of review, which requires us to view the evidence in the light most favorable
to the Burnleys, as the verdict winners, and to give them the benefit of every
reasonable inference arising therefrom while rejecting all unfavorable
testimony and inferences. See Phillips, 86 A.3d at 919.8 As explained above,
____________________________________________
7 To the extent that Checkers claims that trial court erred by delaying its
decision as to whether the judge or the jury would decide the application of
the product line exception until the last day of trial, the trial court determined
that the issue was waived because Checkers did not raise this objection at
trial. See Trial Court Opinion, 7/10/23, at 23; see also Pa.R.A.P. 302(a)
(providing that issues not raised in the trial court are waived and cannot be
raised for the first time on appeal). Checkers does not acknowledge the trial
court’s determination that the issue is waived. Moreover, the record is clear
that, commencing on the first day of trial, the trial court asked the parties for
their views on whether the judge or the jury should determine and weigh the
Dawejko factors, and informed the parties that it could hold the issue under
advisement after no consensus could be reached. See N.T., 8/22/22, at 53-
54, 92-94. As the trial court further explained: “[t]hroughout the trial, this
court made it clear to the parties that it had not yet decided which issues
would go to the jury. Neither party objected to this[,] or told this court that
it needed an earlier decision.” Trial Court Opinion, 7/10/23, at 9-10. Thus,
as Checkers did not raise this issue in the trial court, it is waived.
8 We note that the trial court erred by failing to view the evidence in the light
most favorable to the Burnleys, and in failing to give them the benefit of every
reasonable inference arising therefrom while rejecting all unfavorable
(Footnote Continued Next Page)
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the Dawejko Court identified several factors discussed by other courts as
relevant to the question of whether the product line exception should apply.
The first several factors identified by the Dawejko Court focus on the conduct
of the successor corporation, including whether the successor corporation:
purchased the goodwill and contract obligations of the transferor corporation;
advertised itself as an ongoing enterprise; profited from and exploited all of
the accumulated goodwill which the products have earned; continued to
produce the same kind of product in essentially the same way, using the same
equipment and designs; maintained the same product, name, management,
personnel, physical location, property, and clients; solicited the predecessor’s
customers through the same sales representatives with no outward indication
of a change in ownership; or continued the operations of the predecessor
corporation while the predecessor corporation ceased its ordinary business
operations. See Dawejko, 434 A.2d at 108-09.
At trial, Checkers’ corporate designee, Eaton, testified that, prior to
Checkers’ acquisition of IAT’s Firefly product line, Checkers was a
manufacturer of cable protectors and one of its competitors was the Firefly
____________________________________________
testimony and inferences. See Phillips, 86 A.3d at 919. While the jury was
free to weigh and balance the evidence adverse to the Burnleys when
considering the Dawejko factors and determining whether the product line
exception should apply to Checkers, the trial court was not permitted to do
so when ruling on Checkers’ motion for JNOV. See id. Thus, the trial court
was required to reject all evidence and testimony that suggested that the
Burnleys failed to satisfy the first Ray factor. Nevertheless, as this error did
not control the outcome of the case, we deem the error harmless. See id.
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cable protector. See N.T., 8/23/22, at 23-24. Eaton confirmed that, as part
of the acquisition, Checkers acquired “all Firefly inventory[,] . . . all of IAT’s
equipment[,] . . . customers[,] . . . customer list and good will[,] . . . all of
IAT’s intellectual property[,] all of the molds for cable protectors[,] . . . all of
the patents for cable protectors[,] . . . all of the trade shows and tradenames
concerning Firefly[,] . . . [and] “purchased not only the brand name, [but] the
registered trademark as well as the patents.” Id. at 24-25, 26 (unnecessary
capitalization omitted). Additionally, Eaton explained that as part of the
acquisition, “100 percent [of the] shareholders of IAT would remain with
Checkers to assist them in terms of consulting, sales, [and] working with
them.” Id. at 26. Moreover, Eaton indicated that “Checkers marketed itself
as an ongoing enterprise that manufactured and sold cable protectors . . .
[such that] if you want to buy a Firefly product, you can go online and buy
one.” Id. Eaton further testified that, pursuant to a non-compete agreement,
“IAT had to cease and desist any involvement in manufacturing, marketing,
or selling any cable protectors.” Id. at 25. The jury was also presented with
the APA, which included a non-compete clause that prohibited IAT from
manufacturing, marketing, or selling cable protectors for a period of ten years
following the acquisition. See APA, 4/1/15, at 9.
Eaton confirmed that Checkers’ issued a press release on its website
which announced that “Checkers . . . has acquired Firefly Cable Protectors,
innovators in cable management industry . . . [and that t]his acquisition
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further complements Checkers[’] . . . offering and better positions the
company in the cable protector market. . ..” N.T., 8/23/22, at 27-28. The
press release additionally stated: “[t]his acquisition brings together two
leaders in the cable management industry and allows [Checkers] to offer our
customers . . . the most innovative cable protectors on the market.” Id. at
29.
Eaton explained that, after the acquisition, Checkers “continued to sell
. . . Firefly cable protectors with the Firefly on it and the IAT [logo stamped]
on it.” Id. at 30. Eaton testified that “the Firefly brand was so prominent
that Checkers actually has sales brochures just dealing with the Firefly brand.”
Id. Eaton indicated that, as of the time of trial in this matter, Checkers was
still manufacturing cable protectors using molds with the Firefly trademark
and the IAT logo. Id. at 30-32. In fact, Eaton stated that “every product that
is sold with Firefly has the IAT [stamped] on the product.” Id. at 32.
Viewing this evidence and testimony in the light most favorable to the
Burnleys as the verdict winners, and giving them the benefit of every
reasonable inference arising therefrom while rejecting all unfavorable
testimony and inferences, we conclude that the jury was presented with
sufficient evidence to find the initial Dawejko factors were present, including:
that Checkers, as the successor corporation, purchased the goodwill and
customer list of IAT; that Checkers advertised itself as an ongoing enterprise
with respect to the Firefly product line; that Checkers profited from and
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exploited all of the accumulated goodwill which the Firefly products had
earned; that Checkers continued to produce the same Firefly product in
essentially the same way, using the same equipment, molds, and designs;
that Checkers maintained the same product, product name, management,
personnel, and clients; that Checkers solicited IAT’s customers; and that
Checkers continued IAT’s operations with respect to the Firefly product line
while IAT ceased all business operations with respect to the manufacture,
marketing, and selling of any cable protectors. See Dawejko, 434 A.2d at
108-09.
As for the remaining Dawejko factors, as taken from Ray, the jury was
asked to consider whether the acquisition by Checkers of the Firefly product
line resulted in: (1) the virtual destruction of the plaintiff’s remedies against
the original manufacturer caused by the successor’s acquisition of the
business, (2) the successor’s ability to assume the original manufacturer’s
risk-spreading role, and (3) the fairness of requiring the successor to assume
a responsibility for defective products that was a burden necessarily attached
to the original manufacturer’s goodwill being enjoyed by the successor in the
continued operation of the business. See Dawejko, 434 A.2d at 109. Once
again, pursuant to our JNOV standard of review, we may only consider the
evidence which was favorable to the Burnleys when considering these factors,
and must reject all unfavorable testimony and inferences. See Phillips, 86
A.3d at 919.
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The record reflects that the jury was provided with sufficient evidence
to determine whether the successor corporation’s acquisition of the product
line in question resulted in the virtual destruction of the Burnleys’ remedies
against IAT, as the original manufacturer. See Dawejko, 434 A.2d at 109.
Pursuant to the APA, as of April 2015, IAT had indebtedness of more than
$558,888.00, including inter alia, a judgment lien of $15,558 that remained
unpaid since June 2012, a $85,000 commercial debt, a $40,000 capital loan
from a relative of IAT’s owners, and $418,330.00 in paid-in capital owed to
shareholders. See APA, 4/1/15, at Schedule 4.10-Indebteness. Additionally,
FallLine’s designee, Erik York, indicated that FallLine had considered buying
the Firefly product line in 2014, but after conducting due diligence and
reviewing IAT’s books, he determined that IAT had no assets other than the
Firefly product line, which consisted of the inventory, equipment, patents, and
trademarks associated with the Firefly brand. See N.T., 8/23/22, at 64-65,
67. York additionally testified that IAT owed FallLine $13,000, and that IAT
recovered only $6,000 of that debt through a collection agency in 2015 or
2016. See id. at 88. Viewing this evidence and testimony in light most
favorable to the Burnleys, we conclude that such evidence and testimony was
sufficient to permit the jury to reasonably infer that: IAT was burdened with
indebtedness of more than $558,888.00 and could not satisfy its existing
debts; that IAT had not been able to pay a judgment lien of $15,558 that had
been pending for three years; that FallLine had been unable to collect on the
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$13,000 it was owed by IAT and had to resort to a collection agency, through
which it was ultimately only able to recover $6,000; and that, following
Checkers’ purchase of the Firefly product line, IAT was left with no assets to
compensate the Burnleys for losses caused by a defective Firefly cable
protector.
We further conclude that the jury was presented with sufficient evidence
to determine the successor’s ability to assume the original manufacturer’s
risk-spreading role. See Dawejko, 434 A.2d at 109. Checkers’ corporate
designee, Eaton, testified that, “[i]f a customer would contact Checkers with
a Firefly product that was defective or a problem,” Checkers “would address
that problem” not just within “the manufacturer warranty frame,” but “within
any timeframe.” N.T., 8/23/22, at 39. From this testimony, the jury could
reasonably infer that Checkers had the ability to assume IAT’s risk-spreading
role as the original product manufacturer based on Checkers’ willingness to
address any problems or defects with Firefly products, including those that
were manufactured and distributed by IAT or were otherwise outside the
manufacturer warranty period.
Finally, the jury was presented with sufficient evidence to determine the
fairness of requiring the successor to assume a responsibility for defective
products that was a burden necessarily attached to the original manufacturer’s
goodwill being enjoyed by the successor in the continued operation of the
business. See Dawejko, 434 A.2d at 109. As explained above, Eaton
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confirmed that Checkers issued a press release on its website which
announced that “Checkers . . . has acquired Firefly Cable Protectors,
innovators in cable management industry . . . [and that t]his acquisition
further complements Checkers[’] . . . offering and better positions the
company in the cable protector market. . ..” N.T., 8/23/22, at 27-28. The
press release additionally stated: “[t]his acquisition brings together two
leaders in the cable management industry and allows [Checkers] to offer our
customers . . . the most innovative cable protectors on the market.” Id. at
29. Eaton testified that “Checkers marketed itself as an ongoing enterprise
that manufactured and sold cable protectors . . . [such that] if you want to
buy a Firefly product, you can go online and buy one.” Id. at 26. Eaton
testified that “the Firefly brand was so prominent that Checkers actually has
sales brochures just dealing with the Firefly brand.” Id. Eaton indicated that,
as of the time of trial in this matter, Checkers was still manufacturing cable
protectors using molds with the Firefly trademark and the IAT logo, and that
that “every product that is sold with Firefly has the IAT [stamped] on the
product.” Id. at 30-32. We conclude that this testimony provided the jury
with sufficient evidence from which it could reasonably infer that: there was a
tremendous amount of goodwill associated with Firefly cable protectors; the
popularity and demand for Firefly cable protectors was so great that Checkers
had to create a separate brochure solely for Firefly products; that Checkers
sought to exploit the goodwill associated with the Firefly product line by
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issuing a press release announcing its purchase of the Firefly product line;
that Checkers marketed its acquisition of the Firefly product line as an ongoing
business and allowed customers to purchase Firefly cable protectors on its
website; and that, based on these considerations, it would not be unfair to
require Checkers to assume the responsibility for defective Firefly products
manufactured by IAT because such a burden necessarily attached to the
accumulated goodwill for the Firefly product line being enjoyed by Checkers
in the continued operation of that product line.
In sum, we conclude that the evidence was sufficient to support a
determination by the jury that each of the Dawejko factors was satisfied such
that the product line exception should apply, and Checkers should be found
liable to the Burnleys under the exception. We do not find any basis in the
record to reach a contrary conclusion that Checkers was entitled to judgment
as a matter of law or that the evidence was such that no two reasonable minds
could disagree that judgment should have been rendered for Checkers. See
Lock, 86 A.3d at 919. As such, we affirm the trial court’s denial of Checkers’
motion for JNOV. Thus, Checkers’ first issue merits no relief.
In its second issue, Checkers challenges the trial court’ denial of its
motion for mistrial based on the court’s ruling to admit the portion of the APA
which indicated that IAT had no insurance as of the date of the execution of
the APA on April 1, 2015. Our standard of review regarding a trial court’s
denial of a motion for a new trial is limited: “[t]he power to grant a new trial
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lies inherently with the trial court and we will not reverse its decision absent
a clear abuse of discretion or an error of law which controls the outcome of
the case.” Kaplan v. O'Kane, 835 A.2d 735, 737 (Pa. Super. 2003) (citation
omitted). Further, the admission of evidence is within the sound discretion of
the trial court and will not be reversed absent a clear abuse of that discretion.
See Cooke v. Equitable Life Assurance Society of the United States,
723 A.2d 723, 729 (Pa. Super. 1999).
Rule 401 of the Pennsylvania Rules of Evidence provides that
“[e]vidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Pa.R.E. 401. “All relevant evidence
is admissible, except as otherwise provided by law.” Pa.R.E. 402. Generally,
a trial judge should admit all relevant evidence unless a specific rule bars its
admission. See Valentine v. Acme Mkts., 687 A.2d 1157, 1160 (Pa. Super.
1997). “The court may exclude relevant evidence if its probative value is
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403.
Pennsylvania Rule of Evidence 411 provides that “[e]vidence that a
person was or was not insured against liability is not admissible to prove
whether the person acted negligently or otherwise wrongfully.” Pa.R.E. 411.
Rule 411 is consistent with the general rule in Pennsylvania that evidence of
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insurance is irrelevant and prejudicial and justifies the grant of a mistrial. See
Dolan v. Carrier Corp., 623 A.2d 850, 853 (Pa. Super. 1993).
However, the mere mention of the word insurance does not necessitate
a new trial unless the aggrieved party can demonstrate prejudice. See Allied
Elec. Supply Co. v. Roberts, 797 A.2d 362, 364 (Pa. Super. 2002).
Moreover, Rule 411 includes an exception to the general rule and provides
that “the court may admit this evidence for another purpose, such as proving
a witness’s bias or prejudice or proving agency, ownership, or control.”
Pa.R.E. 411.
Checkers asserts that the trial court abused its discretion by permitting
into evidence the portion of the APA which disclosed that IAT “currently had
no insurance with respect to its properties, assets, and operation of its [cable
protector] [b]usiness,” as of the time of the execution of the APA on April 1,
2015. Checkers’ Brief at 31 (quoting APA, 4/1/15, at Section 4.12). Checkers
asserts that the Burnleys’ counsel attempted to ask Justin Lytle, a Checkers’
representative, to read into evidence this portion of the APA, which reflected
that IAT lacked insurance at the time of the execution of the APA. According
to Checkers, defense counsel immediately objected to the introduction of this
evidence at sidebar, and also requested a mistrial, which the trial court
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denied.9 Checkers claims that the introduction of this evidence was irrelevant
and highly prejudicial because it distracted the jury from the essential issues
it was to resolve and provided an improper basis upon which the jury could
make its decision. Checkers maintains that the issue of whether IAT had
insurance at the time of the execution of the APA has no bearing on the first
Ray factor relating to whether the APA resulted in the virtual destruction of
the Burnleys’ remedies against IAT, and its admission led the jury to
improperly determine that the Burnleys had no remedy as to IAT.
The trial court considered Checker’s second issue and determined that
it lacked merit. The court initially concluded that evidence of IAT’s insured
status on April 1, 2015, was not determinative of the first Ray factor
pertaining to whether the APA virtually extinguished the Burnleys’ remedies
against IAT, stating:
. . . The representation in the APA that IAT did not have
“insurance with respect to its properties, assets and operation of
____________________________________________
9 Checker further claims that defense counsel requested a curative instruction,
which the trial court declined to give at the time this testimony was elicited.
See Checkers’ Brief at 31; see also N.T., 8/29/22, at 80. However, Checkers
did not raise any objection to the trial court’s ruling on its request for a limiting
instruction in its concise statement. See Concise Statement, 3/2/23, at 2.
Instead, Checkers merely challenged the trial court’s decision to overrule its
objection to the testimony and its denial of Checkers’ motion for mistrial. See
id. Accordingly, we deem any challenge to the trial court’s decision not to
provide a limiting instruction as waived. See Pa.R.A.P. 1925(b)(4)(vii)
(providing that issues not included in the concise statement are waived); see
also Newman Dev. Group of Pottstown, LLC v. Genuardi's Family Mkt.,
Inc., 98 A.3d 645, 665 n.24 (Pa. Super. 2014) (en banc) (holding that an
issue not included in a concise statement, or fairly subsumed therein, is
waived).
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its [cable protector] business” as of April 1, 2015, without more,
cannot be read to mean that IAT lacked insurance, at the relevant
times, that would have covered liability for a product sold more
than a year earlier. The APA also cannot be read to show that IAT
did have insurance coverage at some point that ceased to exist
because of the asset sale.
Trial Court Opinion, 7/10/23, at 25.
The trial court additionally reasoned:
[T]his [c]ourt did not abuse its discretion in permitting
[admission of] the insurance provision in the APA. Checkers
opened the door to this evidence by using the APA as an exhibit
and soliciting broad-ranging testimony about its other provisions;
evidence of the insurance provision was appropriate to give a
more complete story of the transaction. The testimony did not
violate [Rule] 411, because evidence of insurance was not
introduced to prove “whether [IAT or Checkers] acted negligently
or otherwise wrongfully.” Finally, the evidence was not harmful
or prejudicial to Checkers.
Id. at 27.
In addressing this issue, we initially observe that Rule 411 prohibits the
admission of evidence of liability insurance for purpose of proving a party
“acted negligently or otherwise wrongfully.” Pa.R.E. 411. Here, IAT was not
a party to the litigation. Moreover, the evidence of IAT’s lack of insurance as
of April 1, 2015, was not admitted for the purpose of proving that any party
to the litigation acted negligently or wrongfully more than seven months prior
to the execution of the APA. Stated differently, the evidence was not admitted
for the purpose of proving that IAT, or even Checkers, acted negligently or
wrongfully. See id.
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Further, Rule 411 expressly provides that evidence of insurance may be
admitted for other purposes. See id. Here, the trial court reasoned that this
provision in the APA was appropriate to give a more complete story of the
transaction. See Trial Court Opinion, 7/10/23, at 27. In our view, the
information that IAT would have no insurance as of the date of the APA was
relevant to other Dawejko factors, including whether IAT, as the predecessor
corporation, ceased its ordinary business operations as a result of the asset
transaction. See Dawejko, 434 A.2d at 108-09. Thus, this evidence of IAT’s
insurance status as of the date of the asset purchase transaction was
permitted to be introduced for another purpose. See Pa.R.E. 411.
Nonetheless, we agree with the trial court that this information was of
little relevance with respect to the first Ray factor regarding whether the asset
transaction virtually extinguished the Burnley’s remedies against IAT.
Whether IAT had insurance at the time of the execution of the APA on April 1,
2015, was not determinative of whether IAT had a liability insurance policy in
place on September 26, 2014, the date of Mrs. Burnley’s accident, which may
have provided coverage for the Burnleys’ injuries and damages.
While we acknowledge that there was a potential for the jury to
misunderstand the significance, or lack thereof, of the absence of insurance
for IAT as of April 1, 2015, we find no clear abuse of discretion by the trial
court in denying Checker’s motion for mistrial on this basis. Although the
court declined to provide a limiting instruction at that time, nothing prevented
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Checkers from requesting a limiting instruction at a later time, nor defense
counsel from explaining to the jury in closing arguments that the absence of
insurance on April 1, 2015, did not mean that Checkers did not have liability
insurance in place on September 26, 2014, which could have provided the
Burnleys with a remedy against IAT.
Moreover, given that there are numerous Dawejko factors that the jury
was required to consider, none of which are mandatory, and that the
challenged evidence was relevant to at least one other such factor, we cannot
conclude that the mere potential for the jury to misinterpret the challenged
evidence as to another such factor “control[ed] the outcome of the case.”
Kaplan, 835 A.2d at 737. Indeed, Checkers can only speculate that the jury
misinterpreted this information, or that the absence of such information would
have resulted in a different outcome at trial, such as the jury finding that none
of the remaining Dawejko factors had been satisfied. As such, Checkers has
not convinced this Court that, but for the admission of the provision in the
APA that IAT had no insurance as of April 1, 2015, the jury would have found
that the product line exception did not apply and entered a verdict in favor of
Checkers. Thus, as we discern no clear abuse of discretion by the trial court
in denying Checkers’ motion for mistrial, its second issue merits no relief.
In its third issue, Checkers argues that the trial court abused its
discretion by permitting the testimony of FallLine’s corporate designee, York,
that he had considered purchasing all of IAT’s assets in 2014 or 2015 and that
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he determined IAT’s only assets at that time consisted of the Firefly cable
protector product line. As indicated above, the admission of evidence is within
the sound discretion of the trial court and will not be reversed absent a clear
abuse of that discretion. See Cooke, 723 A.2d at 729.
It is axiomatic that an objection to the admission of evidence is waived
if not timely raised at trial. See Pa.R.E. 103(a) (providing that a party may
claim error in admission of evidence only when that party makes a timely and
specific objection); see also Parr v. Ford Motor Co., 109 A.3d 682, 709 (Pa.
Super. 2014) (holding that the failure to make a contemporaneous objection
waives an issue on appeal). Further, an evidentiary ruling must not only be
erroneous; it must also be harmful. See Cummins v. Rosa, 846 A.2d 148,
150 (Pa. Super. 2004). An evidentiary ruling that does not affect the verdict
will not be disturbed. See id.
Checkers asserts that York’s testimony was irrelevant to the issue of
IAT’s remaining assets at the time of the execution of the APA and was highly
prejudicial to Checkers. According to Checkers, York was not involved in the
APA between Checkers and IAT and had no personal knowledge as to the
assets involved in that agreement. Checkers argues that York’s testimony
served only to prejudice Checkers by allowing the jury to rely upon his
statements to speculate that IAT had no assets after the execution of the APA
and that the Burnleys had no viable remedy against IAT as of April 2015.
Checkers contends that York’s testimony should have been excluded since any
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probative value it had was outweighed by the unfair prejudice to Checkers and
the potential to mislead the jury.
The trial court considered Checkers third issue and determined that it
lacked merit. The court reasoned:
[T]his court did not abuse its discretion in overruling
Checkers’ objection to Mr. York’s testimony about his review of
IAT’s books. Mr. York gave [this] testimony without objection;
Checkers’ counsel did not object until the Burnleys’ counsel began
asking follow[-]up questions, and did not ask this Court to strike
the previous responses. N.T.[, 8/23/22,] at 64-65. Accordingly,
this objection was waived. Moreover, Mr. York’s testimony was
relevant to the product[]line exception . . . and was not
prejudicial.
Trial Court Opinion, 7/10/23, at 27-28 (unnecessary capitalization omitted).
Our review of the record confirms that Checkers’ counsel made no
objection to the subject testimony. York was asked several questions about
the potential purchase of all of IAT’s assets and he confirmed that the only
assets which IAT had consisted of the Firefly product line. See N.T., 8/23/22,
at 64-65. Specifically, York stated, “[IAT] wanted too big of a number - - to
buy their assets, which their assets were just the cable protector. That’s all
they were doing. That - - was the entire company of Firefly. It was just the
cable protectors.” Id. York went on to testify that “there [were no] assets
that IAT had other than the Firefly line, the equipment, the patents, [and]
trademarks.” Id. at 65. No objection was made to this line of inquiry or to
York’s responses.
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After a brief sidebar, the questioning of York resumed. Checkers’
counsel then objected to a subsequent question to York which elicited
essentially the same response that he had already provided regarding the
absence of any assets owned by IAT other than the Firefly product line. See
id. at 66-67. Specifically, York testified that “[IAT did not] have any assets
other than the Firefly brand, all of the equipment, the inventory, the patents,
the trademarks.” Id. at 67. However, Checkers’ counsel objected to this
testimony solely on the basis that the question had been “[a]sked and
answered.” Id. at 67. The trial court overruled the objection. Id. Notably,
Checkers made no objection to this testimony on the basis that it was
irrelevant or prejudicial.
The only relevancy objection made by Checkers’ counsel was in
response to a subsequent question posed to York: “[w]hen FallLine went to
purchase - - or did the due diligence in purchasing the assets of IAT, was it
important for FallLine to know what assets IAT had?” N.T., 8/23/22, at 66.
The trial court overruled this relevancy objection. Thereafter, York testified
“yes . . . when purchasing a company, you want to know all the assets and
you want to know everything about that company. And Firefly’s assets were
the - - the cable protector and their patents and things . . . that go along with
that cable protector.” Id. at 67.
It is clear that Checkers now seeks to rely on its relevancy objection to
the subsequent questioning of York as a basis to challenge the initial
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questions posed to York—to which Checkers made no relevancy or prejudice
objection. This it cannot do. Thus, as no relevancy or prejudice objection was
made to any of the initial testimony by York that there were no assets that
IAT had other than the Firefly line, any challenge to that testimony based on
relevancy or prejudice is waived. See Pa.R.E. 103(a); see also Parr, 109
A.3d at 709.10 Accordingly, Checkers’ third issue merits no relief.
In its fourth issue, Checkers contends that the trial court abused its
discretion by denying its requests for a continuance of the trial. Our review
of a trial court’s decision to grant or deny a request for continuance is well-
settled:
The trial court is vested with broad discretion in the
determination of whether a request for a continuance should be
granted, and an appellate court should not disturb such a decision
unless an abuse of that discretion is apparent. An abuse of
discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to have abused its discretion unless
____________________________________________
10 In any event, the trial court deemed the challenged testimony to be relevant
to the product line exception, and further determined that it was not
prejudicial. See Trial Court Opinion, 7/10/23, at 27-28. On the record before
us, we discern no abuse of discretion by the trial court in reaching this
determination. The viability of IAT as a corporation following the sale of its
assets to Checkers was entirely relevant to the central question in the
litigation; namely, whether Checkers could be found liable under the product
line exception. Specifically, it was relevant to the Dawejko factor concerning
whether the sale virtually extinguished the Burnleys’ remedies against IAT.
Thus, to the extent that York’s challenged testimony had any tendency to
make that fact more or less probable, the trial court did not abuse its discretion
by admitting it as relevant evidence. See Pa.R.E. 401; see also Valentine,
687 A.2d at 1160. Moreover, as Checkers has failed to convince us that the
admission of this particular testimony affected the verdict, we decline to
disturb the trial court’s ruling. See Cummins, 846 A.2d at 150.
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the record discloses that the judgment exercised was manifestly
unreasonable, or the results of partiality, prejudice, bias or ill-will.
Baysmore v. Brownstein, 771 A.2d 54, 57 (Pa. Super. 2001) (citations
omitted).
The coordinate jurisdiction rule prohibits a judge from overruling the
decision of another judge of the same court, under most circumstances. See
Ryan v. Berman, 813 A.2d 792, 794 (Pa. 2002). Departure from the rule is
allowed only in exceptional circumstances, such as where there has been an
intervening change in the controlling law, a substantial change in the facts or
evidence giving rise to the dispute in the matter, or where the prior holding
was clearly erroneous and would create a manifest injustice if followed. See
id.
Checkers argues that the trial court abused its discretion by denying its
motion for extraordinary relief and its motions in limine seeking a continuance
of the August 22, 2022 trial date based on newly disclosed evidence. Checkers
asserts that, one month prior to trial, the Burnleys provided supplemental
discovery responses in which they indicated that Mrs. Burnley was terminated
from her new employment at Organon as of June 29, 2022. Checkers also
points to the Burnleys’ disclosure on July 22, 2022, that Mrs. Burnley was
scheduled to undergo surgery for the implantation of a spinal cord stimulator
eleven days prior to trial. Checkers asserts that Mrs. Burnley’s termination
from her employment for Organon had a significant impact on her claim for
future economic damages, as she had been working for her prior employer,
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Janssen Pharmaceuticals, for many years without any wage loss. Checkers
further asserts that the surgery had a great impact on Mrs. Burnley’s claims
for future medical and wage loss as well as non-economic damages, and
defense experts did not have the opportunity to re-examine Mrs. Burnley
before or after this new development. Checkers contends that the admission
of the Burnleys’ last-minute evidence and the trial court’s failure to grant a
continuance resulted in great prejudice to Checkers, as evidenced by the $2.4
million award for future wage losses and the $2.7 million award for future
medical benefits.11
With respect to the motion for extraordinary relief seeking a continuance
based on the late disclosures, we discern no abuse of discretion by Judge
Carpenter in denying that motion. As explained by Judge Hangley:
Checkers filed a motion for extraordinary relief on July 26,
2022 asking for an emergency continuance of the August 22[,
2022] trial date. . . . Checkers repeated this request in a motion
in limine filed on August 3, 2022 and, in a separate motion in
limine, asked [the trial court] to sanction the Burnleys for the late
____________________________________________
11 Checkers additionally claims that: (1) the Burnleys failed to timely disclose
that Mr. Burnley lost his job at Amtrak in 2022, and that they would be
claiming that his job loss was due to Mrs. Burnley’s accident; and (2) that the
trial court should not have permitted the Burnleys to show to the jury graphic
photographs of Mrs. Burnley’s spinal cord stimulator surgery. Notably, in its
concise statement, Checkers confined its fourth issue to the denial of its
motion for extraordinary relief and its motions in limine. See Concise
Statement, 3/2/23, at 3. However, our review of Checkers’ motion for
extraordinary relief and its continuance-related motions in limine discloses
that Checkers did not raise these additional claims in those filings. Thus,
Checkers failed to preserve these additional claims for our review. See
Pa.R.A.P. 1925(b)(4)(vii) (providing that issues not raised in the concise
statement are waived).
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disclosure by barring evidence on the employment and surgery
issues. . . . On August 19, 2022, [Judge] Carpenter entered an
order requiring Mrs. Burnley to produce medical records from the
spinal cord stimulator placement before trial and to appear for a
Zoom deposition, limited to the topics of [her] termination from
her employment and her surgery for the spinal cord stimulator.
The order also directed Checkers to submit for signature a
subpoena for Mrs. Burnley’s employment records.
On August 24, [2022,] Judge Carpenter entered an order
formally denying the motion for extraordinary relief and referring
to her August 19 order. At argument of the continuance related
motions in limine, Checkers’ counsel told [Judge Hangley] that
that he had received the medical records and some, but not all, of
the employment records, and had deposed Mrs. Burnley. [Judge
Hangley] denied relief, finding that Judge Carpenter had
adequately addressed the late-disclosure issue.
Trial Court Opinion, 7/10/23, at 5-6 (citations and unnecessary capitalization
omitted).
Our review of the record confirms that prior to trial, Checkers’ counsel
informed Judge Hangley on the record that he had deposed Mrs. Burnley,
received her updated medical records, received the employment records from
Organon, from which she was terminated due to her accident-related injuries,
and prior, but not the most recent employment records from Janssen
Pharmaceuticals, from which she resigned. See N.T., 8/22/22, at 14-15.
Given that Mrs. Burnley resigned from Janssen Pharmaceuticals, Judge
Hangley reasoned that any missing employment records from that employer
were not relevant unless Mrs. Burnley had the same problems pre-accident as
she did post-accident. See id. at 18. Moreover, because Checkers was
permitted to conduct pretrial discovery on the termination and surgery issues
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and confirmed to the trial court that it otherwise obtained the testimony and
documentation that it needed, we simply cannot conclude that the record
discloses that the judgment exercised by Judge Carpenter was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will. See
Baysmore, 771 A.2d at 57.
With respect to Judge Hangley’s subsequent denial of Checkers’ motions
in limine seeking a continuance of the trial or the preclusion of any evidence
related to Mrs. Burnley’s employment termination or surgery for the
implantation of a spinal cord stimulator, the judge determined that her ruling
was required by the coordinate jurisdiction rule:
Here, Judge Carpenter did not abuse her discretion in
denying Checkers’ motion for extraordinary relief. It was within
Judge Carpenter’s discretion to determine that to the extent the
Burnleys’ late disclosures prejudiced Checkers, her remedial
discovery order could address that prejudice. This trial judge
properly declined to reconsider Judge Carpenter’s decision; it was
not permitted to do so under the coordinate jurisdiction rule.
Trial Court Opinion, 7/10/23, at 29 (unnecessary capitalization omitted).
Based on our review, we discern no error or abuse of discretion by Judge
Hangley in denying Checkers’ motions in limine. The sole issue raised in those
motions was the same issue raised in the motion for extraordinary relief;
namely, that Checkers was prejudiced by the late disclosures that Mrs. Burnley
had been termination from her job at Organon and would be undergoing
surgery for the implantation of a spinal cord stimulator. In both its motion for
extraordinary relief and its motions in limine, Checkers claimed, as a basis for
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relief, that it was entitled to obtain additional discovery on these issues. See
Motion for Extraordinary Relief, 7/26/22, at unnumbered 3; see also Motion
in Limine for Emergency Continuance, 8/3/22, at 5; Motion in Limine to
Preclude Evidence, 8/3/22, at 4. Judge Carpenter permitted the requested
discovery but denied a continuance. As such, the coordinate jurisdiction rule
prohibited Judge Hangley from overruling the decision of Judge Carpenter
denying the motion for extraordinary relief on the continuance issue. See
Ryan, 813 A.2d at 794 (holding that, pursuant to the coordinate jurisdiction
rule, a later motion should not be entertained or granted when a motion of
the same kind has previously been denied). Moreover, Checkers has pointed
to no exceptional circumstances or intervening changes in the controlling law,
facts, or evidence which would warrant deviation from the rule. See id.
Therefore, Checkers’ fourth issue merits no relief.
In its fifth issue, Checkers contends that the trial court abused its
discretion by denying its request to submit its proposed verdict sheet with
special interrogatories directed to the jury. Generally, a trial judge may grant
or refuse a request for special findings on the basis of whether such would add
to the logical and reasonable understanding of the issues. See Fisch's
Parking v. Indep. Hall Parking, 638 A.2d 217, 223 (Pa. Super. 1994). We
will not disturb a trial court’s decision to grant or refuse the request absent an
abuse of discretion. See id.
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Checkers argues that its proposed verdict sheet addressed the analysis
required to determine whether to apply the product line exception. Checkers
maintains that the concept of the product line exception is complex and
involves numerous factors. Checkers asserts that the jury could have
benefited from a special interrogatory that set forth all of the elements to be
weighed in deciding the issue of whether Checkers was liable pursuant to the
product line exception. Checkers contends that “merely asking the jury, on
the verdict sheet, whether Checkers was a successor corporation and whether
the product line exception applied, was confusing to the jurors and led to an
improper verdict to the detriment of Checkers.” Checkers’ Brief at 40
(unnecessary capitalization omitted).
The trial court considered Checkers’ fifth issue and determined that it
lacked merit. The court reasoned:
Checkers argues that even if this Court properly submitted
the product-line exception to the jury, Checkers is entitled to a
new trial because this court did not use Checkers’ proposed verdict
sheet. On this proposed verdict sheet, Checkers listed a number
of factors—including whether Checkers “acquired IAT’s goodwill,”
“maintained the same name, clients, and product as IAT” and
“deliberately exploited IAT’s established reputation”—and
instructed the jury to cease deliberations if it found that the
Burnleys had failed to prove any one of these factors. See
Proposed Verdict Sheet[, 8/29/22, at 2-3]. This court did not err
in disregarding this submission, which did not conform with the
law set forth in Schmidt. Moreover, given the fact that none of
the factors Checkers listed were mandatory, this court determined
that it was not necessary for the jury to make findings about them
and that overwhelming the jury with factual questions might
confuse it. This decision was not an abuse of discretion.
Trial Court Opinion, 7/10/23, at 23 (unnecessary capitalization omitted).
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We discern no abuse of discretion by the trial court in rejecting Checkers’
proposed verdict sheet. As explained above, the Pennsylvania Supreme Court
clarified in Schmidt that none of the factors identified by the Dawejko Court
as relevant to the product line exception inquiry is mandatory, noting that
“[i]n fact, the Dawejko panel took pains to clarify that it was adopting the
Ramirez test as the core, governing standard, subject to more flexible
consideration of other relevant factors, including those identified in Ray.”
Schmidt, 11 A.3d at 944. Indeed, our Supreme Court expressly overruled
this Court’s decisions in Schmidt, 958 A.2d 498, and Hill, 603 A.2d 602, to
the extent that those decisions misinterpreted Dawejko and improperly
elevated the Ray factors to mandatory status. See Schmidt, 11 A.3d at 945.
Here, Checkers’ proposed verdict sheet sought to instruct the jury to
cease deliberations and “return to the [c]ourtroom,” if it found that the
Burnleys had failed to prove by a preponderance of the evidence any one of
the following five factors: (1) “Checkers advertised itself as an ongoing
enterprise of . . . [IAT];” (2) “Checkers acquired IAT’s goodwill;” (3) “Checkers
maintained the same name, clients, and product as IAT;” (4) “Checkers
deliberately exploited IAT’s established reputation;” and (5) “Checkers’
acquisition of the Firefly line from IAT cause[d] the virtual destruction of [the
Burnleys’] remedies against IAT.” Proposed Verdict Sheet, 8/29/22, at 2-3.
Thus, the proposed verdict sheet purported to instruct the jury that the
Burnleys were required to prove five of the Dawejko factors by a
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preponderance of the evidence, and that if the Burnleys failed to prove any
one of these five factors by a preponderance of the evidence, then the jury
must cease deliberations and return to the courtroom. See id.
As explained above, none of the factors identified by the Dawejko
Court as relevant to the product line exception inquiry is mandatory.
Accordingly, the proposed verdict sheet, which sought to elevate five of the
Dawejko factors to mandatory status, provided a patently incorrect
statement of the law which would have misled the jury. See Schmidt, 11
A.3d at 945. Therefore, we discern no abuse of discretion by trial court in
refusing to submit it to the jury.
In its final issue, Checkers claims that it was entitled to JNOV because
the verdict was inconsistent. Preliminarily, we must determine whether
Checkers preserved the issue for our review. The issue of waiver presents a
question of law, and, as such, our standard of review is de novo, and our
scope of review is plenary. See Stapas v. Giant Eagle, 197 A.3d 244, 248
(Pa. 2018); see also Pa.R.A.P. 302(a) (providing that issues not raised in the
trial court are waived and cannot be raised for the first time on appeal).
A party waives post-trial relief based on inconsistent verdicts by failing
to object at trial to the verdict sheet that permitted the inconsistent verdicts
or by not objecting to the alleged inconsistency before the jury’s discharge.
See Straub v. Cherne Industries, 880 A.2d 561, 566-68 (Pa. 2005)
(reversing JNOV based on the theory that the verdict on one claim precluded
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liability on another claim, because defendant did not object to the verdict
sheet or to verdict when rendered); see also Bert Co. v. Turk, 257 A.3d 93,
112 (Pa. Super. 2021) (finding waiver of a challenge based on inconsistent
verdicts where the appellant neither objected when the jury returned an
allegedly inconsistent verdict nor requested that the trial court send the jury
back for further deliberations); Picca v. Kriner, 645 A.2d 868, 871 (Pa.
Super. 1994) (holding that when a party fails to object to an inconsistent
verdict before the jury is discharged, it constitutes waiver).
Here, the trial court considered Checkers’ sixth issue and determined
that the issue is waived. The court reasoned:
It is difficult to reconcile the jury’s responses to questions 5
and 6 on the verdict sheet (in which the jury found that Lawall
and Evan Andrews Productions were negligent and that this
negligence caused harm to Mrs. Burnley) and question 7 (in which
the jury assigned 0% liability to these defendants). However,
Checkers’ counsel did not raise the inconsistency issue before the
jury was dismissed; this deprived the jury of the opportunity to
revisit its responses. Therefore, Checkers waived this issue.
Trial Court Opinion, 7/10/23, at 28 (unnecessary capitalization omitted).
Our review of the record confirms that Checkers failed to lodge any
objection to the verdict as inconsistent prior to the discharge of the jury. See
N.T., 8/31/22, at 16-19. Accordingly, Checkers failed to preserve this issue
for our review.
Having determined that Checkers is not entitled to relief on any of its
issues, we now turn to the sole issue raised in the Burnleys’ cross-appeal.
Therein, the Burnleys contend that, because the jury found Checkers to be
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100% liable and all other defendants 0% liable, the trial court erred by failing
to enter judgment against Checkers for the entire amount of the jury’s verdict.
Once again, we must determine whether Checkers preserved the issue for our
review.
Pennsylvania Rule of Civil Procedure 227.1 governs post-trial relief and
requires parties to file post-trial motions in order to preserve issues for appeal.
The Rule provides in relevant part that, after trial and upon the written motion
for post-trial relief filed by any party, the court may, inter alia, direct the entry
of judgment in favor of any party; affirm, modify or change the decision; or
enter any other appropriate order. See Pa.R.Civ.P. 227.1(a). The Rule
additionally provides that post-trial relief may not be granted unless the
grounds for relief were: (1) raised in pretrial proceedings or by motion,
objection, point for charge, request for findings of fact or conclusions of law,
offer of proof or other appropriate method at trial; and (2) are specified in the
post-trial motion. See Pa.R.Civ.P. 227.1(b). Further, “[t]he motion shall
state how the grounds were asserted in pre-trial proceedings or at trial” and
“a ground may not serve as the basis for post-trial relief unless it was raised
in pre-trial proceedings or at trial.” Pa.R.Civ.P. 227.1(b)(2). If a party has
filed a timely post-trial motion, any other party may file a post-trial motion
within ten days after the filing of the first post-trial motion. Id.
If an issue has not been raised in a post-trial motion, it is waived for
appeal purposes. See Lane Enterprises, Inc. v. L.B. Foster Co., 710 A.2d
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54 (Pa. 1998); see also Bd. of Supervisors of Willistown Twp. v. Main
Line Gardens, Inc., 155 A.3d 39, 44 (Pa. 2017) (holding that any grounds
not specified in a post-trial motion are deemed waived unless leave is
subsequently granted upon cause shown to specify additional grounds). The
importance of filing post-trial motions cannot be overemphasized, nor can the
filing requirement be disregarded as a mere technicality because post-trial
motions serve an important function in the adjudicatory process by affording
the trial court the opportunity to correct asserted trial error and also clearly
and narrowly framing issues for appellate review. See Diamond Reo Truck
Co. v. Mid-Pacific Indus., 806 A.2d 423, 428 (Pa. Super. 2002).
The Burnleys do not dispute that they failed to file a post-trial motion
raising any challenge to the verdict entered on August 31, 2022. However,
they claim that they could not file a timely post-trial motion challenging the
molded verdict because the molded verdict was not entered by the trial court
until September 8, 2022, and was not served on the parties until September
12, 2022, which was more than ten days after the verdict was entered. The
Burnleys additionally argue that this Court should not find waiver because the
issue was raised in their brief in opposition to Checkers’ motion for post-trial
relief.
The trial court considered the Burnleys’ issue and determined that the
issue is waived. The court reasoned:
This court apportioned the verdict in an order docketed
September 8, 2022. The Burnleys did not challenge this order in
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a post-trial motion. Accordingly, any objection to the
apportionment is waived. . . .
Trial Court Opinion, 7/10/23, at 30 (unnecessary capitalization omitted).
Here, in order to preserve their challenge to the trial court’s order
molding the verdict, the Burnleys were required to file a post-trial motion
raising their specific claims of error. They did not do so. Moreover, despite
the late filing and service of the molded verdict, the Burnleys had the
opportunity to file a cross-motion for post-trial relief challenging the molded
verdict within ten days after the filing of Checkers’ post-trial motion on
September 12, 2022. See Pa.R.C.P. 227.1(b)(2). Thus, even if the Burnleys
did not receive the molded verdict until September 12, 2022, they could have
filed a post-sentence motion challenging the molded verdict as late as
September 22, 2022. See id. However, they failed to do so. Accordingly, as
the Burnleys failed to raise this issue in a post-sentence motion, they failed to
preserve it for our review.
Judgment affirmed.
Panella, P.J.E., and Dubow, J., Join this Opinion.
Date: 3/5/2026
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