Smith, A. v. BMW of North America
This text of Smith, A. v. BMW of North America (Smith, A. v. BMW of North America) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
J-A20041-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AMY R. SMITH, Executrix of the Estate : IN THE SUPERIOR COURT OF of Paul A. Rowland, Deceased, : PENNSYLVANIA : Appellant : : v. : : BMW OF NORTH AMERICA LLC, : INDIVIDUALLY AND OWNER OF : AND/OR PARENT OF AND/OR : SUCCESSOR TO AND/OR F/K/A MINI, : BORG-WARNER CORPORATION, : INDIVIDUALLY AND SUBSIDIARY OF : AND/OR PARENT OF AND/OR A/K/A : AND/OR F/K/A BORG & BECK, FORD : MOTOR COMPANY, GENUINE PARTS : COMPANY, HONEYWELL : INTERNATIONAL, INC., AS : SUCCESSOR-IN-INTEREST OF ALLIED : SIGNAL, INC., SUCCESSOR TO BENDIX : CORPORATION AND BENDIX MINTEX : PTY, LTD., JAGUAR LAND ROVER : NORTH AMERICA, LLC, INDIVIDUALLY : AND ITS PREDECESSORS, : SUCCESSORS, PRESENT AND/OR : FORMER PARENTS, SUBSIDIARIES : AND/OR DIVISIONS, NISSAN NORTH : AMERICA, INC., THE PEP BOYS : MANNY, MOE & JACK, PNEUMO ABEX, : LLC, SUCCESSOR-IN-INTEREST TO : ABEX CORPORATION AND QUAKER : CITY MOTOR PARTS COMPANY, : : Appellees : No. 3352 EDA 2013
Appeal from the Orders entered on October 21 and 22, 2013 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 01814 September Term 2011
BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 27, 2014 J-A20041-14
Amy R. Smith, Executrix of the Estate of Paul A. Rowland, Deceased
-Warner 1 - We affirm.
The trial court set forth the relevant factual and procedural history in
its Opinion, which we adopt herein by reference. See Trial Court Opinion,
1/24/14, at 1-4.
and Borg-Warner, Rowland filed a timely Notice of Appeal.2
On appeal, Rowland raises the following questions for our review:
1. Did the [t]rial [c]ourt err in granting summary judgment in favor of Ford [] with respect to its liability as the apparent manufacturer of the asbestos- FOMOCO (i.e., Ford []) brand brakes and clutches at issue in
1 On October 21, 2013, the trial court entered an Order, dated October 17,
ion for Summary Judgment based on Eckenrod v. GAF Corp., 544 A.2d 50 (Pa. Super. 1988), and Gregg v. V-J Auto Parts, 943 A.2d 216 (Pa. 2007). On October 22, 2013, the trial court entered an Order, dated October 17, 2013, granting Borg- for Summary Judgment Based on No Liability of Borg & Beck, Company,
the proper entry dates for these Orders. 2 In this multi- granting summary judgment in favor of Ford and Borg-Warner did not become final and appealable until October 30, 2013, when the trial court
entered a notation on the docket indicating that the case was closed. Thus,
appeal.
-2- J-A20041-14
-
trademark by a wholly[-]owned subsidiary of Ford, whose actions were dominated and controlled by Ford; (b) reasonable end-users of such products would have believed that such products were manufactured by, or under the putation as an assurance of the quality of the products; (c) Ford allowed and, indeed, required the products to be labeled
identified Ford, as opposed to its wholly[-]owned subsidiary,
had significant involvement in and exercised significant control over, the manufacture of such products?
2. Did the [t]rial [c]ourt err in granting summary judgment in favor of Borg-Warner [] with respect to its liability as the apparent manufacturer of the asbestos-
-containing products were sold under Borg- trademark by Borg- reasonable end-users of such products would have believed that such products were manufactured by, or under the control of, Borg-Warner and, accordingly, relied on Borg-
products; (c) Borg-Warner allowed the products to be labeled -Warner had significant involvement in and exercised significant control over, the manufacture of such products?
3. Did the [t]rial [c]ourt err in granting summary judgment in
its wholly[-]owned s
where: (a) these asbestos-containing products were sold -]owned subsidiary of Ford, whose actions were dominated and
over its wholly[-]owned subsidiary was such that the wholly [-]owned subsidiary operated as a mere department and the alter ego of Ford []?
-3- J-A20041-14
Brief for Appellant at 2-4.
motion for summary judgment, we view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Summary judgment is properly entered only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. Our scope of review is plenary, and our de novo.
Barnett v. SKF USA, Inc., 38 A.3d 770, 776 (Pa. 2012) (internal citation
omitted).
Initially, Rowland contends that the trial court erred by ignoring
chanic in Great Britain,
used Ford asbestos-containing brakes and clutches, dressed in Ford
that it is of no import that Ford did not manufacture or supply these
products because Ford authorized and permitted its name and trademark
(i.e., FOMOCO) to be displayed on the products, thereby causing product
tion. Id. at 18.
Rowland further contends that Ford implemented a world-wide FOMOCO
and prohibited any indication of the company or country of origin, such that
product users would not know that a particular part had been manufactured
by Ford/Britain rather than by Ford. Id. at 19, 24. Additionally, Rowland
-4- J-A20041-14
asserts that Ford retained the exclusive right to control the quality of any
product on which the FOMOCO or Ford trademarks were used, and controlled
the warnings placed on all FOMOCO products sold, including those
manufactured and sold by Ford/Britain. Id. at 22. Based on this evidence,
Rowland contends that the trial court erred by finding that Ford had little
control over the brakes and clutches manufactured by Ford/Britain, the
products. Id. at 25-26.
The trial court set forth the r
claim in its Opinion. See Trial Court Opinion, 1/24/14, at 7-10. We agree
with the reasoning of the trial court and adopt its holding with regard to this
issue. See id.
In the second claim, Rowland contends that the trial court erred by
misapprehending Borg-
asbestos-containing clutches as Borg-Warner products. Brief for Appellant
at 26. Rowland contends that disputed issues of material fact existed as to
Borg-
manufactured by Borg & Beck/Britain. Id. at 26-27. Rowland asserts that it
is of no import that Borg-Warner did not manufacture or supply the clutches
because it authorized and permitted its Borg & Beck trademark to be
-5- J-A20041-14
displayed on the clutches, thereby causing product users to use the clutches
in reliance upon Borg- Id. at 27.
Additionally, Rowland claims, Borg & Beck/Britain manufactured
clutches using Borg- chnology, specifications and methods of
manufacture. Id. at 30-31. Further, Rowland contends, Borg-Warner
retained the right to test and inspect the clutches to ensure that Borg &
Beck/Britain maintained Borg- Id. at 30, 32.
Rowland claims that the evidence presented established either that Borg-
Warner was the apparent manufacturer of the clutches, or that disputed
issues of material fact exist as to its liability as the apparent manufacturer of
the clutches. Id. at 33.
The
second claim in its Opinion. See Trial Court Opinion, 1/24/14, at 7-10. We
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