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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

agree with the reasoning of the trial court and adopt its holding with regard

to this issue. See id.

      In the third

Ford/Britain was widespread and pervasive, and that Ford/Britain is simply

an instrumentality and arm of Ford. Brief for Appellant, at 34, 35. Rowland

claims that Ford dominated and controlled al

corporate   activities,   such   that    its   separate   corporate   existence   was

meaningless.     Id. at 42, 45.           Rowland asserts that the trial court

misinterpreted the evidence and, therefore, misconstrued the relationship



                                    -6-
J-A20041-14

between Ford and Ford/Britain. Id. at 44, 45. Rowland contends that the

record evidence was more than sufficient to support a finding that

Ford/Britain was the alter ego of Ford or, at a minimum, to raise issues of

material fact regarding this issue. Id. at 46, 48.

      The t

claim in its Opinion. See Trial Court Opinion, 1/24/14, at 5-6. We agree

with the reasoning of the trial court and adopt its holding with regard to this

issue. See id.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2014




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