Rosenkeimer, A. v. A.O. Smith Corp. ( 2022 )


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  • J-A25037-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    MAXINE ROSENKEIMER AS                        :   IN THE SUPERIOR COURT OF
    EXECUTRIX OF THE ESTATE OF                   :        PENNSYLVANIA
    ARTHUR W. ROSENKEIMER, III                   :
    :
    Appellant                 :
    :
    :
    v.                               :
    :   No. 4 WDA 2021
    :
    A.O. SMITH CORPORATION, ET. AL.              :
    Appeal from the Order Entered December 1, 2020
    In the Court of Common Pleas of Allegheny County Civil Division at
    No(s): G.D. No. 19-009749
    BEFORE:      KUNSELMAN, J., KING, J., and COLINS, J.*
    MEMORANDUM BY COLINS, J.:                              FILED: JANUARY 26, 2022
    Maxine Rosenkeimer (“Plaintiff”), the executrix of the estate of Arthur
    W. Rosenkeimer, III (“Decedent”), appeals from the December 1, 2020 order
    dismissing all claims and parties in this action in which Plaintiff seeks damages
    related to Decedent’s alleged exposure to asbestos. In this appeal, Plaintiff
    challenges the August 11, 2020 order of the trial court granting the summary
    judgment      motion      of    Appellee       Vanadium   Enterprises   Corporation
    (“Vanadium”); the trial court concluded that the record lacked sufficient
    evidence to support a finding that Vanadium was liable as a successor to
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-A25037-21
    Decedent’s former employers, Schneider, Inc. and one of its subsidiaries,
    Pittsburgh Mechanical Systems, Inc. (“Pittsburgh Mechanical”). We affirm.1
    Decedent worked for Schneider, Inc. and Pittsburgh Mechanical as a
    union steamfitter on various jobs between 1970 and 1980. Vanadium Motion
    for Summary Judgment Based on Lack of Successor Liability (“Motion”),
    Exhibit 4 (Decedent’s affidavit and employment records). According to his
    complaint, Decedent was diagnosed with mesothelioma in March 2018. On
    July 11, 2019, he initiated this action against various entities who allegedly
    exposed him to asbestos. Vanadium was named as one of the defendants in
    this lawsuit, while Schneider, Inc. and Pittsburgh Mechanical were not.
    Decedent died on January 11, 2021. Plaintiff, Decedent’s daughter and the
    executrix of his estate, filed an application to be substituted as a party in this
    appeal, which this Court granted.                The caption has been amended
    appropriately. For ease of discussion, we will refer to Plaintiff as the party of
    interest with respect to all filings in the trial court and this Court.
    ____________________________________________
    1 This matter and Kelly Smith, Executrix of the Estate of Daniel R.
    Harrity, deceased v. A.O. Smith Corporation, et al., No. 3 WDA 2021, are
    two related appeals from orders of the Court of Common Pleas of Allegheny
    County granting summary judgment in favor of Vanadium based upon a lack
    of successor liability with respect to asbestos-exposure claims brought by
    former employees of Schneider, Inc. and Pittsburgh Mechanical. While the
    plaintiffs, decedents, and their exact dates of employment with Schneider,
    Inc. and Pittsburgh Mechanical differ in the two cases, the summary judgment
    motion, the trial court’s orders and reasoning, and the appellate issues are
    identical in these two matters.
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    Decedent’s employers, Schneider, Inc. and Pittsburgh Mechanical, were
    two of approximately 40 corporate entities founded by Frank Schneider that
    we refer to collectively in this memorandum as the “Schneider Companies.”
    Over time, various Schneider Companies ceased operations or experienced
    financial difficulties, and the assets of the remaining four operational
    Schneider Companies were sold in 1990 to Vanadium.            The question of
    Vanadium’s potential successor liability for the obligations of the four
    Schneider Companies whose assets it purchased was the subject of a prior
    lawsuit brought by Continental Insurance Company (“Continental Insurance”)
    in the trial court. This earlier litigation ultimately produced opinions both of
    this Court, Continental Insurance Co. v. Schneider, Inc., 
    810 A.2d 127
    ,
    130 (Pa. Super. 2002), and our Supreme Court, Continental Insurance Co.
    v. Schneider, Inc., 
    873 A.2d 1286
     (Pa. 2005).2 Plaintiff’s principal argument
    on appeal is that our reversal of the summary judgment grant in favor of
    Vanadium in Continental I is binding precedent that requires us to also
    reverse the grant of summary judgment here.
    In Continental II, our Supreme Court explained the events that led to
    Vanadium’s purchase of the assets of the four Schneider Companies as
    follows:
    ____________________________________________
    2  In this memorandum, we refer to our 2002 opinion as “Continental I,” our
    Supreme Court’s 2005 opinion as “Continental II,” and we refer to the earlier
    litigation generally as “Continental.”
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    J-A25037-21
    During the mid-to-late 1980s, the Schneider Companies fell upon
    severe financial difficulties, such that by 1989, they had
    accumulated $35 million in debt to their three secured creditors,
    Pittsburgh National Bank (now PNC Bank), Mellon Bank and
    Equitable Bank (now National City Bank) (collectively, the
    “Banks”), who held blanket security interests in virtually all of the
    assets of the companies. As a result, Schneider, in coordination
    with the Banks, began shutting down or selling off most of the
    Schneider Companies. By April of 1990, only four of the Schneider
    Companies were still conducting any business and after May of
    1990, even those four were nothing more than empty shells.
    873 A.2d at 1288 (footnote omitted).
    The four Schneider Companies that were still operating in 1990 and
    whose assets were sold to Vanadium were Schneider Engineers, Schneider
    Services International, Inc. (“SSI”), Jones-Krall, Inc. (“Jones-Krall”), and
    Construction Rental and Supply (“CRS”). Continental I, 
    810 A.2d at 130
    . In
    early 1990, Schneider delivered all of the non-real estate assets of Schneider
    Engineers, SSI, Jones-Krall, and CRS to its secured creditors, the Banks.
    Continental II, 873 A.2d at 1288. The Banks sold the assets of these four
    companies to Vanadium for $15 million at a consensual private foreclosure
    sale, pursuant to Section 9–504 of the Uniform Commercial Code (“UCC”).3
    Id. In the transaction, Vanadium served as a holding company for four of its
    subsidiaries which individually purchased the assets of Schneider Engineers,
    SSI, Jones-Krall, and CRS.4 Id. at 1288 & n.3. Neither Vanadium nor its
    ____________________________________________
    3   13 Pa.C.S. § 9504.
    4 These four Vanadium subsidiaries—S.E. Technologies, Inc., Construction
    Rental and Supply, Inc., Jones Krall, Inc. and S.S.I. Services, Inc.—were given
    nearly identical names to the Schneider Companies whose assets were
    purchased. Continental II, 873 A.2d at 1288 & n.3.
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    J-A25037-21
    subsidiaries assumed any of the obligations of the four Schneider Companies.
    Continental I, 
    810 A.2d at 130
    .
    The four Schneider Companies whose assets were purchased by
    Vanadium were involved in distinct lines of business: Schneider Engineers
    was an engineering design firm, SSI performed facility and property
    management services, Jones-Krall was an electrical contractor, and CRS was
    an equipment rental company.          Motion, Exhibit 16 (Matthew Schneider
    Deposition), at 40-41, 117-18. These lines of business continued at the four
    Vanadium subsidiaries after the asset sale. Id. at 98. By contrast, Vanadium
    did not purchase any assets related to the plumbing and mechanical
    contracting work Decedent was engaged in at Schneider, Inc. and Pittsburgh
    Mechanical. Id. at 38, 115-18.
    In addition to its operational role as a plumbing and mechanical
    contractor, Schneider, Inc. also was a holding company and parent of Jones-
    Krall and, through another subsidiary, SSI. Plaintiff’s Response in Opposition
    to Vanadium’s Motion for Summary Judgment Based on Lack of Successor
    Liability   (“Response”),   Exhibit   D   (Organization   Chart   of   Schneider
    Companies); Motion, Exhibits 12-13 (Jones-Krall and SSI Asset Sale
    Agreements).     However, Schneider, Inc.’s own assets were not sold to
    Vanadium, and the company had not dissolved as of the date of the summary
    judgment motion. Motion, Exhibit 16, at 135; id., Exhibit 15 (Pennsylvania
    Department of State Business Document Search Report).
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    J-A25037-21
    Vanadium was formed by managers at the four Schneider Companies
    whose assets it purchased.     Motion, Exhibit 16, at 31, 37, 55-62, 65-66.
    Neither of the shareholders of Schneider, Inc.—Frank Schneider and his
    brother, Edward Schneider—ever had an ownership interest in Vanadium or
    its subsidiaries. Id. at 69, 131, 133-34, 172. Frank Schneider did, however,
    later come to work for one of the Vanadium subsidiaries until his death in
    2002.     Id. at 25, 108-10.   In addition, Frank’s son, Matthew Schneider,
    borrowed $2.05 million from his parents at the time of the 1990 asset sale,
    and he invested the money in Vanadium through a company he formed,
    Capital Diverse Venture Corporation. Id. at 30-32, 68-69, 81, 106-107. At
    first, Matthew was a passive investor in Vanadium holding non-voting stock,
    but he ultimately became the president and chief executive officer and sole
    voting shareholder of Vanadium in 1995. Id. at 71, 84-85, 87. Matthew,
    however, had very limited work experience at only one of the Schneider
    Companies (CRS) prior to his investment in Vanadium and none at Schneider,
    Inc. or Pittsburgh Mechanical; furthermore, Matthew never worked in the
    plumbing and mechanical contracting business. Id. at 103-104, 123-24.
    In the present matter, Vanadium filed a motion for summary judgment
    on February 28, 2020, in which it asserted that it lacked successor liability for
    Schneider, Inc. and Pittsburgh Mechanical. On August 11, 2020, after oral
    argument, the trial court entered an order granting summary judgment in
    favor of Vanadium and dismissing all claims against Vanadium.            Plaintiff
    ultimately settled with or discontinued litigation against all remaining parties,
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    J-A25037-21
    and on December 1, 2020, the trial court entered an order disposing of all
    outstanding claims and parties to the lawsuit. Plaintiff filed a timely notice of
    appeal, citing her objection to the earlier grant of summary judgment in favor
    of Vanadium.
    On May 28, 2021, the trial court filed an opinion explaining its reasons
    for granting summary judgment.5 In its opinion, the trial court concluded that
    the evidence of record showed that none of the elements of the de facto
    merger standard were met because (i) Frank Schneider and his brother
    Edward never held an ownership interest in Vanadium; (ii) the only continuity
    of management was that Frank Schneider was an employee for one of
    Vanadium’s subsidiaries; (iii) Schneider, Inc. has not dissolved; and (iv) the
    liabilities of Schneider, Inc. and Pittsburgh Mechanical were not assumed by
    Vanadium or its subsidiaries. Trial Court Opinion, 5/28/21, at 8; see also
    Fizzano Brothers Concrete Products, Inc. v. XLN, Inc., 
    42 A.3d 951
    , 962
    (Pa. 2012) (listing four prongs of de facto merger test). While recognizing
    that Matthew Schneider had borrowed funds from his father to invest in
    Vanadium, the court noted that the source of funds for an investment is not a
    factor in the de facto merger standard and further that Matthew had no
    interest in or relationship with Schneider, Inc. or Pittsburgh Mechanical. Trial
    Court Opinion, 5/28/21, at 8-9. The trial court further concluded that, while
    ____________________________________________
    5 The trial court did not order Plaintiff to file a concise statement of errors
    complained of on appeal pursuant to Pa.R.A.P. 1925(b).
    -7-
    J-A25037-21
    the Schneider Companies were related and had business dealings with each
    other, they were not a single entity, and in any event, inter-billing between
    the Schneider Companies shows that corporate formalities between the
    various entities were observed. Id. at 9.
    The trial court additionally found that there was insufficient evidence
    that Vanadium was a “mere continuation” of Schneider, Inc. and Pittsburgh
    Mechanical because Vanadium was engaged in distinct lines of business as
    those two companies. Id. at 11-12. The court concluded that, although two
    of the four Schneider Companies that Vanadium purchased were Schneider,
    Inc. subsidiaries, none of Schneider, Inc.’s assets itself were sold to
    Vanadium, and Schneider, Inc. continues to exist. Id. The trial court found
    that the “mere continuation” argument “might be viable if [Decedent] had
    worked specifically for one of the four companies whose assets were
    purchased” by Vanadium, but there was no genuine issue of material fact as
    to whether Vanadium was a continuation of the plumbing and mechanical
    contracting business of Schneider, Inc. or Pittsburgh Mechanical. Id. at 11.
    Plaintiff presents the following issue for our review:
    Whether the trial court erred when it determined that there was
    no genuine issue as to any material fact in relation to whether
    Vanadium [] was the corporate successor to Schneider, Inc. and
    that Vanadium [] was entitled to a judgment as a matter of law in
    relation to Plaintiff[’s] claims against it.
    Plaintiff’s Brief at 4. Plaintiff focuses on two primary arguments in this appeal.
    First, Plaintiff argues that the trial court and this Court are bound by our
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    holding in Continental I that there was a genuine issue of material fact as to
    whether Vanadium had successor liability based upon its purchase of assets
    of four of the Schneider Companies. In addition, Plaintiff argues that the trial
    court erred when it refused to consider the deposition taken of Frank
    Schneider during the Continental litigation prior to his death in 2002.
    Our review of the trial court’s grant of summary judgment is guided by
    the following considerations.   “[S]ummary judgment is appropriate only in
    those cases where the record clearly demonstrates that there is no genuine
    issue of material fact and that the moving party is entitled to judgment as a
    matter of law.” In re Risperdal Litigation, 
    223 A.3d 633
    , 639 (Pa. 2019)
    (citation omitted). Under our Rules of Civil Procedure, “a record that supports
    summary judgment will either (1) show the material facts are undisputed or
    (2) contain insufficient evidence of facts to make out a prima facie cause of
    action or defense and, therefore, there is no issue to be submitted to the jury.”
    Cigna Corp. v. Executive Risk Indemnity, Inc., 
    111 A.3d 204
    , 210-11 (Pa.
    Super. 2015) (citation omitted); see also Pa.R.Civ.P. 1035.2.
    “When considering a motion for summary judgment, the trial court must
    take all facts of record and reasonable inferences therefrom in a light most
    favorable to the non-moving party and must resolve all doubts as to the
    existence of a genuine issue of material fact against the moving party.” Maas
    v. UPMC Presbyterian Shadyside, 
    234 A.3d 427
    , 436 (Pa. 2020). Thus,
    the trial court may only grant summary judgment “where the right to such
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    judgment is clear and free from all doubt.” Risperdal Litigation, 223 A.3d
    at 639 (citation omitted).
    On appellate review, . . . an appellate court may reverse a grant
    of summary judgment if there has been an error of law or an
    abuse of discretion. But the issue as to whether there are no
    genuine issues as to any material fact presents a question of law,
    and therefore, on that question our standard of review is de novo.
    This means we need not defer to the determinations made by the
    [trial court].
    Summers v. Certainteed Corp., 
    997 A.2d 1152
    , 1159 (Pa. 2010) (citation
    omitted).
    In Pennsylvania, it is a “general principle of corporation law that a
    purchaser of a corporation’s assets does not, for such reason alone, assume
    the debts of the selling corporation, unlike a purchaser of the corporation’s
    stock.”   Fizzano Brothers, 42 A.3d at 954.        However, exceptions to this
    general rule against successor liability have been recognized where:
    (1) the purchaser expressly or implicitly agreed to assume
    liability, (2) the transaction amounted to a consolidation or [a de
    facto] merger, (3) the purchasing corporation was merely a
    continuation of the selling corporation, (4) the transaction was
    fraudulently entered into to escape liability, or (5) the transfer was
    without adequate consideration and no provisions were made for
    creditors of the selling corporation.
    Id. at 954 n.2 (quoting Continental II, 873 A.2d at 129).
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    J-A25037-21
    Of the five exceptions to the general rule against successor liability, only
    the “de facto merger” and “mere continuation” exceptions are at issue here.6
    With respect to the “de facto merger” exception,
    For a de facto merger to occur, there must be continuity of the
    successor and predecessor corporation as evidenced by (1)
    continuity of ownership; (2) a cessation of ordinary business and
    dissolution of the predecessor as soon as practically and legally
    possible; (3) assumption by the successor of the liabilities
    ordinarily necessary for the uninterrupted continuation of the
    business of the predecessor, and (4) a continuity of management,
    personnel, physical location, aspects, and general business
    operation.
    Fizzano Brothers, 42 A.3d at 962 (citation omitted). “[T]he elements of the
    de facto merger are not a mechanically-applied checklist, but a map to guide
    a reviewing court to a determination that, under the facts established, for all
    intents and purposes, a merger has or has not occurred between two or more
    corporations, although not accomplished under the statutory procedure.” Id.
    at 969.
    ____________________________________________
    6 As Vanadium points out in its brief, in 1988, the General Assembly enacted
    Section 1904 of the Business Corporation Law, which “abolished” the “doctrine
    of de facto mergers, consolidations and other fundamental transactions.” See
    15 Pa.C.S. § 1904. However, no Pennsylvania state court has ever interpreted
    this statute, let alone found that the statute abolishes the de facto merger or
    mere continuation exceptions to the general rule against successor liability.
    Indeed, as recently as 2012, our Supreme Court in Fizzano Brothers
    recognized the continued existence of the de facto merger and mere
    continuation exceptions. In light of our affirmance of the trial court’s grant of
    summary judgment here, we need not address what effect, if any, Section
    1904 has on the successor liability exceptions.
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    The ”mere continuation” exception to the general rule against successor
    liability is often treated “identically” to and is “difficult to distinguish” from the
    de facto merger exception.       Id. at 963 n.13 (quoting Commonwealth v.
    Lavelle, 
    555 A.2d 218
    , 227 (Pa. Super. 1989) (en banc)). We have stated
    that “[i]n a [mere] continuation, a new corporation is formed to acquire the
    assets of an extant corporation, which then ceases to exist.” Lavelle, 555
    A.2d at 227 (citation omitted). “There is in effect but one corporation which
    merely changes its form and ordinarily ceases to exist upon the creation of
    the new corporation which is its successor.”         Id. (citation omitted).    “The
    primary elements of the continuation exception are identity of the officers,
    directors, or shareholders, and the existence of a single corporation following
    the transfer.” Continental I, 
    810 A.2d at 134-35
    .
    Plaintiff first argues that the trial court erred in ignoring this Court’s
    determination in Continental I that there was a genuine issue of material
    fact whether Vanadium was liable for the obligations of the Schneider
    Companies under a successor liability theory. Plaintiff contends that the only
    operative difference between this case and Continental is that Continental
    Insurance was seeking relief from Vanadium and its four subsidiaries, whereas
    here Plaintiff is seeking to impose liability solely on Vanadium. Plaintiff argues
    that this Court’s prior conclusion that there remained unresolved issues of fact
    as to whether Vanadium was liable under the de facto merger or mere
    continuation exceptions remains good law and is controlling in the present
    litigation.   Furthermore, Plaintiff asserts that the trial court’s attempt to
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    distinguish Continental I on the basis that Schneider, Inc. was dismissed
    from the case was unavailing as Schneider, Inc. is not a party to the present
    matter either and the pertinent issue in both matters is the same: whether
    Vanadium is the corporate successor to the Schneider Companies.
    The Continental case arose when Continental Insurance, the general
    liability, automobile, and workers’ compensation insurance carrier for the
    Schneider Companies prior to the asset sale, brought suit to recover $12
    million in premiums that it claimed had never been paid. Continental I, 
    810 A.2d at 129-30
    .      Continental Insurance named Vanadium and its four
    subsidiaries as parties to the suit, alleging that they were liable as successors
    to Schneider Engineers, SSI, Jones-Krall, and CRS. 
    Id. at 129-30
    . The trial
    court entered summary judgment in favor of Vanadium concluding that the
    doctrine of successor liability should not operate to defeat the public policy
    favoring the interests of secured creditors—the Banks that arranged the
    foreclosure sale to Vanadium—over that of a general creditor—Continental
    Insurance. 
    Id.
     Subsequent to the trial court’s ruling, judgment was entered
    by consent against all the remaining Schneider defendants, including
    Schneider, Inc., and the only remaining defendants in the case were Vanadium
    and its four subsidiaries. 
    Id.
     at 129 & n.1.
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    This Court held on appeal that a secured creditor’s disposition of a
    debtor company’s assets under Section 9-504 of the UCC7 does not preclude
    a general creditor from later seeking recovery from the purchaser of the assets
    under the successor liability doctrine. 
    Id. at 132-33
    . We then proceeded to
    hold that the trial court erred in granting summary judgment on the successor
    liability issue, concluding that there remained genuine issues of material fact
    as to whether Vanadium was the successor of the four Schneider Companies
    it purchased. 
    Id. at 135-36
    . In particular, this Court noted that there was a
    genuine dispute regarding the continuity of ownership and control of
    Schneider Engineers, SSI, Jones-Krall, and CRS and whether the Vanadium
    companies served the same clients, had the same employees, and occupied
    the same offices as the former Schneider Companies. 
    Id. at 135
    .
    Our Supreme Court granted allocatur on the issue of whether a
    successor liability claim is viable following a sale of the debtor’s assets
    pursuant to Section 9-504. Continental II, 873 A.2d at 1287. The Supreme
    Court affirmed this Court’s conclusion that “a UCC foreclosure sale does not
    extinguish potential successor liability claims.” Id. at 1292-94. The Supreme
    Court noted that Vanadium requested that it consider whether Continental
    Insurance had raised a genuine issue of material fact as to successor liability,
    ____________________________________________
    7Section 9-504 of the UCC was amended in 2001 and the relevant provisions
    were re-enacted in substantial part at Sections 9-610 and 9-611 of the UCC.
    See 13 Pa.C.S. §§ 9610, 9611; Continental I, 
    810 A.2d at
    131 n.2.
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    but the Court did not reach the summary judgment ruling as allocatur was not
    granted on the issue. 
    Id.
     at 1294 n.11.
    Here, the trial court concluded that the summary judgment ruling of
    Continental I is inapplicable to the present case because Decedent’s
    employers, Schneider, Inc. and Pittsburgh Mechanical, were not parties to the
    Continental matter at the time of the appeal to this Court and therefore the
    issues and arguments pertaining to those two entities were not raised. Trial
    Court Opinion, 5/28/21, at 5.           The trial court further observed that the
    ultimate question of whether Vanadium and its subsidiaries had successor
    liability in the Continental litigation was not resolved as the case was settled
    prior to the trial court’s resolution of the issue.8 
    Id.
     “Most importantly,” the
    trial court stated, Continental I is not binding in this matter because ”for
    purposes of summary judgment each case must be decided based on the
    record in that particular case.” 
    Id.
    Upon review, we agree with the trial court that the determination in
    Continental I that there was a triable issue of fact as to successor liability
    does not dictate the resolution of the summary judgment motion in the
    present matter. Both this Court and the trial court are bound by “existing
    ____________________________________________
    8 A review of the docket in the Continental matter reveals that the case was
    settled in 2006 shortly after the matter was remanded to the trial court. See
    https://dcr.alleghenycounty.us/Civil/View/PublicSearchByCaseNumber.aspx?
    CasID=GD-92-009392 (last visited December 17, 2021); see also Deyarmin
    v. Consolidated Rail Corp., 
    931 A.2d 1
    , 5 n.6 (Pa. Super. 2007) (we may
    take judicial notice of the docket of the courts of this Commonwealth).
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    J-A25037-21
    [Superior Court] precedent under the doctrine of stare decisis.” Fiedler v.
    Spencer, 
    231 A.3d 831
    , 838 (Pa. Super. 2020) (citation omitted); see also
    Sunbeam Corp. v. Liberty Mutual Insurance Co., 
    781 A.2d 1189
    , 1194
    (Pa. 2001).
    The doctrine of stare decisis maintains that for purposes of
    certainty and stability in the law, a conclusion reached in one case
    should be applied to those which follow, if the facts are
    substantially the same, even though the parties may be different.
    In this formulation the terms “conclusion” and “in the law” are
    particularly meaningful because stare decisis relates primarily to
    rules or pronouncements of law.
    In re Angeles Roca First Judicial District Philadelphia County, 
    173 A.3d 1176
    , 1187 (Pa. 2017) (internal citations and some quotation marks omitted);
    see also 20 Am. Jur. 2d Courts § 129 (“For a court to apply a precedent as
    stare decisis, there must have been a judicial opinion on a point of law.”)
    (cited in In re Roca, 173 A.3d at 1187).        Thus, our Supreme Court has
    emphasized that the doctrine of stare decisis is concerned with the stability of
    court pronouncements of law rather than the resolution of individual cases
    with different facts.   In re Roca, 173 A.3d at 1187, 1191-92 & n.10
    (concluding that judicial disciplinary sanctions imposed in prior cases do not
    have precedential value in subsequent cases).
    In Continental I, this Court reversed the trial court’s grant of summary
    judgment and found that there remained an issue of fact as to whether
    Vanadium had successor liability for the four Schneider Companies whose
    assets it had purchased. 
    810 A.2d at 135-36
    . However, our conclusion in
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    Continental I was based upon the record developed by the litigants in that
    earlier litigation.   
    Id. at 135
     (noting that this Court had “reviewed the[]
    disputed issues of fact in the context of the elements required [] to support a
    claim of successor liability”).   Summary judgment is an inherently factual
    determination made on the record created by the parties in each individual
    case. Pa.R.Civ.P. 1035.2, 1035.3; Risperdal Litigation, 223 A.3d at 639.
    Thus, a trial court must weigh each summary judgment motion on “all facts
    of record” in that particular case, Maas, 234 A.3d at 436, and may not simply
    rely on the precedential value of an earlier summary judgment ruling based
    upon the unique record developed in that earlier case.
    In addition to the fact that Continental I was decided on a different
    factual record, there is another factor that distinguishes the earlier case from
    the present litigation:      the business activities of Decedent’s employers,
    Schneider, Inc. and Pittsburgh Mechanical, were not at issue in the
    Continental litigation. Rather, Continental related to Vanadium’s alleged
    successor liability arising out of its subsidiaries’ purchases of the assets of
    Schneider Engineers, SSI, Jones-Krall, and CRS, companies that never
    employed Decedent and never engaged in the line of business in which
    Decedent was engaged. Except to the extent Vanadium purchased the assets
    of Schneider, Inc.’s two subsidiaries, Jones-Krall and SSI, Vanadium did not
    contract with or have any involvement with Schneider, Inc. or Pittsburgh
    Mechanical.    Nor did Vanadium attempt to continue Schneider, Inc. and
    Pittsburgh    Mechanical’s    plumbing   and   mechanical   contracting   work.
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    Accordingly, in light of the distinct record and factual predicate in the earlier
    Continental case, we conclude that the trial court did not err in refusing to
    give precedential effect to Continental I.9
    Plaintiff next argues that the trial court abused its discretion in not
    considering Frank Schneider’s deposition taken during the Continental
    litigation, which Plaintiff included in her response to Vanadium’s summary
    judgment motion. See Response, Exhibit A. In declining to consider Frank’s
    deposition, the trial court concluded that even though he was deceased and
    unavailable to be deposed in the present matter, it would be inappropriate to
    consider the earlier deposition because it was hearsay and “Vanadium did not
    have the same motive to develop [Frank’s] testimony” in the earlier case.
    Trial Court Opinion, 5/28/21, at 9.                The trial court explained that in
    Continental, “the parties did not distinguish between claims that lie against
    Vanadium’s successor entities as a result of business continuation, as opposed
    to [the] broader claims [at issue here] that stem[] from the prior activity of
    an entity that did not continue to operate as a Vanadium company.” Id. at
    ____________________________________________
    9 Plaintiff has not raised the issue of whether Vanadium is collaterally estopped
    from challenging successor liability as a result of this Court’s ruling in
    Continental I. However, even if properly raised, we would find the doctrine
    of collateral estoppel inapplicable. Collateral estoppel precludes a party from
    relitigating an issue addressed in a previous matter but only if “the issue
    decided in the prior case is identical to [the] one presented in the later case.”
    Weissberger v. Myers, 
    90 A.3d 730
    , 733 (Pa. Super. 2014) (citation
    omitted). As we have explained in this decision, the issue of successor liability
    in Continental I involves distinct facts as compared to the successor liability
    analysis in the present matter.
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    J-A25037-21
    9-10. The court stated that, if successor liability as to Schneider, Inc. and
    Pittsburgh Mechanical had been at issue, it would have been “expected to see
    more detailed questioning about the maintenance of corporate formalities,”
    testimony which was noticeably absent from the transcript excerpts attached
    to Plaintiff’s opposition to the summary judgment motion. Id. at 10.
    Plaintiff argues that the trial court’s attempt to distinguish this action
    from Continental is unavailing as there is no legal authority “supporting the
    proposition that a finding of successor liability based on the mere continuation
    or de facto merger doctrines would somehow be different based on the type
    of claim asserted.” Plaintiff’s Brief at 23. “Whether an action brought against
    a purported corporate successor is in tort, as here, or in contract, as in
    [Continental], successor liability analysis is the same.” Id. Plaintiff asserts
    that the successor liability issues are identical in Continental and here, and
    therefore Vanadium had the same motivation in examining Frank Schneider
    in both cases.
    “The admissibility of evidence is a matter addressed to the sound
    discretion of the trial court and should not be overturned absent an abuse of
    discretion.” Kardos v. Armstrong Pumps, Inc., 
    222 A.3d 393
    , 401 (Pa.
    Super. 2019) (citation omitted). The Pennsylvania Rules of Civil Procedure
    permit a non-movant to use hearsay in opposition to a summary judgment
    motion so long as the non-movant can demonstrate to the trial court “a
    plausible avenue for the admission at trial of the hearsay.” Id. at 402.
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    J-A25037-21
    Frank Schneider’s Continental deposition, which Plaintiff offered to
    substantively rebut Vanadium’s summary judgment motion, is undoubtedly
    hearsay.    See Pa.R.E. 801(c) (defining hearsay as a statement offered to
    prove the truth of the matter asserted that a declarant “does not make while
    testifying at the current trial or hearing”); Bugosh v. Allen Refractories
    Co., 
    932 A.2d 901
    , 911-12 (Pa. Super. 2007) (deposition of deceased
    deponent in earlier lawsuit is hearsay).           Pennsylvania Rule of Evidence
    804(b)(1) provides an exception to the rule against hearsay for former
    testimony, including deposition testimony, by an unavailable declarant that
    “is now offered against a party who had--or, in a civil case, whose predecessor
    in interest had--an opportunity and similar motive to develop it by direct,
    cross-, or redirect examination.”         Pa.R.E. 804(b)(1); see also Pa.R.Civ.P.
    4020(a) (providing for admission of deposition testimony at trial against party
    who was present or represented at the taking of deposition “so far as
    admissible under the rules of evidence”). As Frank Schneider was deceased
    at the time the instant litigation commenced, he is clearly unavailable to testify
    in this case. Pa.R.E. 804(a)(4); Bugosh, 
    932 A.2d at 911
    . However, the
    question remains whether Vanadium had a “similar motive” to examine Frank
    in his Continental deposition. Pa.R.E. 804(b)(1).10
    ____________________________________________
    10 Vanadium argues that, because the transcript of Frank Schneider’s
    Continental deposition reproduced in Plaintiff’s summary judgment
    opposition was partial and did not show the attorneys present at the
    deposition, there is no evidence that it had the “opportunity” to examine Frank
    (Footnote Continued Next Page)
    - 20 -
    J-A25037-21
    Plaintiff cited to three separate portions of Frank Schneider’s deposition
    in her response to Vanadium’s summary judgment motion. Two of the three
    relevant portions of Frank’s testimony concern his loan to Matthew to fund his
    investment in Vanadium and Frank’s employment with Vanadium after the
    1990 asset purchase, matters as to which there is no substantial factual
    disagreement between the parties. Compare Response at 7-10; 
    id.,
     Exhibit
    A (Frank Schneider Deposition) at 123-27, 130-31 with Motion, Exhibit 16, at
    30-32, 68-69, 81, 106-10.          As to the remaining issue, Plaintiff highlights
    Frank’s testimony that Schneider Inc. did not publish annual reports and that
    none of the Schneider Companies held regular board meetings, which Plaintiff
    points to as evidence showing that all of the Schneider Companies “operated
    as a single entity.” Response at 2; 
    id.,
     Exhibit A, at 177; see also Plaintiff’s
    Brief at 7.
    We conclude that the trial court did not abuse its discretion in not
    considering Frank Schneider’s testimony regarding the Schneider Companies’
    lack of adherence to corporate formalities.        The issue in the Continental
    litigation was whether Vanadium had any successor liability for the Schneider
    Companies arising from its purchase of the assets of Schneider Engineers,
    SSI, Jones-Krall, and CRS and Vanadium’s continuation of those businesses
    following the purchase.        The issue of Schneider, Inc.’s internal corporate
    ____________________________________________
    in the earlier matter. We assume for the purpose of this decision that
    Vanadium, which was a party to the Continental case and Frank’s employer
    at the time he was deposed, received adequate notice of the deposition.
    - 21 -
    J-A25037-21
    operations was at best tangential to the core issues in Continental and not
    necessary for proof of Vanadium’s successor liability in that case. Therefore,
    Vanadium lacked a “similar motive” to develop Frank’s testimony on this issue,
    and the court properly concluded that his statements may not be admitted
    through the former testimony hearsay exception.         Pa.R.E. 804(b)(1); see
    Bugosh, 
    932 A.2d at 912
     (affirming decision to prohibit the introduction of
    hearsay deposition testimony from prior case where party had no incentive to
    cross-examine witness concerning liability issues in present case).11
    More to the point, however, we agree with the trial court that even if
    Frank Schneider’s deposition testimony were considered, the record still lacks
    sufficient evidence to show a triable issue of fact as to Vanadium’s successor
    liability.   See Trial Court Opinion, 5/28/21, at 10.     It is undisputed that
    ____________________________________________
    11 Vanadium also argues that the Frank Schneider deposition should not be
    considered because Plaintiff only attached selected portions of the transcript;
    Plaintiff did not provide a copy of the full transcript in discovery; Vanadium
    does not have access to the transcript otherwise; and Vanadium is entitled to
    receipt of the entire transcript prior to its use at trial. See Pa.R.Civ.P.
    4020(a)(4) (“If only part of a deposition is offered in evidence [at trial] by a
    party, any other party may require the offering party to introduce all of it
    which is relevant to the part introduced, and any party may introduce any
    other parts.”); see also Pa.R.E. 106. We agree with Vanadium that Plaintiff’s
    apparent use of selected portions of the deposition transcript without
    providing the remainder of Frank Schneider’s testimony is concerning as Frank
    may have discussed the relevant matters in more depth or even contradicted
    the statements quoted by Plaintiff at other points during his deposition. See
    Pa.R.E. 106, Comment (“The purpose of Pa.R.E. 106 is to give the adverse
    party an opportunity to correct a misleading impression that may be created
    by the use of a part of a writing or recorded statement that may be taken out
    of context.”). However, the trial court did not rule on this issue below, and
    the appellate record does not allow us to resolve the factual question of
    whether Vanadium was or was not provided a copy of the full transcript.
    - 22 -
    J-A25037-21
    Decedent worked on jobs for Schneider, Inc. and Pittsburgh Mechanical as a
    union steamfitter performing functions in its plumbing/mechanical contracting
    business line.   It is further undisputed that Decedent never worked for
    Vanadium and that Vanadium never purchased the plumbing and mechanical
    contracting business of Schneider, Inc. or Pittsburgh Mechanical.
    In 1990, Vanadium did purchase the assets of Schneider Engineers, SSI,
    Jones-Krall, and CRS, four of the approximately forty businesses founded by
    Frank Schneider.      However, these four companies were engaged in
    engineering design, facility and property management services, electrical
    contracting, and equipment rental—distinct lines of business from the
    plumbing and mechanical contracting work of Schneider, Inc. and Pittsburgh
    Mechanical in which Decedent was engaged. Furthermore, Vanadium did not
    acquire the debts or liabilities of Schneider Engineers, SSI, Jones-Krall, CRS,
    or of any other of the Schneider Companies.
    With respect to the question of whether Schneider, Inc. and Pittsburgh
    Mechanical effectively merged into Vanadium, the trial court accurately
    determined that none of the four elements of the de facto merger analysis
    were met here. As to the first element, there was no “continuity of ownership”
    between Vanadium and Schneider, Inc. or its subsidiary Pittsburgh Mechanical
    as Schneider, Inc. was owned by Frank and Edward Schneider.           Fizzano
    Brothers, 42 A.3d at 962 (citation omitted).      Neither of these individuals
    became owners of Vanadium.          Matthew Schneider, who did invest in
    - 23 -
    J-A25037-21
    Vanadium, had no ownership interest or role at Schneider, Inc. or Pittsburgh
    Mechanical.
    Second, Schneider, Inc. and Pittsburgh Mechanical did not “ce[ase their]
    ordinary business and dissol[ve] as soon as practically and legally possible”
    following Vanadium’s purchase of the assets of the unrelated Schneider
    Companies. Id. (citation omitted). Rather, the record reveals that Schneider,
    Inc. has not dissolved and remains an active corporation as of the date of the
    present litigation.12
    Third, Vanadium did not assume the “liabilities [of Schneider, Inc. and
    Pittsburgh Mechanical] ordinarily necessary for the uninterrupted continuation
    of the business” of those two companies.           Id. (citation omitted).   Indeed,
    Vanadium did not assume the liabilities of the four Schneider Companies
    whose assets it purchased, let alone the liabilities of Schneider, Inc. and
    Pittsburgh Mechanical.
    Finally, there is virtually no evidence to show “a continuity of
    management, personnel, physical location, aspects, and general business
    operation” between Schneider, Inc./Pittsburgh Mechanical and Vanadium. Id.
    (citation omitted).      Vanadium was formed by management at Schneider
    Engineers, SSI, Jones-Krall, and CRS, none of whom were shown to have any
    role at Schneider, Inc. or Pittsburgh Mechanical.         While Vanadium brought
    over as many as 1,000 employees from Schneider Engineers, SSI, Jones-Krall,
    ____________________________________________
    12   The record is silent regarding the fate of Pittsburgh Mechanical.
    - 24 -
    J-A25037-21
    and CRS, there is no evidence that any of them had worked at Schneider, Inc.
    or Pittsburgh Mechanical, aside from Frank Schneider. Motion, Exhibit 16, at
    89, 108. Vanadium and its subsidiary businesses also never occupied any of
    the office locations of Schneider, Inc. and Pittsburgh Mechanical in Pittsburgh
    and Carnegie, Pennsylvania.        Id., Exhibit 15, Exhibit 16 at 119-23.
    Furthermore, Vanadium and its subsidiaries pursued distinct lines of business
    as compared to Schneider, Inc. and Pittsburgh Mechanical.
    Just as the “de facto merger” test was not met, the summary judgment
    record also fails to reveal sufficient evidence to support a claim of Vanadium’s
    successor liability under the “mere continuation” exception.      As explained
    above, the “mere continuation” analysis is very similar to that of the “de facto
    merger” exception and focusses on whether “a new corporation is formed to
    acquire the assets of an extant corporation” with the predecessor then ceasing
    to exist, leaving “in effect but one corporation.” Fizzano Brothers, 42 A.3d
    at 963 n.13; Lavelle, 555 A.2d at 227 (citation omitted).         “The primary
    elements of the continuation exception are identity of the officers, directors,
    or shareholders, and the existence of a single corporation following the
    transfer.” Continental I, 
    810 A.2d at 134-35
    .
    Rather than Vanadium being a continuation of Schneider, Inc. and
    Pittsburgh Mechanical, the record reveals a quite different picture. Schneider,
    Inc. and Pittsburgh Mechanical had no common officers, directors, or
    shareholders with Vanadium or its subsidiaries that absorbed the assets of
    Schneider Engineers, SSI, Jones-Krall, and CRS. Furthermore, there is no
    - 25 -
    J-A25037-21
    evidence that Schneider, Inc. or Pittsburgh Mechanical ceased to exist after
    the 1990 asset purchase and the only evidence submitted by the parties
    indicates that Schneider, Inc. remains an active corporation to this day. The
    record thus shows that Vanadium was solely a continuation of Schneider
    Engineers, SSI, Jones-Krall, and CRS and not of Schneider, Inc. or Pittsburgh
    Mechanical.
    In arguing that there was a triable issue of fact regarding Vanadium’s
    successor liability for Schneider, Inc. and Pittsburgh Mechanical, Plaintiff
    stresses two factors: Matthew Schneider’s investment of over $2 million in
    Vanadium with funds borrowed from his parents and the purported
    intermingling of operations among the various Schneider Companies. As the
    trial court aptly surmised, however, “the source of funds to purchase assets
    is not part of the test for de facto merger/mere continuation.” Trial Court
    Opinion, 5/28/21, at 8. Nothing in the record reflects anything other than
    that Matthew’s loan from his parents was an arm’s length’s transaction, which
    Matthew repaid with interest according to the terms of the loan. Response,
    Exhibit A at 125-26; Motion, Exhibit 16, at 106-07. While Plaintiff attempts
    to connect this loan to Frank Schneider’s employment at Vanadium, there is
    no indication that Matthew ran Vanadium at the behest of his father or that
    Frank otherwise exerted control over Vanadium through his loan to Matthew.13
    ____________________________________________
    13 We note that Plaintiff has not asserted the fraud exception to the general
    rule against successor liability by arguing that Matthew’s investment in
    (Footnote Continued Next Page)
    - 26 -
    J-A25037-21
    Plaintiff also falls short of showing that Vanadium inherited the liabilities
    of Decedent’s former employers, Schneider, Inc. and Pittsburgh Mechanical,
    based upon the Schneider Companies’ purported failure to adhere to corporate
    formalities and intermingling of operations. Without saying as much, Plaintiff
    appears to be arguing that the trial court should have pierced the corporate
    veil of the various Schneider Companies and found that Frank Schneider
    operated the various constituent companies as a single business enterprise as
    to which Vanadium is the successor in liability. However, Plaintiff’s complaint
    does not contain allegations that would substantiate a veil piercing claim. See
    Lumax Industries, Inc. v. Aultman, 
    669 A.2d 893
    , 895 (Pa. 1995)
    (providing that a plaintiff must “set out material, relevant, well-pleaded facts”
    to recover under a veil piercing theory). Instead, Plaintiff’s arguments are
    largely based on references to the “Schneider Group” or simply “Schneider”
    even when the conduct at issue is attributable to specific Schneider
    Companies, eliding the distinction between the four companies whose assets
    Vanadium purchased—Schneider Engineers, SSI, Jones-Krall, and CRS—and
    Decedent’s employers—Schneider, Inc. and Pittsburgh Mechanical. See, e.g.,
    ____________________________________________
    Vanadium was a sham transaction to create the appearance of a change of
    ownership of the Schneider Companies to avoid liabilities. See Fizzano
    Brothers, 42 A.3d at 954 n.2 (stating that fraud exception is met where “the
    transaction was fraudulently entered into to escape liability”) (citation
    omitted). The record here plainly would not support a finding that the 1990
    asset sale was fraudulent. Cf. Continental I, 
    810 A.2d at
    136 n.6 (agreeing
    with trial court that Continental Insurance could not recover from Vanadium
    under the fraud exception to the rule against successor liability).
    - 27 -
    J-A25037-21
    Plaintiff’s Brief at 24; Response at 7; see also Trial Court Opinion, 5/28/21,
    at 10 (“Plaintiff’s defense of the Motion for Summary Judgment cannot be
    based on the careless application of terms and labels.”).
    Furthermore, Plaintiff has failed to produce evidence to overcome the
    “strong presumption in Pennsylvania against piercing the corporate veil.”
    Mortimer v. McCool, 
    255 A.3d 261
    , 268 (Pa. 2021) (quoting Lumax, 669
    A.2d at 895).      As our Supreme Court has explained, the “distribut[ion] of
    related businesses across multiple corporate entities to secure liability
    protection and legal advantage” is not by itself cause for piercing the corporate
    veil. Id. at 283. Instead, veil-piercing cases “typically involve truly egregious
    misconduct” where the corporate form is abused to such a degree that
    “adherence to the corporate fiction under the circumstances would sanction
    fraud or promote injustice.” Id. at 283, 287 (citation omitted). While the
    record here contains evidence that the Schneider Companies disregarded
    some corporate formalities, such as by not holding regular board meetings,
    and shared some overlapping officers and a 401(k) plan,14 Plaintiff has fallen
    far short of showing “such unity of interest and ownership that the separate
    personalities of the [individual Schneider Companies] no longer exist[ed].”
    Id. at 286-87 (citation omitted).
    ____________________________________________
    14See Response, Exhibit A at 177, Exhibit H (Paul Fallert Deposition) at 12,
    146-47.
    - 28 -
    J-A25037-21
    Accordingly, we conclude that the trial court did not err in determining
    that the record lacked sufficient evidence of facts to make out a prima facie
    claim that Vanadium was liable under a theory of successor liability for the
    acts of Decedent’s former employers, Schneider, Inc. and Pittsburgh
    Mechanical. Pa.R.Civ.P. 1035.2; Cigna, 111 A.3d at 210-11. We therefore
    affirm the order granting summary judgment in favor of Vanadium
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 01/26/2022
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