Markovsky, J. v. Crown Cork & Seal Co.

J-A17039-14

2014 PA Super 282

JAMES C. MARKOVSKY, EXECUTOR OF IN THE SUPERIOR COURT OF

THE ESTATE OF JAMES MARKOVSKY, PENNSYLVANIA

DECEASED

Appellant

v.

CROWN CORK & SEAL CO.,

PENN CENTRAL CORPORATION AND

CONSOLIDATED RAIL CORPORATION

Appellee No. 2755 EDA 2013

Appeal from the Order of September 11, 2013

In the Court of Common Pleas of Philadelphia County

Civil Division at No: 0451

BEFORE: GANTMAN, P.J., PANELLA, and STABILE, JJ.

OPINION BY STABILE, J.: FILED DECEMBER 22, 2014

Appellant James C. Markovsky, Executor of the Estate of James

Markovsky, deceased, appeals from the September 11, 2013 order of the

Court of Common Pleas of Philadelphia County, which granted summary

judgment in favor of Appellee Crown Cork & Seal Co.1 For the reasons set

forth below, we affirm.

____________________________________________

1

By per curiam order dated November 22, 2012, we granted Appellant’s

petition to discontinue this appeal as to Appellees American Premier

Underwriters, a/k/a Penn Central Corporation, and Consolidated Rail

Corporation.

J-A17039-14

I. BACKGROUND

On October 6, 2011, Appellant James Markovsky, now deceased, filed

a complaint against, inter alia, Appellee alleging he contracted mesothelioma

“caused by exposure to the asbestos products of Mundet,” Appellee’s

predecessor-in-interest. Complaint, 10/06/11, at ¶¶ 10ad, 13. Specifically,

Appellant alleged “he was exposed to asbestos fiber or asbestos products

manufactured, sold, distributed, or otherwise placed into the stream of

commerce by [Appellee].” Id. at ¶ 11.

On June 25, 2013, Appellee moved for summary judgment against

Appellant on the basis of, inter alia, 15 Pa.C.S.A. § 1929.1 (Section 1929.1),

Act of December 17, 2001, P.L. 904, No. 101 (Act 101 of 2001 or Act 101),

which in part provides:

(a) Limitation on successor asbestos-related liabilities.--

(1) Except as further limited in paragraph (2), the cumulative

successor asbestos-related liabilities of a domestic business

corporation that was incorporated in this Commonwealth prior to

May 1, 2001, shall be limited to the fair market value of the total

assets of the transferor determined as of the time of the merger

or consolidation, and such corporation shall have no

responsibility for successor asbestos-related liabilities in excess

of such limitation.

(2) If the transferor had assumed or incurred successor

asbestos-related liabilities in connection with a prior merger or

consolidation with a prior transferor, then the fair market value

of the total assets of the prior transferor, determined as of the

time of such earlier merger or consolidation, shall be substituted

for the limitation set forth in paragraph (1) for purposes of

determining the limitation of liability of a domestic business

corporation.

....

-2-

J-A17039-14

(d) Application.--

(1) The limitations set forth in subsections (a) and (b) shall

apply to mergers or consolidations effected under the laws of

this Commonwealth or another jurisdiction consummated prior to

May 1, 2001.

(2) The limitations set forth in subsections (a) and (b) shall

apply to all asbestos claims, including existing asbestos claims,

and all litigation, including existing litigation, and shall apply to

successors of a domestic business corporation to which this

section applies.

(3) The limitations set forth in subsections (a) and (b) shall not

apply to workers’ compensation benefits paid by or on behalf of

an employer to an employee pursuant to the act of June 2, 1915

(P.L. 736, No. 338), known as the Workers’ Compensation Act,

or comparable workers’ compensation law of another

jurisdiction.

(4) The limitations set forth in subsections (a) and (b) shall not

apply to any claim against a domestic business corporation that

does not constitute a successor asbestos-related liability.

(5) This section shall not apply to an insurance corporation as

defined in section 3102 (relating to definitions).

(6) The limitations set forth in subsections (a) and (b) shall not

apply to any obligations arising under the National Labor

Relations Act (49 Stat. 449, 29 U.S.C. § 151 et seq.) or under

any collective bargaining agreement.

(e) Definitions.--As used in this section, the following words

and phrases shall have the meanings given to them in this

subsection:

....

“Successor asbestos-related liabilities.” Any liabilities, whether

known or unknown, asserted or unasserted, absolute or

contingent, accrued or unaccrued, liquidated or unliquidated or

due or to become due, related in any way to asbestos claims,

that were assumed or incurred by a domestic business

corporation or foreign business corporation as a result of or in

connection with a merger or consolidation, or the plan of merger

or consolidation related thereto, with or into another domestic

business corporation or foreign business corporation effected

under the laws of this Commonwealth or another jurisdiction or

which are related in any way to asbestos claims based on the

exercise of control or the ownership of stock of such corporation

prior to such merger or consolidation. The term shall also include

liabilities which, after the time of the merger or consolidation as

to which the fair market value of total assets is determined for

purposes of subsections (a) and (b), were or are paid or

otherwise discharged, or committed to be paid or otherwise

discharged, by or on behalf of the corporation, or by or on behalf

of a transferor, in connection with settlements, judgments or

other discharges in this Commonwealth or another jurisdiction.

-3-

J-A17039-14

“Transferor.” A domestic business corporation or foreign

business corporation from which successor asbestos-related

liabilities are assumed or incurred.

15 Pa.C.S.A. § 1929.1(a),(d) and (e).

In Johnson v. Am. Standard, 966 A.2d 573 (Pa. Super. 2009), in

explaining the purpose of Section 1929.1, this Court remarked:

[Section 1929.1] limits the asbestos-related liability of

Pennsylvania corporations when that liability arises from a

merger or consolidation. In general, [Section 1929.1] caps the

successor corporation’s asbestos-related liability at the fair

market value of the prior company as of the time of the merger

or consolidation. . . .

Id. at 576 (cited only for background purposes), rev'd on other grounds,

8 A.3d 318 (Pa. 2010).

On July 12, 2013, Appellant filed a response to Appellee’s summary

judgment motion. In its response, Appellant argued, inter alia, that Section

1929.1 was unconstitutional because it violated Article III, Section 32 of the

Pennsylvania Constitution, the dormant Commerce Clause under the United

States Constitution, and the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution.2 Additionally, Appellant

argued the manner in which legislation containing Section 1929.1 was

enacted was constitutionally flawed. Specifically, Appellant challenged the

legislation on the basis of Article III, Sections 1 (original purpose) and 3

(single subject) of the Pennsylvania Constitution.

____________________________________________

2

In Johnson v. Am. Standard, 8 A.3d 318 (Pa. 2010), the Supreme Court

held individual plaintiffs had standing to challenge Section 1929.1 on the

basis of the Equal Protection and dormant Commerce Clauses. Id. at 333-

34.

-4-

J-A17039-14

On July 17, 2013, Appellee filed a reply to Appellant’s response to the

summary judgment motion, specifically contesting Appellant’s constitutional

arguments. On September 11, 2013, the trial court issued an order granting

Appellee’s summary judgment motion as a matter of law. Appellant filed a

timely appeal to this Court. Although the trial court did not order Appellant

to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, it

issued an opinion on January 8, 2014 in support of its order granting

Appellee’s summary judgment motion. In its opinion, the trial court

dismissed Appellant’s constitutional arguments as unpersuasive.3 Before

addressing the constitutional arguments, however, the trial court noted it

granted summary judgment in favor of Appellee on the basis that Appellee

was protected from liability under Section 1929.1. Specifically, the trial

court found “[Appellant] acknowledges [Section 1929.1], on its face, would

bar [its] claims against [Appellee]. There is no dispute [Appellee] has paid

hundreds of millions of dollars on asbestos claims pertaining to Mundet

products, and there is no dispute this amount far exceeds Mundet’s value at

the time it merged into [Appellee].” Trial Court Opinion, 1/8/14, at 2.

____________________________________________

3

The trial court, in part, relied on Judge Alan Tereshko’s ruling in a prior

asbestos-related case to dismiss Appellant’s constitutional arguments. Trial

Court Opinion, 1/8/14 at 3-4. Specifically, the trial court relied upon In re

Asbestos Litig., 59 Pa. D. & C. 4th 62, 2002 WL 130599 (Phila. Com. Pl.

2002), rev’d and remanded on other grounds sub nom., Ieropoli v.

AC&S Corp., 842 A.2d 919 (Pa. 2004).

-5-

J-A17039-14

Addressing Appellant’s dormant Commerce Clause argument, the trial

court concluded that Appellant “has failed to show [Section 1929.1] violates

the dormant aspect of the United States Constitution’s Commerce Clause.”

Id. at 4. The trial court further concluded “there is no apparent

discrimination against interstate commerce. [Section 1929.1] merely

protects Pennsylvania corporations from excessive liabilities. There is no

indication this will encourage intrastate rather than interstate commerce.”

Id. at 6.

The trial court next addressed Appellant’s argument under the

Fourteenth Amendment to the United Stated Constitution. Relying upon

legislative history, the trial court found:

[Section 1929.1] was meant to advance the Commonwealth’s

basic governmental interest to make sure our corporate merger

laws do not unfairly expose innocent companies to ruin solely

because of a merger. [Section 1929.1] combats the

unprecedented avalanche of asbestos-related claims threatening

to destroy corporations like Crown [(Appellee)], which are

exposed to liability based solely on their predecessors’ actions.

[Section 1929.1] protects such corporations, which provide jobs

to Pennsylvania residents and are integral to the

Commonwealth’s economy. [Section 1929.1] only affects

plaintiffs’ tort recoveries to the extent necessary to protect

corporations exposed to excessive successor liabilities, noting

the asbestos plaintiffs would still be adequately compensated by

the plethora of other defendants.

Id. at 7-8 (internal citation and quotation marks omitted). The trial court

thus concluded that “[Section 1929.1] is rationally related to a legitimate

purpose.” Id. at 8.

-6-

J-A17039-14

Addressing Appellant’s contention that Section 1929.1 violated Article

III, Section 32 of the Pennsylvania Constitution by creating a one-member

class, the trial court found:

[Appellant] has not established the [s]tatute was intended to

benefit [Appellee] alone. The [s]tatute’s legislative history

reflects its sponsors used [Appellee] as an example of the

[s]tatute’s purpose, all the while emphasizing the potential

benefit to other similarly situated corporations throughout the

Commonwealth.

More importantly, [Appellant] has not shown it is

impossible or highly unlikely for other corporations to enjoy the

[s]tatute’s protections.

Id. at 10 (internal record citations omitted). Accordingly, the trial court

concluded that the statute was not unconstitutional under Article III, Section

32.

The trial court lastly addressed Appellant’s challenge to the propriety

of the underlying legislation giving rise to Section 1929.1. Specifically, the

trial court addressed Appellant’s challenge to the legislation, i.e., Act 101 of

2001, under Article III, Sections 1 (original purpose) and 3 (single subject)

of the Pennsylvania Constitution. With respect to Article III, Section 1, the

trial court found that the Act 101’s original purpose was “the regulation of

asbestos-related liability.” Id. at 12. In so finding, the trial court disagreed

with Appellant’s contention that Act 101’s original purpose had to be

construed narrowly. Id. at 11-12. Based on this finding, the trial court

concluded the legislation did not violate the constitution, because the

legislation’s “purpose remained intact when [it] was altered to limit

successor liability and provide for certain judicial costs.” Id. at 12.

-7-

J-A17039-14

Regarding the constitutionality of the legislation under Section 3 of

Article III, the trial court found that the legislation’s “single subject is the

same as its original purpose, the regulation of asbestos-related liability.” Id.

In so doing, the trial court rejected Appellant’s argument that Act 101’s

limitations and successor liability were separate subjects. Id. The trial

court thus concluded that the legislation was not violative of Article III,

Section 3, because its “provisions pertaining to the statute of limitations and

successor liability in asbestos cases are not distinct or independent. Rather,

those provisions deal with sub-topics germane to regulating asbestos-related

liability.” Id.

II. DISCUSSION

On appeal,4 challenging the trial court’s grant of summary judgment in

favor of Appellee, Appellant raises five issues for our review.5

____________________________________________

4

It is well-settled that

[o]ur scope of review of a trial court’s order granting or denying

summary judgment is plenary, and our standard of review is

clear: the trial court’s order will be reversed only where it is

established that the court committed an error of law or abused

its discretion.

Summary judgment is appropriate only when the record clearly

shows that there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law. The

reviewing court must view the record in the light most favorable

to the nonmoving party and resolve all doubts as to the

existence of a genuine issue of material fact against the moving

party. Only when the facts are so clear that reasonable minds

could not differ can a trial court properly enter summary

judgment.

Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (quoting

Cassel-Hess v. Hoffer, 44 A.3d 80, 84-85 (Pa. Super. 2012)). “Failure of a

non-moving party to adduce sufficient evidence on an issue essential to his

(Footnote Continued Next Page)

-8-

J-A17039-14

I. Did the lower court err when it refused to rule that [] 15

Pa.C.S.[A.] § 1929.1[] created a one-member, closed class in

violation of Article III, § 32 of the Pennsylvania Constitution?

II. Did the lower court err when it refused to rule that [] 15

Pa.C.S.A. § 1929.1 violated Article III, § 1, the “original

purpose” provision of the Pennsylvania Constitution?

III. Did the lower court err when it refused to rule that

[] 15 Pa.C.S.A. § 1929.1 violated of [sic] Article III, § 3, “single

subject” provision of the Pennsylvania Constitution?

IV. Did the lower court err when it refused to rule that[] 15

Pa.C.S.A. § 1929.1 violated the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution?

V. Did the lower court correctly rule that there was a genuine

issue of material fact as to Mr. Markovsky’s exposure on a

regular and frequent basis for decades to asbestos from products

manufactured by [Appellee’s] predecessor-in-interest, Mundet

Cork Company?

Appellant’s Brief at 4-5.6

_______________________

(Footnote Continued)

case and on which it bears the burden of proof . . . establishes the

entitlement of the moving party to judgment as a matter of law.” Young v.

PennDOT, 744 A.2d 1276, 1277 (Pa. 2000) (noting that under Pa.R.C.P.

No. 1035.2, grant of summary judgment is proper when “an adverse party

who will bear the burden of proof at trial has failed to produce evidence of

facts essential to the causes of action . . . which in a jury trial would require

the issues to be submitted to a jury”).

5

Appellant has not raised its dormant Commerce Clause claim in this appeal,

because it does not raise it as a question presented for review in its brief.

As Appellee notes, Appellant mentions the dormant Commerce Clause

argument only in a footnote in its brief and otherwise fails to develop the

argument in any meaningful way. We agree. See Pa.R.A.P. 2116(a) (“The

statement of the questions involved must state concisely the issues to be

resolved”); see also Southcentral Emp’t Corp. v. Birmingham Fire Ins.

Co. of Pa., 926 A.2d 977, 983 n.5 (Pa. Super. 2007) (holding that issue not

explicitly raised in appellant’s statement of the questions involved is

waived); see also Pa.R.A.P. 2119(a), (b) (relating to the requirements of

the argument section); see also J.J. DeLuca Co., Inc. v. Toll Naval

Assocs., 56 A.3d 402, 412 (Pa. Super. 2012) (concluding that an issue is

waived when appellant failed to develop legal argument or cite relevant legal

authority in support of that issue). Thus, to the extent Appellant mentions a

dormant Commerce Clause argument, it is in passing only and within the

context of its argument that Section 1929.1 violates Article III, Section 32

and the Equal Protection Clause of the United States Constitution.

6

For ease of discussion, we have reorderd Appellant’s issues. We also have

removed the references to “the Crown Cork Statute” from the issues as

(Footnote Continued Next Page)

-9-

J-A17039-14

At the outset, we note:

acts passed by the General Assembly are strongly presumed to

be constitutional, including the manner in which they were

passed. Accordingly, a statute will not be declared

unconstitutional unless it clearly, palpably, and plainly violates

the Constitution. If there is any doubt that a challenger has

failed to reach this high burden, then that doubt must be

resolved in favor of finding the statute constitutional.

Pa. State Ass’n of Jury Comm’rs v. Commonwealth, 64 A.3d 611, 618

(Pa. 2013) (internal citation and quotation marks omitted). The

constitutional validity of a statute presents a pure question of law and, as

with any question of law, our review of the trial court’s decision is plenary

and de novo. See West Mifflin Area Sch. Dist. v. Zahorchak, 4 A.3d

1042, 1048 (Pa. 2010).

A. Special Law

We first address Appellant’s argument that the trial court erred in

granting Appellee’s summary judgment motion, because Section 1929.1 was

violative of Article III, Section 32 of the Pennsylvania Constitution to the

extent Section 1929.1 created a one-member, closed class consisting solely

_______________________

(Footnote Continued)

presented in Appellant’s brief. The section of the statute in question is

titled, “Limitations on asbestos-related liabilities relating to certain mergers

or consolidations.” Although our review of case law reveals two occasions on

which now-retired Judge Richard J. Klein of this Court referred to the statute

as “the Crown Cork Statute,” neither our Supreme Court nor this Court, in

any majority opinion, has elected to do so and we shall not do so in this

Opinion. See Vanaman v. DAP, Inc., 966 A.2d 603 (Pa. Super. 2009) (en

banc) (Klein, J., concurring and dissenting) and Burger v. Owens Illinois,

Inc., 966 A.2d 611 (Pa. Super. 2009) (en banc) (Klein, J., concurring and

dissenting).

- 10 -

J-A17039-14

of Appellee. In support of his argument, Appellant points out that Section

1929.1 creates a substantially closed class, because it sanctions membership

into the class only when the following seven requirements have been

fulfilled:

1. The business must be a corporation. 15 Pa.C.S. § 1929.1

(a)(1).

2. The corporation must be a Pennsylvania corporation.

15 Pa.C.S. § 1929.1(a)(1).

3. The corporation must have been incorporated before May 1,

2001. 15 Pa.C.S. § 1929.1(a)(1).

4. The corporation must have been involved in a merger or

acquisition of a second corporation prior to May 1, 2001.

15 Pa.C.S. § 1929.1(d)(1).

5. The second corporation must have incurred asbestos-related

liabilities prior to the merger or acquisition. 15 Pa.C.S.

§ 1929.1(a)(2).

6. The first corporation must have assumed, knowingly or

unknowingly, the asbestos-related liabilities of the second

corporation. 15 Pa.C.S. § 1929.1(a)(2).

7. Neither the first nor the second corporation can be an

insurance company. 15 Pa.C.S. § 1929.1(d)(5).

Appellant’s Brief at 16. Appellant argues that the foregoing classifications

were designed by the legislature for the exclusive benefit of Appellee and

that no other company could meet the classifications. Id. at 20. Relying

upon West Mifflin, Appellant contends that Section 1929.1 is per se

unconstitutional, because it creates a one-member class that is either closed

or substantially closed. Id. at 17-20. We disagree.

Article III, Section 32 provides in pertinent part that “[t]he General

Assembly shall pass no local or special law in any case which has been or

can be provided for by general law[.]” PA. CONST. art. III, § 32.

- 11 -

J-A17039-14

It is well-settled that “a statute may be deemed per se

unconstitutional if, under the classification, the class consists of one member

and is closed or substantially closed to future membership. See Pa. Tpk.

Comm'n v. Commonwealth, 899 A.2d 1085, 1098 (Pa. 2006); accord

Harrisburg Sch. Dist. v. Hickok, 761 A.2d 1132, 1136 (Pa. 2000) (“[A]

classification is per se unconstitutional when the class consists of one

member and it is impossible or highly unlikely that another can join the

class.”). In Pennsylvania Turnpike Commission, the Supreme Court

concluded that the statute at issue was per se unconstitutional in that “the

class [defined by the statute] will never open to more than one member

because the General Assembly defined ‘public employer’ as ‘The

Pennsylvania Turnpike Commission.’” Pa. Tpk. Comm’n, 899 A.2d at 1098.

As our Supreme Court explained:

Pennsylvania’s proscription against local or special laws is

currently found in Article III, Section 32, and was first adopted in

the Pennsylvania Constitution of 1874. Like many constitutional

provisions, it was adopted in response to immediate past

abuses. The main purpose behind Article III, Section 32 was to

put an end to the flood of privileged legislation for particular

localities and for private purposes which was common in 1873.

Over the years, the underlying purpose of Article III, Section 32

has been recognized to be analogous to federal principles of

equal protection under the law and thus, special legislation

claims and equal protection claims have been reviewed under

the same jurisprudential rubric.

The common constitutional principle at the heart of the special

legislation proscription and the equal protection clause is that

like persons in like circumstances should be treated similarly by

the sovereign. Nonetheless, it is settled that equal protection

principles do not vitiate the Legislature’s power to classify, which

necessarily flows from its general power to enact regulations for

the health, safety, and welfare of the community, nor do these

principles prohibit differential treatment of persons having

different needs. . . .

- 12 -

J-A17039-14

The prohibition against treating people differently under the law

does not preclude the Commonwealth from resorting to

legislative classifications, provided that those classifications are

reasonable rather than arbitrary and bear a reasonable

relationship to the object of the legislation. In other words, a

classification must rest upon some ground of difference, which

justifies the classification and has a fair and substantial

relationship to the object of the legislation.

Thus, there are a legion of cases recognizing that a legislative

classification which appears to be facially discriminatory may

nevertheless be deemed lawful if the classification has a rational

relationship to a legitimate state purpose. Furthermore,

legislative classifications must be founded on real distinctions in

the subjects classified and not on artificial or irrelevant ones

used for the purpose of evading the constitutional prohibition.

Finally, in analyzing a special legislation/equal protection

challenge, a reviewing court is free to hypothesize reasons the

General Assembly might have had for the classification of certain

groups.

Pa. Tpk. Comm'n, 899 A.2d at 1094-95 (internal citation, quotation marks

and footnotes omitted).

In Hickok, the statute at issue provided for a classification that

applied only to “‘a school district of the second class with a history of low

test performance which is coterminous with the city of the third class which

contains the permanent seat of government.’” Hickok, 761 A.2d at 1136.

Rejecting appellant’s argument (as lacking merit) that the classification

could apply to another school district because the capital could be moved to

another third class city in the future, the Supreme Court concluded that the

classification could apply only to the Harrisburg School District. Id.

Accordingly, the court held the statute to be per se unconstitutional. Id.

Here, unlike the statutes in Pennsylvania Turnpike Commission

and Hickok, Section 1929.1 is not per se constitutionally infirm under Article

III, Section 32, because it does not contain an apparent class consisting of

- 13 -

J-A17039-14

one member that is closed or substantially closed to future membership.

Moreover, based on our review of the record, we conclude Appellant has not

offered any relevant evidence suggesting that Section 1929.1 is limited to

Appellee and that no other company could avail itself of the benefits of

Section 1929.1.7 It bears repeating that Appellant carries a heavy burden of

proof for purposes of challenging the constitutionality of Section 1929.1

under Article III, Section 32, which Appellant fails to meet sub judice. See

Pa. Tpk. Comm’n, 899 A.2d at 1098. As the trial court aptly noted:

As a threshold matter, [Appellant] has not established the

[s]tatute was intended to benefit [Appellee] alone. The

[s]tatute’s legislative history reflects its sponsors used

[Appellee] as an example of the [s]tatute’s purpose, all the while

emphasizing the potential benefit to other similarly situated

corporations throughout the Commonwealth.

More importantly, [Appellant] has not shown it is

impossible or highly unlikely for other corporations to enjoy the

[s]tatute’s protection. It seems likely, or at least possible, a

Pennsylvania (non-insurance) corporation besides [Appellee]

acquired a predecessor with asbestos-related liabilities before

May 1, 2001 and could eventually limit its liabilities under the

[s]tatute. [Appellant] offers zero evidence to refute this.

Accordingly, he has not shown [Appellee] is the only member of

the protected class [under Section 1929.1].

Trial Court Opinion, 1/8/14, at 10 (emphasis added). In support of its

conclusion, the trial court quoted the following passage from Judge

Tereshko’s opinion in Asbestos Litig.:

____________________________________________

7

To support its argument, Appellant cites legislative history to suggest

Section 1929.1 was enacted for the benefit of Appellee, because the

legislation’s sponsors invoked only Appellee by name. See Appellant’s Brief

at 21. As the trial court found, however, sponsors of the bill merely used

Appellee as an example to put the legislation’s purpose into proper

perspective. See Trial Court Opinion, 1/8/14, at 10.

- 14 -

J-A17039-14

[G]iven the actual number of Pennsylvania Defendants who may

qualify and the lack of contrary evidence, and the clearly

expressed basis for the Legislation, that is, the limiting of liability

of an asbestos Defendant under a successor liability theory to

the acquired assets, the Legislation fails the test for a special law

and passes the rational basis test.

In re Asbestos Litig., 2002 WL 1305991, at *14. Addressing the same

issue that is before us, the trial court found that “there are 7,293

Pennsylvania corporations” who may be subject to the protections of Section

1929.1. Id. at 13. Neither Appellant nor Appellee challenges the trial

court’s reliance on Asbestos Litig., which the Supreme Court reversed on

other grounds.8 Given the fact that Section 1929.1, on its face, does not

exclusively limit its protection to one entity (Appellee) ad infinitum, and

Appellant otherwise has failed to offer any evidence that Section 1929.1

would apply only to Appellee, we conclude that the trial court did not err in

holding Section 1929.1 was not a “special law” under Article III, Section 32.

Appellant’s reliance on West Mifflin is misplaced. Similar to

Pennsylvania Turnpike Commission and Hickok, in West Mifflin, our

Supreme Court concluded on stipulated facts that Act 45 of 2007, Act of July

20, 2007, P.L. 278, No. 45 (Act 45), was per se special legislation and thus

unconstitutional. See West Mifflin, 4 A.3d at 1048 (noting that “a highly

____________________________________________

8

Exercising extraordinary jurisdiction under 42 Pa.C.S.A. § 726, the

Supreme Court reversed the trial court on the basis that Section 1929.1(a)

was unconstitutional as applied under Article I, Section 11 of the

Pennsylvania Constitution to the extent it extinguished causes of actions that

accrued prior to the enactment of the statute. Ieropoli, 842 A.2d at 930-

32.

- 15 -

J-A17039-14

improbable convergence of events would be necessary for any school district

. . . to be affected by the legislative provisions at issue.”). As the Supreme

Court recognized, only one school district met all of the criteria under the

challenged legislative provisions of Act 45. Id. Additionally, only five other

school districts could have been subject to the provisions of Act 45, and

none of them operated under a special board of control. To enter the class,

one of those districts would have to return to control-board governance for

five consecutive years and eliminate their high schools without assigning

their pupils to other school districts. Id. More important, no other school

district could benefit from Act 45, because remedial action had to be taken

within fifteen days of the act’s effective date, i.e., by August 14, 2007. Id.

at 1048-49. Based on those facts, our Supreme Court concluded that “the

class created by Section 1607.1 [of Act 45] is, at a minimum, ‘substantially

closed’ to new members.” Id. at 1049.

In the instant case, unlike West Mifflin, there is no stipulation, much

less any reliable evidence, that Section 1929.1 applies only to one entity,

i.e., Appellee. Accordingly, as stated above, the trial court did not err in

concluding that Section 1929.1 was constitutional under Article III,

Section 32.

B. Article III—Procedural Mandates

We next address Appellant’s second and third arguments that the

legislation, i.e., Act 101, giving rise to Section 1929.1, ran afoul of the

procedural mandates of Article III of the Pennsylvania Constitution.

- 16 -

J-A17039-14

To put Appellant’s constitutional arguments under Sections 1 and 3 in

context, we must provide a brief discussion of the legislative history of Act

101. The legislation originated in the Pennsylvania State Senate on January

31, 2001, with the introduction of Senate Bill 216 of 2001, P.N. 0223 (“S.B.

216, P.N. 223”). This single page bill contained two sections, one generally

amending Section 5524 of the Judicial Code, 42 Pa.C.S.A. § 5524, relating to

a two-year statute of limitations,9 and the other providing for an effective

date of 60 days after enactment. This bill was passed by the Senate

Judiciary Committee on February 13, 2001. Subsequently, it was considered

by the full Senate on three separate occasions, with final passage in the

Senate occurring on March 14, 2001.

S.B. 216, P.N. 223 was thereafter sent to the House of

Representatives, and, upon approval by the House Judiciary Committee

without amendment, it was considered twice by the full House. Following

the second consideration, S.B. 216, P.N. 223 was referred to the House

Appropriations Committee, which re-reported it on November 19, 2001,

without amendment, and re-referred it to the House Judiciary Committee.

____________________________________________

9

Specifically, the bill added subsection 8 to Section 5524, which provided:

(8) An action to recover damages for injury to a person or for

the death of a person caused by the exposure to asbestos shall

be commenced within two years from the date the person was

informed by a licensed physician that the person has an injury

which is caused by such exposure.

Senate Bill 216, Printer’s No. 223 (emphasis added).

- 17 -

J-A17039-14

On December 4, 2001, the House Judiciary Committee approved S.B. 216,

P.N. 223 with amendments, affecting Sections 1725.1 (relating to costs) and

3571(c) (relating to costs in magisterial district judge proceedings) of the

Judicial Code, 42 Pa.C.S.A. §§ 1725.1, 3571(c). In addition, the House

Judiciary Committee amended S.B. 216, P.N. 223—specifically subsection 8

of Section 5524 of the Judicial Code. This amended legislation was

redesignated S.B. 216, P.N. 1576. The full House passed this amended

version of the bill on December 5, 2001, and sent it to the Senate for further

deliberations.

In the Senate, the bill was referred to the Senate Rules Committee,

which altered the legislation by amending the prefatory language of the bill,

removing the amendments made in the House, adding Section 1929.1

(relating to limitations on asbestos-related successor liabilities), amending

subsection 8 of 5524 of the Judicial Code,10 and adding an amended Section

____________________________________________

10

The amended version of subsection 8 of Section 5524, which is now in

effect, provides:

An action to recover damages for injury to a person or for the

death of a person caused by exposure to asbestos shall be

commenced within two years from the date on which the person

is informed by a licensed physician that the person has been

injured by such exposure or upon the date on which the person

knew or in the exercise of reasonable diligence should have

known that the person had an injury which was caused by such

exposure, whichever date occurs first.

42 Pa.C.S.A. § 5524(8).

- 18 -

J-A17039-14

8128 of the Judicial Code, 42 Pa.C.S.A. § 8128.11 The Rules Committee

reported the amended version of the bill to the full Senate as S.B. 216, P.N.

1617. The Senate, thereafter, approved the bill on December 11, 2001.

The Senate sent S.B. 216, P.N. 1617 to the House on December 12,

2001, and the house voted to approve it on that date. Subsequently, the bill

was sent to then-Governor Mark Schweiker who signed it on December 17,

2001, at which time it became Act 101 of 2001.

1. Original Purpose

We now address Appellant’s argument that S.B. 216, which eventually

became Act 101, violated the strictures of Article III, Section 1 of the

Pennsylvania Constitution12 to the extent it departed from its original

purpose “as it passed through the legislature.” Appellant’s Brief at 32. In

this regard, Appellant contends that the original purpose of S.B. 216 was

changed in the final iteration of the bill. At the core, Appellant argues the

trial court erred in finding that “the original purpose always was ‘regulation

of asbestos-related liability.’” Appellant’s Brief at 35. We disagree.

____________________________________________

11

Section 8128 was amended by the addition of subsection (c), which now is

in effect and provides “[t]he provisions of this Section shall also apply to the

limitations set forth in 15 Pa.C.S. § 1929.1 (relating to limitations on

asbestos-related liabilities relating to certain mergers and consolidations).”

Senate Bill 216, Printer’s No. 1617; 42 Pa.C.S.A. § 8128(c).

12

Article III, Section 1 provides “[n]o Law shall be passed except by bill, and

no bill shall be so altered or amended, on its passage through either House,

as to change its original purpose.” PA. CONST. art. III, § 1.

- 19 -

J-A17039-14

To determine whether a bill has deviated from its original purpose, our

Supreme Court has adopted a two-part test:

First, the court will consider the original purpose of the

legislation and compare it to the final purpose and determine

whether there has been an alteration or amendment so as to

change the original purpose. Second, a court will consider,

whether in its final form, the title and contents of the bill are

deceptive.

Pennsylvanians Against Gambling Expansion Fund, Inc. v.

Commonwealth, 877 A.2d 383, 408-09 (Pa. 2005) (“PAGE”). The

challenged legislation must meet both parts of the test to pass constitutional

muster. See id. at 409. Instantly, however, Appellant challenges Act 101

only on the basis of the first test, i.e., purpose comparison. Explaining the

first test, the Supreme Court remarked:

Regarding the determination of the original purpose of the

legislation, we recognize the realities of the legislative process

which can involve significant changes to legislation in the hopes

of consensus, and the expectation that legislation will be

transformed during the enactment process. Furthermore, our

Court is loathe to substitute our judgment for that of the

legislative branch under the pretense of determining whether an

unconstitutional change in purpose of a piece of legislation has

occurred during the course of its enactment. For these reasons,

we believe that the original purpose must be viewed in

reasonably broad terms.

. . . It is helpful for a reviewing court to hypothesize, based upon

the text of the statute, as to a reasonably broad original

purpose. Given this approach of considering a reasonably broad

original purpose, the General Assembly is given full opportunity

to amend and even expand a bill, and not run afoul of the

constitutional prohibition on an alternation or amendment that

changes its original purpose. The original purpose is then

compared to the final purpose and a determination is made as to

whether an unconstitutional alteration or amendment, on its

passage through either house, has taken place so as to change

its original purpose.

Id. (internal citation and quotation marks omitted) (emphasis added).

- 20 -

J-A17039-14

With the foregoing principles in mind, like the court in PAGE, we

consider the original purpose of Act 101 in reasonably broad terms, and

compare it to its final purpose to assess whether the purpose has changed.

Here, based upon our review of the legislative history, particularly the

different versions of Act 101, we agree with the trial court’s conclusion that

“[t]he [legislation’s] original purpose is more appropriately construed as the

regulation of asbestos-related liability.” Trial Court Opinion, 1/8/14, at 12.

When Act 101, as S.B. 216, was introduced on January 31, 2001, its original

purpose was to amend the Judicial Code by extending the two-year statute

of limitations under Section 5524 to asbestos cases. Specifically, the bill’s

original purpose was to “[amend] Title 42 (Judiciary and Judicial Procedure)

of the Pennsylvania Consolidated Statutes, further providing for limitations

of actions.” Senate Bill 216, Printer’s No. 223 (emphasis added). That

purpose, however, changed twice. The House first amended the bill’s

purpose to read “[a]mending Title 42 (Judiciary and Judicial Procedure) of

the Pennsylvania Consolidated Statutes, further providing for costs, for

Commonwealth portion of fines and for limitations of actions.” Senate Bill

216, Printer’s No. 1576 (emphasis added to show amendments). Thereafter,

when the bill containing the House amendments reached the Senate, that

body, in turn, amended the purpose of S.B. 216 to read:

Amending Title 15 (Corporations and Unincorporated

Associations) and 42 (Judiciary and Judicial Procedure) of the

Pennsylvania Consolidated Statutes, providing for limitations on

asbestos-related liabilities relating to certain mergers or

consolidations; and further providing for certain statutes of

limitations and for certain transfers.

- 21 -

J-A17039-14

Senate Bill 216, Printer’s No. 1617 (emphasis added). Thus, our review of

the original and final versions of Act 101 confirms the trial court’s holding

that the legislation was constitutional under Article III, Section 1, because its

broad original purpose “remained intact when the [legislation] was altered to

limit successor liability and provide for certain judicial costs.” Trial Court

Opinion, 1/8/14, at 12. Limiting successor liability and providing for judicial

costs both come under the umbrella of regulating asbestos-related liability.

Accordingly, Appellant fails to satisfy the first prong of the PAGE test and we

will not substitute our judgment for that of the General Assembly.

2. Single Subject

We next address Appellant’s argument that Act 101 runs afoul of

Article III, Section 3 of the Pennsylvania Constitution.13 Specifically,

Appellant argues that Act 101 violates the single subject rule of Article III,

Section 3, because it contains “distinct subjects” that lack a “unifying

scheme.” Appellant’s Brief at 24, 29. Differently put, Appellant claims that

the varying subjects within Act 101 were not germane to each other.

Additionally, Appellant claims

[t]he Crown Cork language [(Section 1929.1)] was attached to

an unrelated bill [(S.B. 216)] that was further along in the

____________________________________________

13

Article III, Section 3, relating to form of bills, provides:

No bill shall be passed containing more than one subject, which

shall be clearly expressed in its title, except a general

appropriation bill or a bill codifying or compiling the law or a part

thereof.

PA. CONST. art. III, § 3.

- 22 -

J-A17039-14

legislative process with little opposition to its passage, and the

final version rushed through the legislature before the December

holiday recess before any objection to [the] language could be

made by affected parties.

Id. at 29. We, disagree.

As our Supreme Court recently remarked:

the single subject rule of Article III, Section 3 was first included

by the framers of our Commonwealth’s organic charter in 1864,

and then readopted as part of the 1874 Constitution, in order to

effectuate the electorate’s overall goal of curtailing legislative

practices that it viewed with suspicion. In particular, there were

two legislative practices the framers and the electorate sought to

eliminate with their adoption of Article III, Section 3. The first

involved the insertion into a single bill of a number of distinct

and independent subjects of legislation in order to deliberately

hide the real purpose of the bill. The second was the practice of

logrolling which involves embracing in one bill several distinct

matters, none of which could singly obtain the assent of the

legislature, and procuring its passage by combining the

minorities who favored the individual matters to form a majority

that would adopt them all.

Our Court has additionally observed that Article III,

Section 3 serves other salutary purposes furthering the efficiency

of the legislative process. The requirement that each piece of

legislation pertain to only one subject creates a greater

likelihood that it will receive a more considered and thorough

review by legislators than if it is aggregated with other pieces of

legislation pertaining to different topics into a singular omnibus

bill, thereby creating a jumbling together of incongruous

subjects.

Additionally, and significantly, the single subject

requirement proscribes the inclusion of provisions into legislation

without allowing for fair notice to the public and to legislators of

the existence of the same. It, thus, provides a vital assurance to

residents of this Commonwealth that they will be able to make

their views and wishes regarding a particular piece of legislation

known to their duly elected representatives before its final

passage, and it concomitantly ensures that those representatives

will be adequately apprised of the full scope and impact of a

legislative measure before being required to cast a vote on it.

Commonwealth v. Neiman, 84 A.3d 603, 611-12 (Pa. 2013) (internal

citation and quotation marks omitted) (emphasis in original).

- 23 -

J-A17039-14

It is settled that to determine whether a bill is violative of Article III,

Section 3, a court must employ a two-prong test. “First, the title of the bill

must clearly express the substance of the proposed law. . . . Second, the

differing topics within the bill must be ‘germane’ to each other.” Jury

Comm’rs, 64 A.3d at 616. Instantly, Appellant challenges Act 101 only

under the second prong, i.e., the various topics were not germane to each

other.14

In determining germaneness, our [Supreme Court] has

acknowledged that some degree of deference to the General

Assembly’s prerogative to amend legislation is required, due to

the normal fluidity inherent in the legislative process, and, thus,

[the Court has] deemed it is appropriate for a reviewing court to

hypothesize a reasonably broad topic which would unify the

various provisions of a final bill as enacted. However, [the]

Court has also stressed the reasonable aspect of any proposed

hypothetical unifying topic, in recognition of the fact that Article

III, Section 3 would be rendered nugatory if such hypothetical

____________________________________________

14

As Appellee aptly notes, and we agree, to the extent Appellant claims

under the first prong that fair notice regarding Act 101 was not provided to

the public or interested stakeholders, such claim must be rejected as lacking

merit because Appellant provides no evidence in support of the claim. As

our Supreme Court explained in PAGE, “‘[o]ne who seeks to declare a title

unconstitutional under [Section III] must demonstrate either (1) that the

legislators and the public were actually deceived as to the act’s contents at

the time of passage, or (2) that the title on its face is such that no

reasonable person would have been on notice as to the act’s contents.’”

PAGE, 877 A.2d at 406 (emphasis added). As noted earlier, a legislative

enactment enjoys a strong presumption of constitutionality and it will not be

declared invalid unless it clearly, palpably, and plainly violates the

Constitution. See PAGE, 877 A.2d at 393. The party seeking to overcome

this presumption bears a heavy burden of persuasion and we will resolve all

doubts in favor of a finding of constitutionality. See Commonwealth v.

Hendrickson, 724 A.2d 315, 317 (Pa. 1999). Moreover, to the extent

Appellant argues, without providing any legal support, that the time in which

Act 101 was enacted was per se insufficient to provide fair notice to the

public, we also reject such argument as without merit.

- 24 -

J-A17039-14

topics were too expansive. [The Court] observed that, no two

subjects are so wide apart that they may not be brought into a

common focus, if the point of view be carried back far enough.

Consequently, in determining whether a proposed unifying

subject is sufficiently narrow so as to pass muster under Article

III, Section 3, [courts] must examine the various subjects

contained within a legislative enactment and determine whether

they have a nexus to a common purpose. Stated another way,

[their] task is to ascertain whether the various components of

the enactment are part of a unifying scheme to accomplish a

single purpose.

Neiman, 84 A.3d at 612 (internal citation and quotation marks omitted)

(emphasis added). The requirements of Article III, Section 3 are fulfilled

“where the provisions added during the legislative process assist in carrying

out a bill’s main objective or are otherwise ‘germane’ to the bill’s subject as

reflected in its title.” City of Philadelphia v. Commonwealth, 838 A.2d

566, 587 (Pa. 2003).

In PAGE, the court concluded that the challenged legislation (Gaming

Act) survived Section 3 scrutiny inasmuch as the law provided for the

regulation of gaming. PAGE, 877 A.2d at 396. The court distinguished

PAGE from City of Philadelphia, in which it previously held that Act 230 of

2002 was repugnant to the single subject rule, because the main objective

of the act was to amend Title 53 (Municipalities) and “virtually all of local

government is a municipality.” Id. In so distinguishing, the court noted

“[t]he single topic of gaming does not encompass the limitless number of

subjects which could be encompassed under the heading of municipalities.”

Id.

Here, based on the record and legislative history, we conclude that Act

101 comports with the constitutional requirements of Article III, Section 3.

- 25 -

J-A17039-14

The Act sub judice is similar to the Gaming Act in PAGE in that its single,

unifying purpose is the regulation of asbestos-related liability. All sections of

Act 101 are connected to this particular purpose. We, therefore, conclude

that the trial court did not err in holding Act 101 constitutional under Article

III, Section 3 on the basis that all provisions of Act 101 “deal with sub-topics

germane to regulating asbestos-related liability.”15 Trial Court Opinion,

1/8/14, at 12.

We also find that Appellant’s reliance upon Neiman to argue that Act

101 is unconstitutional under Section 3 is misplaced. Neiman is markedly

distinguishable from the instant case. The Supreme Court in Neiman

entertained a challenge (under Article III, Section 3) to Act 152 of 2004,

which made various amendments to the Judicial Code.16 As in City of

____________________________________________

15

To the extent Appellant argues that Section 3 of Act 101, i.e., 42

Pa.C.S.A. § 8128(c), does not relate to the regulation of asbestos-related

liability, we disagree. Section 3 extends protections of Section 8128 of the

Judicial Code to companies that qualify under Section 1929.1. Differently

put, the addition of subsection (c) to Section 8128 of the Judicial Code limits

creditors’ ability to recover damages from companies that qualify under

Section 1929.1 in a forum that affords fewer protections to such companies

than Pennsylvania.

16

As our Supreme Court noted, S.B. 92, P.N. 1995, which eventually

became Act 152,

accomplished the following substantive legal changes: (1)

established a two-year limitation for asbestos actions; (2)

amended the Crimes Code to create various criminal offenses for

individuals subject to sexual offender registration requirements

who fail to comply; (3) amended the provisions of the

Sentencing Code which govern “Registration of Sexual

Offenders”; (4) added the offenses of luring and institutional

sexual assault to the list of enumerated offenses which require a

(Footnote Continued Next Page)

- 26 -

J-A17039-14

Philadelphia, the court observed that the unifying subjects of Act 152 were

too broad to meet the requirements of Article III, Section 3, because “such

subjects are virtually boundless in that they could encompass, respectively,

any civil court proceeding which could be brought in the courts of this

Commonwealth, and any power of the judiciary to impose sanctions on, or

order the payment of damages by, a party to civil litigation.” Neiman, 84

A.3d at 613 (emphasis in original). Declaring Act 152 violative of the single

subject provision of Section 3, the court noted that it could not discern a

“common nexus” between the different provisions of the act. Id.

Specifically, the court noted “we can see no reasonable basis under which

_______________________

(Footnote Continued)

10–year period of registration and established local police

notification procedures for out-of state sexual offenders who

move to Pennsylvania; (5) directed the creation of a searchable

computerized database of all registered sexual offenders

(“database”); (6) amended the duties of the Sexual Offenders

Assessment Board (“SOAB”); (7) allowed a sentencing court to

exempt a lifetime sex offender registrant, or a sexually violent

predator registrant, from inclusion in the database after 20 years

if certain conditions are met; (8) established mandatory

registration and community notification procedures for sexually

violent predators; (9) established community notification

requirements for a “common interest community”—such as a

condominium or cooperative—of the presence of a registered

sexually violent predator; (10) conferred immunity on unit

owners associations of a common interest community for good

faith distribution of information obtained from the database;

(11) directed the Pennsylvania State Police to publish a list of

approved registration sites to collect and transmit fingerprints

and photographs of all sex offenders who register at those sites;

and (12) mandated the Pennsylvania Attorney General to

conduct annual performance audits of state or local agencies

who participate in the administration of Megan’s Law, and, also,

required registered sex offenders to submit to fingerprinting and

being photographed when registering at approved registration

sites.

Neiman, 84 A.3d at 606-07 (footnotes omitted).

- 27 -

J-A17039-14

deficiency judgment procedures, asbestos statutes of limitations, county

police jurisdiction, and sexual offender registration requirements act

together as ‘a unifying scheme to accomplish a single purpose.’” Id. As

explained above, Act 101 sub judice, unlike Act 152 in Neiman, contains

provisions that are germane to each other because they embody the single

unifying purpose of regulating asbestos-related liability.

Accordingly, the trial court did not err in rejecting Appellant’s

constitutional challenges against Act 101 under Sections 1 and 3 of Article

III.

C. Equal Protection

Appellant argues Section 1929.1 fails to withstand constitutional

scrutiny under the Equal Protection Clause of the Fourteenth Amendment to

the United States Constitution, U.S. CONST. amend. XIV, § 1, as well as

Article III, Section 32 of the Pennsylvania Constitution. To support its

argument, Appellant points out that similarly situated out-of-state

corporations and Pennsylvania corporations that do not meet the

classifications of Section 1929.1 are subject to disparate treatment, because

their asbestos-related liability is not capped. Appellant’s Brief at 39. More

important, Appellant argues that Section 1929.1 facially discriminates

against out-of-state corporations. Id. at 40.

To begin, as we noted above, our Supreme Court treats equal

protection claims under the Fourteenth Amendment to the United States

Constitution the same as equal protection claims brought under Article III,

- 28 -

J-A17039-14

Section 32 of the Pennsylvania Constitution. See Probst v. Dep’t of

Transp., Bureau of Driver Licensing, 849 A.2d 1135, 1143 (Pa. 2004);

see also Harrisburg Sch. Dist. v. Zogby, 828 A.2d 1079, 1088 (Pa. 2003)

(noting that “the meaning and purpose of the Equal Protection Clause of the

United States Constitution . . . and [Pennsylvania’s] Constitution’s

prohibition against special laws . . . are sufficiently similar to warrant like

treatment, and that contentions concerning the two provisions may be

reviewed simultaneously”). “The essence of the constitutional principle of

equal protection under the law is that like persons in like circumstances will

be treated similarly.” Curtis v. Kline, 666 A.2d 265, 267 (Pa. 1995)

(citation omitted). However, “[t]he prohibition against treating people

differently under the law does not preclude the Commonwealth from

resorting to legislative classifications, provided that those classifications are

reasonable rather than arbitrary and bear a reasonable relationship to the

object of the legislation.” Id. at 268 (citations omitted).

Describing the equal protection analytical framework, our Supreme

Court recognized

three different types of classifications calling for three different

standards of judicial review. The first type—classifications

implicating neither suspect classes nor fundamental rights—will

be sustained if it meets a “rational basis” test. . . . In the second

type of cases, where a suspect classification has been made or a

fundamental right has been burdened, another standard of

review is applied: that of strict scrutiny. . . . Finally, in the third

type of cases, if “important,” though not fundamental rights are

affected by the classification, or if “sensitive” classifications have

been made, the United States Supreme Court has employed

what may be called an intermediate standard of review, or a

heightened standard of review. . . .

- 29 -

J-A17039-14

Commonwealth v. Parker White Metal Co., 515 A.2d 1358, 1363 (Pa.

1986) (quoting James v. Se. Pa. Transp. Auth. (SEPTA), 477 A.2d 1302,

1306 (1984)).

Here, as Appellee correctly observes, Appellant does not claim that

Section 1929.1 affects a fundamental right or a suspect class. Appellee’s

Brief at 25. Instead, Appellant claims, inter alia, Section 1929.1’s disparate

treatment of Appellee compared to similarly situated out-of-state concerns

and certain in-state companies that do not meet Section 1929.1’s

classifications is not reasonable, but arbitrary.17 See Appellant’s Brief at 41.

Because this argument does not implicate a fundamental right or suspect

class, we proceed to analyze Appellant’s equal protection claim under the

rational basis standard.

This Court has observed:

Rational-basis review in equal protection analysis is not a license

for courts to judge the wisdom, fairness, or logic of legislative

choices. Nor does it authorize the judiciary to sit as a

superlegislature to judge the wisdom or desirability of legislative

policy determinations made in areas that neither affect

fundamental rights nor proceed along suspect lines. For these

reasons, a classification neither involving fundamental rights nor

proceeding along suspect lines is accorded a strong presumption

of validity. Such a classification cannot run afoul of the Equal

Protection Clause if there is a rational relationship between the

disparity of treatment and some legitimate governmental

purpose.

____________________________________________

17

Specifically, Appellant argues “[t]here is no reasonable explanation why all

other successor corporations were excluded. It is obvious that the criteria

were chosen because the drafters intended that only [Appellee] benefit from

the legislation.” Appellant’s Brief at 41.

- 30 -

J-A17039-14

In re Keyes, 83 A.3d 1016, 1027 (Pa. Super. 2013) (quotation marks and

citation omitted), appeal denied, 2014 WL 4799569 *1 (Pa. filed Sep. 24,

2014).

It is settled that in applying the rational basis test, we apply a

two-step analysis: 1) whether the challenged statute seeks to promote any

legitimate state interest or public value and, if so, 2) whether the

classification adopted in the legislation is reasonably related to

accomplishing an articulated state interest or interests. Curtis, 666 A.2d at

269. As we have repeatedly stated herein, Appellant bears a heavy burden

of proof for purposes of challenging the constitutionality of a statute, see

Pa. Tpk. Comm’n, 899 A.2d at 1098, especially where, as here, the

challenged legislation concerns only economic issues to be examined under a

rational basis standard. See also Hodel v. Indiana, 452 U.S. 314, 332

(1981) (“[S]ocial and economic legislation is valid unless ‘the varying

treatment of different groups or persons is so unrelated to the achievement

of any combination of legitimate purposes that [a court] can only conclude

that the legislature’s actions were irrational.’ This is a heavy burden . . . .”).

We resolve all doubts in favor of a finding of constitutionality. See

Commonwealth v. Hendrickson, 724 A.2d 315, 317 (Pa. 1999).

With respect to the first step of the rational basis test, we must

determine whether the Commonwealth had any legitimate interest in

enacting Section 1929.1. Our review of the record and legislative history

- 31 -

J-A17039-14

indicates that the General Assembly indeed provided a purpose or rationale

underlying the enactment of Section 1929.1.18 As the trial court noted:

[Section 1929.1’s] purpose was explained in detail by its

sponsors, Senators Michael J. Stack, III, Robert M. Tomlinson,

and Michael L. Waugh, before the General Assembly in 2001.

Pa. Legis. Journal—Senate (December 11, 2001), 1230-33.

[Section 1929.1] was meant to advance the Commonwealth’s

“basic governmental interest to make sure our corporate merger

laws do not unfairly expose innocent companies to ruin solely

because of a merger.” Id. at 1231-32. [Section 1929.1]

combats the “unprecedented avalanche of asbestos-related

claims” threatening to destroy corporations like [Appellee],

which are exposed to liability based solely on their predecessors’

actions. Id. at 1230-32. [Section 1929.1] protects such

corporations, which provide jobs to Pennsylvania residents and

are integral to the Commonwealth’s economy. Id. at 1230-33.

[Section 1929.1] only affects plaintiffs’ tort recoveries to the

extent necessary to protect corporations exposed to excessive

successor liabilities, noting the asbestos plaintiffs would still be

adequately compensated by the plethora of other defendants.

Id. at 1232.

Trial Court Opinion, 1/8/14, at 7-8. Accordingly, we find that Section 1929.1

in fact promotes a legitimate state purpose by providing protection to

corporations—that provide jobs to state residents, which is integral to our

economy—exposed to excessive successor liabilities.

Turning now to the second step under the rational basis test, we

address Appellant’s assertion that Section 1929.1’s classification is arbitrary

and not reasonable, because it is intended for the sole benefit of Appellee,

as opposed to advancing a state interest. Appellant’s Brief at 41. Our

____________________________________________

18

Even if the General Assembly had not articulated a purpose or rationale

for Section 1929.1, “it is enough that some rationale may conceivably . . .

have been the purpose and policy of the relevant government

decisionmaker.” Small v. Horn, 722 A.2d 664, 672 (Pa. 1998) (citation and

quotation marks omitted).

- 32 -

J-A17039-14

review of Section 1929.1 and its legislative history does not reveal any basis

for us to conclude that Section 1929.1’s classification of domestic business

corporations is not reasonably related to the state interest sought to be

advanced. As stated, the Commonwealth has a legitimate interest to ensure

corporate merger laws do not unfairly expose domestic business

corporations to ruin solely because of mergers. To this end, Section 1929.1

protects domestic corporations that provide jobs to Pennsylvania residents

by not exposing the corporations to excessive successor liability. 19 The

classification of domestic business corporations that employ Pennsylvania

residents is rationally related to the purpose to be achieved under the

protection afforded by Section 1929.1. This basis alone is sufficient

justification to find the legislative classification under Section 1929.1 is not

arbitrary or unreasonable. As for Appellant’s argument that Section 1929.1

is unreasonable because it benefits only Appellee, it bears repeating, as the

trial court aptly noted, that more than 7,000 Pennsylvania corporations may

benefit from Section 1929.1. More important, the mere fact that the

legislative classification under Section 1929.1 only partially ameliorates a

____________________________________________

19

Even in the absence of legislative history, a classification, though

discriminatory, is not arbitrary or in violation of equal protection if any state

of facts reasonably can be conceived to sustain the classification. See

Curtis, 666 A.2d at 268; accord Heller v. Doe by Doe, 509 U.S. 312,

319–320 (1993). In undertaking this analysis, a reviewing court also is free

to hypothesize reasons the legislature might have had for the classification.

Curtis, 666 A.2d at 268.

- 33 -

J-A17039-14

perceived evil does not render the classification in violation of equal

protection. The General Assembly may take an incremental approach to

addressing problems that are of statewide concern. See Pa. Tpk. Comm’n,

899 A.2d at 1097. This is so even if the class consists of only one member,

so long as other members might come into the class. Id. States are

accorded wide latitude in the regulation of their local economies, and rational

distinctions may be made with less than mathematical exactitude. See

Martin v. UCBR, 466 A.2d 107, 112 (Pa. 1983). It is only invidious

discrimination, or the wholly arbitrary act, which cannot withstand scrutiny

under an equal protection analysis. Id. We find no such discrimination

present in the instant case.

We also find Appellant’s reliance upon WHYY, Inc. v. Borough of

Glassboro, 393 U.S. 117 (1968), to be misplaced. In WHYY a

Pennsylvania nonprofit corporation operated a noncommercial television

station in New Jersey and had registered and qualified to do business in that

state. A New Jersey statute exempted nonprofit corporations from its real

and personal property taxes, but this exemption applied only to New Jersey

nonprofit corporations. The United States Supreme Court noted that it has

consistently held:

[W]hile a State may impose conditions on the entry of foreign

corporations to do business in the State, once it has permitted

them to enter, the adopted corporations are entitled to equal

protection with the state's own corporate progency [sic], at least

to the extent that their property is entitled to an equally

favorable ad valorem tax basis.

- 34 -

J-A17039-14

Id. at 119 (citations omitted). In finding the statute denied WHYY, Inc.

equal protection of the law, the Court held New Jersey had not advanced any

distinction between the appellant and a domestic nonprofit corporation to

justify the unequal treatment. In so holding, the Court rejected the

argument that the legislative purpose could reasonably have been to avoid

the administrative burden on the taxing authority to examine the laws of

other jurisdictions to determine if a corporation’s nonprofit status satisfied

New Jersey’s requirements. See id. at 120. None of the parties suggested

there was any greater administrative burden in evaluating a foreign than a

domestic corporation under New Jersey law. See id. Therefore, the

inequality of treatment arose solely because of “the different residence of

the owner,” rather than upon any “difference in (New Jersey’s) relation to a

decisive transaction.” Id. (citation omitted).

The result in WHYY is in accord with Pennsylvania’s decisional law,

which requires that a legislative classification be reasonable rather than

arbitrary and bear a reasonable relationship to the object of the legislation.

See Curtis, supra. It became evident in WHYY that the legislative

classification drawn by New Jersey (domestic nonprofits versus foreign New

Jersey registered nonprofits) had no reasonable relationship to any

legislative objective sought to be achieved under the taxing statute. Thus,

equal protection was violated because the legislative classification was

wholly arbitrary.

- 35 -

J-A17039-14

The instant matter is distinguishable from WHYY, because, as already

stated, Section 1929.1’s legislative classification of domestic business

corporations has a very real and reasonable relationship to Pennsylvania’s

legislative objective to protect domestic business corporations, which employ

Pennsylvania residents and are integral to its economy, from financial ruin

because of mergers.20

Accordingly, we conclude the trial court did not err in determining that

Section 1929.1 did not violate the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution or? Article III, Section 32 of

the Pennsylvania Constitution.

III. CONCLUSION

For the foregoing reasons, we conclude that the trial court did not err

as a matter of law in granting Appellee’s motion for summary judgment.21

____________________________________________

20

Citing Moyer v. Phillips, 341 A.2d 441 (Pa. 1975), only for the general

proposition that legislative classifications must have a fair and reasonable

relation to the object of the legislation, Appellant, alternatively, attempts to

construct an equal protection argument that Section 1929.1 discriminates

against classes of plaintiffs: those who cannot recover from Appellee and

those who can recover from other successor corporations. We reject this

attempt to redefine the legislative classification drawn by our General

Assembly under Section 1929.1. The statute expressly establishes the class

of domestic business corporations as opposed to foreign business

corporations.

21

Based on the outcome in this case, we need not address Appellant’s

remaining argument, i.e., whether the trial court sub silentio determined

there was a genuine issue of material fact as to Appellant’s exposure to

asbestos products.

- 36 -

J-A17039-14

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/22/2014

- 37 -