RESCAR, INC. - Law.com

4840-8579-6349.1

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

AXIALL CORPORATION,

Plaintiff,

v.

ALLTRANSTEK LLC; RESCAR, INC.,

t/d/b/a RESCAR COMPANIES;

SUPERHEAT FGH SERVICES, INC.,

Defendants.

CERTIFICATE OF COMPLIANCE

I certify that this filing complies with the

provisions of the Public Access Policy of the

Unified Judicial System of

Pennsylvania: Case Records of the

Appellate and Trial Court that require filing

confidential information and documents

differently than non-confidential

information and documents.

Mark D. Shepard _

Mark D. Shepard, Esq.

CIVIL DIVISION

No.: GD 18-010944

MOTION FOR POST-TRIAL RELIEF

PURSUANT TO PA.R.C.P. 227.1 BY

DEFENDANTS RESCAR AND

ALLTRANSTEK

Counsel for these Defendants:

MARK D. SHEPARD (PA I.D. #36902)

[email protected]

Babst Calland Clements and Zomnir, P.C.

Two Gateway Center, 6th Floor

Pittsburgh, PA 15222

Phone: 412-394-6546

MARK T. CALOYER (PA ID # 56358)

[email protected]

Lewis, Brisbois, Bisgaard & Smith, LLP

One PPG Place, 28th Floor


Phone: 412-567-5596

MICHELLE L. GORMAN (pro hac vice)

[email protected]


3054 Pennsylvania Avenue

Weirton, WV 26062

Phone: 304-224-2526

THOMAS P. MANNION (pro hac vice)

[email protected]


1375 East 9th Street, St. 2250

Cleveland, OH 44114

Phone: 216-344-9467

DANIEL A. LEISTER (PA ID # 315495)

[email protected]



Cleveland, OH 44114

Phone: 216-586-8803

mailto:[email protected]





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IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

AXIALLL CORPORATION,

Plaintiff,

v.

ALLTRANSTEK LLC; RESCAR, INC.,

t/d/b/a RESCAR COMPANIES;

SUPERHEAT FGH SERVICES, INC.,

Defendants.

CIVIL DIVISION

No.: GD 18-010944

MOTIONS FOR POST-TRIAL RELIEF PURSUANT TO PA.R.C.P. 227.1

BY RESCAR AND ALLTRANSTEK

Defendants AllTranstek LLC (“AllTranstek”) and Rescar, Inc. (“Rescar”) respectfully file

the following post-trial motions with respect to the jury’s verdict dated October 14, 2021 (the “Jury

Verdict”), including all interlocutory rulings and orders that preceded the Jury Verdict.

As set forth fully below, AllTranstek and Rescar request that this Honorable Court grant

post-trial relief in the form of a judgment notwithstanding the verdict, a substantial remittitur of

the excessive jury verdict, a molding or the verdict, or any other relief warranted under Pa.R.C.P.

227.1.

AllTranstek and Rescar further request that this Honorable Court grant an additional thirty

(30) days after receipt of the complete, official trial transcript to supplement these motions.

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MOTION FOR JUDGMENT NOTHWITHSTANDING THE VERDICT

1. AllTranstek and Rescar have properly preserved their request for judgment as a

matter of law with timely pretrial motions, trial motions, objections, arguments on the record,

motions for nonsuit and directed verdict, and the submission of proposed verdict sheets, special

jury interrogatories, and jury instructions. Having preserved these issues, Rescar and AllTranstek

move this Honorable Court to enter judgment notwithstanding the verdict (“judgment n.o.v”) for

the reasons set forth below.

A. Standard for Judgment N.O.V.

2. Judgment n.o.v. is appropriate if (1) the movant is entitled to judgment as a matter

of law or (2) the evidence presented at trial was such that the verdict would be in favor of the

movant. Pittsburgh Constr. Co. v. Griffith, 2003 PA Super 374, ¶ 12, 834 A.2d 572, 580 (Pa.

Super. 2003), quoting Whittington v. Episcopal Hospital, 2001 PA Super 40, 768 A.2d 1144, 1149

(Pa. Super. 2001). With respect to the first basis, the Court is to review the record and determine

whether, even with all factual inferences decided adversely to the movant, the law nonetheless

requires a verdict in its favor. Id. As to the second basis, the court reviews the evidentiary record

and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Id.

B. Breach of Contract and Warranty: The Jury Did Not Identify the Contract

or Determine its “Material Terms.”

3. Judgment n.o.v. should be granted on Axiall’s breach of contract and breach of

warranty claims because Axiall did not prove (and the jury did not identify) (1) the contract or

(2) its “material terms.” The necessary elements to give rise to the existence of a contract are

“offer,” “acceptance,” “consideration” and “mutual meeting of the minds.” Schreiber v. Olan

Mills, 426 Pa. Super. 537, 542, 627 A.2d 806, 808 (Pa Super. 1993).

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4. Pa. R.C.P. 1019 mandates that when a claim is based upon a writing (like Axiall’s

breach of contract and breach of warranty claims) a copy of the writings must be attached to the

complaint.1 The issues to be addressed at trial must be framed in the parties’ pleadings. See

Morris v. Benson & Benson, Inc., 321 Pa. Super. 15, 17, 467 A.2d 870, 870-871 (Pa. Super

1983). The function of pleadings “is to form the issues and to restrict the proof at trial.”

Commonwealth Fin. Sys. v. Hartzell, 2010 Pa. Dist. & Cnty. Dec. LEXIS 526, *15, 17 Pa. D.

& C. 5th 176, 188 (emphasis added).

5. In its Complaint, Axiall alleged the relationship between Axiall and AllTranstek and

Axiall and Rescar was “governed by written contract.” (Complaint, ¶¶ 5-6). According to Axiall’s

Complaint—which was never amended—the Purchase Orders form “the basis for the parties’

contract…” (Complaint, ¶ 8).

6. At trial, the jury did not expressly decide whether the purchase orders formed the

contract between Axiall and AllTranstek/Rescar. Axiall objected to providing the jury with a

special interrogatory that was entirely in line with the allegations in Axiall’s Complaint:

Do Axiall Corporation’s Purchase Orders form a contract between

AllTranstek LLC and Axiall Corporation?2

***

Do Axiall Corporation’s Purchase Orders form a contract between Rescar

Companies and Axiall Corporation?3

7. Because the jury was not asked to resolve this threshold question, the first element

of Axiall’s breach of contract claim (the existence of a contract and its material terms) were not

1 Axiall complied with Rule 1019 by attaching four purchase orders it contends are the basis for its contract claims

against AllTranstek and Rescar. (Complaint, Exhibits 2, 3). Axiall also attached Purchase Order General Conditions

(Rev. 01/28/2013) for Axiall Corporation and All of Its Direct and Indirect Subsidiaries (Collectively, the “Buyer).” 2 Defendants’ Proposed Amended Verdict Slip, dated 10-14-21, Question 1; Defendants’ Proposed Special

Interrogatories, dated 10-06-21. 3 Id., Question 6.

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satisfied. Axiall invited this deficiency by objecting to AllTranstek and Rescar’s request to present

the jury with this fundamental question.

8. Axiall’s counsel argued that having the jury decide whether the purchase orders

were, in fact, “the contract” would be “confusing” to the jury. (Tran. 4497:11-25).

9. The complete opposite was true. Four hours into deliberation, the jury submitted a

question: “can the parties point us to the exhibits that say a contract between Axiall and

Rescar and/or between Rescar and AllTranstek?” (Tran. 4557:13-22). The jury was confused

by the lack of a jury interrogatory identifying the purchase orders as the alleged contract.

10. Rescar and AllTranstek proposed answering the jury’s question as follows: the jury

must decide what documents, if any, establish the contracts between the parties Axiall and

AllTranstek and Rescar. (Tran. 4557:13-4558:15). This was based upon Axiall’s previous

argument that its breach of contract claim was not actually limited to the purchase orders and could

arise from the course of dealing with the parties.4 (Id.).

11. The jury was not instructed to determine what documents, if any, establish the

contracts. Instead the jury was told a written contract, in fact, existed, thereby giving the jury the

false impression that Axiall had already satisfied the first prong of Axiall’s breach of contract and

breach of warranty claims.

12. The verdict form submitted to the jury, which did not include Rescar and

AllTranstek’s special interrogatories, similarly gave the false impression that existence of an

enforceable written contract was a foregone conclusion:

Axiall’s purchase orders reference but do not include its terms and conditions which

are available on Axiall’s website. Axiall claims that its purchase orders and its

terms and conditions are part of the parties’ contract. Rescar and AllTranstek

4 An allegation that does not appear in Axiall’s Complaint.

(footnote continued)

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both deny that the purchase orders and Axiall’s terms and conditions are part of its

contracts with Rescar and AllTranstek.5

A similar instruction was given related to breach of warranty:

Axiall bears the burden of proving that the express warranty contained in its terms

and conditions is a part of the contract between the parties.6

13. As a result, the jury entered a verdict against AllTranstek and Rescar for breach of

contract and breach of warranty without first identifying whether the documents identified in

Axiall’s Complaint (the purchase orders) were, in fact, an enforceable contract between Axiall and

Rescar/AllTranstek.

14. As such, judgment n.o.v. should be entered in favor of Rescar and AllTranstek on

Axiall’s breach of warranty and breach of contract claims.

C. Breach of Contract and Warranty: The Purchase Orders are Not

Enforceable Contracts As a Matter of Law

15. The purchase orders, as a matter of law, are not valid contracts enforceable against

Rescar or AllTranstek. Rescar and AllTranstek raised this issue during its motion for nonsuit and

motion for directed verdict.

16. Purchase order number 4500309931 (“PO #9931”) dated 02-29-16, is the first

purchase order related to AllTranstek.7 A box containing small print (the smallest print on the

document) is located at the very bottom of the page and states, in part:

INSTRUCTIONS TO VENDOR: TO CONFIRM RECEIPT AND

ACCEPTANCE OF THIS PURCHASE ORDER, PLEASE SIGN & RETURN

ACKNOWLEDGEMENT TO THE BUYER NAME ON THIS PURCHSAE

ORDER…

It expressly states “VENDOR SIGNATURE REQUIRED” and provides a line for AllTranstek to

5 Tran. 4535:14-22. 6 Tran. 4534:1-9 7 Exhibit 2 to Complaint, Trial Ex. 1058.

(footnote continued)

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sign and date the document. PO #9931 contained signature lines for Vendor (i.e. AllTranstek) as

well as Axiall, LLC.8 However, PO #9931 was not signed.

17. Axiall’s Fleet Maintenance Manager, Mark Sinclair, testified that the purchase

orders were an administrative mechanism. (Tran. 1583:6-1584:3, 1586:2-6).

18. Neither Mark Sinclair nor any other witness testified that PO #9931 was the

contract between AllTranstek and Axiall.

19. The same is true for the second purchase order related to AllTranstek, number

4200002099 dated 04-01-16 (“PO #2099”).9 PO #2099 was written on letterhead for a company

named “Eagle US 2 LLC.” 10 PO #2099 stated: “VENDOR SIGNATURE REQUIRED” and

had the same box of small print, except it referenced “Eagle US 2 LLC,” instead of “Axiall, LLC.”

20. Purchase order number 4500307001 (“PO #7001”), dated 02-10-16 11 was the first

purchase order related to Rescar. Like the other purchase orders, PO #7001 stated: “VENDOR

SIGNATURE REQUIRED” in order to confirm receipt and acceptance of the purchase order. It

also contained a signature line for Axiall, LLC.

21. Purchase order number 4510012399 (“PO #2399”), dated 05-03-1612 was the

second purchase order related to Rescar. Eagle US 2 LLC appears on the letterhead as the company

authoring the purchase order.

22. By its terms, PO #2399 replaces PO # 7001 “to facilitate payment only for legacy

PPG/Axiall railcar repairs. Balance of $1,543,921.26 was transferred from legacy PO. Vendor

will not be provided a PO document.”13 It further stated, “We require an order acknowledgement

8 Axiall, LLC is not a party in this lawsuit. 9 Exhibit 2 to Complaint, Trial Ex. 1059. 10 Eagle US 2 LLC is not a party in this lawsuit. 11 Exhibit 3 to Complaint, Trial Ex. 1060. 12 Exhibit 3 to Complaint, Trial Ex. 1061. 13 Trial Ex. 1061 (emphasis added).

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for the following items:” and then proceeds to identify Item 10 as “Railcar repairs.” Like the other

purchase orders, PO #2399 contains the “VENDOR SIGNATURE REQUIRED” language and a

signature line for Eagle US 2 LLC.

23. Despite Axiall’s explicit condition that signature was required, none of the purchase

orders admitted into evidence were signed by AllTranstek; Rescar; Axiall; Axiall, LLC; or Eagle

US 2 LLC. Mr. Sinclair testified he never saw a purchase order signed by AllTranstek, Rescar, or

Axiall. (Tran. 1673-74).

24. Under Pennsylvania law, a contract is created where there is mutual assent to the

terms of a contract by the parties with the capacity to contract. Shovel Transfer & Storage v. Pa.

Liquor Control Bd., 559 Pa. 56, 62-63, 739 A.2d 133, 136 (Pa. 1999), citing Taylor v. Stanley Co.

of America, 305 Pa. 546, 553, 158 A. 157 (1932). As a general rule, signatures are not required

unless such signing is expressly required by law or by the intent of the parties. Id.

25. It is firmly settled that the intent of the parties to a written contract is contained in

the writing itself. Id., citing Krizovensky v. Krizovensky, 425 Pa. Super. 204, 624 A.2d 638, 642

(Pa. Super. 1993). When the words of a contract are clear and unambiguous, the intent is to be

found only in the express language of the agreement. Id., citing Steuart v. McChesney, 498 Pa.

45, 444 A.2d 659, 661 (Pa. 1982).

26. “[T]he offeror is the master of his offer and has complete power to control the

nature of the agreement by the terms of the offer he makes.” Bethlehem Steel Corp. v. Litton

Industries, Inc., 507 Pa. 88, 124, 488 A.2d 581, 600 (Pa. 1985). “Any difficulty interpreting the

agreement must be resolved in favor of the non-drafting party.” Nationwide Ins. Co. v. Gen.

Motors Corp./Chevrolet Motor Div., 533 Pa. 423, 432, 625 A.2d 1172, 1177 (Pa. 1993)

(interpreting ambiguity in warranty agreement against the drafter).

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27. Here, Axiall Corporation (and/or Axiall, LLC and/or Eagle US 2 LLC), when

drafting the purchase orders, chose to include the phrase “VENDOR SIGNATURE REQUIRED”

and expressly directed the Vendor to sign the purchase order “to confirm receipt and acceptance.”

28. Axiall did not call a witness involved in drafting the purchase orders or anyone to

refute the plain language of the purchase orders that the vendor’s signature was required.

29. In relation to Rescar, PO #2399 expressly “replaced” the previous purchase order

PO #7001. As a matter of law, PO #7001 cannot be “the contract” between Axiall and Rescar

because it was expressly replaced by PO #2399.

30. PO #2399, by its very language, was “not provided” to Rescar. Therefore, Rescar

could not have assented or acquiesced to PO #2399—or Eagle US 2 LLC’s terms and conditions

referenced on PO #2399. See e.g., Highland Tank & Mfg. Co. v. Indus. Labor & Equip. Servs.,

LLC, No. 2058 MDA 2013, 2014 Pa. Super. Unpub. LEXIS 239, *21 (Pa. Super. 2014) (no

enforceable agreement between the plaintiff and Tri-State because the plaintiff never received a

purchase order from Tri-State).

31. Axiall failed to produce any evidence, either oral, a cover letter, or email, that

Rescar or AllTranstek received any of the purchase orders.

32. Giving Axiall the benefit of all possible inferences, at best, Axiall introduced

evidence that certain purchase orders (not necessarily the purchase orders admitted into evidence

or attached to Axiall’s Complaint) were electronically “transmitted.” Axiall submitted no evidence

that Rescar or AllTranstek actually “received” any of the purchase orders.

33. PO #2099 identifies “Chase@AllTranstek” as the contact for AllTranstek. Jeff

Wilson testified that Debbie Chase died several years before the date printed on PO #2099 and no

10

one at AllTranstek would have been monitoring her email when PO #2099 was generated years

later. (Tran. 2954:8-18).

34. In addition, Axiall’s Terms and Conditions expressly require all notices in

connection with the Terms and Conditions shall be in writing and signed by the party giving or

making the notice. None of the purchase orders were signed by Axiall; Axiall, LLC; or Eagle US

2 LLC.

35. As to AllTranstek, this Honorable Court rejected Rescar and AllTranstek’s request

for a special interrogatory asking the jury to determine whether The Software Access and Services

Agreement dated June 1, 2004, admitted as Trial Exhibit 1019 (the “2004 Agreement”) represents

the contract between AllTranstek and Axiall.14

36. As argued at trial, this special interrogatory was warranted because Julie Bart,

Axiall’s own witness and former Fleet Manager, testified that the 2004 Agreement “got moved

from” PPG to Axiall. (Tran. 1176:8-16). Ms. Bart agreed that during her time with PPG and

Axiall, the 2004 Agreement was never canceled. (Trans. 1172:18-20). Ms. Bart testified,

“AllTranstek continued to provide those services to PPG, and then when we moved to Axiall, the

contract that we already had in place got moved from PPG to Axiall….” (Tran. 1176:8-16).

37. The 2004 Agreement expressly stated, “This Agreement may not be modified or

appended except by an agreement in writing that references to this Agreement and is signed by the

party against whom enforcement is sought.” (Trial Ex. 1019, § P(2)).

38. Neither of the purchase orders related to AllTranstek reference the 2004 Agreement

or were signed by AllTranstek.

14 Rescar and AllTranstek’s Proposed Special Interrogatories, dated October 6, 2021, Question 3.

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39. As a matter of law, the purchase orders cannot modify or amend the 2004

Agreement, which Axiall’s own witnesses admitted applied to Axiall and was never canceled.

40. Accordingly, judgment n.o.v. should be granted in favor of AllTranstek and Rescar

on Axiall’s breach of contract and breach of warranty claims.

D. Breach of Contract and Warranty: The Terms and Conditions Are Not

Clearly Identified in the Purchase Orders

41. Rescar and AllTranstek requested special interrogatories regarding whether the

purchase orders “clearly identified” Axiall’s general terms and conditions.15 Instead, the jury was

asked: “Are Axiall Corporation’s Terms and Conditions referenced in its Purchase Order a part

of the contract between Axiall Corporation and Rescar Companies?”16

42. As a matter of law, Axiall’s general terms and conditions were not clearly

identified—an issue Rescar and AllTranstek raised in their motions for nonsuit and directed

verdict.

43. Although contracts may contain provisions incorporated by reference, the

provisions must be “identified beyond all reasonable doubt.” Advanced Tubular Prods. v.

Solar Atmospheres, Inc., No. 03-0946, 2004 U.S. Dist. LEXIS 4111, at *15 (E.D. Pa. Mar. 12,

2004) (applying Pennsylvania law). An enforceable contract also requires that the terms of

the bargain be set forth with sufficient clarity. Biddle v. Johnsonbaugh, 444 Pa. Super. 450,

664 A.2d 159, 163 (Pa. Super. 1995) (citation omitted).

44. The purchase orders do not even correctly or consistently identify the company

purportedly authoring/issuing the general terms and conditions. PO #9931 and PO #7001 refer to

15 Rescar and AllTranstek’s Proposed Special Interrogatories, dated October 6, 2021, Questions 2 and 7. 16 This question gave the jury the impression that the parties agreed that the purchase orders were “the contract”—a

problem that could have been easily resolved if the jury had been asked specifically whether the purchase orders were

the “contract” between Axiall and Rescar/AllTranstek. (footnote continued)

12

“General Conditions…for Axiall, LLC.”17 PO #2099 and PO #2399 refer to “General Conditions

for Eagle US 2 LLC.”18 The terms and conditions are not printed on the purchase orders and

although allegedly accessible online, Axiall introduced no evidence to establish that alleged fact.

The website where the terms and conditions were allegedly accessible is no longer available. No

screen shots, website captures, or historic internet data was introduced to establish that the terms

and conditions entered into evidence were identical to versions allegedly available online back in

2016.

45. The reference to the terms and conditions in the purchase orders is at the bottom of

the document in the smallest text on the entire document.



E. Breach of Contract and Warranty: Axiall Failed to Establish an Alternate

Contract Aside from the Purchase Orders.

47. Axiall opposed asking the jury to specifically answer whether the purchase orders

were “the contract” between Axiall and AllTranstek/Rescar.

48. During trial, Axiall introduced other contracts (that were not the purchase orders)

into evidence, including the 2004 Agreement between PPG and AllTranstek—a contract that

Axiall’s own witness, Julie Bart, testified was moved from PPG to Axiall. (Tran. 1176:11-16).

49. Axiall also argued to this Honorable Court that “the contracts” supporting Axiall’s

breach of contract claims could arise from the parties’ course of conduct. After Axiall closed its

case in chief, Axiall cross-examined Jeff Wilson on discovery materials (albeit over objection) that

stated: “Various verbal requests and emails with requests for services, invoices and documents

17 Trial Ex. 1058 and 1060 (emphasis added). 18 Trial Ex. 1059 and 1061 (emphasis added).

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reflecting specific services that were required by Axiall from time to time in 2016 would form the

basis of the parties’ agreement.” (Trans. 3125-3127).

50. Axiall did not prove the existence or material terms of a contract. Axiall submitted

no evidence as to the parties “course of dealing” or identified how Rescar or AllTranstek breached

promises made during this alleged “course of dealing.”

51. Accordingly, judgment n.o.v. should be granted in favor of Rescar and AllTranstek


F. Breach of Contract, Breach of Warranty, and Negligence: Axiall’s Claims

Were Based Upon Conduct in 2010, and Axiall Failed to Establish (and

Opposed Any Jury Instruction) that Axiall was a Successor of PPG.

52. Before the jury was charged, AllTranstek and Rescar requested a jury instruction

on the issue of whether Axiall could be treated as a successor to PPG. (Tran. 4508-4510). This

Court denied said request.

53. In closing argument, and during trial, Axiall took the position that PPG and Axiall

were separate companies and argued that PPG’s past mismanagement of its chlorine fleet could

not be attributed to Axiall. At the same time, Axiall argued that welding on AXLX 1702 that

occurred in 2010 resulted in the preexisting crack. This was a departure from Axiall’s theory

(presented by Eric Guyer and Shane Kennett) that AXLX 1702 ruptured because a portion of its

tank shell was overheated to 1800 degrees for four hours.

54. Because Axiall did not establish, and opposed the position, that Axiall was a

successor of PPG, the jury’s verdict on Axiall’s breach of contract and breach of warranty claims

should not have been permitted to be submitted based upon conduct that predated Axiall’s

existence. Axiall’s closing argument and presentation of evidence throughout trial made it

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abundantly clear that its breach of contract claims were based upon conduct that predated Axiall’s

formation.

55. As such, judgment n.o.v. should be granted in favor of AllTranstek and Rescar on

Axiall’s breach of contract, breach of warranty, and negligence claims.

G. Breach of Contract and Warranty: Axiall Failed to Establish That its

Contract Claims were Based upon Conduct that Occurred After the Contracts

were Allegedly Formed.

56. Assuming the purchase orders were “the contract” between Axiall and

Rescar/AllTranstek (a finding the jury did not specifically determine), the breach of those contracts

must have occurred after the purchase orders existed.

57. As a matter of law, AllTranstek and Rescar cannot breach a contract that did not

yet exist. See e.g., Bert Co. v. Turk, 2021 Pa. Super. LEXIS 270, *25, 2021 PA Super 87, 257

A.3d 93 (Pa. Super. 2021) (“Because Mr. Turks’ December 2016 acts pre-date his February 16,

2017 contract, his tortious, 2016 acts could not constitute breaches of the yet-to-exist, 2017

contract.”).

58. The 2010 welding repair Rescar performed on AXLX 1702 was a main focus of

Axiall’s closing argument and, undeniably, formed the basis for Axiall’s breach of contract and

breach of warranty claims against Rescar and AllTranstek. In closing argument, Axiall

highlighted—and asserted as a basis for its claim—correspondence from 2010 between

AllTranstek to PPG. (Tran. 4470-4471).

59. Judgment n.o.v. should be entered in favor of AllTranstek and Rescar on Axiall’s

breach of contract and breach of warranty claims because they were clearly based upon conduct

that pre-dated the purchase orders.

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H. Breach of Contract and Warranty: Axiall Failed to Prove Causation on its

Contract Claims.

60. In relation to Axiall’s breach of contract claim, the jury was instructed that Axiall

needed to prove only two elements: (1) the existence of a contract, including its essential terms,

and (2) Rescar and AllTranstek breached a duty created by that contract:

Axiall must prove the following: The existence of a contract, including its

essential terms, and that Rescar and AllTranstek breached a duty created by

that contract. Axiall and Rescar had a contract pursuant to which Rescar was

to perform repair and maintenance services on some of Axiall’s railroad tank

cars, including AXLX 1702. Axiall and AllTranstek also had a contract

pursuant to which AllTranstek was to assist in the management of Axiall’s

fleet of railroad tank cars, including AXLX 1702.19

61. The jury was not instructed that Axiall had the burden to prove by a preponderance

of evidence that any alleged breach was a factual cause of Axiall’s loss.

62. “In order to recover for damages pursuant to a breach of contract, the plaintiff must

show a causal connection between the breach and the loss.” Logan v. Mirror Printing Co., 410

Pa. Super 446, 448-449, 600 A.3d 225 (Pa. Super. 1991), citing Exton Drive-In, Inc. v. Home

Indemnity Co., 436 Pa. 480, 261 A.2d 319 (Pa. 1969). Where one party breaches the contract, the

other party is entitled to recover whatever damages he suffered, provided (1) they were such as

would naturally and ordinarily result from the breach, or (2) they were reasonably foreseeable and

within the contemplation of the parties at the time they made the contract, and (3) they can be

proved with reasonable certainty. Id. at 449, quoting Taylor v. Kaufhold, 368 Pa. 538, 546, 84

A.2d 347, 351 (Pa. 1951).

63. Here, Axiall failed to prove, and the jury failed to determine, that Axiall’s alleged

damages were the natural and ordinary result of the breach and failed to prove such damages with

19 Tran. 4534:18-21.

16

“reasonable certainty.” Axiall invited this deficiency by opposing a jury instruction that Axiall

must prove causation with respect to its breach of contract and breach of warranty claims.

64. Accordingly, judgment n.o.v. should be granted on Axiall’s’ breach of contract and

breach of warranty claims.

I. Negligence: Axiall Failed to Establish the Applicable Standard of Care.

65. During their motion for nonsuit and motion for directed verdict, AllTranstek and

Rescar pointed out that Axiall failed to present expert evidence to establish the applicable standard

of care.

66. Axiall failed to introduce any expert testimony that explained or even defined the

standard of care applicable to Rescar (tank car repair facility) or AllTranstek (railroad fleet

management).

67. The Pennsylvania Supreme Court has held that, as a general rule, “expert testimony

is necessary to establish negligent practice in any profession.” Powell v. Risser, 375 Pa. 60, 65,

99 A.2d 454, 456 (Pa. 1953). Generally, the determination of whether expert evidence is required

will turn on whether the issue of negligence in the particular case is one which is “sufficiently clear

so as to be determinable by laypersons or concluded as a matter of law, or whether the alleged

breach of duty involves too complex a legal issue so as to warrant explication by expert evidence.”

Storm v. Golden, 371 Pa. Super. 368, 377, 538 A.2d 61, 65 (Pa. Super. 1988).

68. Expert testimony is necessary when the subject matter of the inquiry is “one

involving special skills and training not common to the ordinary lay person.” Hogan v. Lower

Bucks County Joint Mun. Auth., 2015 Pa. Commw. Unpub. LEXIS 641, *29, 122 A.3d 510 (Pa.

Cmmw. 2015).

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69. Conversely, expert testimony is unnecessary where the matter under investigation

is so simple, and the lack of skill or want of care so obvious, as to fall within the experience and

comprehension of even nonprofessional persons. Hogan v. Lower Bucks County Joint Mun. Auth.,

2015 Pa. Commw. Unpub. LEXIS 641, *29, 122 A.3d 510, citing Welsh v. Bulger, 548 Pa. 504,

698 A.2d 581 (Pa. 1997). Without expert evidence identifying the standard of care applicable to

the defendant, a negligence claim cannot be sustained as a matter of law. See e.g. Charlton v.

Troy, 236 A.3d 22, 33, 2020 Pa. Super. LEXIS 603, *19, (Pa. Super. 2020) (nonsuit was

improperly denied when the plaintiff failed to establish the standard of care for the using traction

or that the deviated from that standard); see e.g., Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572,

581, 2003 Pa. Super. LEXIS 3630, *13-14 (Pa. Super. 2003) (judgment granted for defendant even

when the plaintiff’s expert opined that ‘out of square’ framing of the plaintiffs’ home was

“evidence of workmanship falling below the industry standard.”).

70. Referencing a contract or terms contained in a contract is not a substitute to expert

testimony on the applicable standard of care. See Kitchenman v. J. Rich Steers Co., 5 Phila. 446,

452-453, 1981 Phila. Cty. Rptr. LEXIS 109, *9-10.20

71. Railcar repair and railcar fleet management is not something that falls within the

common experience and comprehension of jurors.

72. Nothing about tank car inspections, local post-weld heat treatment, thermocouples,

corrosion welding, structural underframe welding, dye penetrant examinations, magnetic particle

examinations, ACF-200 stub sill underframe design, residual tensible stress, or any of the other

20 Holding: “If we accepted plaintiff’s position that a contractor’s negligence is determined solely by the standards

set forth in his contract with the owner, this could result in relaxing of standards voluntarily assumed by parties to

such agreements. A contractor is not likely to subject himself to strict standards of care, if noncompliance with these

standards make him liable as a matter of law for injuries sustained by a third party. Thus, less stringent standards will

be agreed to, to the public detriment.”.

18

complex concepts involved in this case were “obvious” and within the common comprehension of

the layperson.

73. Despite Pennsylvania law requiring expert testimony on an issues involving

specialized knowledge, the jury in this case was asked to determine whether AllTranstek or Rescar

breached the applicable standard of care without Axiall first presenting competent expert evidence

as to the standard of care that applied to AllTranstek and Rescar.

74. Axiall’s only liability experts were Shane Kennett and Eric Guyer, and neither was

proffered as an expert in rail car repair, fleet management industries, or even the railroad industry

at large. Shane Kennett was proffered as an expert in metallurgy, materials science, welding, and

failure analysis. (Tran. 2253). He was not proffered as an expert in railcar repair, tank car

inspections, fleet maintenance, FRA regulations, PHMSA regulations, or DOT regulations. He

was not proffered, generally, as an expert in the railroad industry or the transportation of chemical

commodities.

75. As such, Axiall failed to present the jury with the standard of care that applied to

Rescar and AllTranstek—a prerequisite to a negligence finding against Rescar and AllTranstek.


on Axiall’s negligence claim.

J. Damages: Axiall is Not Entitled to Replacement Cost as a Matter of Law.

77. In pretrial motions and motions for nonsuit and directed verdict, AllTranstek and

Rescar objected to the jury’s ability to use alleged replacement value of plant equipment as the

basis for compensatory loss.

78. Pennsylvania standard jury charge 7.150 should have been applied in this case.

(Tran. 3027-3028). Axiall’s measure of loss was the fair market value of the equipment, not the

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cost of replacement. Axiall failed to establish its entitlement to replacement value because the

evidence established that the subject property is not unique so that traditional measures of damages

cannot compensate Axiall.

79. Axiall failed to introduce any evidence as to the fair market value of the equipment

Axiall allegedly replaced.

80. An accurate measure of property loss depends on fair market value so as to avoid a

windfall to Plaintiff. See Duquesne Light Co. v. Woodland Hills School Dist., 700 A.2d 1038 (Pa.

Commw. Ct. 1997). The purpose of a damages award is to make the plaintiff “whole, not rich.”

Stevenson v. Ebervale Coal Co., 52 A. 201, 202 (Pa. 1902).

81. The purpose of damages for injury or destruction of property by tortious conduct

of another is to compensate the injured owner for the actual loss suffered. Babich v. Pittsburgh &

New England Trucking Co., 386 Pa. Super. 482, 485-486, 563 A.2d 168, 170, (Pa. Super 1989).

“It is well-settled law in this Commonwealth that the measure of damages for injury to property is

the cost of repairs where that injury is repairable; however, where the injury is characterized as

permanent, the measure of damages becomes the decrease in the fair market value of the

property.” Id., quoting Wade v. S.J. Groves & Sons Company, 283 Pa. Super. 464, 483, 424 A.2d

902, 911 (Pa. Super 1981).

82. As a matter of law, Axiall failed to prove the fair market value of the plant

equipment that was permanently damaged/replaced, and therefore, judgment n.o.v. should be

granted in favor of AllTranstek and Rescar on jury award for the costs of replacing equipment.

20

K. Damages: Axiall Failed to Establish Entitlement to Third-Party Claims.

83. In pretrial motions and motions for nonsuit and directed verdict, AllTranstek and

Rescar objected to Axiall’s ability to include settlement proceeds paid to third-party claimants as

a part of Axiall’s alleged damages against AllTranstek and Rescar.

84. As a matter of law, Axiall failed to prove they were entitled to recover from

AllTranstek or Rescar any amount Axiall paid to a third party.

85. Axiall did not call a single witness who actually participated in evaluating or paying

any third-party claims.

86. Axiall’s plant manager, Mr. Mullens, is the only witness Axiall called to lay factual

foundation for the legitimacy and reasonableness of these third-party claims. However, Mr.

Mullens was incapable of establishing the proper foundation. He was unaware of settlement

details and was not involved in evaluating or paying those claims.

87. As such, Axial failed to prove that the settlements were reasonable or that there was

a causal connection between the alleged damages and the rupture.

88. Judgment n.o.v. should, therefore, be entered in favor of AllTranstek and Rescar

on the portion of Axiall’s damages that represent payment made to third parties.

WHEREFORE, Defendants AllTranstek Rescar respectfully request that this Court

grant its Motion for Judgment Notwithstanding the Verdict on Axiall’s breach of contract,

breach of warranty, and negligence claims.

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MOTION FOR REMITTITUR

In addition to its forgoing request for judgment n.o.v., AllTranstek and Rescar

respectfully request a remittitur of the jury’s excessive verdict for any or all reasons set forth

in Paragraphs 89 through 96 of this motion, which are incorporated herein by reference, as if

set forth herein at length and for the following additional reasons:

89. The verdict is unsupported by substantial credible evidence and is excessive

under the circumstances.

90. Such excessiveness resulted from the erroneous and prejudicial admission of

evidence of replacement costs and the other improper rulings set forth above, the discussion

of which are incorporated herein by reference.

91. Examples of the manifest excessiveness of the verdict include, but are not

limited to, the award of $5.9M for damage to the Natrium plant and equipment. That award is

based upon the replacement cost incurred by Axiall to replace allegedly damaged equipment,

the vast majority of which Axiall provided no evidence that the replacement was a result of

damage from the Chlorine Release Incident. For example, Axiall’s witnesses admitted that the

amount spent to replace certain lagging and banding included in the $5.9M was solely the

result of a project to repair or replace the underlying piping and not the result of any damage

caused by the Chlorine Release Incident. That same deficiency applies, at a minimum, to all

the replacement costs incurred by Axiall after 2017 (16 months after the Chlorine Release

Incident).

92. At a minimum, therefore, the Court should remit the $5.9M award for damage

to the Natrium plant and equipment to $2,667,761; the amount expended by Axiall for

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replacement of equipment from the date of the Chlorine Release Incident through December

31, 2017.

93. Alternatively, the Court should eliminate the amount of $1,974,157 from the

jury’s award for damage to the Natrium plant and equipment because those amounts were spent

on professional fees. The trial record establishes that all the professional fees incurred by

Axiall were incurred to develop and advance the replacement cost damage theory for

equipment still in use at Natrium that the jury soundly rejected. Thus, it would be inequitable

and against the weight of the evidence to award any of those fees to Axiall.

94. The Court should remit the jury’s award of $3,540,278 in loss profits, in its

entirety, given the inadequate evidence submitted by Axiall to support that amount of alleged

lost profits for an outage that lasted three to seven days.

95. The Court should remit the jury’s award of $3,394,168 for settlement of third

party claims, in its entirety, given the failure of Axiall to provide any valid evidentiary basis

to support the reasonableness of any of those settlements including, but not limited to, the

reasonableness of the amount paid to third parties for such settlements. Additionally, Axiall

failed to introduce sufficient evidence to establish the actual damage for any third party or that

any such damage was caused by the Chlorine Release Incident.

96. AllTranstek and Rescar preserved these issues through the objection to

introduction of Axiall’s lost profit and third party claims exhibits (Trial Exs. 1010 and 1011)

and through the submission and filing of its own jury verdict sheet, through its timely objection

to the rejection of its proposed jury verdict sheet, through its objections to the Court ’s use of

Plaintiff’s Proposed Verdict Sheet and through its objections to the Court’s damages jury

instructions to the jury.

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WHEREFORE, Defendants AllTranstek LLC and Rescar Companies, respectfully

request that, even if it denies the other relief requested above, this Honorable Court should

substantially remit the verdict to an amount commensurate with the damages Axiall is properly

entitled to under Pennsylvania law and that was reasonably proven by Axiall.

MOTION TO MOLD VERDICT

97. AllTranstek and Rescar request that this Honorable Court exercise its discretion

to mold the jury’s verdict to reflect the jury’s finding that Axiall caused 40% of its own

damages on all its claims, solely through its own conduct. Specifically, in response to

Questions 4 and 5 of the verdict slip, the jury found that Axiall Corporation’s conduct was a

factual cause of harm to itself and that its conduct caused 40% of the resulting damages

suffered by Axiall.

98. The jury’s verdict should be molded and reduced to $7,680,000 to reflect the

jury’s clear causation finding attributable to Axiall. Absent a molding of the verdict, Axiall

will be improperly rewarded for damages that were self-inflicted and not attributable to any

conduct, actions, or inaction by AllTranstek and Rescar.

99. Because it is clear from the verdict that the intention of the jury was to attribute

only 60% of the damages awarded to Axiall to the action or inaction of AllTranstek and Rescar,

a molding of the verdict to reflect that clear intention is both warranted and necessary.

WHEREFORE, Defendants AllTranstek and Rescar respectfully request that, even if it

denies the other relief requested above, this Honorable Court mold the verdict to reflect only

the amount of factual cause attributed by the jury to AllTranstek and Rescar and enter a molded

verdict of $7,680,000.

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MOTION FOR LEAVE TO SUBMIT SUPPLEMENTAL REASONS

100. Paragraphs 1 through 99 are hereby incorporated by reference as if set forth more

fully herein.

101. AllTrantek and Rescar respectfully move this Honorable Court to allow an

additional thirty (30) days after receipt of the entire, official trial transcript to allow AllTranstek

and Rescar to review the transcript and supplement its reasons for post-trial relief, and in support

thereof avers the following:

a. Although the parties received daily copies, the complete, official trial transcript is

not yet available, which has hampered the ability of AllTranstek and Rescar’s

counsel to specifically identify and describe, in the within motion, all appropriate

bases for post-trial relief.

b. This case produced lengthy trial testimony and exhibits, all of which made the trial

of the above matter complex.

c. The amount of the verdict is substantial and granting leave to review the complete,

official transcript will ensure that AllTranstek and Rescar receive a full and

adequate hearing on its post-trial motions.

d. Granting leave to obtain copies of the complete, official trial transcript will cause

no prejudice to Axiall, and Axiall will likely equally benefit from granting said

relief.

e. This motion is being filed as expeditiously as possible to inform the Court and

opposing counsel of many but perhaps not all of the issues that will need to be

addressed in order to ensure that the outcome of the case was fair and just to all

parties.

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WHEREFORE, Defendants AllTrantek and Rescar respectfully move this Honorable Court to

grant an additional thirty (30) days after receipt of the complete, official trial transcript for

supplementation of these post-trial motions.

/s/ Mark D. Shepard

Mark D. Shepard (PA I.D. # 36902)

Babst, Calland, Clements and Zomnir, P.C.

603 Stanwix Street, 6th Floor


Phone: 412-394-6546; Fax: 412-586-1061

[email protected]

/s/ Daniel A. Leister

DANIEL A. LEISTER (PA I.D. # 315495)



Cleveland, OH 44114

Phone: 216-586-8803

[email protected]

Michelle L. Gorman (pro hac vice)

Lewis Brisbois Bisgaard & Smith, LLP

3054 Pennsylvania Avenue

Weirton, WV 26062

Phone: 304-224-2526; Fax: 304-224-2263

[email protected]

Thomas P. Mannion (pro hac vice)

[email protected]



Cleveland, OH 44114

Phone: 216-344-9467

Counsel for Defendants, AllTranstek L.L.C. and

Rescar Companies, d/b/a Rescar Companies, Inc.





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CERTIFICATE OF SERVICE

I hereby certify that on October 25, 2021, I served the foregoing on all counsel of record

via email transmission only, as designated below:

Russell J. Ober, Jr., Esq.

Chad I. Michaelson, Esq.

Antoinette C. Oliver, Esq.

Joseph A. Carroll, Esq.

MEYER, UNKOVIC & SCOTT LLP

535 Smithfield Street, Suite 1300

Pittsburgh, PA 15222-2315

[email protected]

[email protected]

[email protected]

[email protected]

Counsel for Plaintiff

Brad Whalen, Esq.

PORTER HEDGES LLP

1000 Main Street, 36th Floor

Houston, TX 77002

[email protected]

Counsel for Plaintiff

Warren Harris (pro hac vice)

Stephani Michel (pro hac vice)

Bracewell LLP

711 Louisiana Street, Suite 2300

Houston, TX 77002

[email protected]

Additional Counsel for Plaintiff

Thomas P. Birris, Esq.

Stuart H. Sostmann, Esq.

Darren M. Newberry, Esq.

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN

501 Grant Street, Suite 700


[email protected]

[email protected]

[email protected]

Counsel for Defendant, Superheat FGH Services, Inc.









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John J. Hare, Esq.

Walter F. Kawalec, III, Esq.

2000 Market St., Ste. 2300

Philadelphia, PA 19103

Phone: 215-575-2600; Fax: 215-575-0856

[email protected]

[email protected]

Additional Counsel for Defendant, Superheat FGH Services, Inc.

/s/ Mark D. Shepard

MARK D. SHEPARD (PA I.D. #36902)

Babst Calland Clements and Zomnir, P.C.

Two Gateway Center, 6th Floor


Phone: 412-394-6546

[email protected]




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