this is it you how you pronounce your name yeah  whatsoever which accrue at any time on or prior to the closing date that is a critical clause in that which puts a time frame on the excluded liability and then it goes on to explain as i fully argues excludes various litigation claims however in this case this liability arose after the closing date the judgment is a liability when you have a cause of matter if you write a part that what if you separate the accrual because of bashan from the crew of liability that you create a situation where that language becomes meaningless because it any time after that after a certain point something happened that will give rise to a related liability and some is related and  that happened before right even though the events however happened there's no liability he could have lost you can have to file suit and when you are looking at contract pennsylvania is fairly clear when you analyze contracts because pennsylvania disfavors  just favors the restriction of liability for the purchaser company the contract must be construed strictly that's hill versus trail move while the superior court case and so it must be construed against the party seeking immunity from judgment was not entered until two thousand and eight that's eight years after the closing date of this asset purchase now later on in that same little and make magic exclusion there it goes on to refer to on and on and on goes on to refer to and litigation or claim so it doesn't seem to talk there about in a  lines you're looking at insurance really liabilities including workers competition and litigation claims i feel argument is that it's qualified by the previous clauses in this very long then go on a little bit further down to subsection sex any liability or obligation of seller relating to the breach of any war would that not it i think it's looking at particularly particular federal laws and i do want to point the court's attention to the present case which also had very similar facts where is looking at personal physician services and prison health services it did have the same asset purchase agreement and it did find that person health services could be the sex that could have the who i believe imposed on those of course that all occurred in the context of a total seven case rate that is correct however the principles of title seven are are absolutely comparable in applicable here title seven draws its base upon the constitution the fourteenth amendment here we're looking at an eighth amendment right for the prisoner and this is a case that of first impression if you will to the court there have been some cases where i cite the kennedy case regarding a section eight hundred three case were successful i believe it was found but generally this is not an issue that come up before hand so much worse employment law obviously because involves companies and corporations it's been more developed but here we're looking at the same principles of civil rights of rights that have a basis in the constitution and that's why it would it would carry through and the case even worse mcmillan spells those principles out particularly looking at whether or not the successor company has benefited from the discrimination of the predecessor company so it's our contention that the assumption of my abilities was expressed we argue that the court below erred in finding that the life realty a rose after the closing date as i mentioned before liability could not have arisen and so there was an actual judgment there was no legal obligation if you write more should the remedy be let's assume that we were to find th decide to file a lawsuit you could have lost in court their whole number of things at that point c p s had a correction position service had no obligation they had no obligation and till july fourteenth two thousand and eight when there was an entry of a judgment against and i think you know the language that is fairly clear when you look at other cases that look at what a lot of liability is for example united states versus hughes properties it states clearly liabilities and crew while it's still contingent meaning when it's not set yet there's no set liability at that point not until two thousand me now looking at the other prostate for a very long time we were not a court appointed to the case until two thousand and five so he does raise the issue of prison health services and correctional position of services being the same company he refers to them as the same from his standpoint they were the letter first when looking just to back out first we have to look at whether federal law or state law applies and as i outlined in my briefs the united states versus kemble foods and section one hundred eighty eight are the road maps for a for whether state or federal law apply and the key point here is whether or not the application of state law which frustrate the objectives of the federal program and in my briefs i explained why state law here do not frustrate the purposes of the federal statutes if the court construed as restricting or constricting success or liability and that does frustrate the purposes of the federal program under federal common law  continuity of ownership it makes sense if you're talking about a merger which is only facto or a continuation if a and b on company one and z and x on company two and there's no fraud or anything like proceeds from criminal dealings and so here we have a variety of equities that point to the imposition of success or liability which is broadly looked at when you look at employment law when you look at environmental cleanup acts that would be the case the general so you're saying it's a matter of law it's waived but on the first point we do know there are there are circumstances where we can consider something that i mean it's in our discretion right ok ahead now go ahead go ahead well that's a different that's a different issue with regard to the waiver where there's exceptional circumstances i believe and we've a lot of cases today so if i got the wrong case you're going to let me know hopefully but i mean i think your adversary point out there's a little hide the ball going on they were unable to get the right so so you're saying your first argument is it's wait if we don't agree then you're saying it's got to be remanded for development of fashion for development of the record right yeah first your honor this is an exceptional circumstance and it's an issue of constitutional rights this is a case where a corporation is standing in the shoes of the government and that's what makes this different than the corporations acting as a state actor and that's what distinguishes this other successful life johnson mr johnson was a victim of a violation of his caution all right the delay medical care has caused him a permanent limp that's going to occur for the rest of his life and so for that reason it is an important issue and if the court finds that as a matter of law you cannot determine whether or not there is excess a liability we at least ask for remained on the issues of whether or not such a liability should be imposed i also want to clarify what the majority rule is in terms of success or liability at least sites in the united states versus general battery which at that point in time pennsylvania was majority rule with at that point in time it was citing to the continental insurance case which at that point stated that you don't need to have all four factors of that act a merger test and the physician no case appears to i guess clarify that issue and it seems that pennsylvania would no longer be in the majority if if that's the case also just to point out mr johnson did not have an opportunity for full discovery summary judgment had already been granted against all of the other not produced until after it was not is until after the discovery had ended and after even a year or so after when councils appoint him and after the judgment and so that's when that's why a motion