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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

AXIALL CORPORATION

v.

ALLTRANSTEK LLC, RESCAR, INC. 

T/B/D/A RESCAR COMPANIES AND 

SUPERHEAT FGH SERVICES, INC.

APPEAL OF: ALLTRANSTEK LLC AND 

RESCAR, INC., T/B/D/A RESCAR 

COMPANIES

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 966 WDA 2022

Appeal from the Judgment Entered August 10, 2022

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): GD-18-010944

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

AXIALL CORPORATION 

Appellant

v.

ALLTRANSTEK LLC; RESCAR, INC., 

T/B/D/A RESCAR COMPANIES; 

SUPERHEAT FGH SERVICES, INC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1016 WDA 2022

Appeal from the Judgment Entered August 10, 2022

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): GD-18-010944

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED: JUNE 3, 2024
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In this cross-appeal,

1 AllTranstek LLC (“AllTranstek”) and Rescar, Inc. 

t/b/d/a Rescar Companies (“Rescar”) appeal from the August 10, 2022 

judgment entered in the Court of Common Pleas of Allegheny County upon a 

jury verdict in favor of Axiall Corporation (“Axiall”), and against AllTranstek 

and Rescar. On cross-appeal, Axiall also appeals from the August 10, 2022 

judgment, challenging the jury verdict in favor of Superheat FGH Services, 

Inc. (“Superheat”). In the appeal filed by AllTranstek and Rescar (966 WDA 

2022), we affirm the judgment, in part, and vacate the portion of the 

judgment awarding attorney’s fees in the amount of $8,324,073.25, and we 

remand this case for further proceedings in accordance with this 

memorandum. In the cross-appeal (1016 WDA 2022), we dismiss Axiall’s 

cross-appeal as moot.

The trial court summarized the factual history as follows:

Axiall owns and operates [a] 564-acre facility [] in Natrium, West

Virginia (“the Natrium Plant”), where it manufactures chlorine and 

other products. The chlorine manufactured at the Natrium Plant 

is transported exclusively by railroad [tank] car and barge, for 

which purpose Axiall owns and operates a fleet of railroad tank 

cars. The Natrium Plant was previously owned and operated by 

PPG Industries, Inc. (“PPG”), until [a business unit of] PPG merged 

with Georgia Gulf Corporation [(“Georgia Gulf”)] in 2013 to create 

Axiall. AllTranstek and Rescar [] performed work for PPG prior to 

the formation of Axiall. In late August [] 2016, Axiall was acquired 

by Westlake [Corporation].

AllTranstek provides railroad tank car fleet management services, 

including the monitoring of fleet movement, ensuring equipment 

____________________________________________

1 For decisional purposes, we sua sponte consolidate the appeals filed with 

this Court at dockets 966 WDA 2022 and 1016 WDA 2022.
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condition, managing regulatory requirements, and auditing repair 

and mileage activity. AllTranstek provided these services to PPG 

and continued to do so under year-to-year “contracts” with Axiall.

These contracts came in the form of purchase orders, which the 

jury found to incorporate by reference Axiall’s Purchase Order 

General Conditions (“Terms and Conditions”). Under these 

contracts, Axiall retained AllTranstek to manage the inspection 

and maintenance of Axiall’s fleet of [railroad tank cars]. Axiall 

relied upon AllTranstek’s expertise and knowledge of the 

regulatory landscape that governed [railroad tank car]

maintenance. Rescar provides railroad tank car maintenance 

services including, among other things, mechanical repair, 

exterior painting, interior coating, and cleaning. As with 

AllTranstek, Axiall contracted with Rescar to provide these 

maintenance services using similar purchase orders that 

incorporated Axiall’s Terms [and] Conditions.

The railroad tank car at issue in this case, AXLX 1702, was built 

[] in June 1979, [] and is a DOT 105A500W pressure [railroad] 

tank car[.2 AXLX 1702, in this case,] was constructed of 

non-normalized steel and equipped with an ACF200 stub sill 

underframe. Non-normalized steel was commonly used in 

constructing [railroad] tank cars, such as AXLX 1702, prior to 

1982. Axiall and PPG used AXLX 1702 to transport chlorine from 

1979 until 2013 when a division of PPG was “spun off” and merged 

with Georgia Gulf to form Axiall. AXLX 1702 was requalified per 

federal regulations for the first time in 2000 by Millennium Rail[, 

Inc.]

There was significant argument and expert testimony at trial 

surrounding the reasonableness of Axiall’s continued use of 

AXLX 1702 in light of its non[-]normalized steel [construction] and 

[ACF200] stub sill underframe. In 2006, the Federal Railroad 

Administration (“FRA”) promulgated a Safety Advisory and 

Corresponding Maintenance Bulletin TC-200 with regard to the use 

____________________________________________

2 The United States Department of Transportation (“DOT”) employs a 

classification system for railroad tank cars that indicates the type of chemical 

or liquid the railroad tank car is authorized to transport. In this instance, a

designation of “DOT 105A500W” indicates that the railroad tank car is a 

pressurized tank car with top and bottom shelf couplers, with a test pressure 

of 500 pounds per square inch (“PSI”), and, currently, would be constructed 

using carbon steel and fusion welding. 49 C.F.R. §§ 179.100 to 179.103-5.
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of [railroad tank] cars equipped with ACF200 underframes (the 

“2006 Safety Advisory”). In April [] 2017, months after the 

incident in question, the Association of American Railroads 

(“AAR”) promulgated a rule that phased out the use of 

non-normalized steel [railroad tank] cars for transporting toxic

inhalation hazards, such as chlorine gas. [AllTranstek and Rescar]

attempted to prove at trial that Axiall was aware, even before the 

promulgated rule, of the issues with non-normalized steel 

[railroad tank] cars and that such [railroad tank] cars were no 

longer manufactured for those reasons. Additionally, evidence

presented at trial showed that Axiall was aware of the 2006 Safety 

Advisory and that many of [its railroad] tank cars may have had 

cracks around their stub sill [under]frames. Thus, [AllTranstek 

and Rescar] attempted to show at trial that Axiall’s knowledge of 

these potential defects in a [railroad tank] car like AXLX 1702, 

[together with Axiall’s failure to take remedial action], established 

Axiall’s contributory negligence in the ultimate rupture of the 

[railroad] tank [car]. The jury ultimately apportioned 40% of fault 

to Axiall.

In 2010, Rescar performed a federally required ten-year 

qualification inspection on AXLX 1702. The [railroad tank] car was 

then shipped straight from [Rescar’s inspection facility] to Texana 

Tank to be re-jacketed in 2010. Texana Tank did other work on 

AXLX 1702, including post[-]weld heat treatment. In February []

2016, AXLX 1702 was sent to Rescar’s DuBois[, Pennsylvania]

facility for a five-year interim inspection required on chlorine tank 

cars in accordance with Axiall’s maintenance manual and Axiall’s 

[shipping] instructions. Rescar’s work included cleaning, 

thickness testing, build-up welding for corrosion repair, post-weld 

heat treatment, and hardness testing. The interior inspection of 

AXLX 1702, performed by Rescar[ at its Dubois facility], revealed 

many corroded areas on the interior of the tank shell that fell 

below Axiall’s minimum tank shell thickness requirements. Due 

to the extensive nature of the repairs, a repair estimate of 

approximately $58,000[.00] was provided to Axiall for approval.

After Axiall[ approved] the repairs to AXLX 1702, Rescar 

employees repaired the corroded areas on the interior of the tank 

shell by welding in May [] 2016. After weld repairs [were 

performed], and consistent with the applicable procedures and 

regulations, local post-weld heat treatment was performed.

[Local post-weld heat treatment] is performed after welding is 

completed on a [railroad tank car] in an effort to reduce and

redistribute the residual stresses present in the steel after 
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welding. The process involves placing ceramic fiber heating pads 

on the areas of the tank shell where weld repairs were performed 

in order to heat the metal [] to a particular temperature, hold that 

temperature for three hours, and then control the [cooling] of the 

metal. Thermocouples must be centered under each heating

element to monitor the temperatures reached during [local 

post-weld heat treatment.] Insulation is placed on the opposite

side of the tank shell during the process.

Prior to the [local post-weld heat treatment performed] on 

AXLX 1702 [] in 2016, Rescar entered into a contract with 

Superheat whereby Superheat provided certain [local post-weld 

heat treatment] equipment to Rescar and remotely monitored the 

temperatures reached during the [local post-weld heat treatment]

process from its facility located in Kincardine, Ontario[, Canada].

The [local post-weld heat treatment] of AXLX 1702 in 2016 

occurred on six dates in late May and early June. Superheat’s 

function was to monitor the temperatures and [local post-weld 

heat treatment] equipment power outputs during [local post-weld 

heat treatment] and advise Rescar[’s] technicians of potential 

issues evident through the monitoring of this data. While Rescar 

was responsible for most of the maintenance work, Superheat was 

responsible for monitoring the [local post-weld heat treatment] of 

the railroad tank car, and AllTranstek was responsible for 

inspecting the work [upon completion]. While Axiall alleged that 

Superheat negligently failed to perform a successful [monitoring 

of the local post-weld heat treatment], the jury found no liability 

on the part of Superheat. Axiall also alleged that the AllTranstek 

inspector assigned to [] Rescar[’s] DuBois facility[] failed to 

conduct any in-process inspections in connection with the work 

performed on AXLX 1702.

On July 20, 2016, [the AllTranstek inspector] performed a final 

inspection of AXLX 1702 and declared [the railroad tank car] fit 

for return to chlorine [transport] service. This final inspection 

included a review of the [railroad tank] car file associated with 

AXLX 1702 indicating that it is constructed of non-normalized 

steel and is equipped with an ACF200 stub sill [underframe]. The 

inspection failed to include an interior inspection [of the tank] and 

a stub sill [underframe] inspection. [Rescar] argued at trial that 

the purpose of this five-year inspection was principally to conduct 

a cleaning inspection of the interior [of the railroad tank car], 

rather than a federal qualification inspection in which the stub sill

[underframe] would have been inspected.
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On August 27, 2016, AXLX 1702 was loaded with liquid chlorine 

at the Natrium [Plant] for the first time after the maintenance 

work performed by Rescar and Superheat. Shortly thereafter, the 

tank ruptured, causing a pre-existing crack to widen and rupture, 

out of which escaped more than 178,000 pounds of liquid chlorine 

into the atmosphere. The liquid chlorine vaporized and formed a 

plume of chlorine gas that spread across much of Axiall’s Natrium 

chloralkali plant in Proctor, West Virginia, as well as neighboring 

properties. There were only minor injuries to some employees 

who were exposed at the time of the release.

Axiall filed its complaint [against AllTranstek, Rescar, and 

Superheat] on August 24, 2018. In addition to [causing] lawsuits 

[to be filed by third parties] against Axiall for the damage to 

[neighboring] properties, Axiall claimed that the rupture and

leakage caused hundreds of millions of dollars of damage to its 

own property. Axiall alleged that both AllTranstek and Rescar 

agreed to and breached Axiall’s [T]erms and [C]onditions by

failing to properly perform their respective work and inspect the 

same. Additionally, Axiall alleged that AllTranstek and Rescar 

were negligent in their respective work on AXLX 1702. A National

Transportation Safety Board (“NTSB”) inspection after the incident 

concluded that the probable cause [of the railroad tank car rupture 

and ensuing leak] was an undetected, subsurface, pre-existing 

crack near the inboard end of the stub sill cradle pad.

This case was ultimately tried by [a] jury for approximately six 

weeks. . . . The jury ultimately returned a verdict on October 18, 

2021, in favor of Axiall on its contract and tort claims. Specifically, 

on Axiall’s claim for negligence, the jury apportioned 40% fault to 

Axiall contributorily, 20% [fault] to AllTranstek, 40% [fault] to 

Rescar, and 0% [fault] to Superheat. The jury awarded 

[$12,800,000.00] in damages.

Trial Court Opinion, 12/21/22, at 2-7 (extraneous capitalization omitted).

On October 25, 2021, AllTranstek and Rescar jointly filed a motion for 

post-trial relief, requesting, inter alia, that the trial court enter judgment 

non-obstante veredicto, or, alternatively, “remit the verdict to an amount 

commensurate with the damages[.]” AllTranstek and Rescar Post-Trial 
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Motion, 10/25/21, at 3-23. The post-trial motion also included a motion to 

mold the verdict to the amount of $7,680,000.00, which, according to 

AllTranstek and Rescar, reflected the amount of factual cause attributed by 

the jury to both AllTranstek and Rescar, combined. Id. at 23. That same 

day, Axiall filed a motion to mold the verdict, requesting, inter alia, that the 

trial court “find any casual negligence attributed to [Axiall] by the jury does 

not reduce the verdict awarded to it” on its breach of contract and breach of 

warranty claims. Axiall Post-Trial Motion, 10/25/21, at 7-8.

On November 3, 2021, Axiall filed a second motion for post-trial relief, 

seeking a new trial, or, alternatively, judgment non-obstante veredicto. Axiall 

Post-Trial Motion, 11/3/21. In its motion for a new trial, Axiall asserted that 

the trial court improperly admitted evidence related to non-normalized steel, 

ACF200 stub sill underframes, remedial actions by Axiall, and post-rupture 

changes to regulations and industry guidance, as well as testimony from 

AllTranstek’s and Rescar’s expert. Id. at 2-6. Axiall requested judgment 

non-obstante veredicto on the contributory negligence claims forwarded by 

AllTranstek, Rescar, and Superheat on grounds that the defendant-parties 

failed to establish that Axiall was contributorily negligent in the cause of the 

AXLX 1702 rupture. Id. at 6-7. That same day, Superheat filed a post-trial 

motion, requesting that, in the event the trial court were to grant a new trial,

the trial court should enter judgment in favor of Superheat as a matter of law,

on the grounds the jury found in favor of Superheat concerning Axiall’s 
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negligence claim against Superheat. Superheat Post-Trial Motion, 11/3/21, 

at 3-9 (unpaginated).

On November 12, 2021, AllTranstek and Rescar jointly filed a motion to 

strike Axiall’s motion for post-trial relief, together with a joint response in 

opposition to Axiall’s motion to mold the verdict. On November 17, 2021, 

Superheat filed a motion to strike, or, alternatively, to deny, Axiall’s motion 

for post-trial relief. Axiall filed an omnibus response in opposition to the 

motions to strike on November 29, 2021.

After the submission of briefs supporting and opposing the pending 

post-trial motions, the trial court, on February 16, 2022, denied Axiall’s 

request for a new trial and entry of judgment non-obstante veredicto. Trial 

Court Order, 2/16/22, at ¶1. In that same order, the trial court granted 

Axiall’s motion for entry of judgment against AllTranstek and Rescar, declaring 

that both parties are contractually bound to indemnify, defend, and hold Axiall 

harmless from all damages; granted Axiall’s motion to enter an unreduced

verdict of $12,800,000.00 based upon the jury’s finding in favor of Axiall on 

its breach of contract and breach of warranty claims; granted Axiall’s request 

for delay damages from August 24, 2019, to October 14, 2021, calculated at 

the statutory rate of six per cent per annum on 60% of the full verdict, reduced 

in accordance with the suspension of such calculations due to the COVID-19 

global pandemic; granted Axiall’s request for post-judgment interest from 

October 14, 2021, to the date payment is effectuated; granted Axiall’s request 

for attorney’s fees, costs, and expenses, the amount of which was to be 
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determined at a future evidentiary hearing; and denied Axiall’s request for 

pre-judgment interest. Id. at ¶¶2-3. In a separate order, entered on 

February 16, 2022, the trial court denied the motions for post-trial relief filed 

by AllTranstek and Rescar (jointly), as well as Superheat.

On February 25, 2022, Superheat filed a praecipe for entry of judgment 

in favor of Superheat and against Axiall. Judgment in favor of Superheat, and 

against Axiall, in the amount of $0.00 was entered that same day. On March 

9, 2022, Axiall filed an emergency motion to strike the judgment entered in 

favor of Superheat. On Monday, March 28, 2022, Axiall filed a timely notice 

of appeal, which was docketed by this Court at 484 WDA 2022, from the

February 25, 2022 judgment entered in favor of Superheat.

3

 On June 9, 2022, 

this Court, in a per curiam order, quashed Axiall’s appeal without prejudice to 

seek a new appeal once final judgment was entered as to all claims.4 Per 

Curiam Order, 6/9/22 (484 WDA 2022).

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3 See Pa.R.A.P. 903(a) (requiring notice of appeal to be filed within 30 days 

after entry of order from which appeal is taken); see also 1 Pa.C.S.A. § 1908 

(stating that, whenever the last day of any period of time referred to in a 

statute “shall fall on Saturday or Sunday, or on any day made a legal holiday 

by the laws of this Commonwealth or of the United States, such day shall be 

omitted from the computation”).

4 The entry of judgment as to one party, but fewer than all parties is not a

final judgment from which an appeal may be taken. See Gutteridge v. A.P. 

Green Serv., Inc., 804 A.2d 643, 650 (Pa. Super. 2002), appeal denied, 829 

A.2d 1158 (Pa. 2003); see also Pa.R.A.P. 341(a) and (b)(1) (stating that, a 

final order from which an appeal may be taken is an order that, inter alia, 

“disposes of all claims and all parties”). In the case sub judice, the entry of 

judgment on August 10, 2022, as to the remaining parties, AllTranstek and 
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Meanwhile, on April 12, 2022, Axiall filed a motion for reconsideration 

of the trial court’s order reducing the award of delay damages in accordance 

with the suspension of such calculations due to the COVID-19 global 

pandemic. AllTranstek and Rescar jointly filed a response in opposition to 

Axiall’s motion for reconsideration on May 9, 2022.

On August 8, 2022, the trial court awarded Axiall attorney’s fees, costs, 

and expenses in the amount of $8,324,073.25. That same day, in a separate 

order, the trial court granted Axiall’s motion for reconsideration and amended 

the award of delay damages such that the damages would be calculated from 

August 24, 2019, through October 14, 2021, at the statutory rate of six per 

cent per annum on 60% of the full verdict ($12,800,000.00) without reduction 

due to the COVID-19 global pandemic.

On August 10, 2022, upon praecipe for entry of judgment filed by Axiall, 

judgment was entered in favor of Axiall and against AllTranstek and Rescar in 

the amount of $22,589,524.71.5 On August 23, 2022, AllTranstek and Rescar 

filed a joint notice of appeal, which was docketed by this Court at 

966 WDA 2022. On August 30, 2022, Axiall filed a notice of cross-appeal, 

____________________________________________

Rescar, resulted in a final, appealable judgment as to all parties, including 

Superheat.

5 A break-down of the judgment is as follows:

Verdict $12,800,000.00

Attorney’s fees, costs, and expenses $8,324,073.25

Delay damages $403,802.46

Post-judgment interest (through 8/9/22) $1,061,649.00
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which was docketed by this Court at 1016 WDA 2022. AllTranstek and Rescar 

filed a concise statement of errors complained of on appeal pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b) on September 13, 2022, 

and the trial court filed its corresponding Rule 1925(a) opinion on December 

21, 2022. Axiall filed its Rule 1925(b) statement pertaining to the

cross-appeal on September 20, 2022, and the trial court filed its Rule 1925(a) 

opinion pertaining to the cross-appeal on December 21, 2022.

AllTranstek and Rescar raise the following issues for our review:

1. Whether judgment [non-obstante veredicto] is required on 

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

where the unsigned purchase orders on which those claims 

are based contain explicit language requiring signature, and 

where the jury never found the purchase orders were the 

parties’ contracts?

2. Whether judgment [non-obstante veredicto] is required on 

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

where the Terms and Conditions on which those claims are 

based were not validly incorporated by reference into 

Axiall’s purchase orders, and where the jury’s finding on the 

Terms and Conditions was contrary to law?

3. Whether vacatur of the judgment is required because the

trial court committed legal error by treating the jury’s 

general verdict as a “base verdict” allocable to every claim, 

and by refusing to reduce the verdict to reflect the jury’s 

clear finding that Axiall caused 40% of its own harm?

4. Whether reversal of the declaratory judgment and fee award 

is required[] because the parties never clearly agreed to set

aside the American Rule?
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AllTranstek and Rescar Brief, at 7-8 (extraneous capitalization omitted).

6

ALLTRANSTEK AND RESCAR APPEAL

Denial of Judgment Non-Obstante Verdicto

AllTranstek’s and Rescar’s first and second issues challenge the trial 

court’s denial of judgment non-obstante veredicto on Axiall’s breach of 

contract and breach of warranty claims. Id. at 23-52.

We review the denial of a request for [judgment non-obstante 

veredicto] for an error of law that controlled the outcome of the 

case or an abuse of discretion. In this context, an abuse of 

discretion occurs if the trial court renders a judgment that is 

manifestly unreasonable, arbitrary[,] or capricious; that fails to 

apply the law; or that is motivated by partiality, prejudice, bias[,]

or ill-will.

When reviewing the denial of a request for [judgment 

non-obstante veredicto, an] appellate court examines the 

evidence in the light most favorable to the verdict winner. Thus, 

the grant of [judgment non-obstante veredicto] should only be 

entered in a clear case.

There are two bases upon which a movant is entitled to [judgment 

non-obstante veredicto]: one, the movant is entitled to judgment 

as a matter of law, [or] two, the evidence was such that no two 

reasonable minds could disagree that the outcome should have 

been rendered in favor of the movant. When an appellant 

challenges a jury's verdict on this latter basis, we will grant relief 

only when the jury's verdict is so contrary to the evidence as to 

shock one's sense of justice.

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6 An amicus curiae brief was filed with this Court by the Pennsylvania Coalition 

for Civil Justice Reform in support of the appeal filed by AllTranstek and 

Rescar.
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Harley v. HealthSpark Found., 265 A.3d 674, 684 (Pa. Super. 2021)

(citations, quotation marks, and original brackets omitted), appeal denied, 

277 A.3d 1105 (Pa. 2022).

AllTranstek and Rescar assert that the trial court erred in denying their 

joint request for judgment non-obstante veredicto because Axiall’s purchase 

orders did not form an enforceable contract and its Terms and Conditions were 

not validly incorporated into the purchase orders.7 AllTranstek and Rescar 

Brief at 41, 52. Specifically, AllTranstek and Rescar contend that Axiall’s 

purchase orders explicitly required a signature and the absence of the

necessary signatures on the respective purchase orders prevented the 

writings from forming enforceable contracts. Id. at 25, 27-32 (stating, “the 

absence of the required signatures prevented the [purchase orders] from 

becoming contracts, leaving them at best unaccepted offers”). AllTranstek 

and Rescar further contend that Axiall’s Terms and Conditions were not 

incorporated into the purchase orders because, inter alia, the “Terms and 

Conditions were not clearly identified” in the purchase orders and the purchase 

orders did not contain a “statement summarizing or even hinting at [the] 

contents [of the Terms and Conditions].” Id. at 45-49. AllTranstek and 

Rescar argue that the trial court, in denying the request for judgment 

____________________________________________

7 As discussed in greater detail infra, Axiall’s practice was to forward purchase 

orders to vendors, such as AllTranstek and Rescar, when railroad tank car 

maintenance work was required. Axiall’s standard purchase orders refer to 

“Terms and Conditions” that can be reviewed on Axiall’s company website.
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non-obstante veredicto, erred in relying on the Terms and Conditions to 

support the finding that AllTranstek and Rescar accepted the offers set forth 

in the purchase orders, thereby forming enforceable contracts. Id. at 35-41. 

AllTranstek and Rescar assert that because the Terms and Conditions were 

not expressly incorporated into the purchase orders, acceptance could only be 

manifested by a signature on the purchase order, and the absence of rejection

by AllTranstek and Rescar of the purchase orders within 10 days of receipt or 

the undertaking of performance in accordance with the purchase orders could 

not be deemed, pursuant to the Terms and Conditions, as acceptance. Id. at 

36.

In denying the motion for judgment non-obstante veredicto, the trial 

court explained,

[AllTranstek’s and Rescar’s] first four errors complained of all 

sound in issues relevant to the breach of warranty and [breach of] 

contract claims and shall accordingly be addressed jointly. As an 

initial matter, [the trial] court gave proper and fair instructions to 

the jury regarding the parties’ contracts.

Those instructions, which were reviewed and agreed to by 

[AllTranstek, Rescar,] and Axiall, included the following:

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. The parties, 

however, disagree about what documents establish the 

contracts between the parties and what the terms of those 

contracts are. Where the terms of a contract are disputed, 

Axiall, as the party asserting breach of the contract, bears 

the burden of proving by a preponderance of the evidence 
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that a contract was formed and what the terms of that 

contract are.

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 a part of the parties’ contracts. Rescar and 

AllTranstek both deny that the purchase orders and Axiall’s 

Terms and Conditions are a part of its contracts with Rescar 

and AllTranstek.

Thus, as is evident from the above excerpts, the [trial] court 

merely presented complicated contractual and scientific issues to 

the jury in a digestible manner, but left the determination and

resolution of those issues to the province of the fact[-]finder. In 

short, as the parties agreed, the jury was instructed that Axiall 

had contracts with Rescar and AllTranstek. The jury was also 

instructed that Axiall claimed that the contracts included its 

purchase orders and Terms and Conditions, and that [AllTranstek 

and Rescar] denied these claims. Finally, the jury instructions 

made clear that the jury was to determine whether [Axiall’s] 

Terms and Conditions were incorporated by reference through

[Axiall’s] purchase orders [into the contractual agreements

between the parties]. Thus, if [Axiall’s] Terms and Conditions 

were part of the parties’ contracts, so were [Axiall’s] purchase 

orders. As [the trial] court instructed the jury, a finding that the 

Terms and Conditions are a part of the parties’ contracts was ipso 

facto a finding that the purchase orders were a part of those 

contracts as well.

At trial, the jury was presented with more than sufficient evidence 

to support its finding that Axiall’s purchase orders were issued to 

and received by [AllTranstek and Rescar]. In fact, ample evidence 

was derived from the [] Senior Vice President and General 

Counsel[ for AllTranstek and Rescar], Dan Madock. Specifically, 

the jury was presented with Mr. Madock’s affidavit and deposition

testimony, in which he admitted that [AllTranstek and Rescar]

received Axiall’s purchase orders, which expressly referenced 

Axiall’s Terms and Conditions. In his affidavit, which was read to 

the jury and allowed into evidence, Mr. Madock admitted that the 

purchase orders were electronically transmitted to [AllTranstek 

and Rescar]. In addition, he admitted that the purchase orders 

referenced Axiall’s Terms and Conditions and directed the 
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recipient to obtain a copy of those Terms and Conditions on 

Axiall’s website. Similarly, in Mr. Madock’s videotaped deposition 

testimony, which was played for the jury, he also admitted that 

Axiall [sent a facsimile of,] or [sent via electronic mail, a copy of,

its] purchase orders to Rescar’s invoicing department every year 

and that [Axiall’s purchase orders] referenced Axiall’s Terms and 

Conditions.

Also admitted into evidence were Axiall’s Terms and Conditions, 

which provided how Axiall’s purchase orders were to be accepted. 

There was no evidence admitted at trial to support a finding that 

either [AllTranstek or Rescar] rejected Axiall’s purchase orders or 

Terms and Conditions. And there was ample evidence admitted 

at trial to support the jury’s finding that [AllTranstek and Rescar]

performed the work requested by the purchase orders. Based on 

that evidence, the jury found that Axiall’s purchase orders were 

part of the parties’ agreements.

As a final matter relevant to these [alleged] errors, the jury was 

properly instructed regarding causation and the respective breach 

of warranty and breach of contract claims. The jury specifically

received the following instructions:

In order for you to arrive at a verdict on Axiall’s claims 

against AllTranstek, Rescar[,] and Superheat, you must 

resolve the following factual questions by a preponderance 

of the evidence. . . . Third, whether or not AllTranstek[’s]

and Rescar’s breach of any warranty resulted in damage to 

Axiall. . . . Fifth, whether or not any breach of that contract 

by AllTranstek and Rescar caused damages to Axiall.

And ninth, if you find a breach of warranty and/or breach of 

contract and/or negligence on the part of the defendants 

that resulted in the rupture of AXLX 1702, you must 

determine the appropriate measure of damages.

Thus, the instructions clearly allowed the jury to find a breach of 

either, or both, the [] warranty or [] contract[.] The jury’s clear 

findings regarding these claims were supported by evidence of 

record - specifically, by the admissions of [Mr. Maddock], who 

admitted that (1) [AllTranstek and Rescar] received [Axiall’s]

purchase orders, and (2) that [Axiall’s] purchase orders 

reference[d] Axiall’s Terms and Conditions.

[The trial] court considered the facts in the light most favorable 

to Axiall and accepted as true all evidence which supported 
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[Axiall’s] contention that the purchase orders constituted the 

contracts between the parties. Additionally, and because 

[AllTranstek and Rescar] proffered little to no evidence adverse to

this assertion, the [trial] court rightly decided not to disturb the 

jury’s verdict pertinent to the same. In light of this evidence, 

[AllTranstek and Rescar] failed to meet their burden of 

establishing [either that they were entitled to judgment as a 

matter of law or] that the evidence was such that no two 

reasonable minds could disagree that the verdict should have 

been rendered for them.

Trial Court Opinion, 12/21/22, at 11-14 (extraneous capitalization, quotation 

marks, original brackets, and citation omitted).

It is well-established that “a contract is created where there is mutual 

assent to the terms of [an agreement] by the parties with the capacity to 

contract.” Shovel Transfer and Storage, Inc. v. Pennsylvania Liquor 

Control Bd., 739 A.2d 133, 136 (Pa. 1999), citing Taylor v. Stanley Co. of 

Am., 158 A. 157 (Pa. 1932); see also Accu-Weather, Inc. v Thomas 

Broad. Co., 625 A.2d 75, 78 (Pa. Super. 1993) (stating that, “for an 

agreement to exist, there must be a ‘meeting of the minds,’ [meaning that] 

that parties mutually assent to the same thing”). “As a general rule, 

signatures are not required unless such signing is expressly required by law 

or by the intent of the parties.” Shovel Transfer, 739 A.2d at 136. 

Nevertheless, “it is equally well-established that an offer may be accepted by 

conduct and what the parties do pursuant to the offer is germane to whether 

the offer is accepted.” Accu-Weather, 625 A.2d at 78 (original quotation 

marks and brackets omitted), citing Gum, Inc. v. Felton, 17 A.2d 386, 389 

(Pa. 1941). For example, our Supreme Court in Westinghouse Elec. Co. v. 
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Murphy, Inc., 228 A.2d 656 (Pa. 1967) found that a purchase order requiring 

a signed acknowledgement by Murphy but which remained unsigned 

constituted an offer accepted by Murphy, thereby forming a contract, when 

Murphy failed to object to the purchase order and subsequently submitted 

invoices referencing the purchase order. Murphy, 228 A.2d at 659.

In the case sub judice, the purchase orders issued by Axiall to 

AllTranstek and Rescar contained “instructions to the vendor” that stated, “To 

confirm receipt and acceptance of this purchase order, please sign [and] 

return acknowledgement to the buyer named on this purchase order.” See

Exhibits 1058, 1059, 1060, and 1061 (extraneous capitalization omitted). 

Mark Sinclair8testified that, regarding the maintenance of railroad tank cars, 

such as AXLX 1702, Axiall would ship the railroad tank car to Rescar’s Dubois 

facility, Rescar would inspect the railroad tank car to determine what 

maintenance and repair work needed to be performed, Rescar would provide 

a cost estimate for the recommended maintenance and repair work to 

AllTranstek and, in turn, AllTranstek would provide that cost estimate to Axiall. 

N.T., 9/22/21 (Afternoon Session), at 1576-1577. Upon receipt of the cost 

estimate, Axiall would then make a determination as to whether the railroad 

tank car should be repaired or decommissioned from service. Id. In order to 

____________________________________________

8 At the time of the incident, Mr. Sinclair was employed by Axiall as the 

customer service manager at the Natrium Plant. N.T., 9/22/21 (Morning 

Session), at 1541. Mr. Sinclair testified that as part of his duties as customer 

service manager, he “supported the fleet [(referring to Axiall’s fleet of railroad 

tank cars, such as AXLX 1702,)] maintenance program[.]” Id.
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facilitate the on-going maintenance and repair of Axiall’s railroad tank car 

fleet, Axiall would issue an “open-ended” or “blanket” purchase order near the 

start of a calendar year, and AllTranstek and Rescar would invoice against that 

blanket purchase order until the funding authorized by the blanket purchase 

order was exhausted. Id. at 1582-1583. Mr. Sinclair explained that purchase 

order 4500309931 was issued to AllTranstek on February 29, 2016, in the 

amount of $500,000.00 for railroad tank car fleet management services to be 

provided by AllTranstek. Id. at 1583; see also Exhibit 1058. Mr. Sinclair 

further explained that purchase order 4500307001 was issued to Rescar on 

February 10, 2016, in the amount of $1,750,000.00 for railroad tank car repair 

services to be provided by Rescar. N.T., 9/22/21 (Afternoon Session), at 

1589; see also Exhibit 1060. The purchase orders were sent electronically 

to AllTranstek and Rescar upon issuance.

9

 N.T., 9/22/21 (Afternoon Session), 

at 1592. Mr. Madock confirmed that the purchase orders were received 

electronically by AllTranstek and Rescar. N.T., 9/23/21 (Morning Session), at 

1753. On July 31, 2016, AllTranstek submitted invoice number MO6170 to 

Axiall in the amount of $55,817.15 for railroad tank car fleet management 

____________________________________________

9 Mr. Sinclair testified that purchase order 4500309931 was replaced with 

purchase order 4200002099 on April 1, 2016, and purchase order 

4500307001 was replaced with purchase order 4510012399 on May 3, 2016. 

N.T., 9/22/21 (Afternoon Session), at 1585, 1589-1590. Mr. Sinclair 

explained that due to an upgrade of Axiall’s computer system, the second 

purchase orders were issued to AllTranstek and Rescar and replaced the 

original purchase orders so invoices could be properly processed for payment. 

Id.
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services relating to AXLX 1702 and referenced the blanket purchase order 

issued by Axiall to AllTranstek for these services. Id. at 1586-1588; see also

Exhibit 1063. On July 27, 2016, Rescar submitted an invoice to Axiall in the 

amount of $53,082.32 for railroad tank car repairs relating to AXLX 1702 that 

referenced the blanket purchase order issued by Axiall to Rescar for these 

services. N.T., 9/22/21 (Afternoon Session), at 1596-1598; see also Exhibit 

215.

Based upon a review of the record, we discern no error of law or abuse 

of discretion in the trial court’s denial of judgment non-obstante veredicto on 

the breach of warranty and breach of contract claims. The trial court rightly 

rejected the contention that Axiall’s purchase orders did not form enforceable 

contracts between Axiall and AllTranstek and Axiall and Rescar. In viewing 

the evidence in the light most favorable to Axiall as the verdict winner, 

although the purchase orders indicated that AllTranstek and Rescar were to 

acknowledge receipt and acceptance of the blanket purchase orders by signing 

the purchase orders and returning copies to Axiall, the record confirms that, 

after AllTranstek and Rescar received the purchase orders, both AllTranstek 

and Rescar performed services authorized in the respective purchase orders 

and submitted invoices for those services referencing Axiall’s purchase orders. 

These actions establish acceptance of Axiall’s offers, thereby forming contracts 
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between the parties.10 See Accu-Weather, 625 A.2d at 78; see also 

Murphy, 228 A.2d at 659.

We now consider whether the trial court erred in denying the request 

for judgment non-obstante veredicto on the ground that the Terms and 

Conditions did not become enforceable components of the contracts formed 

by AllTranstek’s and Rescar’s acceptance of Axiall’s respective purchase 

orders. It is well-established that the terms of a contract must be set forth 

with sufficient clarity. Lackner v. Glosser, 892 A.2d 21, 30 (Pa. Super. 

2006) “[N]ot every term of a contract[, however,] must always be stated in 

complete detail.” Helpin v. Trustees of Univ. of Pennsylvania, 969 A.2d 

601, 611 (Pa. Super. 2009) (original brackets omitted), aff’d, 10 A.3d 267 

(Pa. 2010). Rather, the terms of an offer may be incorporated by reference

into the parties’ agreement if the party receiving the offer is provided 

reasonably conspicuous notice of the terms. See Chilutti v. Uber 

Technologies, Inc., 300 A.3d 430, 449 (Pa. Super. 2023) (en banc).

Here, the record demonstrates that Axiall’s purchase orders that were 

received by AllTranstek and Rescar contained the following statement:

This purchase order is subject to, includes[,] and incorporates 

herein by reference the [Terms and Conditions] (current as of the 

date of this purchase order) for [Axiall] located at 

____________________________________________

10 Moreover, pursuant to Axiall’s Terms and Conditions, which were 

incorporated into the enforceable contracts, as discussed infra, Axiall’s

purchase orders were accepted by AllTranstek and Rescar because the parties 

did not reject their respective purchase orders in writing within ten calendar 

dates after receipt of the purchase order. See Exhibit 1062, at ¶1.
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http://www.axiall.com/company. If you are unable to access this 

[hyperlink], please contact the buyer named in this purchase 

order to have these [Terms and Conditions sent via facsimile] to 

you. [Axiall] expressly rejects anything in your documents that is 

inconsistent with [these Terms and Conditions]. Exceptions, if 

any, must be received by [Axiall] in writing within ten days of the 

date of this purchase order or by the purchase order delivery date, 

whichever is earlier; otherwise, these [Terms and Conditions] are 

deemed accepted by you.

See Exhibits 1058 and 1060 (extraneous capitalization omitted); see also

N.T., 9/22/21 (Afternoon Session), at 1584-1585.

11

 Mr. Sinclair testified that

Axiall’s practice of directing a vendor, such as AllTranstek or Rescar, to visit 

Axiall’s website to view the Terms and Conditions had been employed in prior 

purchase orders issued in favor of Rescar. N.T., 9/22/21 (Afternoon Session), 

at 1597-1598. Mr. Madock stated that a copy of the Terms and Conditions 

was not provided to AllTranstek and Rescar, directly, but acknowledged that 

the purchase orders directed AllTranstek and Rescar to view the Terms and 

Conditions on Axiall’s website. N.T., 9/23/21 (Morning Session), at 

1752-1753.

Upon review, we discern no error of law or abuse of discretion in the 

trial court’s denial of judgment non-obstante veredicto regarding Axiall’s 

breach of contract and breach of warranty claims on the ground that the Terms 

and Conditions were not incorporated into the purchase orders. In viewing 

____________________________________________

11 Although the purchase orders issued as a result of Axiall’s computer system 

upgrades (purchase orders 4200002099 and 4510012399) referenced the 

Terms and Conditions “for Eagle US 2, LLC.”, the purchase orders direct 

AllTranstek and Rescar to visit Axiall’s website to view the applicable Terms 

and Conditions. See Exhibit 1059 and 1061.
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the evidence in the light most favorable to Axiall as the verdict winner, the 

Terms and Conditions document is comprised of twenty-two paragraphs for a 

total of six pages of text. See Exhibit 1062. Axiall did not detail its Terms 

and Conditions within its purchase orders. Instead, Axiall incorporated its

Terms and Conditions into its purchase orders by directing vendors, such as 

AllTranstek or Rescar, to visit its website to view the Terms and Conditions. 

See Helpin, 969 A.2d at 611. Mr. Madock acknowledged that, although a

written copy of the Terms and Conditions was not provided with the purchase 

orders, the Terms and Conditions could be viewed by visiting Axiall’s website. 

Moreover, the language contained in Axiall’s purchase orders conspicuously 

stated that the Terms and Conditions were “deemed accepted” unless the 

vendor raised an exception to a term or condition in writing within 10 days of 

receipt of the purchase order. As such, AllTranstek and Rescar were not 

entitled to judgment non-obstante veredicto on this ground.12 See Chilutti, 

300 A.3d at 449.

____________________________________________

12 The Terms and Conditions provide that a signature on the purchase order 

was not required to form an enforceable contract. The Terms and Conditions, 

in addition to allowing AllTranstek and Rescar to accept the purchase orders

via written confirmation or electronic acknowledgement, provided that the 

purchase orders were deemed accepted by AllTranstek and Rescar if they did 

not reject the purchase orders in writing within 10 calendar days of receiving 

the respective purchase orders or if they provided the services and work called 

for in the respective purchase orders. See Exhibit 1062, at ¶1. As discussed 

supra, the invoices sent to Axiall referencing the purchase orders demonstrate 

that AllTranstek and Rescar provided the services and work called for in the 

purchase orders, and neither party asserted that they rejected the purchase 

orders within 10 calendar days of receipt.
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Molding of Verdict

In their third issue, AllTranstek and Rescar challenge the trial court’s 

denial of their joint post-trial motion requesting that the verdict be molded to 

reflect Axiall’s percentage of contributory negligence. AllTranstek and Rescar 

Brief at 53-68. Specifically, AllTranstek and Rescar assert that the trial court 

erred (1) by treating the damages verdict of $12,800,000.00, as a “base 

verdict” or one attributable equally and in full to each cause of action asserted 

by Axiall (i.e., breach of contract, breach of warranty, and negligence);

13 and 

(2) by failing to reduce the verdict to $7,680,000.00 to account for the jury’s 

finding that Axiall was 40% responsible for the damages attributed to the 

negligence cause of action. Id. AllTranstek and Rescar contend that because 

the verdict slip failed to include a specific interrogatory allocating damages to 

each cause of action, i.e., negligence, breach of contract, and breach of 

warranty, the jury’s intent in apportioning the verdict to each cause of action 

is unclear. Id. at 55-56 (asserting that, the trial court erred in sustaining 

Axiall’s objection to AllTranstek’s and Rescar’s request for special 

interrogatories allocating damages to each cause of action and each 

defendant). As such, the trial court, AllTranstek and Rescar assert, “invented” 

a factual finding that the jury intended the verdict to be awarded in full 

towards each cause of action. Id. at 58-62. The treatment of the verdict as 

a “base verdict” allocable in full to each cause of action led the trial court to 

____________________________________________

13 The trial court did not allocate any portion of the jury’s verdict to the three 

theories of recovery asserted by Axiall.
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the erroneous conclusion that comparative fault principles would be 

impermissibly extended to a contract-based cause of action if the verdict were 

reduced by what AllTranstek and Rescar assert was “the jury’s clear intent [] 

that Axiall was entitled to recover [only] 60% of the [$12,800,000.00

verdict.]” Id. at 64. AllTranstek and Rescar contend that Axiall’s “trial 

strategy of opposing an allocation of damages [between the various causes of 

action] left [Axiall’s causes of action based upon breach of contract, breach of

warranty, and negligence] incapable of being reduced to separate, individual

judgments.” Id. at 65. AllTranstek and Rescar assert that Axiall’s negligence 

claim was the only cause of action capable of supporting a judgment and, as 

such, the comparative fault principles were applicable. Id. at 65.

It is well-established that a trial court has the inherent power to mold a 

jury verdict to conform to the clear intent of the jury. Gorski v. Smith, 812 

A.2d 683, 708 (Pa. Super. 2002), appeal denied, 856 A.2d 834 (Pa. 2004); 

see also Schmidt v. Campbell, 7 A.2d 554, 597 (Pa. Super. 1939) (stating, 

a trial “court has the power to mold a verdict to agree with the obvious 

intention of the jury”).

However, while a trial court has discretion in deciding whether to 

mold a verdict, it must nonetheless adhere to the principle that a 

verdict may only be molded where the intention of the jury is 

clear[.] Where the intention of the jury is far from obvious the 

verdict should be returned to the jury for further deliberations[,]

or a new trial should be granted.

Gorski, 812 A.2d at 708 (citation and original brackets omitted; formatting 

modified).
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With this principle in mind, our review of a trial court’s denial of a 

post-trial motion seeking to mold a verdict is limited.

Our review is limited to determining whether the trial court abused 

its discretion or committed an error of law. An abuse of discretion 

exists when the trial court [] rendered a judgment that is 

manifestly unreasonable, arbitrary, or capricious, [] failed to apply 

the law, or was motivated by partiality, prejudice, bias, or ill[-]will. 

If the alleged mistake concerned an error of law, we will scrutinize 

for legal error. On questions of law, our standard of review is de 

novo and our scope of review is plenary.

Spencer v. Johnson, 249 A.3d 529, 549 (Pa. Super. 2021) (citation 

omitted).

In Halper v. Jewish Family & Children’s Serv. of Greater 

Philadelphia, 963 A.2d 1282 (Pa. 2009), our Supreme Court adopted a

“general verdict rule” which states that “when the jury returns a general 

verdict involving two or more issues and its verdict is supported as to at least 

one issue, the verdict will not be reversed on appeal.”14 Halper, 963 A.2d at 

____________________________________________

14 Our Supreme Court in Fritz v. Wright, 907 A.2d 1083 (Pa. 2006) explained 

that a “general verdict is a finding by the jury in terms of the issue or issues 

referred to them and is, either wholly or in part, for the plaintiff or for the 

defendant.” Fritz, 907 A.2d at 1091. For example, a general verdict slip is 

one that bears “we the jury find for plaintiff (or for defendant) in the amount 

of _____” and no other substance will appear on the verdict slip. Id.

In contrast, a general verdict with special findings is a verdict slip in which the 

jury is asked to answer certain questions, the answers to which are given in 

connection with, and lead the jury to, reaching the ultimate general verdict. 

Id. at 1091-1092. Thus, the last question of a general verdict with special 

findings “looks akin to the general verdict slip in that the amount of damages 

awarded to the plaintiff [is] specified.” Id. at 1092. “[W]hen special findings 
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1288-1289. Within the context of the general verdict rule, the Halper Court 

also explained that a defendant waives the right to request a new trial based 

upon the general verdict if the defendant failed to request a special verdict 

form. Id. at 1289 (stating, no relief is available to a defendant “who fails to 

request a special verdict form [and who later complains] the jury may have 

relied on a factual theory unsupported by the evidence [so long as] there was 

sufficient evidence to support another theory properly before the jury”).

In Halper, the adoptive parents filed a civil action against the adoption 

agency asserting two theories of negligence, negligent misrepresentation and 

negligent failure to disclose (negligent misfiling of birth mother’s medical 

records). In that same suit, the adopted child asserted a similar negligence 

claim based upon the adoption agency’s failure to disclose. Id. at 1284. The 

jury returned a general verdict in favor of the adoptive parents and the 

adopted child, having found the adoption agency was negligent. Id. Neither 

the adoptive parents and adopted child, nor the adoption agency, requested

a verdict slip with special findings and, as such, the jury was not asked to 

differentiate between the negligent misrepresentation and negligent failure to 

disclose theories of recovery. Id. at 1284, 1288-1289. In adopting the 

____________________________________________

are employed in connection with a general verdict, the jury’s decision is the 

general verdict, not the answers to the individual interrogatories[.]” Id.

In the case sub judice the jury’s verdict was a general verdict with special 

findings. The verdict slip required the jury to answer a series of special 

findings (questions 1 through 13) which ultimately led the jury to its general 

verdict, finding in favor of Axiall in the amount of $12,800,000.00.
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general verdict rule and applying it to the case at hand, the Halper Court held 

that “because a general verdict was returned and the evidence supported [the 

negligent failure to disclose theory of recovery], the verdict must stand.” Id.

at 1289 (stating, “we will not shift the burden [(of undergoing a new trial)] to 

the Halpers due to the [adoption agency’s] failure to request a [verdict slip 

with special findings], and the evidence was clearly sufficient to support at 

least one of the Halpers’ two theories of liability”).

A decade later, our Supreme Court in Shiflett v. Lehigh Valley Health 

Network, 217 A.3d 225 (Pa. 2019) reached a similar conclusion in applying

the general verdict rule. Shiflett brought an action against Lehigh Valley 

Health Network based on vicarious liability and corporate negligence 

stemming from Shiflett’s time in the post-surgical unit and based on vicarious 

liability stemming from Shiflett’s time in a transitional skills unit. Shiflett, 

217 A.3d at 227. Shiflett’s claim based upon vicarious liability, stemming from 

her time in the transitional skills unit, was time-barred. Id. at 232. The 

verdict slip contained special interrogatories as to each theory of liability

(negligence relating to a fall in a post-surgical unit and negligent conduct in a 

transitional skills unit) but did not contain an interrogatory that apportioned 

damages between the two negligence-based claims. Id. at 233. Neither party 

objected to the format of the verdict slip. Id. at 231. The Shiflett Court 

stated that the evidence fully supported recovery under the theory of 

corporate negligence and, as such, upheld the verdict. Id. at 235. The 

Shiflett Court further stated that although the verdict slip did not “disclose
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whether damages were awarded, in whole or in part, on the [time-barred 

theory of recovery (vicarious liability stemming from the nurse’s conduct in 

the transitional skills unit),]” appellate courts, as well as the trial court, “will 

not presume or conjecture upon what basis the jury renders its verdict and 

made the award.” Id. at 235-236. Because Shiflett had a viable theory of 

recovery based upon negligence stemming from Shiflett’s fall in the

post-surgical unit (and since a damage award could be fully attributable to 

that theory of liability), the Shiflett Court ultimately held that Lehigh Valley 

Health Network’s right to a new trial based upon the general verdict as to 

damages was waived because it “failed to request a special interrogatory that 

could have prevented this eventuality.” Id. at 237.

In the case sub judice, AllTranstek and Rescar jointly submitted 

proposed special interrogatories on October 6, 2021. The joint submission

requested specific interrogatories regarding each of Axiall’s theories of 

recovery - breach of contract, breach of warranty, and negligence. 

AllTranstek and Rescar Proposed Special Interrogatories, 10/6/21, at ¶¶1-30. 

AllTranstek and Rescar also requested that any damage award be 

broken-down by damage to AXLX 1702, damage to the Natrium Plant, 

payments to third parties for property damage, and lost profits. Id. at ¶31. 

If the jury awarded damages, AllTranstek and Rescar additionally requested 

that the jury apportion the damage award between the three theories of 

recovery – breach of contract, breach of warranty, and negligence. Id. at 

¶¶32-33. Axiall subsequently submitted an amended proposed verdict slip on 
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October 7, 2021, that included special interrogatories regarding liability and a 

general verdict as to damages.15 Axiall Amended Proposed Verdict Slip, 

10/7/21, at ¶¶1-14.

At a hearing on October 8, 2021, AllTranstek and Rescar requested that 

the verdict slip contain an interrogatory asking the jury to apportion its 

damage award, if any, to Axiall’s separate theories of liability.16 N.T., 10/8/21, 

____________________________________________

15 Paragraph 14 of Axiall’s amended proposed verdict slip set forth a question 

regarding a general verdict as to damages as follows:

If you answered “Yes” to any part of Questions 2, 9[,] or 13

[(asking whether Axiall suffered damages as a result of breach of 

contract, breach of warranty, or negligence)], state the amount of 

damages sustained by [Axiall] as a result of any of the defendant’s 

conduct without any reduction for the percentage of negligence (if 

any) you attributed to [Axiall] in your answer to Question 5.

$___________

Axiall Amended Proposed Verdict Slip, 10/7/21, at ¶14 (emphasis in original).

16 In their proposed special instructions filed on October 6, 2021, AllTranstek 

and Rescar proposed the following interrogatories regarding the

apportionment of damages by the jury:

31. If your answer to Questions 28, 29, or 30 [(asking whether 

Axiall suffered damages as a result of breach of contract, breach 

of warranty, or negligence)] is yes, please list the amount of 

damages to which you find Axiall is entitled to for each of the 

following claims:

a. Damage to AXLX 1702[:] $________

b. Damage to Natrium plant and equipment: $________

c. Payments to third parties for property damage: $________

d. Lost profit: $________
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____________________________________________

Total Damages: $________

32. You must now assign a percentage of the damages you 

awarded to each theory on which you found [AllTranstek] liable. 

Assign a percentage of the damages only if you found 

[AllTranstek] liable on that theory. In other words, assign a 

percentage of damages only if you found above that (1) 

[AllTranstek] breached a contract and such breach was a factual 

cause of harm; (2) [AllTranstek] breached a warranty and such 

breach was a factual cause of harm; and/or (3) [AllTranstek] was 

negligent and such negligence was a factual cause of harm. The 

total must equal 100%.

a. Breach of Contract: _______%

b. Breach of Warranty: _______%

c. Negligence: _______%

Total: 100%

33. You must now assign a percentage of the damages you 

awarded to each theory on which you found [Rescar] liable. 

Assign a percentage of the damages only if you found [Rescar] 

liable on that theory. In other words, assign a percentage of 

damages only if you found above that (1) [Rescar] breached a 

contract and such breach was a factual cause of harm; (2) 

[Rescar] breached a warranty and such breach was a factual cause 

of harm; and/or (3) [Rescar] was negligent and such negligence 

was a factual cause of harm. The total must equal 100%.

a. Breach of Contract: _______%

b. Breach of Warranty: _______%

c. Negligence: _______%

Total: 100%

AllTranstek and Rescar Proposed Special Instructions, 10/6/21, at ¶¶31-33.

Superheat joined the request for a special damages interrogatory submitted 

by AllTranstek and Rescar. N.T., 10/8/21, at 4018.
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at 4018. AllTranstek and Rescar argued that “given the nature of the contract 

claim in particular, [it is] important that the jury be able to give us guidance 

on what theory [the jury] may have attributed to certain damage categories.” 

Id. The trial court denied AllTranstek’s and Rescar’s request for a special 

damages interrogatory, stating, “I’ve never in a contract case assigned 

percentages.” Id. at 4018-4019.

Thereafter, Axiall submitted a second amended proposed verdict slip on 

October 12, 2021. Among other things, Axiall’s amended proposed verdict 

slip contained a general verdict as to damages but, rather than requesting a 

single dollar amount, Axiall requested that any damage award be identified as 

damage to the Natrium Plant, payments to third parties for property damage, 

and lost profits. Axiall Second Amended Proposed Verdict Slip, 10/12/21, at 

¶14.

On October 14, 2021, AllTranstek and Rescar filed a proposed amended 

verdict slip that included special interrogatories asking the jury whether Axiall 

met its burden of proof on each theory of liability but did not ask the jury to 

apportion its damage award, if any, according to each theory of liability.

17

 In 

other words, rather than asking the jury to allocate its damage award 

according to the theories of liability, the proposed amended verdict slip asked 

____________________________________________

17 Conspicuously absent from the proposed amended verdict slip filed by 

AllTranstek and Rescar on October 14, 2021, were interrogatories asking the 

jury to apportion the damage award, if any, by Axiall’s theories of 

liability - breach of contract, breach of warranty, or negligence.
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only that the jury separate its damage award, if any, into three 

categories – damage to the Natrium Plant, payments to third parties for

property damage, and lost profit.18 AllTranstek and Rescar Proposed 

____________________________________________

18 Specifically, AllTranstek’s and Rescar’s proposed amended verdict slip 

included the following question regarding damages:

16. If you answered “Yes” to any part of Questions 5, 10[,] or 12

[(asking whether Axiall suffered damages as a result of breach of 

contract, breach of warranty, or negligence)], state the amount of 

damages sustained by Axiall [] in each category below as a result 

of any of the defendants’ conduct without any reduction for the 

percentage of negligence (if any) you attributed to Axiall [] in your 

answer to Question 15.

a. Damage to Natrium plant and equipment: $________

b. Payments to third parties for property damages: $________

c. Lost Profit: $________

Total Damages: $________

AllTranstek and Rescar Proposed Amended Verdict Slip, 10/14/21, at ¶16

(emphasis in original).

One distinction between Axiall’s proposed verdict slip and the proposed verdict 

slip submitted by AllTranstek and Rescar was that Axiall’s interrogatories 

pertaining to its negligence claim appeared first on the verdict slip followed by 

interrogatories pertaining to its breach of contract and breach of warranty 

claims. The proposed verdict slip submitted by AllTranstek and Rescar 

presented interrogatories regarding the breach of contract and breach of 

warranty claims first, followed by interrogatories related to the negligence 

claim. Compare Axiall Second Amended Proposed Verdict Slip, 10/12/21 

with AllTranstek and Rescar Proposed Amended Verdict Slip, 10/14/21. Both 

proposed verdict slips contained an almost identical general verdict 

interrogatory regarding damages. Compare Axiall Second Amended 

Proposed Verdict Slip, 10/12/21, at ¶14 with AllTranstek and Rescar Proposed 

Amended Verdict Slip, 10/14/21, at ¶16.
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Amended Verdict Slip, 10/14/21, at ¶¶1-16. More simply, the amended 

proposed verdict slip filed on October 14, 2021, did not include paragraphs 32 

and 33 from AllTranstek’s and Rescar’s proposed special instructions that were 

filed on October 6, 2021, and reproduced supra.

That same day, October 14, 2021, at a hearing before the trial court, 

AllTranstek and Rescar expressed a concern that, in its closing argument, 

Axiall asserted that evidence was presented showing that Rescar overcharged 

for the repairs of AXLX 1702.

19

 N.T., 10/14/21, at 4511. Specifically, the 

following dialogue occurred between the parties and the trial court:

____________________________________________

A second distinction between the two proposed verdict slips was that 

AllTranstek and Rescar requested that the verdict slip include special 

interrogatories asking whether Axiall’s purchase orders formed contracts

between AllTranstek and Axiall and between Rescar and Axiall. See

AllTranstek and Rescar Proposed Amended Verdict Slip, 10/14/21, at ¶¶1, 6; 

see also N.T., 10/13/21 (Afternoon Session), at 4494-4498. The trial court 

denied AllTranstek’s and Rescar’s request to include special interrogatories on 

the verdict slip as to whether the purchase orders formed contracts between 

the parties. N.T., 10/14/21, at 4515-4516.

19 In closing remarks, counsel for Axiall argued,

[O]nce the repairs were made [to AXLX 1702] in 2016[,] and the 

[railroad tank] car was released to Axiall, as far as Rescar was 

concerned, [AXLX 1702] was fit for chlorine service. . . .

That makes all the sense in the world. Why would Rescar bid to 

fix a [railroad tank] car, repair the [railroad tank] car, charge for 

the repairs, overcharge for the repairs, make the repairs, and 

then tell Axiall, “You know what? This wasn’t such a good idea. 

We don’t think that you ought to return this [railroad tank] car to 

chlorine service.”
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[AllTranstek/Rescar:] Breach of contract. In the closing and 

during the trial, there was evidence raised 

about this overcharge. You heard that, 

the $13,000[.00]] overcharge. Now, 

there is no claim for that in the complaint. 

And frankly, they didn’t ask the jury for it 

in their award, but we have this general 

question in the special interrogatories. 

Did Rescar breach its contractual duties to 

Axiall resulting in damage? Well, the jury 

could easily say, oh, they overcharged 

them. That’s a breach, and it caused 

damage, $13,000[.00]. Of course that 

has nothing to do with the damage we’re 

here about.

[Trial Court:] You would love that if they did that.

[AllTranstek/Rescar:] Correct, but there is no way to do it the 

way the special interrogatories are set 

because there’s no place for them to list 

damages resulting from breach of 

contract and putting down $13,000[.00].

The way it is now, the only damages they 

are given are damages to the plant, lost 

profits, third party claims. So, you know, 

and you know the impact of this, Your 

Honor. I now understand why they 

wanted negligence first and why they 

wanted an instruction about there can’t be 

a double recovery, because you 

understand that a breach of contract 

finding eliminates any reduction. 

They could find a 40 percent 

contributory negligence. That applies 

to the negligence claim, but if they find 

a breach of contract based on an

overcharge, and it isn’t clear that they are 

awarding $13,000[.00], then, in fact, we 

____________________________________________

N.T., 10/13/21 (Afternoon Session), at 4445 (emphasis added).
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could have that entire damages imposed 

on us for an immaterial breach of 

contract.

I think the solution frankly, Your Honor, is 

simple, is just instruct the jury, since they 

haven’t sought that, that the evidence you 

heard about the overcharge can’t be the 

basis of a breach of contract claim against 

my client would be one simple way to 

handle it.

[Axiall:] If the jury finds that that is a breach, then 

the jury can pencil in $13,000[.00].

[AllTranstek/Rescar:] [N]ot if there’s not a line for it.

[Trial Court:] I’m not going to change [the verdict slip.] 

We’ve got instructions to the jury that are 

extensive. . . . I think we’re just going to 

go with what we have, and they are going 

to decide something.

[AllTranstek/Rescar:] Obviously we’d reserve this for the record. 

We feel strongly about it, but it’s your call.

Id. at 4510-4513 (emphasis added).

In so arguing, AllTranstek and Rescar asserted that the jury could find 

that Rescar breached its contractual duties to Axiall by overcharging Axiall for 

the repairs of AXLX 1702 and award damages based solely upon the 

overcharge. Id. At the hearing, AllTranstek and Rescar did not specifically 

request a special interrogatory asking the jury to identify the portion of 

damages awarded for each of Axiall’s causes of action. Id. Rather, 

AllTranstek and Rescar argued that without a jury instruction providing either

an express limit to damages stemming from an overcharge or a statement 

that the overcharge could not be the basis of recovery under a breach of 
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contract claim, AllTranstek and Rescar could be held liable for the total 

damage award (including damage to the Natrium Plant, payments to third 

parties for property damage, and lost profits) based solely upon an overcharge 

for repair services. Id. at 4511-4512.

The trial court, ultimately, decided to utilize the proposed verdict slip 

submitted by Axiall, which, inter alia, asked the jury to allocate the total 

damage award between damage to the Natrium Plant, payments to third 

parties for property damage, and lost profits, but did not ask the jury to 

apportion its damage award, if any, between Axiall’s theories of liability.20 In 

its charge to the jury, the trial court instructed the jury, in pertinent part, as 

follows:

At this point, I want to instruct you on the claims that Axiall has 

filed against AllTranstek, Rescar, and Superheat.

Specifically, Axiall sued AllTranstek[ and] Rescar for breach of 

warranty, breach of contract[,] and negligence. Axiall claims that 

as a result of [the defendants’] breach of warranty, breach of 

contract[,] and negligence, that it sustained property damage and 

incurred other losses. Axiall has also sued Superheat for 

negligence, claiming that Superheat’s negligence caused [Axiall]

to sustain property damage and incur other losses.

In order for you to arrive at a verdict on Axiall’s claims against 

AllTranstek, Rescar[,] and Superheat, you must resolve the 

following factual questions by a preponderance of the evidence.

First, whether or not the contracts between Axiall and AllTranstek 

and Rescar contained an express warranty. Second, whether or 

____________________________________________

20 The verdict slip utilized by the trial court did not include questions as to 

whether the purchase orders formed contracts between AllTranstek and Axiall 

and between Rescar and Axiall, as proposed by AllTranstek and Rescar.
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not AllTranstek and Rescar breached any warranty. Third, 

whether or not AllTranstek[’s] and Rescar’s breach of any 

warranty resulted in damage to Axiall. Fourth, whether or not 

AllTranstek and Rescar otherwise breached their contracts with 

Axiall. Fifth, whether or not any breach of that contract by 

AllTranstek and Rescar caused damages to Axiall. Sixth, whether 

or not AllTranstek and Rescar were negligent in the performance 

of their services to Axiall, and if so, whether or not that negligence 

was a cause of the rupture of AXLX 1702. Seventh, whether or 

not Superheat was negligent in the performance of its services. 

And, if so, whether or not that negligence was a cause of the 

rupture of AXLX 1702. Eighth, whether or not Axiall was negligent 

in its duties as a [railroad] tank car owner. If so, whether or not 

that negligence was a cause of the rupture of AXLX 1702. And 

ninth, if you find a breach of warranty and/or breach of 

contract and/or negligence on the part of the defendants 

that resulted in the rupture of AXLX 1702, you must 

determine the appropriate measure of damages.

Start with breach of warranty. [] Axiall asserts that its contracts 

contained an express warranty that was breached by AllTranstek 

and Rescar. AllTranstek and Rescar deny that any express 

warranty existed. Axiall bears the burden of proving that the 

express warranty contained in its [T]erms and [C]onditions is a 

part of the contract between the parties. You should evaluate 

whether Axiall has met this burden of proof based on my prior 

instructions regarding burden of proof.

Now with regard to breach of contract, Axiall claims that Rescar 

and AllTranstek did not do what they agreed to do under their 

contracts with Axiall. This is called a breach of contract. Axiall 

claims that Rescar[’s] and AllTranstek’s breach of these contracts 

caused its harm for which Rescar and AllTranstek should pay 

money damages.

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.

. . .
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With respect to Axiall’s claim of negligence, Axiall claims that all 

the defendants were negligent and that the defendant[s’]

negligence was a factual cause of Axiall’s damages. Axiall has the 

burden of proving its claims against each defendant.

The defendants deny Axiall’s claim. In addition, as a defense, the 

defendant[s] claim that Axiall was negligent and that Axiall’s own 

negligence was a factual cause in bringing about Axiall’s damages.

The defendants have the burden of proving this defense. So the 

issues that you must decide in accordance with the law as I give 

it to you are first, were AllTranstek, Rescar[,] and/or Superheat 

negligent? Was the negligent conduct of AllTranstek, Rescar[,] 

and/or Superheat a factual cause in bringing about the damages 

to Axiall? Was Axiall also negligent? Was Axiall’s negligent 

conduct also a factual cause in bringing about its own damage?

In this case, you must decide whether AllTranstek, Rescar, 

Superheat[,] or Axiall [were] negligent. 

. . .

Axiall is entitled to recover for all damages factually caused by the 

defendants’ negligence. The defendants’ negligence need not be 

the sole cause of the damages. Other causes may have 

contributed to producing the final result. The fact that some other

factor may have contributed to a harm does not relieve defendants 

of liability unless you find that such other causes would have 

produced the harm complained of independently of defendants’ 

negligence.

As a defense, the defendants claim that Axiall’s own negligence 

was a factual cause of its harm. The defendants have the burden 

of proof of both of the following: One, that Axiall was negligent, 

and, two, Axiall’s negligence was a factual cause of its harm.

If you find that Axiall’s percentage of negligence is greater than 

50 percent, then Axiall cannot recover its damages.

If you decide that Axiall and one or more of the defendants were 

negligent, and that the negligence of Axiall and one or more of the 

defendants was a factual cause of Axiall’s damages, you should 

state each parties’ share of the negligence that contributed to 

Axiall’s damages. You should state each parties' share of the 
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negligence in the form of a percentage. Together these 

percentages must total 100 percent.

If you decide that Axiall’s negligence was greater than 50 percent, 

then Axiall cannot recover. If you decide that Axiall’s negligence

was less than or equal to the combined negligence of 

AllTranstek, Rescar[,] and/or Superheat, I will reduce Axiall’s 

damages based on the percent of negligence you have 

assigned to the parties.

I will now instruct you on damages. The fact that I am instructing 

you about damages does not imply any opinion on my part as to 

whether damages should be awarded. If you find that 

AllTranstek[’s] or Rescar’s negligence or breach of contract or 

[breach of] warranty or Superheat’s negligence caused damage to 

Axiall’s property, you must then determine an amount of money 

damages that you find will fairly and adequately compensate Axiall 

for all the damage that it sustained as a result. The amount you 

award today must compensate Axiall completely for damages 

sustained in the past as well as damages Axiall will sustain in the 

future.

. . .

Axiall will only recover the amount you determine is the total to 

which it is entitled. In other words, a verdict in Axiall’s favor 

on more than one of its claims will not result in a double 

recovery for Axiall.

N.T., 10/14/21, at 4532-4545 (emphasis added). At the conclusion of the 

jury charge, none of the parties lodged an objection to any portion of the jury

instructions. Id. at 4557.

Upon conclusion of deliberations, the jury returned a general verdict in 

the amount of $12,800,000.00, having designated $5,900,000.00 in damages 

to the Natrium Plant, $3,400,000.00 in damages for third-party payments, 

and $3,500,000.00 in damages for lost profits. Id. at 4561-4562; see also

Verdict Slip, 10/18/21. The trial court then asked counsel for all parties if the 
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jury could be excused, to which all counsel responded in the affirmative. N.T., 

10/14/21, at 4562. Thereupon, the jury was dismissed. Id.

The trial court, after dismissing the jury, asked counsel it they wished 

to place anything on the record. Id. The following dialogue occurred:

[AllTranstek/Rescar:] I’m trying to think of the consistency of 

the verdict. That’s all.

[Trial Court:] It seemed consistent to me. That’s why I 

read it. I would have sent them out of the 

room and discussed it with you guys but 

it seemed -

[AllTranstek/Rescar:] And it was unanimous on all of them?

[Trial Court:] Seemed perfectly consistent to me. Do 

you guys agree?

(All nod heads)

[Trial Court:] Might not be what anybody wanted, but it 

was internally consistent with the 

questions that we asked.

[AllTranstek/Rescar:] Nothing.

[Trial Court:] Anything else?

[Axiall:] No.

[Trial Court:] Superheat? Anything for the plaintiff for 

the record before we close?

[Axiall:] No, Your Honor.

[Trial Court:] If there is nothing further, this proceeding 

is concluded.

Id. at 4562-4563.

At the heart of AllTranstek’s and Rescar’s challenge to the denial of its 

post-trial motion to mold the verdict is the assertion that the trial court erred 
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in denying their request for special interrogatories apportioning a damage 

award, if any, to each theory of recovery. Before reviewing this issue, we first 

examine whether AllTranstek and Rescar preserved their challenge to the 

denial of special interrogatories concerning apportionment of damages by 

raising the issue at all stages of the trial.

Embedded in the bedrock of Pennsylvania jurisprudence is the 

well-established principle that to preserve an issue for appellate review, a 

party is required to make a timely specific objection in order to provide the 

trial court the opportunity to correct the alleged error, if necessary.21 

Dilliplaine, 322 A.2d at 116. This principle, commonly known as the 

“contemporaneous objection rule,” has been codified in Pennsylvania Rule of 

Civil Procedure 227.1, which states,

post-trial relief may not be granted unless the grounds therefor, 

(1) if then available, were raised in pre-trial proceedings or by 

motion, objection, point for charge, request for findings of fact or 

conclusions of law, offer of proof[,] or other appropriate method 

at trial; and (2) are specified in the motion. The motion shall state 

how the grounds were asserted in pre-trial proceedings or at trial. 

Grounds not specified are deemed waived unless leave is granted 

upon cause shown to specify additional grounds.

Pa.R.Civ.P. 227.1(b)(1) and (2).

____________________________________________

21 In so holding, our Supreme Court in Dilliplaine v. Lehigh Valley Trust 

Co., 322 A.2d 114 (Pa. 1974) abolished the prior practice whereby appellate 

courts considered trial court errors that were claimed to be basic and 

fundamental despite the absence of any objection or specific exception at trial. 

Dilliplaine, 322 A.2d at 116.
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In applying the principle first announced in Dilliplaine, supra, our 

Supreme Court later held that the failure to object “to the inconsistency of the 

jury’s answers to the interrogatories when the verdict was rendered” 

constituted waiver of a challenge to the verdict. City of Philadelphia, Police 

Dept. v. Gray, 633 A.2d 1090, 1095 (Pa. 1993). In Gray, the plaintiff22

sustained injuries when a trolley car she was riding collided with an unmarked 

police vehicle driven by a City of Philadelphia police officer. Gray, 633 A.2d 

at 1091. The trolley car was owned and operated by Southeastern 

Pennsylvania Transportation Authority (“SEPTA”). Id. The plaintiff filed a

cause of action for negligence against SEPTA and the City of Philadelphia Police 

Department, seeking damages for personal injuries. Id. at 1092. At the 

conclusion of trial, the jury was presented with interrogatories asking it to 

answer, inter alia, whether or not the SEPTA trolley car driver was negligent

in the operation of the trolley car, and if yes, whether the driver’s negligence 

was a substantial factor in causing the plaintiff’s injuries, and whether the 

police officer was negligent in the operation of the police vehicle, and if yes, 

whether the police officer’s negligence was a substantial factor in causing the 

plaintiff’s injuries. Id. at 1094. Prior to jury deliberation, the plaintiff did not 

____________________________________________

22 The case involving Joan Gray (Gray, supra,) was consolidated with a 

second case, captioned as Williams v. Se. Pennsylvania Transp. Auth., 

633 A.2d 1090, 1095 (Pa. 1993), for the purpose of review by our Supreme 

Court. Our discussion of Supreme Court precedent focuses on that portion of 

the Gray decision that involved the consolidated action filed by Kathleen 

Williams. As such, for clarity, ease of identification, and discussion, we refer

to Williams as “the plaintiff,” but our case citations shall refer to Gray, supra.
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object to either the jury instructions or the interrogatories submitted to the 

jury. Id. In answering the interrogatories, the jury found the SEPTA trolley 

car driver was negligent but that the driver’s negligence was not a substantial 

factor in causing the plaintiff’s injuries. Id. The jury further found that the 

police officer was negligent in the operation of the police vehicle and that the 

police officer’s negligence was a substantial factor in causing the plaintiff’s 

injuries. Id. The jury then responded that SEPTA was 25% negligent and the 

City of Philadelphia Police Department was 75% negligent. Id. at 1094-1095. 

The jury awarded the plaintiff $20,000.00 in damages. Id. at 1095.

In a post-trial motion, the plaintiff requested judgment non obstante 

veredicto against SEPTA or, in the alternative, a new trial due to the 

inconsistency of the jury’s answers to the interrogatories.23 Id. at 1094. The 

trial court denied the plaintiff’s motion, and entered judgment in favor of the 

plaintiff and against SEPTA in the amount of $2,000.00 (25% of the total 

____________________________________________

23 In her post-trial motion, the plaintiff asserted that the finding that the 

SEPTA trolley car driver’s negligence was not a substantial factor in causing 

the accident “was an unnecessary characterization which [was] inconsistent 

with the finding of causal negligence of twenty-five percent.” Williams v. Se. 

Pennsylvania Transp. Auth., 1989 WL 817137 (C.P. Phila. Cnty. filed Jul. 

12, 1989) (unpublished opinion). Stated differently, the plaintiff asserted that 

the jury verdict was inconsistent because “reasonable [individuals] could not 

differ that if the [SEPTA trolley car driver were] negligent at all in his operation 

of the trolley car, his negligence had to be a substantial factor in causing the 

accident and [the] plaintiff’s injuries as a matter of law.” Williams v. Se. 

Pennsylvania Transp. Auth., 574 A.2d 1175, 1177 (Pa. Cmwlth. 1990).
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damage award).

24

 The Commonwealth Court affirmed the trial court order 

denying the post-trial motion. Williams, 574 A.2d at 1176, 1178. In 

affirming, the Commonwealth Court observed that “[t]he essence of [the 

plaintiff’s] argument is a challenge to the jury charge and the interrogatories 

submitted to the jury.” Id. at 1178. Because the plaintiff “neither objected 

to the jury charge nor the wording of the interrogatories prior to the case 

going to the jury[,]” the Commonwealth Court held that the plaintiff waived 

this issue. Id.; see also Gray, 633 A.2d at 1092.

Our Supreme Court, upon review in Gray, supra, held that the 

Commonwealth Court erred in finding that the plaintiff waived the issue by 

failing to object to the jury instructions or interrogatories prior to the case 

going to the jury. Gray, 633 A.2d at 1095. The Gray Court explained that 

the interrogatories that were presented to the jury prior to deliberation did 

not call for inconsistent answers and, therefore, the plaintiff was not required 

to object to the interrogatories in order to preserve the issue. Rather, the 

“objection to the interrogatories would only arise[, the Gray Court clarified,] 

when inconsistent answers were given.” Id. The Gray Court, thereupon, 

found that the failure to “object to the inconsistency of the jury’s answers to 

____________________________________________

24 The Gray Court explained that the police officer’s negligence, and thus the 

City of Philadelphia Police Department’s liability, for 75% of the damage award 

was governed by the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. 

§§ 8541 – 8564. Gray, 633 A.2d at 1092-1094.
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the interrogatories when the verdict was rendered” resulted in waiver.25 Id., 

citing Dilliplaine, supra; see also Fillmore v. Hill, 665 A.2d 514, 516 

(Pa. Super. 1995) (stating, “Pennsylvania courts have extended [the 

Dilliplaine] waiver rule to include cases involving inconsistent verdicts), 

appeal denied, 674 A.2d 1073 (Pa. 1996); King v. Pulaski, 710 A.2d 1200, 

1203 (Pa. Super. 1998) (stating, “a party must make a timely and specific 

objection before the trial court at the appropriate stage of the 

proceeding[, as the] failure to do so will result in waiver of the issue” 

(emphasis added)); Shelhamer v. Crane, 58 A.3d 767, 772 (Pa. Super. 

2012) (holding that, the failure to object to a verdict at the time it was 

rendered and it became known that the jury’s answers to various

interrogatories were inconsistent resulted in waiver). In other words, an 

objection to interrogatories, which on their face did not call for inconsistent 

answers prior to deliberation, was not necessary for issue preservation but 

once the inconsistent answers were provided by the jury, an objection lodged 

prior to the dismissal of the jury was required to preserve the issue. Explained 

differently, the plaintiff’s claim that the interrogatories would result in an 

inconsistent verdict was only a hypothetical prior to deliberation, therefore no 

objection was necessary. Once the inconsistency of the verdict became known 

____________________________________________

25 Ultimately, the Gray Court reversed the order of the Commonwealth Court 

and remanded the case to the trial court for a new trial. Gray, 633 A.2d at 

1095.
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upon pronouncement of the verdict, however, the grounds for objection 

became a reality and a lodged objection was required.26

In Criswell v. King, 834 A.2d 505 (Pa. 2003), our Supreme Court 

reaffirmed its decision in Gray, supra, “that an inconsistent verdict provides 

grounds for objection and, if a party seeks relief upon grounds of verdict 

inconsistency, [the party] must forward a timely, contemporaneous objection 

upon the rendering of the verdict.”27 Criswell, 834 A.2d at 513. The 

Criswell Court explained that the application of Dilliplaine, and its progeny, 

to inconsistent verdicts allows for the correction of errors before the trial ends, 

____________________________________________

26 This Court has recognized, and referred to, an “inconsistent verdict” as a 

verdict that, on its face or appearing within the four corners of the verdict slip, 

is inconsistent, irrational, problematic, incredible, ambiguous, or simply 

unclear. Avery v. Cercone, 225 A.3d 873, 877-879 (Pa. Super. 2019). As 

such, our use of the term “inconsistent” in the context of our discussion herein 

encompasses a verdict that is “inconsistent,” as well as one that is irrational, 

problematic, incredible, ambiguous, or merely unclear. Thus, when a verdict 

meets any of those definitions of “inconsistent” and the party objects to the 

verdict before the jury is dismissed, the trial court should send the jury back 

to the deliberation room with the instruction to clarify, not reconsider, the 

verdict in order to provide the necessary clarity as to the jury’s intent. Id. at 

877.

27 In reaffirming Gray, supra, the Criswell Court noted that “Gray does not 

hold [] that a party’s failure to object to an inconsistent verdict before the jury 

is dismissed waives any right to a new trial [but, rather,] Gray simply held 

that a party’s failure to object to a jury’s allegedly inconsistent verdict before 

the jury is dismissed waives [a challenge to an inconsistent verdict as grounds 

for a new trial].” Criswell, 834 A.2d at 510-511 n.2 (original quotation 

marks, citations, and original brackets omitted; emphasis in original) 

(explaining that, the failure to object on the grounds the verdict is against the 

weight of the evidence before the jury is dismissed does not result in waiver).
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thereby eliminating avoidable appeals and advancing judicial economy. Id.

at 509.

In Schmidt v. Boardman Co., 11 A.3d 924 (Pa. 2011), our Supreme 

Court again reaffirmed the Dilliplaine waiver principle, stating “we believe 

the general requirement that one challenging a civil verdict must raise and 

preserve challenges at all stages best reconciles with our existing rules and 

approach to trial and appellate practice.”28 Schmidt, 11 A.3d at 941-942

(emphasis added) (rejecting a futility exemption “that does not require useless 

objections” in favor of a requirement that potential challenges must be 

identified early in litigation and at all stages of litigation).

Our Supreme Court, in Samuel-Bassett v. Kia Motors Am., Inc., 34 

A.3d 1 (Pa. 2011), held that because the alleged error of an inconsistent 

verdict was “evident when the verdict slips and the trial instructions were 

agreed upon and formulated[,]” Kia Motors should have objected “to the 

verdict sheets when composed and offered to the jury, to the related jury 

charge, or, at the latest, contemporaneous with the actual molding of the 

verdict.” Samuel-Bassett, 34 A.3d at 45-46. In Samuel-Bassett, the issue 

raised on appeal asserted that the verdict sheet, jury instructions, and, 

ultimately, the verdict were inconsistent with an earlier ruling by the trial 

____________________________________________

28 In a case posing a similar preservation issue, we note that then-Judge 

Wecht (now Justice Wecht) writing for this Court reiterated that “challenges 

to a civil verdict must be raised and preserved at all stages.” Mazurek v. 

Russell, 2014 WL 10752064, at *4 (Pa. Super. filed Dec. 18, 2014) 

(non-precedential decision).
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court. Id. Thus, the potential for an inconsistent verdict was known (i.e., 

existed in reality) when the verdict sheet was composed and offered to the 

jury, after the jury was charged, and upon pronouncement of the verdict. 

Therefore, in order to preserve the issue, Kia Motors was required to object to 

the verdict sheet, the jury instructions, or upon the rendering of the verdict. 

Id. at 46.

Thus, the decisions in Schmidt, supra, and Samuel-Bassett, supra, 

reenforced the procedural concept announced in Gray - an objection to 

interrogatories that did not, on its face, ask a jury to provide inconsistent 

answers was unnecessary but an objection was required for issue preservation 

once the jury rendered a verdict that was inconsistent. This approach is 

further reiterated in Rule 227.1(b) that requires an objection to be lodged if 

then available (i.e., known with certainty). Pa.R.Civ.P. 227.1(b)(1).

Finally, in Stapas v. Giant Eagle, Inc., 198 A.3d 1033 (Pa. 2018), our 

Supreme Court held that “Giant Eagle waived its challenge to the jury’s verdict 

by failing to object to the verdict before the trial court dismissed the jury.” 

Stapas, 198 A.3d at 1041. Stapas filed a complaint asserting negligence 

claims against Giant Eagle for injuries Stapas sustained at a Giant Eagle GetGo 

convenience store while defending a Giant Eagle employee (and personal 

friend) from the actions of an argumentative and hostile third-party. Stapas, 

198 A.3d at 1034. In his complaint, Stapas did not make a claim for future 

lost wages. Id. The verdict slip asked the jury to determine individual 

damages for scarring, wage loss, past and future medical expenses, past, 
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present, and future pain and suffering, and loss of life’s pleasures. Id. at 

1035. The verdict slip also asked the jury to state a total damage award 

comprised of the individual damage determinations. Id. Conspicuously 

absent from the individual damage determination for “wage loss” was the need 

to expressly determine both past wage loss and future wage loss. Id. The 

jury, in rending its verdict, however, awarded past wage loss in the amount 

of $3,000.00 and future wage loss in the amount of $1,300,000.00 by writing 

into the verdict slip each distinct type of wage loss and an amount. Id. Upon 

the pronouncement of the verdict, Giant Eagle did not lodge an objection and

assert that the verdict was inconsistent. In finding that Giant Eagle waived 

its challenge to the jury verdict, and in particular the award of future wage 

loss, our Supreme Court explained that “[w]hen the trial court’s tipstaff read 

the jury’s itemized verdict, Giant Eagle had a basis to object [(i.e., the basis 

for the objection became available)] because the verdict did not conform to 

the trial court’s instruction to return a single, lump-sum verdict and because 

the jury awarded damages for future lost wages, a category of damages that 

Stapas was not entitled to [receive] as a matter of law.” Id. at 1041. In so 

holding, the decision in Stapas, supra, is consistent with Dilliplaine, Gray, 

and their progeny, in that when the inconsistency of the verdict becomes a

concrete and discernible error, the basis for the objection becomes available 
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and a party is required to object to the rendered verdict before the jury is 

dismissed or face waiver of a challenge to the verdict.29

Here, the record demonstrates that on October 6, 2021, AllTranstek and 

Rescar proposed special interrogatories requesting, inter alia, that the jury 

apportion its damage award, if any, between each theory of recovery – breach 

of contract, breach of warranty, and negligence. AllTranstek and Rescar 

Proposed Special Interrogatories, 10/6/21, at ¶¶32-33. On October 7, 2021, 

Axiall filed an amended proposed verdict slip that included, inter alia, a general 

verdict as to damages, which permitted the jury to express its award as a 

lump sum. Axiall Amended Proposed Verdict Slip, 10/7/21, at ¶14. At an 

October 8, 2021 hearing, AllTranstek and Rescar orally requested the 

apportionment of a damage award, if any, between each theory of recovery. 

____________________________________________

29 We are cognizant that the Stapas Court stated 

Giant Eagle had multiple opportunities to preserve this ground for 

post-trial relief during the trial court proceedings but failed to do 

so. Specifically, Giant Eagle did not request a point for charge 

limiting wage loss to only past wage loss, did not object to the 

jury interrogatory listing “wage loss” as a category of damages, 

and did not object to the trial court's damages instructions. 

Stapas, 198 A.3d at 1041. This obiter dictum pronouncement seemingly

emphasizes the multiple opportunities Giant Eagle had to avoid paying 

damages for future wage loss, but the Stapas Court did not rely upon these 

grounds for finding waiver. As discussed supra, the Stapas Court ultimately 

found that Giant Eagle’s “basis to object” ripened, or became available, when 

the jury’s itemized verdict was read in open court. It was at this moment that 

Giant Eagle needed to lodge an objection before the dismissal of the jury to 

preserve its challenge to the verdict. Id.
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N.T., 10/8/21, at 4018. The trial court denied AllTranstek’s and Rescar’s 

request for apportionment of damages by theory of recovery. Id. at 4019.

On October 12, 2021, Axiall filed a second amended proposed verdict 

slip that included a general verdict as to damages but asked the jury to state 

its damage award according to three distinct categories - damage to the 

Natrium plant, payments to third parties, and lost profits. Axiall Second 

Amended Proposed Verdict Slip, 10/12/21, at ¶14. On October 14, 2021, 

AllTranstek and Rescar filed a proposed amended verdict slip that did not 

include interrogatories asking the jury to apportion its damage award, if any,

between each theory of recovery. AllTranstek and Rescar Proposed Amended 

Verdict Slip, 10/14/21. At a hearing held that same day, however, AllTranstek 

and Rescar again raised an argument regarding apportionment of damages by 

theory of recovery within the context of a discussion regarding a $13,000.00 

overcharge. N.T., 10/14/21, at 4510-4512. The trial court denied 

AllTranstek’s and Rescar’s request to modify the verdict slip. Id. at 4512. 

Thereupon, the trial court charged the jury, to which no objections were 

lodged. Id. at 4557 

That same day, October 14, 2021, the jury returned a verdict in favor 

of Axiall, finding that AllTranstek was 20% negligent, Rescar was 40% 

negligent, and AllTranstek and Rescar breached their contracts and warranties 

with Axiall. Id. at 4560-4561. The jury awarded total damages in the amount 

of $12,800,000.00 with $5,900,000.00 assigned to damage to the Natrium 

Plant, $3,400,000.00 assigned to payments to third-party claims, and 
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$3,500,000.00 assigned to lost profits. Id. at 4561-4562. None of the parties 

lodged an objection to the verdict and, when asked, all parties agreed the jury 

could be dismissed. Id. at 4562.

Although AllTranstek and Rescar submitted a request for special 

interrogatories requesting that the jury apportion its damage award, if any, 

between the three theories of recovery, the verdict slip did not, on its face, 

call for an inconsistent verdict. Using the verdict slip that contained special 

interrogatories regarding the three theories of recovery and a general verdict 

as to damages, the jury, for example, was free to find AllTranstek and Rescar 

breached their contracts and warranties with Axiall but were not negligent or, 

even if finding that the two party-defendants were negligent, that Axiall’s 

contributory negligence was greater than 50%, thus barring recovery on the 

negligence claim. Under these circumstances, an award of damages would 

relate to a finding of liability under the contractual theories of recovery (breach 

of contract and breach of warranty) and would not relate to the negligence 

theory of recovery. As such, the verdict slip, as submitted to the jury, did not 

on its face call for an inconsistent verdict.

Once the jury rendered its verdict and the verdict was read in open court 

(see N.T., 10/14/21, at 4560-4562), it became clear that the jury had, indeed, 

rendered an ambiguous, inconsistent verdict. In other words, it became a 

reality that the verdict slip expressed a damage award in the amount of 

$12,800,000.00 without a clear understanding of whether the damage award 

was solely the result of finding AllTranstek and Rescar breached their contracts
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with Axiall, or breached their warranties with Axiall, or were negligent in 

causing the damages, or if the damage award resulted from a combination of 

defense-liability under all three theories of recovery. Thus, upon the reading 

of the verdict in open court, AllTranstek’s and Rescar’s basis for objection, 

namely that the verdict was inconsistent, ripened and became available. At 

this time, AllTranstek and Rescar were required to lodge a contemporaneous 

objection (reintroducing their previously stated concern about allocation of 

liability according to theory of relief) prior to the dismissal of the jury. The 

record reveals, however, that AllTranstek and Rescar did not lodge such an 

objection prior to the dismissal of the jury. Therefore, we are constrained to 

find that AllTranstek and Rescar waived any objection to the verdict slip and 

this issue cannot now form the basis of their post-trial motion for altering the 

verdict. See Pa.R.Civ.P. 227.1(b)(1); see also Dilliplaine, 322 A.2d at 116;

Gray, 633 A.2d at 1095; Criswell, 834 A.2d at 513; Schmidt, 11 A.3d at 

942; Samuel-Bassett, 34 A.3d at 45-46; Stapas, 198 A.3d at 1041.

Attorney’s Fees

In their fourth issue, AllTranstek and Rescar challenge the trial court’s 

award of attorney’s fees, costs, and expenses, as part of the judgment, in the 

amount of $8,324,073.25. AllTranstek and Rescar Brief at 68-85. AllTranstek 

and Rescar contend that to set aside the “American Rule,” which precludes a 

litigant from recovering attorney’s fees from an adverse party, the party 

seeking recovery of attorney’s fees must demonstrate, inter alia, a clear 

agreement between the parties to permit such a recovery. Id. at 68-69. 
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AllTranstek and Rescar assert that the trial court’s reliance on Section 13.1 of 

Axiall’s Terms and Conditions was misplaced because Section 13.1 related to 

AllTranstek’s and Rescar’s obligation to indemnify, defend, and hold harmless 

Axiall against third-party claims. Id. at 73-74. AllTranstek and Rescar argue 

that “[n]othing in Section 13.1 clearly provides that Axiall may [recover 

attorney’s] fees incurred in Axiall’s own lawsuit against the recipient of its 

[purchase orders, namely AllTranstek and Rescar,] (as opposed to [] lawsuits 

between Axiall and third-parties).” Id. at 75. AllTranstek and Rescar contend,

The language that Axiall [used in Section 13.1] – especially its 

framing of the putative obligation as one requiring [AllTranstek 

and Rescar] to “indemnify, defend[,] and hold harmless 

Axiall,” – does not clearly evince an intent to include first-party 

claims. Indeed, absent some specific language to the contrary, a 

statement that [AllTranstek and Rescar] must “indemnify Axiall” 

against [AllTranstek or Rescar, or] that [AllTranstek and Rescar] 

must “defend Axiall and hold Axiall harmless” against [AllTranstek 

and Rescar], is awkward at best. By contrast, the “indemnify, 

defend[,] hold harmless” formula applies naturally to claims 

brought against Axiall by third[-]parties.

Id. at 77 (original brackets and record citation omitted; formatting modified). 

Hence, AllTranstek and Rescar assert that Section 13.1 does not evidence a 

clear agreement to shift attorney’s fees incurred as a result of claims between 

the contracting parties. Id. at 80.

It is well-established that “[u]nder the American Rule, applicable in 

Pennsylvania, a litigant cannot recover counsel fees from an adverse party 

unless there is express statutory authorization, a clear agreement of the 

parties, or some other established exception.” Trizechahn Gateway LLC v. 
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Titus, 976 A.2d 474, 482-483 (Pa. 2009). In the case sub judice, we are 

concerned with whether there was a clear agreement between the parties to 

award attorney’s fees. See Riverview Carpet & Flooring, Inc. v. 

Presbyterian SeniorCare, 299 A.3d 937, 984 (Pa. Super. 2023) (stating, 

the party seeking an award of attorney’s fees must demonstrate that the 

parties reached a clear agreement to set aside the American Rule).

The American Rule derives from a federal congressional act passed in 

1853, which was designed to curb the losing party from being unfairly saddled 

with exorbitant fees for the prevailing party’s attorney. See Alyeska 

Pipeline Serv. Co v. Wilderness Soc’y, 421 U.S. 240, 251 (1975). We 

recognize, as did the New York Court of Appeals, recently, that “[t]he 

American Rule is intended to increase free access to the courts for those who 

would otherwise be discouraged from seeking judicial redress of wrongs for 

fear of having to pay a defendant's attorney's fees.” See Sage Systems, 

Inc. v. Liss, 198 N.E.3d 768, 770 (N.Y. 2022); see also Riverview Carpet, 

299 A.3d at 983 (stating, “a primary purpose of contractual fee-shifting 

clauses is to discourage litigation by creating an incentive for the parties to 

satisfy their contractual obligations and to think twice before filing long-shot 

claims or contesting valid claims” (citation and original quotation marks 

omitted)). We are similarly persuaded, based upon the historical nature and 

purpose of the American Rule, that promises to pay attorney’s fees in 

first-party claims runs against the grain of the American Rule. See Nova 

Rsch., Inc. v. Penski Truck Leasing Co., 752 A.2d 275, 285, 287 (M.D. 
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2008) (noting that, the recovery of attorney’s fees relating to third-party 

claims is already a great expansion of the exceptions to the American Rule). 

To broadly interpret clauses within a contract as permitting the recovery of 

attorney’s fees pertaining to first-party claims without an unmistakably clear 

agreement between the parties would create an exception to the American 

Rule that would effectively “gut” 170 years of American jurisprudence.

At issue here is Section 13.1 of Axiall’s Terms and Conditions, which 

states as follows:

13. INDEMNIFICATION.

13.1 Seller assumes the risk of all damage, loss, costs[,] and 

expenses, and agrees to indemnify, defend[,] and hold harmless

Buyer, its officers, employees[,] and representatives, from and 

against any and all damages, claims, demands, expenses 

(including reasonable attorney’s fees), losses[,] or liabilities of any 

nature whatsoever, and whether involving injury or damage to 

any person (including employees of Seller and Buyer) or property, 

and any and all suits, causes of action[,] and proceedings thereon 

arising from or related to the subject matter of this Purchase 

Order, except where such injury or damage was caused by the 

sole negligence of Buyer. This indemnity shall survive the 

termination or cancellation of this Purchase Order, or any part 

hereof.

Exhibit 1062 (Terms and Conditions) at §13.1.

Because the question presented in the case sub judice involves the 

interpretation of a contract, our standard of review is de novo and our scope 

of review is plenary. McMullen v. Kutz, 985 A.2d 769, 773 (Pa. 2009). “The 

ultimate goal of interpreting a contract is to ascertain and give effect to the 

intent of the parties as reasonably manifested by the language of their written 
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agreement.” Cnty. of Delaware v. J.P. Mascaro & Sons, Inc., 830 A.2d 

587, 591 (Pa. Super. 2003), aff’d, 873 A.2d 1285 (Pa. 2005). “The intent of 

the parties to a written agreement is to be regarded as being embodied in the 

writing itself.” Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 

418, 429 (Pa. 2001).

“Indemnity agreements are to be narrowly interpreted in light of the 

parties' intentions as evidenced by the entire contract.” Consol. Rail Corp.

v. Delaware River Port Auth., 880 A.2d 628, 632 (Pa. Super. 2005), appeal 

denied, 898 A.2d 1071 (Pa. 2006). “The language of a contract is 

unambiguous if we can determine its meaning without any guide other than a 

knowledge of the simple facts on which, from the nature of the language in 

general, its meaning depends.” Riverview Carpet, 299 A.3d at 983. 

Conversely, “the terms of a contract are ambiguous if the terms are 

reasonably or fairly susceptible of different constructions and are capable of 

being understood in more than one sense.” Id. at 984. If the meaning of a 

contract is ambiguous or reasonably susceptible of two interpretations, then 

the contract must be construed most strongly against the party who drafted 

it. Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 171 A.2d 

185, 189 (Pa. 1961). “A contract contains an ambiguity if it is reasonably 

susceptible of different constructions and capable of being understood in more 

than one sense.” Murphy, 777 A.2d at 430 (citation and original quotation 

marks omitted). “In the absence of an ambiguity, the plain meaning of the 

agreement will be enforced.” Id. (citation omitted).
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In the case sub judice, the trial court, in awarding attorney’s fees, relied 

upon Section 13.1 of Axiall’s Terms and Conditions, finding that this section 

was clear and unambiguous and applied to first-party claims. Trial Court 

Opinion, 12/21/22, at 20. The trial court explained,

Section 13.1 provides that [AllTranstek and Rescar] shall “assume 

the risk of all damages, loss, cost and expense” and “any and all 

suits . . . arising from or related to the subject matter of this 

Purchase Order” in addition to “agreeing to indemnify, defend[,]

and hold harmless” Axiall. The inclusion of this broad language 

placing these risks on [AllTranstek and Rescar] makes it clear that 

Section 13.1 is not merely an indemnity clause, but a fee-shifting 

provision that would apply to first-party claims as well as 

third-party claims.

Additionally, Section 13.1 contains much broader and sweeping 

language when specifying the scope of claims and expenses 

against which Axiall is to be indemnified. . . . Section 13.1

unambiguously provides for indemnity against “any and all

claims, . . . expenses (including reasonable [attorney’s] fees) . . .

of any nature whatsoever . . . .” (emphasis added). Short of 

inserting the magic words “first-party claims,” it is hard to imagine 

more inclusive contractual language that would evince a clear 

agreement of the parties to pay attorney[’s] fees in connection 

with first-party claims.

. . .

Section 13.1 of Axiall’s Terms and Conditions contains additional 

clauses that cannot be read superfluously.

. . .

Section 13.1 does not contain merely the words “indemnify” 

“defend” and “hold harmless,” but further provides that 

[AllTranstek and Rescar] assume the risk of all damages and 

costs, and of any and all suits, arising from the contract. Thus, in 

order to give effect to each provision of the contract, [the trial 

court] reads Section 13.1 to apply to first-party claims.

Id. at 18-19 (original brackets omitted).
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Upon review, we are unable to agree with the trial court that the 

language contained in Section 13.1 of Axiall’s Terms and Conditions is clear 

and unambiguous. See id. at 20; see also Riverview Carpet, 299 A.3d at 

983. As Section 13.1 reads, AllTranstek and Rescar “assume[] the risk of all 

damage, loss, costs[,] and expenses” and “agree[] to indemnify, defend[,] 

and hold harmless [Axiall], its officers, employees[,] and representatives, 

from and against any and all damages, claims, demands, expenses 

(including reasonable attorney’s fees), losses[,] or liabilities of any nature 

whatsoever[.]” Exhibit 1062 at §13.1 (emphasis added). The plain language 

of Section 13.1 asks vendors, such as AllTranstek and Rescar, to assume the 

risk of damages, losses, costs, and expenses arising from work performed 

under Axiall’s purchase orders. In addition, Section 13.1 asks vendors to 

indemnify Axiall for claims, demands, and damages asserted by third-parties, 

including reasonable attorney’s fees incurred in defense of such claims.

In the absence of express terms stating that vendors agree to indemnify 

Axiall for attorney’s fees incurred in the affirmative pursuit of first-party 

recoveries for losses, damages, or costs assumed by its own vendors or other 

contractual partners, we cannot find a clear agreement between the parties 

to create a fee-shifting provision pertaining to first-party claims that validly 

displaces the American Rule. We will not broadly interpret the term 

“expenses” in the assumption of risk clause to include recovery of attorney’s 

fees incurred in the affirmative enforcement of Axiall’s rights against its 

vendors absent unmistakable textual clarity in the parties’ agreement. See 
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Pittsburgh Steel, 171 A.2d at 189 (stating, there can be no presumption 

that the parties intended a fee-shifting provision absent clearly expressed or 

unequivocal language so indicating); see also Unit Vending Corp. v. Lacas, 

190 A.2d 298, 300 (Pa. 1963) (stating, “in determining the intention of the 

parties, the writing must be construed most strongly against the party drafting 

it and the interpretation which makes a rational and probable agreement must 

be preferred”); McMullen, 985 A.2d at 771 (finding, as way of example, that 

a clear agreement for a fee-shifting provision existed where the parties’

contract stated that “the party breaching this contract shall be responsible 

for payment of legal fees and costs incurred by the other in enforcing their 

rights under this Agreement”).

Consequently, the trial court erred as a matter of law in reaching its 

conclusion that Section 13.1 created a fee-shifting provision that permitted 

Axiall to recover attorney’s fees related to all first-party claims. We do agree, 

however, that the indemnification clause of Section 13.1 does permit Axiall to 

recovery reasonable attorney’s fees, if any, associated with its defense and 

settlement, of third-party claims, which stemmed from AllTranstek’s and 

Rescar’s breach of contract, breach of warranty, and negligence. As such, we 

are constrained to vacate the portion of the judgment that awarded attorney’s 

fees in the amount of $8,324,073.25. We remand this case to the trial court 
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to determine which portion of attorney’s fees, if any, directly related to the 

defense and settlement of third-party claims.

30

AXIALL CROSS-APPEAL

On cross-appeal, Axiall raises the following issues for our review:

1. Whether the trial court erred by denying Axiall’s motion in 

limine to exclude testimony of [AllTranstek’s and Rescar’s] 

expert[] and all of Axiall’s subsequent objections at trial 

requesting that [the expert’s] testimony be excluded where 

his testimony consisted primarily of conclusions of law that 

exceed the scope of permitted expert testimony and failed 

to meet the basic requirement of [Pennsylvania Rule of 

Evidence] 702 that the expert’s knowledge must assist the 

trier[-]of[-]fact in understanding the evidence or 

determining a fact in issue, and by admitting such 

evidence[?]

2. Whether the trial court erred by denying Axiall’s motion in 

limine to exclude evidence related to non-normalized steel, 

[ACF200] stub sill[ underframes], [Axiall’s] remedial 

____________________________________________

30 A review of the record demonstrates a summary of net attorney’s fees as 

follows: Meyer, Unkovic & Scott, LLP invoiced $3,505,543.00; Porter Hedger 

LLP invoiced $2,288,191.67; Steptoe & Johnson invoiced $172,074.35; 

Thompson Hine invoiced $451,304.00; Bracewell LLP invoiced $67,590.00; 

and Berry, Kessler, Crutchfield, Taylor & Gordon invoiced $14,865.00. Meyer, 

Unkovic & Scott, LLP were retained to work with Porter Hedger LLP “to 

basically develop the case and to try it.” N.T., 7/20/22, at 109. Porter Hedger 

LLP was retained to work with Meyer, Unkovic & Scott, LLP as the trial team 

and Attorney Whalen, from Porter Hedger LLP, was told he would serve as 

lead counsel. N.T., 7/21/22, at 175. Steptoe and Johnson, as well as 

Thompson Hines, were retained primarily to handle third-party claims. N.T., 

7/20/22, at 24. Bracewell LLP was retained as an “expert in appellate 

records.” N.T., 7/21/22, at 264. Berry, Kessler, Crutchfield, Taylor & Gordon 

were retained to assist Steptoe & Johnson “in dealing with local people.” Id.

at 264.

It is unclear from the trial court’s opinion which portions of the attorney’s fees

award related to the defense and settlement of third-party claims.
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actions, and post-rupture changes to regulations and 

industry guidance, and all of Axiall’s subsequent objections 

at trial requesting that such evidence be excluded, 

including, but not limited to, Axiall’s objections to the 

presentation of any defense expert testimony regarding 

non-normalized steel and [ACF200] stub sill [underframes], 

and by admitting such evidence[?]

Axiall Cross-Appeal Brief, at 6-7 (extraneous capitalization omitted).

On cross-appeal, Axiall challenges the trial court’s denial of its motions

in limine to exclude expert witness testimony and certain evidence related to, 

inter alia, non-normalized steel and remedial actions. Axiall Cross-Appeal 

Brief at 6. On September 9, 2020, Axiall filed a motion in limine seeking to 

exclude the testimony of AllTranstek’s and Rescar’s expert witness, Joseph 

Connelly,31 on the basis that his testimony “consists primarily of conclusions 

of law that exceed the scope of permitted expert testimony[.]” Axiall Motion

In Limine to Exclude Testimony, 9/9/20, at ¶2. In particular, Axiall asserted 

that the interpretation of government regulations applicable to the chemical 

incident involves a question of law and lies within the exclusive providence of 

the trial court. Id. at ¶8. Axiall argues on cross-appeal that the trial court 

erroneously permitted the testimony of Mr. Connelly pertaining to the 

interpretation of these regulations, and his expert testimony “led the jury to 

believe that Axiall was contributorily negligent simply because it owned 

AXLX 1702.” Axiall Cross-Appeal Brief at 20, 22-31.

____________________________________________

31 Joseph Connelly was admitted at trial as an expert on railcar regulations 

and railcar and hazardous material industry standards. N.T., 10/6/21

(Morning Session), at 3587.
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In a second motion in limine, also filed on September 9, 2020, Axiall 

sought to exclude evidence related to non-normalized steel, ACF200 stub sill

underframes, remedial actions, and post-rupture changes to regulations and 

industry guidance. Axiall Motion In Limine to Exclude Evidence, 9/9/20. In 

particular, Axiall asserted that evidence of non-normalized steel, ACF200 stub 

sill underframes, and changes to government regulations and industry 

guidance was excluded under Pennsylvania Rules of Evidence 402 and 403.32 

Id. at ¶1(a) and (c). Axiall further asserted that evidence of remedial actions 

taken by Axiall after the rupture of railroad tank car AXLX 1702 was excluded 

under Pennsylvania Rule of Evidence 407.33 Id. at ¶1(b). On cross-appeal, 

Axiall contends that “the evidence regarding non-normalized steel and ACF200 

____________________________________________

32 Rule 402 states, “All relevant evidence is admissible, except as otherwise 

provided by law. Evidence that is not relevant is not admissible.” Pa.R.E. 

402. Rule 403 provides that “The [trial] court may exclude relevant evidence 

if its probative value is outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, misleading the jury, undue 

delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 

403.

33 Rule 407 states,

When measures are taken by a party that would have made an 

earlier injury or harm less likely to occur, evidence of the 

subsequent measures is not admissible against that party to 

prove: negligence; culpable conduct; a defect in a product or its 

design; or a need for a warning or instruction. But the [trial] court 

may admit this evidence for another purpose such as 

impeachment or - if disputed - proving ownership, control, or the 

feasibility of precautionary measures.

Pa.R.E. 407 (formatting modified).
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stub sill underframes was irrelevant, unduly prejudicial, confusing, and 

misleading[, and] the admission of this improper evidence led the jury to find 

that Axiall was contributorily negligent.” Axiall Cross-Appeal Brief at 21, 

31-50. Axiall further argues that evidence of changes in regulations, 

guidance, advisories, or standards after the incident was “irrelevant, unduly 

prejudicial, confusing, and misleading[, and because] this evidence supported 

[AllTranstek’s and Rescar’s] primary defense, its improper admission 

prejudiced Axiall[.]” Id.

Here, Axiall “conditions” the pursuit of its cross-appeal on whether this 

Court grants relief on AllTranstek’s and Rescar’s appeal. Axiall Cross-Appeal 

Brief at 20 (stating, “if this Court grants [AllTranstek and Rescar] the relief 

sought in their appeal and orders a new trial, Axiall requests that this Court 

address the issues in this conditional cross-appeal”).

34

 

Our Supreme Court recently reiterated the well-established principle 

that appellate courts “will not decide moot questions where there exists no 

actual case or controversary.” McGuire on behalf of Neidig v. City of 

Pittsburgh, 285 A.3d 887, 895 (Pa. 2022), citing Meyer v. Strouse, 221 

A.2d 191 (Pa. 1966). “A question is moot unless it involves a legal controversy 

that is real and not hypothetical and it affects an individual in a concrete 

____________________________________________

34 At oral argument, counsel for Axiall conceded that if this Court affirms the 

judgment entered in favor or Axiall, then Axiall’s cross-appeal is moot.
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manner so as to provide the factual predicate for a reasoned adjudication.” 

McGuire, 285 A.3d at 895.

In the case sub judice, as discussed supra, we affirm, in large part, the 

judgment entered in favor of Axiall in the amount of $14,265,451.46 based 

upon the jury’s determination that AllTranstek and Rescar breached their 

contracts and warranties with Axiall. By pursuing its cross-appeal at this 

juncture, Axiall is asking this Court to decide issues which would not affect the 

affirmation of the judgment in its favor. As such, Axiall’s challenges to the 

trial court’s order denying its motions in limine are moot. Consequently, we 

dismiss Axiall’s cross-appeal as moot.

CONCLUSION

In sum, we affirm the judgment, in part, in the amount of 

$14,265,451.46, which is comprised of the jury verdict in the amount of 

$12,800,000.00, delay damages in the amount of $403,802.46, and 

post-judgment interest in the amount of $1,061,649.00. We vacate the 

judgment, in part, in the amount of $8,324,073.25, which represents the 

award of attorney’s fees, and remand this case for further proceedings

consistent with the views expressed in this memorandum. Finally, we dismiss 

Axiall’s cross-appeal as moot.

Judgment affirmed, in part, and vacated, in part. Case remanded. 

Jurisdiction relinquished. Cross-appeal dismissed as moot.
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DATE: 6/3/2024