Photo: Jay Mallin

The outdoor power tools manufacturer Husqvarna claims the percentage of its sales in Philadelphia is too small for it to be sued in the venue. Exactly how much money that is, however, is something the company wants to keep from public view, and that's why it has asked the Pennsylvania Superior Court to block public access to an upcoming en banc argument.

On Thursday, counsel for Husqvarna sent a letter to Superior Court President Judge Jack Panella, requesting that the court's upcoming en banc oral argument session in the case, Hangey v. Husqvarna Professional Products, not be aired publicly. The letter was listed on the docket as a response to the court's May 8 order scheduling the argument in Wednesday's session and notifying the parties the session would be held through videoconferencing technology.

The letter from Husqvarna's counsel, Dickie, McCamey & Chilcote's Frederick Bode, requested that the "oral argument for this case not be published or otherwise made publicly accessible."

Husqvarna cited confidential sales data as the main reason for blocking public access. But plaintiffs counsel pushed back, saying that figures dating back to the mid-2010s could not place it at a competitive disadvantage.

The parties, according to Husqvarna's letter, had previously agreed to seal those figures at the trial level, and the three-judge Superior Court panel that initially heard the case had made accommodations so the room would be cleared of anyone except the attorneys, judges and court staff.

"Although Husqvarna's sales data was made a part of the record at the trial court level, the parties stipulated to and the trial court entered an order approving a confidentiality agreement, under which Husqvarna's sales data would be afforded confidential treatment and not made publicly available to nonparties," the two-page letter said.

However, counsel for the plaintiffs Ronald and Rosemary Hangey has quickly pushed back, filing a response later Thursday that urged the court to keep the proceedings open to the public.

The seven-page response, filed by appellate lawyer Howard Bashman, argued that the sales data in the case is from 2014, 2015 and 2016, and the claim that making this data available could put the company at a competitive advantage was "simply beyond belief."

The brief also said the argument had initially been set to take place March 18—five days before the court issued an order suspending in-person arguments due to the COVID-19 pandemic. However, the brief said, the company never took strides toward shielding those arguments from the public.

The brief further argues that the request, coming six days before the newly scheduled argument, was untimely and no reason was given for the delay. But, according to the brief, the most important reason to deny the request is that shielding the public would prejudice the Hangeys' counsel, as it would limit anyone except the arguing parties from watching the proceedings, meaning co-counsel would be unable to watch as well.

"Modern technology allows co-counsel to communicate in real time during the remote argument of an appeal just as they could do in person, but only if all co-counsel can see or hear the argument," the brief said. "Husqvarna's request would deprive anyone other than arguing counsel of the ability to see or hear the argument, thereby prejudicing counsel for plaintiffs."

In an interview Friday, Bashman also disagreed with Husqvarna's characterization of the arguments before the three-judge panel, saying the court had not made any accommodations to seal the courtroom, but rather, the case happened to be argued at the end of the day; by that time, the only person seated in the gallery happened to be a law clerk.

"To have a request to seal [the arguments] based on grounds that are this flimsy is really concerning to me," Bashman said. "It wouldn't be successful for in-person, and therefore it shouldn't be successful being remotely."

Last spring, the case resulted in a three-judge Superior Court panel decision that warned trial judges against assigning too much weight to the percentage of a company's sales in a given locale when making venue determinations.

The case stems from a lawsuit that the Hangeys filed in Philadelphia in 2017, alleging Ronald Hangey was maimed when he fell off of his Husqvarna riding lawnmower and it ran over his legs. The trial court, however, initially transferred the case to Bucks County finding that Husqvarna Professional Products, which is based in Charlotte, North Carolina, did not have sufficient contacts with Philadelphia to satisfy the "quantity" prong of the venue analysis.

The three-judge appeals panel disagreed, however, and determined the trial court erred in relying almost exclusively on the percentage of the company's sales, while ignoring "the number and dollar figure of sales in Philadelphia, and that Husqvarna Professional Products has an authorized dealer in Philadelphia to sell its products."

Husqvarna's media department did not return a message seeking comment. Late Friday, Bode said he was seeking permission from the Superior Court to file a reply to the Hangeys' response.