Callender, G. v. Brighton Machine Co., Inc. ( 2014 )

J-A08031-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GAIL R. CALLENDER, SR., AN IN THE SUPERIOR COURT OF
INDIVIDUAL AND WENDY A. PENNSYLVANIA
CALLENDER, HIS WIFE
Appellants
v.
BRIGHTON MACHINE COMPANY, INC. A
CORPORATION
v.
DANIELI HOLDINGS, INC. A
CORPORATION AND ITS SUCCESSOR
CORPORATIONS AND/OR SUCCESSOR IN
INTEREST, DANIELI CORPORATION A
CORPORATION AND DINIELI
CORPORATION, DANIELI WEAN UNITED
AND DANIELI SERVICE, AND/OR
DANIELI TECHNOLOGY, INC. A
CORPORATION, AND/OR DANIELI WEAN
INC., A CORPORATION, AND/OR
DANIELI UNITED, INC., A
CORPORATION, AND/OR WEAN UNITED
FOUNDRY PRODUCTS, INC. A
CORPORATION, AND/OR WEAN UNITED,
INC. AND/OR UNITED ENGINEERING,
INC., A CORPORATION, AND/OR UNITED
ENGINEERING AND FOUNDRY CO., A
CORPORATION
Appellee No. 755 WDA 2013
Appeal from the Order Entered on April 8, 2013,
In the Court of Common Pleas of Allegheny County
Civil Division at No.: GD-07-026651
BEFORE: ALLEN, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 17, 2014
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Appellants, Gail R. Callender, Sr. (“Callender”), and his wife, Wendy A.
Callender (collectively, “the Callenders”), appeal from the order of April 8,
2013, which granted the second motion for summary judgment of Appellee,
Brighton Machine Company, Inc. (“Brighton”), and dismissed all of the
Callenders’ and any other parties’ claims against Brighton with prejudice.
We affirm.
The following facts are summarized from the trial court’s opinion of
July 31, 2013. On December 18, 2005, Callender, an employee of Allegheny
Ludlum Steel Corporation (“Allegheny Ludlum”), suffered a degloving injury
to his left hand when it became trapped in the rollers of a leveller1 on the
No. 3 Blast & Pickle line at Allegheny Ludlum’s Brackenridge facility. Trial
Court Opinion (“T.C.O.”), 7/31/2013, at 2. Callender had noticed that the
leveller was not functioning properly and informed a co-worker that he was
going into the repair pit beneath the machine to grease its gears. Id. For
unknown reasons, the co-worker did not turn off the line. Id. Callender lost
his balance while positioning himself to oil the swing gear on the leveller,
and his left hand contacted the leveller rollers and was pulled into the
machine. Id. at 3.
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1
The leveller and other components on the No. 3 Blast & Pickle line
unwind and straighten coiled steel, crimp coils to each other, clean the
resulting sheet of steel, and then recoil it. T.C.O. at 2. The leveller at issue
was installed at Brackenridge on April 26, 1952, and has never been
removed. Id. at 7.
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Since 1980, Brighton has serviced, built, and rebuilt component parts
for the No. 3 Blast & Pickle line at the Brackenridge facility, including the
leveller. Id. at 4. Brighton manufactures and supplies various parts based
upon customers’ technical drawings and engineering specifications, but it is
not the only parts supplier to the Blast & Pickle line. Id. at 7. Allegheny
Ludlum performs the majority of work and maintenance in-house, and the
line is laid out similarly to lines at other strip processing plants. Id. Joseph
Downie, owner of Brighton, has visited the facility numerous times, but has
never studied the line or needed to know how the Brighton-manufactured
replacement components work in the overall machine, nor does Brighton do
any work on the leveller’s electronics, wiring, safety devices, or emergency
devices. Id. at 7-8. Any modifications in Allegheny Ludlum’s designs by
Brighton are related to the maintenance, strength, or reliability of the
component, not the overall functionality of the machines. Id. at 7.
On April 1, 2008, the Callenders filed a complaint against Brighton
raising claims of, inter alia, negligence, strict liability, and breach of
warranty.2 Brighton answered with a new matter and cross-claim against
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2
The Callenders also filed complaints against United Foundries, Inc.,
f/k/a United Engineering Foundry Products, Inc., Wean United Foundry
Products, Inc., UEI, Inc., f/k/a United Engineering, Inc., and UEFC, Inc.
However, these defendants resolved the Callenders’ claims in “an amicable
Joint Tortfeasor Release and Settlement Agreement” and are not parties to
the instant appeal. Letter of James F. Marrion to Prothonotary, 10/18/2013,
at 1.
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the other defendants on July 9, 2008. The parties undertook discovery in
the form of interrogatories and depositions of Downie and James Kunst, a
designated representative of Allegheny Technologies.
On May 4, 2010, Brighton filed a motion for summary judgment,
which, after a hearing and supplemental briefing, the trial court denied. See
Order, 8/31/2010. After more discovery, and following settlement of the
Callenders’ claims against all of the other defendants, Brighton Machine filed
a second motion for summary judgment on July 5, 2012. The Callenders
opposed the motion, and, after briefing and oral argument, the court
ordered the parties to file position statements regarding Count XXX of the
complaint for breach of warranty.3 On April 5, 2013 (filed April 8, 2013), the
trial court granted Brighton’s motion for summary judgment and dismissed
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3
As explained by the trial court:
Both of Brighton’s motions for summary judgment and brief[s] in
support thereof specifically referred to and requested dismissal
of all counts against it. Brighton, however, did not make specific
argument as to why Count XXX (relating to breach of warranty)
should be dismissed. Conversely, [the Callenders] made no
argument in support of Count XXX. On February 14, 2013, [the
court] ordered the parties to address the issue of Brighton’s
alleged breaches of warrant[y] under the Pennsylvania Uniform
Commercial Code (UCC). [The Callenders] filed a Position
Statement and Brighton filed a Reply Brief.
T.C.O. at 24.
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all of the Callenders’ and any other parties’ claims against Brighton with
prejudice. The Callenders timely appealed.4
The Callenders present the following questions for our review:
[1.] Does a party opposing summary judgment establish a
genuine issue of material fact regarding the existence of a defect
when the undisputed evidence of record establishes that the
machine in question was not functioning as expected to the point
where its user attempts to correct the issue and that it lacked
adequate safeguards and warnings that would [have] rendered
the machine less dangerous to its users?
[2.] Is a party who seeks summary judgment in its favor on
the basis that it played an insignificant role in the maintenance
and repair of defective equipment entitled to judgment as a
matter of law when the party opposing summary judgment
presents evidence showing the movant provided engineering
services as well as participated in the design and upkeep of the
machinery?
[3.] Does a party opposing summary judgment establish a
genuine issue of material fact that component parts to a larger
machine supplied by a party seeking summary judgment are
unreasonably dangerous, i.e. defective, when the parts supplied
are the ones that substantially contributed to a party’s loss and
the supplier knew of or should have known of the danger [its]
products posed to users of the integrated machine?
[4.] Does an entity who repairs and rebuilds antiquated
equipment for consideration, including taking steps to increase
the longevity thereof, over the course of over two decades owe a
duty to warn users of dangers associated with the repaired
machine?
[5.] If a party establishes genuine issues of material fact
alleging failure to warn defects and defective design defects in
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4
The trial court did not order the Callenders to file a Rule 1925(b)
statement, but entered an opinion on July 31, 2013. See Pa.R.A.P. 1925.
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regard to component parts, should that party’s claims for breach
of implied warranty’s [sic] also survive summary judgment?
Callenders’ Brief at 3-4.
Our standard of review of a trial court’s order granting summary
judgment is well-settled:
A reviewing court may disturb the order of the trial court only
where it is established that the court committed an error of law
or abused its discretion. As with all questions of law, our review
is plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. Where the non-moving party bears the burden
of proof on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Failure of a
non-moving party to adduce sufficient evidence on an issue
essential to his case and on which it bears the burden of proof
. . . establishes the entitlement of the moving party to judgment
as a matter of law. Lastly, we will view the record in the light
most favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa.
2001) (case citations omitted).
[T]he issue as to whether there are no genuine issues as to any
material fact presents a question of law, and therefore, on that
question our standard of review is de novo. This means we need
not defer to the determinations made by the lower tribunals. To
the extent that this Court must resolve a question of law, we
shall review the grant of summary judgment in the context of
the entire record.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)
(citations omitted).
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In their first issue, the Callenders assert that the court erred in
dismissing their strict liability claim because “[t]he leveller and its
components were defective and unreasonably dangerous to their users.”
Callenders’ Brief at 19. Specifically, the Callenders argue that they
established genuine issues of material fact as to whether the leveller was
“not functioning properly,” thus “diminish[ing]” their “duty to establish a
specific defect.” Id. at 20. They also maintain that their “experts
established genuine issues of material fact that the equipment responsible
for Mr. Callender’s injury contained design defects as well as failure to warn
defects.” Id. at 21. We disagree.
We begin with the Callenders’ argument that their claims should have
survived summary judgment because they had a “diminished” duty to
establish a specific defect due to the leveller’s malfunction. Id. at 20.
When advancing a theory of strict product liability, a plaintiff has
the burden of showing that the product was defective, that the
defect was the proximate cause of his or her injuries and that
the defect existed at the time the product left the manufacturer.
In certain cases of alleged manufacturing defects, however, the
plaintiff need not present direct evidence of the defect. When
proceeding on a malfunction theory, the plaintiff may “present a
case-in-chief evidencing the occurrence of a malfunction and
eliminating abnormal use or reasonable, secondary causes for
the malfunction.” O’Neill v. Checker Motors Corp., 567 A.2d
680, 682 (Pa. Super. 1989). . . . From this circumstantial
evidence, a jury may be permitted to infer that the product was
defective at the time of sale.
Although proof of a specific defect is not essential to
establish liability under this theory, the plaintiff cannot
depend upon conjecture or guesswork. The mere fact that
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an accident happens, even in this enlightened age, does
not take the injured plaintiff to the jury.
The malfunction theory, thus, does not relieve the burden of
establishing a defect. However, the malfunction itself is
circumstantial evidence of a defective condition.
Dansak v. Cameron Coca-Cola Bottling Co., 703 A.2d 489, 495-96 (Pa.
Super. 1997) (some citations and internal quotation marks omitted; citations
modified).
Accordingly, a plaintiff may often rely on circumstantial
evidence, and the inferences that may reasonably be drawn
therefrom, to prove his case. Although the mere happening of
an accident does not establish liability, . . . the addition of other
facts tending to show that the defect existed before the accident,
such as its occurrence within a short time after sale, or proof of
the malfunction of a part for which the manufacturer alone could
be responsible, may make out a sufficient case . . . So likewise
may proof that other similar products made by the defendant
met with similar misfortunes, or the elimination of other likely
causes by satisfactory evidence. In addition, there are some
accidents, as where a beverage bottle explodes or even breaks
under normal handling, as to which there is common experience
that they do not ordinarily occur without a defect; and this
permits the inference. This Court in MacDougall v. Ford Motor
Co., [257 A.2d 676 (Pa. Super. 1969)], held that “the
occurrence of a malfunction of machinery in the absence of
abnormal use and reasonable secondary causes is evidence of a
‘defective condition’ within the meaning of [the Restatement
(Second) of Torts] § 402A . . . .” Id. . . . at 680. After
MacDougall, Pennsylvania courts have been consistent in
holding that the malfunctioning of a product is circumstantial
evidence of a defective condition in spite of the lack of evidence
of any specific defect in the product.
Cornell Drilling Co. v. Ford Motor Co., 359 A.2d 822, 826 (Pa. Super.
1976) (some citations omitted).
Based upon this case law, if the leveller malfunctioned, the
malfunction would constitute circumstantial evidence of the defect element
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of a strict liability claim. However, the Callenders have not adduced any
additional evidence that the leveller malfunctioned. Their experts
concededly did not inspect the machinery. Report, 2/23/2012, at 5 § 4.
More importantly, the Callenders have failed to carry their burden of
proof with regard to the remaining elements: that the “defect was the
proximate cause of [Callender’s] injuries and that the defect existed at the
time the product left the manufacturer.” Dansak, 703 A.2d at 495.
“Liability in negligence or strict liability is not imposed upon a manufacturer
simply for the manufacture of a defective product. Rather, the plaintiff must
demonstrate that the injuries sustained were proximately caused by the
product’s defect.” Sherk v. Daisy-Heddon, Div. of Victor Comptometer
Corp., 450 A.2d 615, 617 (Pa. 1982).
Here, the Callenders’ experts opined:
Based on our review of all documents and our experience with
these types of machinery and safety related issues, we conclude
that if additional safety features were implemented on the
No.[]3 Blast & Pickle line in Allegheny Ludlum’s Brackenridge
Plant, the accident involving Mr. Callender could have been
prevented on December 18, 2005. This conclusion has been
reached with a reasonable degree of engineering certainty.
Report at 5 § 5.5 Thus, the Callenders’ experts attribute the cause of
Callender’s injuries to the lack of safety features on the line, not the
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5
The expert report “reserve[d] the right to revise this Report if
additional information and facts become available.” Report at 5 § 5.
However, as noted by the trial court, the Callenders did not file any
additional or revised expert reports. T.C.O. at 3 n.1.
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allegedly malfunctioning leveller. The Callenders also have failed to adduce
any evidence that any replacement parts manufactured by Brighton were
installed in the leveller at the time of Callender’s injury. See T.C.O. at 11.
Absent such evidence, the Callenders cannot establish that any defect
existed when the components left Brighton. See Dansak, 703 A.2d at 495.
Thus, the Callenders’ argument that the court erred in granting summary
judgment simply because the leveller allegedly malfunctioned does not merit
relief where they failed to support the remaining elements of their claim.
Second, the Callenders argue that they carried their burden of proof
regarding their design defect and failure to warn claims.
It is well established that there are circumstances where a
manufacturer’s failure to warn of latent dangers in the use or
operation of a product can render a properly designed product
unreasonably dangerous and defective for purposes of strict
product liability. It is also recognized that limits on a
manufacturer’s duty to warn are placed at issue where, as in the
present case, the manufacturer supplies a mere component of a
product that is assembled by another party and dangers are
associated with the use of the finished product.
Jacobini v. V. & O. Press Co., 588 A.2d 476, 478-79 (Pa. 1991).
A plurality decision by our Supreme Court in Wenrick v.
Schloemann-Siemag Aktiengesellschaft, 564 A.2d 1244 (Pa. 1989), is
particularly instructive.6 In Wenrick, a mechanic working in the Cerro Metal
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6
While we recognize that a plurality opinion by the Supreme Court is
not binding precedent on this Court, we may find it to be persuasive. See
In re K.D., 744 A.2d 760, 761 (Pa. Super. 1999).
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Products plant was killed while repairing an extrusion press when a billet
loader retracted and crushed him. Id. at 1245. Circumstantial evidence
showed that an unguarded switch was accidentally triggered by a workman
descending steps into the press’ repair pit, causing the billet loader to
retract. Id. at 1246. The mechanic’s widow brought claims against, inter
alia, Eaton Corporation, the successor-in-interest to Cutler-Hammer, the
supplier and designer of the press’s electrical control system, alleging as
follows:
[T]he absence of a guard to cover the actuating part of the
switch was a defect in design and manufacture as installed and
as used. [The expert witness] also testified that, in his opinion,
in accordance with accepted engineering practice Cutler-Hammer
had a duty to warn SMS AG[, the manufacturer and designer of
the press,] about the danger posed by the location of the
unguarded switch above the steps.
Id. at 1246. The jury found against Eaton for strict liability and negligence,
and the trial court denied Eaton’s motion for judgment notwithstanding the
verdict. This Court reversed, and remanded for entry of judgment in favor
of Eaton. Ultimately, the Court affirmed the decision of the Superior Court
for the following reason:
Cutler-Hammer’s task in designing the electrical control system
did not include the physical placement of any mechanisms on the
manufactured product. All the decisions and actions whereby
the danger was created—the type of switch (unguarded), its
location, and the location of the service pit and its access steps—
were the responsibility of SMS AG.
Id. at 1248. Accordingly, Cutler-Hammer, and its successor-in-interest,
Eaton, had no duty to warn about the unguarded switch.
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Similarly, Brighton manufactures and supplies spare parts according to
Allegheny Ludlum’s specifications. Brighton modifies Allegheny Ludlum’s
specifications to the extent that it seeks to improve the strength, durability,
and reliability of the components it manufactures. Brighton does not dictate
the layout of the leveller, its electronic systems, the configuration of its
repair pit, or the layout of the No. 3 Blast & Pickle Line, all of which predate
Brighton’s repair work and are “basically the same” and relatively standard
across the steel industry as a whole. Callenders’ Brief, at 9, 12; see also
Deposition of Joseph Downie, 12/18/2009, at 53-54. Thus, like Cutler-
Hammer in Wenrick, Brighton’s task in manufacturing replacement
components for existing machinery did not include determining the physical
placement or layout of the machines responsible for Callender’s injury. It is
not enough that Brighton was knowledgeable about the line as a whole. See
Wenrick, 564 A.2d 1248. The Callenders have failed to adduce any
evidence that Brighton had any control over “the assembly of the final
product” and, therefore, had a duty to act or warn Callender or Allegheny
Ludlum that the leveller was dangerous. Jacobini, 588 A.2d at 478-79; see
also Wenrick, 564 A.2d at 1248. Thus, the trial court did not abuse its
discretion in dismissing the Callenders’ strict liability claim, and the
Callenders’ first issue does not merit relief.
In their second issue, which to some extent responds to the above
analysis, the Callenders assert that “genuine issues of material fact exist
regarding Brighton Machine’s role with the equipment involved.” Callenders’
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Brief at 22. Specifically, they claim that the trial court erred in its
determination of the extent of Brighton’s role at Allegheny Ludlum and that
the court was “obligated to place the burden of proving the nonexistence of
material facts upon Brighton Machine.” Id. at 25. They also argue that the
court violated the Nanty-Glo rule7 by relying upon the depositions of Joseph
Downie, James Kunst, and Amos Glen, and implicitly relied upon an improper
credibility determination resolving apparent inconsistencies in the
testimonies of those witnesses. Id. at 25-26. We disagree.
[F]ailure of a non-moving party to adduce sufficient evidence on
an issue essential to his case and on which he bears the burden
of proof establishes the entitlement of the moving party to
judgment as a matter of law.
Thus, our responsibility as an appellate court is to
determine whether the record either establishes that the
material facts are undisputed or contains insufficient
evidence of facts to make out a prima facie cause of
action, such that there is no issue to be decided by the
fact-finder.
Sokolsky v. Eidelman, 93 A.3d 858, 862 (Pa. Super. 2014) (citations and
quotation marks omitted).
The Callenders contend that they established a genuine issue of
material fact regarding Brighton’s role at Allegheny Ludlum because
Allegheny Ludlum’s representative, James Kunst, testified that Brighton
supplies spare parts, “engineering-type services,” and “works with
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7
See Nanty-Glo v. Am. Surety Co., 163 A. 523 (Pa. 1932).
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[Allegheny Ludlum] on upgrades to equipment design.” Callenders’ Brief at
24. Callender’s supervisor, Mark Graham, stated that Joseph Downie is an
engineer with “the capability of certifying things for ‘insurance purposes,’”
and Allegheny Ludlum had been downsizing its own maintenance
department. Id.
Based upon our review of the depositions, we agree with the trial court
that “[t]here is no evidence that Brighton was ever consulted with regard to
safety issues.” T.C.O. at 21. Graham repeatedly stated that Brighton was
only one of “several” manufacturers fabricating replacement parts for the
line at Allegheny Ludlum. Deposition of Mark Graham, 9/13/2012, at 14,
19, 38. Furthermore, while Graham stated that Allegheny Ludlum’s in-house
maintenance department “seems to be . . . shrinking,” he also observed that
“[Allegheny Ludlum] still do[es] a lot, but we always did send things out.”
Id. at 37. Thus, the Callenders failed to adduce sufficient evidence to
connect Brighton’s work with the safety engineering or placement of the
leveller within the No. 3 Blast & Pickle line, or to establish that Brighton
exclusively had taken over relevant maintenance work on the line. See
Sokolsky, 93 A.3d at 862. Therefore, the Callenders failed to raise an issue
of material fact regarding the scope of Brighton’s involvement with the
leveller and the No. 3 line, and the trial court did not err in granting
summary judgment. Id.
Furthermore, the trial court did not violate the Nanty-Glo rule.
Specifically, the Callenders contend that “the trial court adopted the oral
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testimony of Joseph Downie, James Kunst and Amos Glen where these
gentlemen testified [that] Brighton Machine played no role in the design and
maintenance of the machines at issue.” Callenders’ Brief at 25.
The Nanty-Glo rule provides that “oral testimony alone is generally
insufficient to establish the absence of material fact necessary for the entry
of summary judgment.” Checchio by and through Checchio v.
Frankford Hosp.—Torresdale Div., 717 A.2d 1058, 1062 (Pa. Super.
1998).
Initially, it must be determined whether the plaintiff has alleged
facts sufficient to establish a prima facie case. If so, the second
step is to determine whether there is any discrepancy as to any
facts material to the case. Finally, it must be determined
whether, in granting summary judgment, the trial court has
usurped improperly the role of the jury by resolving any material
issues of fact.
Dudley v. USX Corp., 606 A.2d 916, 920 (Pa. Super. 1992). “If credibility
is in issue, oral proof requires the jury’s consideration and prevents the
entering of a summary judgment. But if plaintiff fails to establish a prima
facie case, the mere fact that his proof is oral does not provide a basis for
placing the issue before a jury.” Thompson Coal Co. v. Pike Coal Co.,
412 A.2d 466, 474 (Pa. 1979).
Here, the trial court stated that it “reviewed and considered the
pleadings, record, [the Callenders’] experts’ report, [and the] briefs and
arguments of the parties.” T.C.O. at 6. The court noted that it “read the
excerpts” from the depositions, but also “reviewed the multitude of exhibits
filed by [the Callenders].” Id. The court referred to the Callenders’ “parts-
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related exhibits,” comprised of, inter alia, invoices, packing lists, written
work orders, and price quotes, and concluded that “[t]he record reflects that
any changes made by Brighton were at [Allegheny Ludlum’s] request or per
discussions with [Allegheny Ludlum], and subject to [Allegheny Ludlum’s]
approval.” Id. at 11 (footnote omitted). The court explicitly relied upon
these exhibits to determine that “[t]here is no evidence of record to
establish that the parts in place on the date Mr. Callender was injured were
manufactured by Brighton.” Id. at 11. Thus, the trial court did not rely
exclusively upon depositions in determining that the Callenders failed to
state prima facie claims for strict liability, negligence, or breach of warranty.
Id. at 22, 23, and 27. Accordingly, there is no violation of the Nanty-Glo
rule. See Checchio, 717 A.2d at 1062; see also Thompson Coal Co., 412
A.2d at 474. This issue does not merit relief.
In their third issue, the Callenders argue that “[i]ssues of material fact
exist as to whether the component parts Brighton Machine designed,
manufactured and supplied caused the Callenders’ loss and whether the
same were foreseeable to Brighton Machine.” Callenders’ Brief at 26.
Specifically, the Callenders contend Brighton is liable under section 402A of
the Restatement (Second) of Torts because “Brighton Machine was aware or
should have been aware of the danger its products [posed to] users of the
leveller” and “yet failed to provide warnings [f]or Mr. Callender or his
employer.” Id. at 28. We disagree.
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“Since Webb v. Zern, 220 A.2d 853 (Pa. 1966), the Pennsylvania
Supreme Court has recognized a plaintiff’s right to pursue an action in strict
liability against the manufacturer of a product pursuant to section 402A of
the Restatement (Second) of Torts.” Kiak v. Crown Equip. Corp., 989
A.2d 385, 389 n.1 (Pa. Super. 2010).8 Section 402A provides:
§ 402A Special Liability of Seller of Product for Physical
Harm to User or Consumer
(1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby caused
to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling
such a product, and
(b) it is expected to and does reach the user or
consumer without substantial change in the condition in
which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the
preparation and sale of his product, and
(b) the user or consumer has not bought the product
from or entered into any contractual relation with the
seller.
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8
But see Tincher v. Omega Flex, Inc., 64 A.3d 626, 626 (Pa. 2013)
(granting review on the question: “Whether this Court should replace the
strict liability analysis of Section 402A of the Second Restatement with the
analysis of the Third Restatement”). Nonetheless, our Supreme Court has
not yet decided the case, and “we are bound to apply the law of
Pennsylvania as it now exists.” Swanson v. Carlson, 527 A.2d 577, 578
(Pa. Super. 1987).
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Restatement (Second) of Torts 402A.
To state a claim under this section, the Callenders must establish: “1)
a product; 2) the sale of that product; 3) a user or consumer; 4) the product
defect which makes the product unreasonably dangerous; and 5) the
product defect was the proximate cause of the harm.” Toth v. Economy
Forms Corp., 571 A.2d 420, 422 (Pa. Super. 1990) (citations omitted).
The imposition of liability in any products case, including one
based on [s]ection 402A strict liability, requires a showing that
the plaintiff’s injury was caused by some defect in the product.
Thus, where a finding that the product is defective within the
meaning of section 402A is predicated on the theory that the
manufacturer failed to provide adequate warnings of the
dangerous propensities of the product the plaintiff must prove
the failure to warn caused plaintiff’s injury.
Sherk, 450 A.2d at 620.
[L]imits on a manufacturer’s duty to warn come into play where,
as in the present case, the manufacturer supplies a mere
component of a final product that is assembled by another party
and dangers are associated with the use of the finished product.
This is particularly true where the component itself is not
dangerous, and where the danger arises from the manner in
which the component is utilized by the assembler of the final
product, this being a matter over which the component
manufacturer has no control.
Jacobini, 588 A.2d at 478-79. Furthermore, a company that neither
manufactured nor supplied the defective product is not liable under a theory
of strict liability or failure to warn. See Toth, 571 A.2d at 422-23.
Here, the trial court determined that “[t]here is no evidence of record
to establish that the parts in place on the date Mr. Callender was injured
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were manufactured by Brighton.” T.C.O. at 11. In response, the Callenders
direct our attention to Graham’s deposition, which identified:
1) A spindle that supplied the rotational force to leveller rollers,
without which the levellers could not turn;
2) Bearing caps, half-bearing retainers and a housing cap for
consideration of [sic] that held the leveller rollers in which Mr.
Callender’s left ha[n]d was caught[.]
Callenders’ Brief at 27 (record citations omitted). The parts identified by the
Callenders are documented, respectively, in a purchase order dated October
10, 1995, and a job order for a bearing cap, a housing cap, and a half-
bearing retainer. See Graham Deposition at 50, 53. Although Graham
appears to establish that these are the components of a leveller, the
Callenders identify no evidence showing that these particular parts were
installed in the leveller at the time of Callender’s injury, who had installed
them, or whether they were installed “without substantial change in the
condition in which [they were] sold.” Restatement (Second) of Torts
§ 402A. Furthermore, the Callenders’ experts concededly never inspected
the leveller or the No. 3 line. Report at 5 § 4. Therefore, the Callenders
have failed to establish that Brighton parts were, in fact, involved in
Callender’s injury.
Moreover, as previously discussed, the duty to warn Callender resided
with Allegheny Ludlum, not Brighton, which supplied replacement
components to a preexisting assembly line laid out in a manner over which
Brighton exercised no control. See Wenrick, 564 A.2d 1248. Thus, the
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Callenders failed to state a claim under section 402A for which they could
recover from Brighton. See Toth, 571 A.2d at 422. This issue does not
merit relief.
In their fourth issue, the Callenders contend that, under Section 404 of
the Restatement (Second) of Torts, “[a] company that services equipment
for over twenty-five years, [and] redesigns, manufactures[,] and supplies
component parts with knowledge as to their use owes duties to users of the
integrated machine.” Callenders’ Brief at 29. They argue that, under
common law negligence principles, Brighton owed Callender a duty of care.
Id. at 29-31. We disagree.
Section 404 provides:
§ 404 Negligence in Making, Rebuilding, or Repairing
Chattel
One who as an independent contractor negligently makes,
rebuilds, or repairs a chattel for another is subject to the same
liability as that imposed upon negligent manufacturers of
chattels.
Restatement (Second) of Torts § 404. “It is axiomatic that in order to
maintain a negligence action, the plaintiff must show that the defendant had
a duty to conform to a certain standard of conduct; that the defendant
breached that duty; that such breach caused the injury in question; and
actual loss or damage.” Phillips v. Cricket Lighters, 841 A.2d 1000, 1008
(Pa. 2003) (citation and quotation marks omitted).
The Callenders cite Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000), for
the proposition that “actors have the general duty to refrain from causing
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harm to others as a general principle under common law.” Callenders’ Brief
at 30. They contend that “Mr. Downie himself has stated that he has rebuilt
nearly every piece of equipment” on the line, and that the court erred in
relying upon oral testimony in granting summary judgment. Id. at 31.
However, as previously discussed, the Callenders failed to establish a
genuine issue of material fact as to whether Brighton’s components were in
the leveller at the time of Callender’s injury. See T.C.O. at 11. Moreover,
“if plaintiff fails to establish a prima facie case, the mere fact that his proof is
oral does not provide a basis for placing the issue before a jury.”
Thompson Coal Co., 412 A.2d at 474. Thus, the Callenders cannot rely
upon Downie’s testimony to establish the existence of a genuine issue of
material fact. See Murphy, 777 A.2d at 429. The Callenders are not
entitled to relief on this issue.
Finally, in their fifth issue, the Callenders assert that their “warranty
claims should proceed to trial.” Callenders’ Brief at 31. They argue that
they have “established genuine issues of material fact in regard to the
§ 402A claims” because they have established:
several malfunctions, the most important being that the leveller
and its components lacked appropriate visual warning signs that
it was operational, the leveller and its components lacked
adequate guarding to prevent entry into the zone of danger
while it was operational and the leveller and its components
lacked appropriate kill switches.
Id. at 31, 32.
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As previously discussed, the Callenders have failed to establish that
Brighton, as a components manufacturer who did not control the final layout
of the No. 3 line, owed Callender a duty to warn of latent dangers in the use
or operation of Allegheny Ludlum’s leveller. See Jacobini, 588 A.2d at 478-
79; see also Wenrick, 564 A.2d at 1248. Thus, the Callenders have failed
to raise a genuine issue of material fact that would render their breach of
warranty claim viable. Murphy, 777 A.2d at 429. The trial court did not
abuse its discretion in granting Brighton’s motion for summary judgment on
the breach of warranty claim. Accordingly, this issue lacks merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
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