Agostino v. Rockwell Mfg. Co.

• Decision Date: 22 September 1975
• Citation: 236 Pa.Super. 434,345 A.2d 735
• Court: Pennsylvania Superior Court
• Parties: Leonard V. AGOSTINO, Appellant, v. ROCKWELL MANUFACTURING COMPANY, a corporation, and Greensburg Lumber & Mill Company, a corporation, Appellees.

Page 735

345 A.2d 735

236 Pa.Super. 434

Leonard V. AGOSTINO, Appellant, v.ROCKWELL MANUFACTURING COMPANY, a corporation, and Greensburg Lumber & Mill Company, a corporation, Appellees.

Superior Court of Pennsylvania.

Sept. 22, 1975.

Application for Allocatur Denied Nov. 26, 1975.

James R. Silvis, Greensburg, for appellant.

Christ C. Walthour, Jr., Michael P. Yeager, Costello & Berk, Patrick R. Riley, Greensburg, for appellees.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

SPAETH, Judge:

This appeal is from an order denying appellant's motion to remove a compulsory nonsuit.The action was initiated in trespass and assumpsit, but before trial appellant elected to proceed solely on the theory of strict liability enunciated in § 402A of the Restatement (Second) of Torts.

The Act of March 11, 1875, P.L. 6, § 1, as amendedJune 3, 1971, P.L. 120, No. 6, § 1(§ 509(a)(25)), 12 P.S. § 645, allows an order for compulsory nonsuit to be entered when plaintiff's evidence is insufficient to maintain his cause of action.It provides:

'Whenever the defendant, upon the trial of a cause in any court of common pleas of this commonwealth, shall offer no evidence, it shall be lawful for the judge presiding at the trial to order a judgment of nonsuit to be entered, if, in his opinion, the plaintiff shall have given no such evidence as in law is sufficient to maintain the action, with leave, nevertheless, to move the court en banc to set aside such judgment of nonsuit.

Once a compulsory nonsuit has been entered, the plaintiff may not commence a second action upon the same cause of action.Pa.R.Civ.Proc. 231(b).In determining the propriety of the entry of a compulsory nonsuit, this court must regard the evidence in the light most favorable to the appellant, and he must be accorded the benefit of all reasonable inferences arising from the evidence.Forry v. Gulf Oil Corp., 428 Pa. 334, 237 A.2d 593(1968);DeLio v. Hamilton, 227 Pa.Super. 581, 308 A.2d 607(1973);Jones v. Spidle, 213 Pa. Superior Ct. 81, 245 A.2d 677(1968), appeal after remand, 446 Pa. 103, 286 A.2d 366(1971).

So regarded, appellant's testimony may be summarized as follows.During the month of November, 1969, appellant purchased from appelleeGreensburg Lumber & Mill Company a power saw manufactured by appelleeRockwell Manufacturing Company.At the time, appellant was employed as a manager of the Modern Tea Room in Greensburg, Pennsylvania, and his duties included remodeling the restaurant building.Appellant was familiar with power saws since he had used them for approximately twenty-five years in various carpentry jobs.The Rockwell saw that appellant had purchased was constructed so that after the completion of a cut, a telescopic guard would be automatically released from the housing, covering the blade and thereby preventing the user from being cut.On December 16, 1969, appellant went to the restaurant to finish the work he had begun on a second floor wall.He had owned the saw for approximately one month and had used it approximately ten times; no one else had used it.On this specific day, he was going to use the saw to cut 2 by 8 boards.He plugged in the saw, checked the telescopic guard to make sure it was operating properly, and cut two boards.After each cut he put the saw on a bench behind him.On the third cut, appellant finished severing the board, but as he attempted to put the saw on the rear bench the blade grabbed his trousers and cut deeply into his thigh.He dropped the saw on the floor.As he moved away to keep the saw (which was still running) from cutting his feet, he noticed that the telescopic guard was not covering the blade but was 'jammed' in the housing.

In addition to his own testimony, appellant introduced the testimony of two medical doctors and a chiropractor who testified concerning the extent of appellant's injury.Appellant also attempted to use an expert witness, Emerson Venable, who had examined the saw and was prepared to testify as to the defects in its design and manufacture.The trial judge, however, sustained appellees' objections and refused to let Venable testify.

At the conclusion of appellant's case, each appellee moved for compulsory nonsuit, and the trial judge granted the motions.Appellant then filed a motion to remove the nonsuit and a motion for a new trial.The court en banc denied both motions, and this appeal followed.Appellant claims that the entry of the nonsuit was improper, and that the trial judge erred in refusing to permit the proposed expert witness to testify.

In Webb v. Zern, 422 Pa. 424, 220 A.2d 853(1966), our Supreme Court expressly adopted Section 402A of the Restatement (Second) of Torts, which provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user 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 brought the product from or entered into any contractual relation with the seller.

Here, as has been mentioned, appellant stated that he bought the saw from appelleeGreensburg Lumber & Mill Company and that appelleeRockwell Manufacturing Company made the saw.There was therefore sufficient evidence to establish that appellees were 'engaged in the business of selling' the saw.To maintain his action under § 102A, however, appellant also had to show that the saw had a defect that was unreasonably dangerous to the user, that the defect existed when the saw left Rockwell's plant, and that there was a causal connection between the defect and appellant's injury.¹SeeForry v. Gulf Oil Corp., supra, 428 Pa. at 340, 237 A.2d at 597;Webb v. Zern, supra;Magnuson v. Rupp Manufacturing, Inc., 285 Minn. 32, 39--40, 171 N.W.2d 201, 206(1969).

I

Appellees argue that there was insufficient evidence to allow the jury to infer that a defect existed because the record does not contain any evidence establishing a specific defect.If this were a negligence suit, that absence would be fatal to appellant's case, for in negligence suit the plaintiff must connect his injury with a specific defect in the manufacture or design of a product.MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 387, 257 A.2d 676, 678(1969), allocatur refused, 215 Pa.Super. xxxviii.Mere proof that an accident happened as alleged is not sufficient proof that the defendant was negligent.Radio v. Reading L.G.S. & Soc., 197 Pa.Super. 509, 513, 178 A.2d 789, 791(1962).However, in Greco v. Bucciconi Engineering Co., 283 F.Supp. 978(W.D.Pa.1967), Aff'd, 407 F.2d 87(3d Cir.1969), the district court in construing Pennsylvania law held that § 402A actions are governed by the evidentiary standards of warranty law, not by the evidentiary standards of negligence law.There, a steel company employee was injured because a magnetic sheet piler malfunctioned.At trial he did not attempt to trace this malfunction to any particular part of the piler, nor did he try by expert testimony otherwise to offer a theory for the malfunction.The issue was simply whether 'the mere occurrence of a malfunction by machinery evidence(s) a 'defective condition' within the meaning of Section 402A of the Restatement.'Id. at 981.The district court held that the plaintiff's evidence was sufficient to maintain his action because under warranty law proof that the product functioned improperly in the absence of abnormal use and reasonable secondary causes establishes circumstantially that there was a defective condition.

In MacDougall v. Ford Motor Co., supra, we expressly held that Greco was a correct statement of Pennsylvania law.In MacDougall, a 1962 Comet station wagon owned and driven by the plaintiff was involved in an accident on the Pennsylvania Turnpike.The car had been purchased one month earlier, had been driven 143 miles, but had never been driven at speeds in excess of 30 miles per hour.On the day of the accident, the plaintiff tried to drive at 50 miles per hour, but steering became so difficult that she lost control of the car and crashed.Her experts could not pinpoint the specific mechanical defect causing the accident.We nevertheless found the evidence sufficient to maintain her § 402A action:

Proof of the specific defect in construction or design causing a mechanical malfunction is not an essential element in establishing breach of warranty (and therefore in maintaining § 402A actions).'When machinery 'malfunctions', it obviously lacks fitness regardless of the cause of the malfunction.Under the theory of warranty, the 'sin' is the lack of fitness as evidenced by the malfunction itself rather than some specific dereliction by the manufacturer in constructing or designing the machinery.'Greco v. Bucciconi Engineering Co., supra, 283 F.Supp. at 982.Cf., Frantz Equipment Co. v. The Leo Butler Co., 370 Pa. 459, 88 A.2d 702(1952)

Id. at 389, 257 A.2d at 679.

This rule is now settled.In Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231(1968), the plaintiff sought to recover under § 402A for injuries caused by an exploding beer bottle.While holding that expert testimony to establish the cause of the bottle's failure was proper, the Supreme Court indicated that it was not necessary.'Both plaintiff and Leon Dorsey testified that the bottle exploded spontaneously.There testimony alone, given the fact that an explosion was not a physical impossibility, was sufficient to make the issue a jury question.'Id. at 184, 242 A.2d at 235.In Burchill v. ...