Greco v. Bucciconi Engineering Co.

• Decision Date: 30 January 1969
• Docket Number: No. 17161-17163.,17161-17163.
• Citation: 407 F.2d 87
• Parties: Frank G. GRECO v. BUCCICONI ENGINEERING CO., Inc., a Corporation, Appellant, v. WEAN ENGINEERING COMPANY, Inc., and Jones & Laughlin Steel Corporation. Frank G. GRECO v. WEAN ENGINEERING CO., Inc., a Corporation, Appellant, v. BUCCICONI ENGINEERING CO., Inc. and Jones & Laughlin Steel Corporation. Frank G. GRECO v. WEAN ENGINEERING CO., Inc., a Corporation v. BUCCICONI ENGINEERING CO., Inc. and Jones & Laughlin Steel Corp. Bucciconi Engineering Co., Inc., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

407 F.2d 87 (1969)

Frank G. GRECO v. BUCCICONI ENGINEERING CO., Inc., a Corporation, Appellant, v. WEAN ENGINEERING COMPANY, Inc., and Jones & Laughlin Steel Corporation.

Frank G. GRECO v. WEAN ENGINEERING CO., Inc., a Corporation, Appellant, v. BUCCICONI ENGINEERING CO., Inc. and Jones & Laughlin Steel Corporation.

Frank G. GRECO v. WEAN ENGINEERING CO., Inc., a Corporation v. BUCCICONI ENGINEERING CO., Inc. and Jones & Laughlin Steel Corp.

Bucciconi Engineering Co., Inc., Appellant.

Nos. 17161-17163.

United States Court of Appeals Third Circuit.

Argued October 11, 1968.

Decided January 30, 1969.

George M. Weis, Weis & Weis, Pittsburgh, Pa., for appellant Bucciconi Engineering Co.

Edmund S. Ruffin, III, Thorp, Reed & Armstrong, Pittsburgh, Pa., for appellant Wean Engineering Co.

Donald E. Ziegler, Pittsburgh, Pa., for appellee.

Before McLAUGHLIN, STALEY and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

STALEY, Circuit Judge.

Plaintiff-appellee, Frank G. Greco, an employee of the Jones & Laughlin Steel Corporation (hereinafter "J. & L.") suffered serious personal injuries when a magnetic sheet piler malfunctioned at the J. & L. Pittsburgh mill. He brought this diversity action for compensatory damages against the Bucciconi Engineering Company (hereinafter "Bucciconi"), the manufacturer of the piler, and Wean Engineering Company (hereinafter "Wean"), the ultimate seller. J. & L. was joined as a third-party defendant in the district court.

Applying Pennsylvania law, the district court dismissed appellee's allegations of negligence against Bucciconi and Wean and charged the jury on the basis of strict liability in tort (Restatement (Second) of Torts § 402A (1965)).¹ The jury returned verdicts for appellee against Wean and Bucciconi, and in its answer to a special interrogatory, the jury found that J. & L. was negligent and that this negligence was a proximate cause of appellee's injury.

Following the verdicts, Bucciconi and Wean each filed post trial motions, and with the exception of one point not material here, the district court denied these motions and entered judgments in favor of appellee against Wean and Bucciconi. A judgment of indemnity was also entered in favor of Wean against Bucciconi. From the entry of these judgments Wean and Bucciconi now appeal.²

The piler in question was delivered to J. & L. in three sections and assembled by J. & L. employees. Its function in J. & L.'s new sheet coating line was to collect and pile sheet metal in preparation for shipment to J. & L.'s customers. Sheets of steel came into the piler by means of an overhead magnetic conveyor. Magnets in the conveyor would deactivate when the sheets were directly over the piling area and the sheets would drop between parallel side guides and end stops onto a lift or hoist which was lowered by an operator after a certain number of sheets had settled on it. When this hoist was being lowered to carry the piled sheets to a conveyor system, two strips of metal called "fingers" would protrude from the side guides of the piler to catch and hold the newly arriving steel sheets. When the hoist returned, the fingers would retract into the side guides of the piler, and those sheets that had been collected by the fingers would settle onto the hoist.

Soon after the piler went into operation its fingers began to retract erratically without activation from the operator at the control panel. Four days prior to appellee's injury, J. & L. inserted two "pins" in the fingers in an attempt to prevent this retraction and the resultant spilling of the steel sheets to the floor. Neither appellee nor the other employees were instructed in the use of these pins. It was appellee's belief, based upon his limited experience with the pins during the short time they were in use, that the fingers could not mal-function as long as one of the pins remained inserted; he was not told otherwise. On the day of the accident, with one pin in and the other out, appellee reached beneath the sheet-catching fingers to straighten and center wrapping paper on the hoist as it rose to collect a new pile of steel; without any activation from the control panel, one of the fingers retracted causing the sheets above to tumble down atop appellee's outstretched hand.

Section 402A of the Restatement (Second) of Torts, provides:

"(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 * * * 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."

Since appellee did not introduce substantial evidence relevant to appellants' negligence in the manufacture or design of the piler, we must first determine whether it is the law of Pennsylvania, as appellee asserts, that a plaintiff in a strict liability case can establish a "defective condition" within the meaning of Section 402A by proving that the product functioned improperly in the absence of abnormal use and reasonable secondary causes.³ That this is the law appears evident from the Pennsylvania Supreme Court's decision in Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231 (1968). There, the plaintiff brought suit under Section 402A for personal injuries suffered when a bottle allegedly exploded in his hand. He denied causing the explosion by striking the bottle in any way, and he attempted to present expert testimony concerning the cause of the explosion. The court held that such testimony was proper, albeit unnecessary, since "both plaintiff and Leon Dorsey testified that the bottle exploded spontaneously. Their testimony alone, given the fact that an explosion was not a physical impossibility, was sufficient to make the issue a jury question. * * *"⁴ 430 Pa. at 184, 242 A.2d at 235. In granting plaintiff a new trial in Bialek, the court stated:

"* * * the trial court should clearly instruct the jury * * * that plaintiff is not required to prove that the defendants were negligent, that the defendants can be liable even if they exercised all possible care and that no consideration should be given to negligence." 430 Pa. at 185, 242 A.2d at 235.

Bucciconi vigorously contends that appellee failed to sustain his burden of showing the existence of a defect at the time of sale.⁵ The test we must apply is whether reasonable and well balanced minds would be satisfied from the evidence adduced that the defective condition existed when the machine was delivered. Forry v. Gulf Oil Corp., 428 Pa. 334, 350, 237 A.2d 593, 597 (1968); Knapp v. Willys-Ardmore, Inc., 174 Pa. Super. 90, 100 A.2d 105 (1953); Ebbert v. Philadelphia Electric Co., 126 Pa.Super. 351, 191 A. 384 (1937), aff'd, 330 Pa. 257, 198 A. 323 (1938). The record discloses that four J. & L. employees testified that they had personally observed the piler malfunction. One of the employees, Victor H. Santoro, who was assigned to operate the piler a week after it was put into operation, testified that there were a "lot of bugs in the machine then, and we were running slow." One of these "bugs" was a malfunction of the fingers. Santoro stated that after the line had started into operation the fingers began releasing on their own without any activation from the control panel; and this happened often. Appellee was injured approximately six months after the piler began operating. Santoro was operating the piler on the day of the mishap and he denied causing the sheets to fall by activating the fingers. He stated that he looked at the control panel after the sheets had fallen on appellee's hand, and the switches indicated that the fingers were extended rather than retracted.

Another employee, Eugene W. Zortea, who was also present when appellee was injured, stated that a malfunction in the piler caused the sheets to fall on Greco's hand. He further testified that for approximately six months he had been telling the various foremen on that shift that someone was going to get hurt because of the sheets dropping from the piler. This testimony (as well as that of the other employees), if believed, would certainly permit the inference that the piler malfunctioned from the beginning, since the piler was only in operation for about six months prior to the accident. On the basis of the uncontradicted testimony of the J. & L. employees and in light of the Pennsylvania Supreme Court's holding in Bialek, supra, we think there was indeed sufficient evidence to satisfy reasonable and well balanced minds that a defect existed at the time of sale. We also think that there was ample evidence for the jury to find that the piler was not abnormally used,⁶ and that appellee negated all reasonable causes for the malfunction, except manufacturing defect.⁷

It is our opinion, too, that the purported "changes" in the piler by J. & L. employees were not intervening superseding causes relieving appellants of liability. Restatement (Second) of Torts § 402A, comment q at 358 (1965), suggests "that where there is no change in the component part itself, but it is merely incorporated into something larger, the strict liability will be found to carry through to the ultimate user or consumer." In the instant case, the piler was shipped to J. & L. in three sections and assembled by J. & L. employees. There is absolutely no evidence that the piler was changed in any way by J. & L. upon assemblage. Concededly, the piler was changed to a small extent when J. & L. inserted pins in the fingers, but this alteration came about because of a defect...