Harn v. Milwaukee Tool & Machine Co., Inc.

Decision Date27 September 1984
Docket Number131 of 1982
Citation33 Pa. D. & C.3d 632
PartiesHarn v. Milwaukee Tool & Machine Company, Inc
CourtPennsylvania Commonwealth Court

Motion for summary judgment.

John G. Good, Jr., for plaintiff.

Richard J. Mills, for defendant Milwaukee Tool &amp Machine Co.

James F. Manley, for defendant Tannetite, Inc.



On January 31, 1980, plaintiff Ham was injured on his employer's premises while operating a vertical band saw. Plaintiff brought this trespass action against defendants and alleged theories of strict products liability in tort, negligent design and breach of warrant. Defendant Milwaukee Tool and Machine Co. (Milwaukee) designed, manufactured and delivered the finished machine to plaintiffs employer. Defendant Tannewitz, Incorporated (Tannewitz) supplied the component saw and delivered it to Milwaukee's plant.

Now before the court is Tannewitz's timely motion for summary judgment. In support of the motion, Tannewitz submitted as exhibits, the report of plaintiffs engineering expert and an affidavit of Milwaukee's president.

The engineering report, compiled by James P. Romualdi, P.E. of Forensic Consultants and Engineers, Inc., reviews the details of the injury, describes the operation and manufacture of the machine and sets out minimum safety standards as they are established by a national board. The report enumerates two design features as being defective and instrumental in causing plaintiffs injury: The lack of a cage or guard to protect the operator's hands from the blade and the electric eye which in its current design " creates a false sense of security on the part of the operator" . Significantly, the report notes that Tannewitz's band saw was assembled into the total unit by Milwaukee.

Tannewitz's second exhibit is the affidavit of Milwaukee's Corporate President, Richard G. Mumper. Its principal statements are as follows:

1. The entire equipment sold to plaintiffs employer was designed and manufactured totally by Milwaukee, and all component parts were selected by Milwaukee.

2. At the time of delivery of the band saw by Tannewitz to Milwaukee, there was no defect in design or manufacture of the product.

3. Milwaukee did not advise Tannewitz as to the expected and anticipated use of the band saw.

4. The band saw as sold to Milwaukee was inoperable without addition of controls and components needed to activate the saw.

5. All operating controls, guards as well as any safety devices installed on the equipment were all designed by and made a part of the ultimate product by Milwaukee.

6. Tannewitz did not have any input into the design, construction, or production of any machine controls.

7. All protective devices on the equipment were designed, manufactured, and produced by Milwaukee.

8. The design, installation, and sale of the electric eye control for the machine was that of Milwaukee.

9. The pusher bars and their installation in the product were the design of Milwaukee.

In addition, Milwaukee's admissions in response to Tannewitz's request contain virtually identical statements. Although not submitted as exhibits, the admissions form a part of the record and may be considered for purposes of this motion. Ritmanich v. Jonnel Enterprises, 219 Pa.Super 198, 280 A.2d 570 (1971).

Plaintiff has not submitted exhibits. In urging the court to deny summary judgment, plaintiff contends only that the issue is controlled by Pennsylvania's Nanty-Glo rule. Known generally as the demeanor evidence doctrine, it forecloses entry of summary judgment when questions of credibility leave a genuine issue of material fact. Where the movant can prevail only by use of testimonial affidavit, the credibility of the affiant creates a genuine issue of fact so that summary judgment is not appropriate. Borough of Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); 2 Goodrich-Amram § 1035(b):4 and cases cited therein.

In brief, plaintiff attacks only the engineering consultant's report. This, plaintiff contends " in no way eliminates Tannewitz as the primary or contributory tortfeasor (sic), and to the contrary leaves open the question of what features could have been incorporated in this machinery, including the saw, that would have prevented this accident" .

If there is no genuine issue as to any material fact and if the moving party is entitled to a summary judgment as a matter of law, the court may enter summary judgment in his favor. Ritmanich v. Jonnel Enterprises Inc., supra. Under the standard as stated, we are constrained to agree with plaintiff as to the engineering report.

Questions raised by the other exhibit, Milwaukee's affidavit, require more than a citation to the Nanty-Glo rule. The decisions of our courts have prescribed a two-part process for ruling on summary judgment motions. First, the court, after considering the movants' exhibits must note whether or not the opposing party has submitted depositions, affidavits, admissions or other exhibits of its own. The rules do not permit the opposing party to stand on the contested averments of the pleadings in sufficient defense against summary judgment. Amabile v. Auto Kleen Car Wash, 247 Pa.Super 240, 376 A.2d 247 (1977); Santoro v. City of Philadelphia, 59 Pa.Commw. 114, 429 A.2d 113 (1981). In explanation of this rule, our Supreme Court has reasoned that affidavits may serve as proof of facts while pleadings do not. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). In addition, express language of Pa.R.C.P. 1035(d) clearly states the same procedural requirement:

" An adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided by the rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not respond, summary judgment, if appropriate, should be entered against him (Emphasis added.)

Plaintiff Harn offers no exhibits to oppose those of Tannewitz. As stated earlier, he elected to rest on the pleadings. Rather than foreclosing all further inquiry, absence of exhibits merely takes the analysis to a second stage, allocating the burden of proof. Even where, as here, the non-movant fails to file counter-exhibits, the court must determine whether the movant has satisfied the burden of showing that there remains no material issue of fact. Marchese v. Marchese, 475 Pa. 625, 326 A.2d 321 (1974); Santoro v. City of Philadelphia, supra. Where the proof supporting the motion is documentary and has a high degree of credibility the opponent must produce convincing proof attacking the documents in order to sustain his burden. See, Bauman, A Rationale for Summary Judgment, 33 Ind. L.J. 467 (1958).

Assessing Tannewitz's affidavit against this standard, we are satisfied that Tannewitz has shouldered its share of the burden. The exhibit is obviously documentary. Moreover, we are impressed with its credibility. If the affiant, Mr. Mumpers, were to testify at trial to the particulars of his affidavit, a jury would be entitled to give that testimony great weight. Classic indicia of reliability would abound. The statement is the product of personal knowledge and it is inconceivable that cross-examination would show that Mumpers was in no position to know design and manufacturing details about the machine. Equally remote is the possibility of faulty recollection since the testimony would be supported by a prior written statement. Most convincing of all, however, is the legal effect of the affidavit and hypothetical testimony based upon it. The recitations of the affidavit clearly militate against the liability interest of the affiant's corporation. By committing itself to such a damaging body of admissions, Milwaukee displays an intention, or at least a willingness, to stand solely liable to plaintiff. We view the affidavit through the rationale underlying declarations against interest as a hearsay exception; Milwaukee would not exonerate Tannewitz so broadly if it did not believe in the trust of its admissions. Having so determined, we conclude that Tannewitz has met its burden.

Plaintiff's response to the shifting burden consists of a vague assertion that credibility questions cloud the affidavit thereby precluding entry of summary judgment. Our reading of Rule 1035(d) requires the opposing party, confronted with a movant's credible exhibits, to do more than invoke the Nanty-Glo rule in order to resist summary judgment. [*] If the credibility of the movant's witness is challenged by the opposing party and specific bases for impeachment are shown, summary judgment should be denied and the ease should be set for trial. The opponent must point to some facts which may entitle him to judgment, or which refute the movant's proofs to a material degree. The burden is not met by dredging up the old, reliable bugaboo of credibility and proceeding to trial with the bald hope that jurors will not believe the movant's evidence when it is put before them. This is especially true where the non-moving party has had ample opportunity to examine the movant and its witnesses at length and under oath. We apprehend that to be the case with the instant parties.

Turning to the products liability issues relevant to this motion, we find that Tannewitz is entitled to judgment on the law. With respect to power saws, the court of numerous jurisdictions have conducted litigation premised on all the theories advanced by plaintiff. There are cases of negligent failure to warn or instruct. Hopkins v. Chip-In Saw, Inc. 630 F.2d 616 (C.A.8 1980) (applying Arkansas law), Hagan v. E. Z. Mfg. Co., 674...

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