Musser v. Vilsmeier Auction Co., Inc.

• Decision Date: 30 June 1989
• Citation: 522 Pa. 367,562 A.2d 279
• Parties: , 83 A.L.R.4th 1177, 58 USLW 2051, Prod.Liab.Rep. (CCH) P 12,198 John H. MUSSER, Appellant, v. VILSMEIER AUCTION CO., INC., Appellee, v. INTERNATIONAL HARVESTER COMPANY and Wenger's Farm Machinery, Inc. 1097 PHILA. 1987
• Court: Pennsylvania Supreme Court

Page 279

562 A.2d 279

522 Pa. 367, 83 A.L.R.4th 1177, 58

USLW 2051,

Prod.Liab.Rep. (CCH) P 12,198

John H. MUSSER, Appellant, v. VILSMEIER AUCTION CO., INC., Appellee, v. INTERNATIONAL HARVESTER COMPANY and Wenger's Farm Machinery, Inc.

1097 PHILA. 1987

Supreme Court of Pennsylvania.

Argued April 10, 1989.

Decided June 30, 1989.

Lawrence G. Metzger, Lee Albert, Philadelphia, for appellant.

L. Carter Anderson, Patrick J. Stapleton, Philadelphia, for Vilsmeier Auction Co., Inc.

Edward A. Gray, for Intern. Harvester Co.

James D. Wilder, Philadelphia, for Wenger's Farm Machinery, Inc.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.

OPINION

McDERMOTT, Justice.

This is an appeal from an order of the Superior Court affirming an order of the Court of Common Pleas of Philadelphia which granted appellee's motion for summary judgment in appellant's action in trespass. Musser v. Vilsmeier Auction Co., Inc., 378 Pa.Super. 657, 544 A.2d 1048 (1988) (memorandum opinion).

The facts and events which led to the appeal are not in dispute. In January, 1984, the officers of Wenger's Farm Machinery, Inc., which was liquidating its assets, met with Appellee's president. Appellee is in the business of conducting auction sales of used equipment and machinery. The parties agreed that Appellee would conduct an auction of Wenger's equipment. Appellee however, never owned, operated or controlled the equipment which was to be auctioned.

Approximately two weeks prior to the sale, Appellee sent a brochure to potential buyers which listed the equipment to be sold on Wenger's property on April 2 and 3, 1984. The brochure stated in plain print It is the object of the seller and auction company to conscientiously and accurately present the description and conditions contained in this advertising; however, neither the seller nor the auction company shall in any way be responsible for any errors or omissions in the description or conditions contained in this advertising.

Appellant's father, Ronald Musser, Sr., attended the auction on both dates. He signed a registration card, as did other potential buyers. The card stated: "I UNDERSTAND ALL ITEMS ARE SOLD 'AS IS' AND 'WHERE IS' without any guarantees expressed or implied. Any written or implied conditions are only guidelines and not guarantees." The catalogue distributed at registration contained a similar disclaimer. The disclaimer was verbally presented to the bidders by the auctioneers who conducted the sales as well.

On April 3, 1984, Appellant's father purchased two of the more than ninety used tractors exposed at the sale. One of them was a twenty-one year old model 3414 International Harvester Payloader. Appellant was injured by the tractor when it ran over him while he was starting it, three days after his father purchased it.

Appellant brought this action against the auction company. In his complaint he alleged that the tractor was defectively, negligently and improperly designed, tested, manufactured and distributed and was not equipped with adequate safety features or warnings. He alleged further that Appellee was or should have been aware of the defects and nevertheless implicitly warranted that the tractor was reasonably safe for use. The complaint stated three legal predicates: strict liability under the provisions of section 402A of the Restatement (Second) of Torts, negligence and breach of warranty.

Appellee answered, joined International Harvester and Wenger's Farm Machinery as additional defendants, and ultimately moved for summary judgment on the pleadings as supplemented in affidavits, depositions and exhibits. The trial court on the basis of the submissions determined that there was no genuine issue as to any material fact and that Appellee was entitled to judgment as a matter of law. Pa.R.Civ.Pro.R. 1035(b).

Appellant appealed to the Superior Court alleging that the trial court erred in five of its determinations among which was the legal conclusion that Appellee was not a "seller" within the meaning of section 402A of the Restatement (Second) of Torts. That court in an unpublished opinion found the issues meritless. It adopted the trial court's opinion regarding the section 402A issue in its affirmation of the latter's order granting summary judgment. Musser, supra.

Appellant petitioned this Court and we granted leave to appeal on a single legal issue of first impression. It is: whether an auctioneer is a "seller" within the meaning of section 402A of the Restatement (Second) of Torts.

An entry of summary judgment may be granted only in cases where the right is clear and free of doubt. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). Summary judgment should be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986). There are no issues of fact before us. Our task is to decide whether, as a matter of law, auctioneers are subject to the strict liability provision of the section for the sale of defective products.

We adopted the section as the law of the Commonwealth in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). It states:

Section 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.

On its face the section applies only to sellers of defective products. However, the affixation of strict liability for damages caused by defective products to sellers of those products is based on policy which has as its purpose the protection of the public against the harms such defects engender. Thus, responsibility for the safety of the products is placed on any supplier who undertakes to supply them to the consuming public. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 364-367, 372 A.2d 736, 738-739 (1977). Citing, Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 187 n. 2, 242 A.2d 231, 236 n. 2 (1968); Restatement (Second) Torts section 402A. The reason for the imposition of such responsibility is set forth in Comment F to the section.

The basis of the rule is the ancient one of the special responsibility for the safety of the public undertaken by one who enters into the business of supplying human beings with products which may endanger the safety of their persons and property, and the forced reliance upon that undertaking on the part of those who purchase such goods. This basis is lacking in the case of the ordinary individual who makes the isolated sale, and he is not liable to a third person or even to his buyer in the absence of his negligence.

Based on these policy considerations this Court has extended the application of the term "seller" to anyone who, as a supplier, enters into the business of supplying the public with products which may endanger them. Francioni; Comment F, supra. Consistent with fidelity to the purpose of the policy considerations underlying the rule, we have given the term "seller" broad application and extended its conventional meaning to include those who market by sale, lease or bailment. Mr. Justice Nix, ¹ writing for the Court in Francioni, summarized the essential consideration in broadening the meaning of the term:

What is crucial to the rule of strict liability is not the means of marketing but rather the fact of marketing, whether by sale, lease, or bailment, for use and consumption by the public.... Where the fundamental principles are applicable, the imposition of artificial distinctions will only frustrate the intended purpose.

Francioni, 472 Pa. at 367, 372 A.2d at 738-739. (citations omitted).

We note however that the broadened concept of "supplier," for purposes of predicating strict liability, is not without practical limits. The limits obtain in the purposes of the policy. When those purposes will not be served, persons whose implication in supplying products is tangential to that undertaking will not be subjected to strict liability for the harms caused by defects in the products. For example, though in Francioni we held that the lessor under the terms of a conventional or "true lease" is a supplier within the meaning of Section 402A, we distinguished the lessor under the terms of a lease intended as security or one designed solely for financing purposes. Nath v. National Equipment Leasing Corp., 497 Pa. 126, 439 A.2d 633. In Nath we stated the following rationale:

That which provides the basis for fastening liability upon suppliers of products is that the supplier or manufacturer is the one that has the control over the product and places it within the stream of commerce. The party merely financing the transaction has no control over its manufacture, is not involved in the selection of the product or in any way makes a representation as to its quality or soundness. Between the financier and the ultimate purchaser, it is usually the latter who selects the goods, negotiates for its purchase and has control over its use.

While it is true that the financing makes the purchase possible, and to that limited extent the financier can be perceived to have participated in the delivery of the product, such a tangential participation in the supplying of the goods does not justify the imposition of strict...