Roselli v. General Elec. Co.
| Decision Date | 25 November 1991 |
| Parties | , Prod.Liab.Rep. (CCH) P 13,107 Louise ROSELLI and Basil Roselli, Appellants, v. GENERAL ELECTRIC COMPANY. |
| Court | Pennsylvania Superior Court |
Maria C. Palladino, Abington, for appellants.
Keith D. Heinold, Philadelphia, for appellee.
Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
This is an appeal from a January 14, 1991 Order granting appellee, General Electric's, motion for summary judgment.
In June, 1988, appellants, Louise and Basil Roselli, filed suit for personal injuries sustained by Mrs. Roselli on June 19, 1986, when the glass carafe of her General Electric coffee maker, allegedly purchased in 1985 and allegedly used approximately five times, shattered in her hand, thereby spraying boiling coffee onto her leg and abdomen causing severe burns. On May 3, 1989, appellants produced the coffee maker for appellee's inspection, but failed to produce the glass fragments from the glass carafe, which were lost by appellants and their former attorney. Appellees' expert's examination of the machine indicated it had been manufactured in 1981, four years before appellants said it was purchased, and the base was scorched and scarred, indicating frequent use of the machine. On June 26, 1989, an arbitration panel awarded appellants a combined $25,000. Following an appeal by General Electric, the trial court granted General Electric summary judgment, reasoning the source of the glass carafe, which was not manufactured by appellee and was unavailable for inspection, could not be determined. As appellants did not allege this defect occurred in all General Electric coffee makers of the same type, the court stated examination of the broken fragments of the carafe was necessary to determine the validity of appellants' claim as well as the product manufacturer of the carafe.
Appellants now argue the inadvertent destruction of evidence is not a sufficient basis for a grant of summary judgment because there exist disputed issues of material fact. They also contend the malfunction theory of products liability permits them to prove a product defect with circumstantial evidence and with evidence eliminating abnormal use or reasonable secondary causes.
As an appellate court, we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 557 A.2d 1064 (1989). The trial court must accept as true all well-pleaded facts in the non-moving party's pleadings and must give him or her the benefit of all reasonable inferences to be drawn therefrom. Lower Lake Dock Co. v. Messinger Bearing Corp., 395 Pa.Super. 456, 577 A.2d 631 (1990). Summary judgment should not be entered unless the case is clear and free from doubt. A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the lower court's conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id.; Pa.R.C.P. 1035. We will overturn a trial court's entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Lower Lake Dock Co., supra.
Appellants contend there existed a dispute between the parties as to a material fact and, therefore, the trial court erred in granting summary judgment. Specifically, appellants allege the dispute centers around the amount of use of the coffee maker prior to the accident. Appellants alleged in pleadings and testimony they used the machine approximately five times, while appellee's expert filed an affidavit stating his inspection of the remains of the coffee maker demonstrated use well in excess of five times. There is nothing in the record to indicate the carafe and heating base came into use at different times.
We agree with appellants that trial by testimonial affidavit is prohibited. In Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 183, 439 A.2d 652, 662 (1981), the Supreme Court stated "Testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury." (Quoting 2 Goodrich-Amram 2d § 1035(d)). The trial court, however, in granting appellants' motion for summary judgment, did not rely on the conflicting testimony as to amount of use of the machine. Therefore, we can infer the court did not deem the dispute concerning length of use of the coffee maker to be material. The court based its decision on the fact that "in losing the defective product [appellants] have deprived the defense of the most direct means of countering their allegations of a defect via expert testing and analysis." (Slip Op., Lehrer, J., 3/25/91, p. 3.) Another basis for the decision was that in losing the defective product, appellants deprived appellee the opportunity of determining the identity of the manufacturer of the glass carafe for indemnity purposes.
We agree with the public policy rationale set forth in the case relied upon by the trial court, Martin and Greenspan v. Volkswagan of America, No. 88-8261, 1989 WL 81296 (E.D. 5 Pa. July 13, 1989). In Martin and Greenspan, the plaintiff was injured in an automobile accident allegedly as a result of a defective accelerator. After the accident, the co-plaintiff and the owner of the car sold the car, thus making the accelerator unavailable for defendant's inspection. The court entered summary judgment for the defendant manufacturer and held:
The defendant has been deprived of the opportunity to have an expert examine the car and to testify, if appropriate, that a defect did not cause the Audi to malfunction. Therefore, the plaintiffs should not be permitted to proceed without producing the vehicle.
....
To permit claims of defective products where a purchaser of the product has simply thrown it away after an accident, would both encourage false claims and make legitimate defense of valid claims more difficult. It would put a plaintiff (or plaintiff's attorney) in the position of deciding whether the availability of the item would help or hurt his or her case. Where producing the product for defense inspection would weaken rather than strengthen a case, we unfortunately are obliged to conclude that some plaintiffs and attorneys would be unable to resist the temptation to have the product disappear.
Id. at p. 3 (citation omitted). Whether appellants used the coffee maker five times or fifty times is irrelevant to the undisputed fact, relied upon by the trial court, that important evidence was lost or destroyed which precluded General Electric from examining the product, a necessary step in preparation of its defense.
Appellants next rely upon a malfunction theory of products liability and argue circumstantial evidence of a product defect is a question for the trier of fact and thus the trial court erred in granting summary judgment in favor of the appellee. Appellant cites Troy v. Kampgrounds of America, Inc., 399 Pa.Super. 41, 581 A.2d 665 (1990), in support of its malfunction theory of products liability. Although the standard or test for applying the malfunction theory is correctly stated, we find Troy does not aid appellants because the facts are distinguishable. In Troy, a clothes dryer or propane gas water heater in a laundry room of a campground exploded, causing a fire, which burned the plaintiffs and destroyed the building. State police fire marshalls, investigators for the campground and investigators for the supplier of the propane examined the damaged appliances. The supplier's expert testified the explosion was caused by a defective gas pilot light safety valve of the hot water heater. The building site was thereafter leveled and the remains of the appliances were destroyed by a neutral party. Thus, neither the plaintiffs nor the defendants had an opportunity to examine the appliances. The court held summary judgment could not be granted in favor of the defendants because the experts' testimony regarding the defects had to be weighed by the jury. Id. In this case,...
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