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GRECO v. BUCCICONI ENGG. CO.

December 26, 1967

Frank G. GRECO, Plaintiff,
v.
BUCCICONI ENGINEERING COMPANY, Inc., Defendant and Third-Party Plaintiff, v. WEAN ENGINEERING COMPANY, Inc., and Jones & Laughlin Steel Corporation, Third-Party Defendants. Frank G. GRECO, Plaintiff v. WEAN ENGINEERING CO., Inc., a corporation, Defendant and Third-Party Plaintiff, v. BUCCICONI ENGINEERING CO., Inc., and Jones & Laughlin Steel Corporation, Third-Party Defendants



The opinion of the court was delivered by: MILLER

 Defendant Wean Engineering Co., Inc., (hereinafter "Wean") was general contractor for a new coating line in the Surfa Glaze Department at the Pittsburgh mill of Jones & Laughlin Steel Corporation (hereinafter "J. & L."). As part of the line the contract required Wean to provide a "piler" manufactured by defendant Bucciconi Engineering Co., Inc. (hereinafter "Bucciconi") from specifications established by J. & L. The "piler", as it was delivered by Bucciconi to J. & L. in July, 1963, consisted of three sections together with lift motors. The components were installed by J. & L. employees.

 Sheets of steel emerging from the drying oven are borne along by an overhead magnetic conveyor. When they are over the piling area, the magnets are deactivated and the sheets fall between parallel side guides and end stops.

 When a certain number of sheets has fallen, the "lift" supporting them is lowered, and the sheets are moved to a conveyor system. To permit a continuous operation, the piler is equipped with "fingers" which can be extended to catch the falling sheets when the "lift" is elsewhere. Upon the "lift's" return, the fingers are retracted to permit the accumulated sheets to rest upon the "lift."

 Sometime prior to March 8, 1964, it was observed that the "fingers" would retract erratically. Four days prior, J. & L. had installed "pins" in the "fingers" to check this. To permit retraction, it was necessary to remove the pins. On March 8, after the pins had been removed, plaintiff, an employee of J. & L., reached under the piler to straighten a sheet of paper. At this moment, without motivation by the operator, the fingers retracted and the sheets of steel fell with an amputating force on the fingers of plaintiff's right hand. For the resulting injuries, the above-captioned actions invoking the Court's diversity jurisdiction were instituted by plaintiff and consolidated for trial.

 Plaintiff's allegations of negligence against Wean and Bucciconi were dismissed by the Court, which subsequently charged the jury on the basis of strict liability in tort.

 The Court also submitted a special interrogatory to the jury on the issue of J. & L.'s alleged negligence.

 The jury returned verdicts for plaintiff and against Wean and Bucciconi. On the special interrogatory, the jury found that J. & L.'s conduct was negligent and a proximate cause of plaintiff's injury.

 Plaintiff's case was submitted to the jury with a charge incorporating the substance of Section 402A of the Restatement of Torts, Second, which provides:

 
"(1) One who sells any product in a defective condition unreasonably dangerous to the user * * * is subject to liability for physical harm thereby caused to the ultimate user * * *, 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 * * * 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 * * * has not bought the product from or entered into any contractual relation with the seller."

 The language of Section 402A has been adopted as the law of Pennsylvania. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).

 It is clear that defendants Wean and Bucciconi are "sellers" within the meaning of Section 402A. Thus it is necessary to inquire only whether the evidence establishes:

 (1) That the "* * * product [was] in a defective condition unreasonably dangerous to the user * * *."; and

 Plaintiff's competent evidence was limited to proof that he was injured when the "fingers" of the pilers opened under circumstances in which they should have remained closed. He did not attempt to trace this malfunction to any particular component part of the machine. Nor did he seek by testimony, expert or otherwise, to offer a theory for the malfunction. Thus the issue may be phrased: Does the mere occurrence of a malfunction by machinery evidence a "defective condition" within the meaning of Section 402A of the Restatement?

 Since the landmark case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696 (1916), where there was evidence that the wheel which collapsed was constructed of defective wood, successful plaintiffs asserting liability on grounds of negligence have regularly adduced evidence of a specific defect in the manufacturer's product. Cf. Kuzma v. United States Rubber Co., 323 F.2d 657 (3 Cir. 1963); Trowbridge v. Abrasive Co. of Philadelphia, 190 F.2d 825 (3 Cir. 1951). Absence of such evidence fails to establish a cause of action in negligence. Vandercook and Son, Inc. v. Thorpe, 322 F.2d 638 (5 Cir. 1963), reh. 344 F.2d 930 (5 Cir. 1965).

 If the evidence of a "defect" required to establish a cause of action under Section 402A of the Restatement, supra, is identical to that required in a negligence action, plaintiff's evidence was insufficient. There remains to be considered whether this correlation is correct. In turn, this analysis requires a review of the history of Section 402A.

 The antecedents of Section 402A may be traced to Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960), where the Court upheld a warranty of fitness and waived the requirement of privity between the parties in holding the manufacturer ...


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