Appeals from order of Court of Common Pleas of Erie County, Sept. T., 1967, Nos. 137 and 138, in case of Speyer, Inc. and Yellow Cab Company of Erie v. The Goodyear Tire and Rubber Company.
John M. McLaughlin and John G. Gent, with them Knox, Graham, Pearson, McLaughlin and Sennett, Inc., and Quinn, Gent, Buseck & Leemhuis, for appellants.
Robert S. Garrett, with him Frederick N. Egler, and Egler, McGregor & Reinstadtler, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J.
[ 222 Pa. Super. Page 262]
This case presents the issue of whether a trial court's finding of fact which is not relied upon by an appellate court in affirming a judgment is conclusive against one of the parties who brings a subsequent suit against a nonparty, in which the fact is in issue.
The Court of Common Pleas of Erie County, McClelland, J., having by implication determined the question in the affirmative, issued summary judgment in favor of the defendant. We reverse.
On appeal from a summary judgment, the record should be examined in the light most favorable to the appellant, and his well-pleaded facts should be accepted as true. Toth v. Philadelphia, 213 Pa. Superior Ct. 282, 247 A.2d 629 (1968). On April 24, 1964, plaintiffs Speyer, Inc., and Yellow Cab Company of Erie
[ 222 Pa. Super. Page 263]
suffered injury to their property from an explosion and fire, resulting from a broken part in a gasoline pump. The break was caused by a defective hose manufactured and sold by defendant Goodyear. In a prior suit, in the Federal District Court for the Western District of Pennsylvania,*fn1 based upon diversity of citizenship, plaintiffs sued the manufacturer/seller of the gasoline pump, to which the hose had been attached, for strict product liability in tort, negligence, and breach of warranty, and the lessor of the pump, for strict product liability and negligence.*fn2 The trial court held for defendants on a number of grounds.
As to strict liability under § 402A of the Restatement (Second) of Torts, the court exonerated the manufacturer/seller of the pump on the ground of an abnormal use of the product;*fn3 it exonerated the pump lessor on alternative grounds of a lessor's not being a seller and of an abnormal use of the product.*fn4 As to negligence, the court exonerated both defendants on alternative grounds of absence of negligence and, under a unity of enterprise theory by which one plaintiff's negligence was attributed to the other, contributory negligence.*fn5 Other determinations of the trial court are not essential to this opinion.
On plaintiff's appeal, the United States Court of Appeals for the Third Circuit affirmed.*f ...