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November 29, 1973

Anna S. FOECKER, Administratrix of the Estate of Heinz Udo Foecker

Bechtle, District Judge.

The opinion of the court was delivered by: BECHTLE

BECHTLE, District Judge.

 This action was brought by Anna S. Foecker, Administratrix of the Estate of Heinz Udo Foecker, on behalf of said estate, seeking damages sustained when Heinz Udo Foecker died on June 29, 1970, as the result of injuries sustained in an industrial accident which occurred on June 27, 1970.

 At the time of this accident, Foecker was working for National Rolling Mills, third-party defendant herein, on a temper mill. This is a huge machine through which sheet steel is passed to give it cold working properties so that when the steel is shaped or formed it does not crack. The steel is brought to the temper mill in the form of large coils of sheet steel. In order to prepare the steel for passage through the temper mill, it is placed on carts and moved into position on a reel from which it is fed through the mill. This reel upon which the steel is placed before passing through the mill is referred to as a "payoff reel." After passing through the temper mill, the steel is again wound up in coils on the other side of the mill.

 The complaint alleges that while Foecker was working on the payoff reel side of the temper mill, an electrically operated arm referred to by the plaintiff in the pleadings as a "tailholder" was activated and came down crushing the decedent between the tailholder of the temper mill machine and a large piece of steel which was being pushed by the tailholder onto a reel of the temper mill, causing the injuries which resulted in his death.

 Defendants Allis-Chalmers, Waterbury-Farrell Machine Tools ("Waterbury-Farrell"), and D. O. James Company manufactured and supplied to National Rolling Mills, decedent's employer at the time of the fatal accident, various component parts and equipment which were incorporated into the overall temper mill. Pursuant to Fed. R. Civ. P. 56, all three defendants have filed separate motions for summary judgment. In that the respective motions present different questions of law and fact, each must be considered and resolved individually.

 With regard to the D. O. James Company ("D. O. James"), the plaintiff alleges that the company failed to provide adequate safety precautions in the design and manufacture of certain gear reducers employed in the temper mill machine. In response to an interrogatory filed upon the plaintiff inquiring as to the facts upon which the allegations of the complaint were based as to D. O. James, the plaintiff answered that "the gear reducers were faultily designed in that adequate precautions were not provided for potential injuries."

 Other than general and unsubstantiated assertions of liability based on its failure to provide necessary safety precautions, plaintiff has presented not one item of evidence in support of its allegations against D. O. James. During the course of oral argument heard by the Court on the motions to dismiss, counsel for plaintiff conceded that no argument could be advanced against D. O. James' motion for summary judgment.

 Furthermore, in the deposition of Frank B. Martin ("Martin"), the Chief Engineer of National Rolling Mills, he testified that although the tailholder *fn1" was affixed to the D. O. James gear box, the gear box had nothing whatsoever to do with the operation or control of the tailholder. Martin also testified to the fact that the gear reducers did not in any way supply power or in any way activate the tailholder which crushed the decedent. Plaintiff has not disputed or contradicted this testimony.

 Fed. R. Civ. P. 56(c) provides that summary judgment may be rendered "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ransburg Electro-Coating Corp. v. Lansdale Finishers, Inc., 484 F.2d 1037 (3rd Cir. 1973); Myers v. Nailon, Civil Action No. 70-592 (E.D. Pa. 1973).

 This Court is of the opinion that there remains no genuine issue of material facts as to the mechanical relationship of the D. O. James gear reducer and the instrumentality that caused the fatal accident and, as a matter of law, D. O. James cannot be held responsible for the death of Heinz Udo Foecker. Accordingly, the motion of D. O. James for summary judgment must be granted.

 Defendant Allis-Chalmers designed and manufactured an electrical switchboard (also referred to as the upper control panel) which controls the operation of the temper mill. Plaintiff contends that Allis-Chalmers failed to provide adequate safety precautions in the manufacture of the control panel in that the design and operation of said controls exposed employees of National Rolling Mills, particularly the deceased Foecker, to unnecessary dangers of which they could not be aware. The complaint also alleges that defendant Allis-Chalmers is liable to the plaintiff on the theory of strict liability in tort and for negligence by reason of the manufacturer's failure to make reasonable inspection to discover defects in the design manufacture of the electrical control panel.

 In an affidavit submitted pursuant to Fed. R. Civ. P. 56(e), plaintiff's affiant states that no provision was made by Allis-Chalmers on the control panel for safety devices necessary to protect human beings and that there should have been inscribed on the panel an explicit warning "not to tamper with the circuitry" as manufactured by Allis-Chalmers.

 It is well established that the lack of proper safety devices can constitute a defective design for which there may be recovery under § 402(a) of the Restatement of Torts 2d. Ford v. Harnischfeger, 365 F. Supp. 602 (E.D. Pa. 1973); Dorsey v. Yoder Company, 331 F. Supp. 753 (E.D. Pa. 1971); Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603 (1968). However, this rule only applies to allow recovery where the absence of the safety device caused an accidental injury which was of the ...

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