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decided: May 22, 1974.


Appeal from order of Superior Court, April T., 1972, No. 376, affirming judgment of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1969, No. 234, in case of Andrew J. Kuisis v. Baldwin-Lima-Hamilton Corporation v. North Star Coal Company, a corporation.


Giles J. Gaca, with him Janet N. Valentine, and Thomson, Rhodes & Grigsby, for appellant.

Thomas J. Jackson, with him G. Daniel Carney, and Thorp, Reed and Armstrong, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Eagen concurs in the result. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this concurring opinion. Dissenting Opinion by Mr. Chief Justice Jones. Mr. Justice Nix joins in this dissenting opinion.

Author: Pomeroy

[ 457 Pa. Page 323]

On January 17, 1967, appellant, Andrew Kuisis, was injured by a load of steel pipe which fell on him when a brake locking mechanism on the crane from which the pipe was suspended became disengaged. Kuisis brought suit against appellee Baldwin-Lima-Hamilton Corporation (Baldwin), the manufacturer and seller of the crane.*fn1 At the conclusion of the evidence, Baldwin's motion for a directed verdict was denied and the case went to the jury, which was dismissed when it could not agree on a verdict. The court en banc thereafter denied Kuisis' motion for a new trial and granted Baldwin's motion for judgment on the whole record.*fn2 Kuisis appealed to the Superior Court, which affirmed the judgment by a per curiam order.*fn3 We granted allocatur, and now remand the case for a new trial.


At the outset, we must decide whether appellant's claim was barred by the statute of limitations. Kuisis

[ 457 Pa. Page 324]

    filed his original complaint in trespass on January 14, 1969, two days before the two-year statute of limitations*fn4 expired, alleging negligence in the design, manufacture and sale of the crane. It was specifically alleged that the crane was manufactured and sold with a defective braking system so that it was unreasonably dangerous to Kuisis, and that Baldwin had failed to give appropriate warning to users of the machine. On January 25, 1971, Kuisis was permitted, over objection, to amend his complaint in order to perfect his claim under § 402A of the Restatement Second of Torts.*fn5 That section reads as follows:

"(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." The amended complaint included allegations that the defective condition which proximately caused Kuisis' injuries was substantially the same as it had been when the crane was sold by Baldwin, and that Baldwin was engaged in the business of selling cranes. At the close of the evidence, the trial court ruled that the claim of negligence in design and manufacture was not made out, and submitted the case to the jury solely on the issue of liability under Section 402A.

[ 457 Pa. Page 325]

Amendments to pleadings are freely allowed under our rules of civil procedure,*fn6 but this liberality is subject to the qualification that an amendment may not introduce a new cause of action after the statute of limitations has run its course. Applying this rule, the court en banc was of the opinion that the amendment to appellant's complaint should have been disallowed. We disagree.

[ 457 Pa. Page 326]

Appellant's claim under § 402A was clearly implicit in his allegations of negligence in the design and manufacture of the crane. The principle of strict liability in tort adds nothing to Kuisis' theory of how the accident occurred; it operates merely to simplify his proof problem by eliminating the issue of negligence from the case. If in negligence actions "we have defined 'cause of action' as 'the negligent act or acts which occasioned the injury'", Saracina v. Cotoia, 417 Pa. 80, 85, 208 A.2d 764 (1965),*fn7 under Section 402A, it is the defect Page 326} itself which constitutes the cause of action.*fn8 Thus, it is of no moment that the theories of negligence and strict liability may be subject to different defenses and require different measures of proof. Assuming arguendo that two different causes of action are involved here, for purposes of the statute of limitations, both were stated in the original complaint.

Given the averment in the original complaint that the brake locking mechanism was defective, the new

[ 457 Pa. Page 327]

    allegations of the amended complaint fall within the familiar rule that a complaint may be amended after the expiration of the statute of limitations to amplify or clarify a cause of action already stated.*fn9 Averments in the original complaint that the crane was manufactured for sale, and that it was in fact sold to Kuisis' employer, compel the inference that Baldwin was engaged in the business of selling cranes; to say this in so many words adds nothing of substance to the initial pleading. By the same token, the allegation that there was no substantial change in the defective condition of the crane between the time of sale and the accident merely amplifies appellant's initial claim that a defect in design or manufacture was the proximate cause of his injuries. Kuisis has never deviated from his assertion that his injuries were caused by an unreasonably dangerous condition in the crane, for which the manufacturer-seller was responsible. The allegations of his original complaint comprise "the material facts" on which his claim under § 402A is based. See 12 P.S. App. R. C. P. 1019(a). The amended complaint suggests no new theory of causality or breach of duty by the defendant. We are satisfied that it worked no prejudice to Baldwin by stating a new cause of action.


We turn next to the question whether there was sufficient evidence to withstand a motion for judgment.*fn10

[ 457 Pa. Page 328]

There is no dispute that Kuisis' employer (North Star) had purchased the crane from Baldwin; that Baldwin was a "seller . . . engaged in the business of selling such a product" at the time of the transaction, and that the crane was expected to and did reach the buyer "without substantial change in the condition in which it was sold". That Kuisis was a "user" of the crane within the meaning of § 402A appears to be conceded by appellee. The factual issues thus narrow down to three: was there a defect in the brake locking mechanism which constituted an unreasonable danger to users of the crane; if so, was the defect a substantial cause of the injuries sustained by Kuisis; and if so, was the defect present at the time the crane was delivered by Baldwin to North Star? We consider the first two questions in this part II, and the third question in part III, infra.

Appellant introduced no direct evidence of a specific defect in the brake locking mechanism. Instead, he attempted to prove the existence of a defect indirectly, through the circumstances immediately surrounding Kuisis' mishap, and the occurrence of five earlier malfunctions of the lock. The circumstances of the accident were as follows: A minute or two before the load of pipe fell, the crane operator set the locking device to hold the load about four feet off the ...

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