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HUSAK v. BERKEL (06/24/75)

decided: June 24, 1975.

HUSAK
v.
BERKEL, INCORPORATED, APPELLANT, ET AL.



Appeal from judgment and order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1971, No. 2946, in case of John A. Husak, Jr. v. Berkel, Incorporated, and SCM Corporation, a corporation, and H. J. Heinz Company, a corporation, Additional Defendants.

COUNSEL

William R. Tighe, with him Stein & Winters, for appellant.

Thomas Hollander, with him Evans, Ivory & Evans, for John A. Husak, Jr., appellee.

Charles Kirshner, with him Rosenberg, Kirshner & Kaleugher, for SCM Corporation, additional defendant, appellee.

John D. Chinello, Jr., with him Chinello, Chinello, Maddy & Shelton, for amicus curiae.

Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 234 Pa. Super. Page 454]

This appeal is from the order of the lower court granting the motion for summary judgment of the additional defendant SCM Corporation (hereinafter SCM), and denying the motion for summary judgment of the original defendant Berkel Incorporated (hereinafter Berkel). Appellant Berkel argues that the decisions were improper

[ 234 Pa. Super. Page 455]

    because, as between SCM and Berkel, SCM alone could rightfully be held liable in the personal injury action brought by the plaintiff in this case. We agree that SCM's motion for summary judgment was improperly granted and therefore reverse the lower court's order in that respect. We do not consider the propriety of the order below refusing Berkel's motion for summary judgment because that order is interlocutory at this stage and cannot be reviewed by this Court.*fn1

The plaintiff, John A. Husak, Jr., instituted this action against original defendant Berkel claiming damages for personal injuries sustained on March 13, 1969, at the H. J. Heinz Company where he was employed as a cook. The plaintiff's complaint indicated that he had suffered the traumatic amputation of his right hand and forearm when it accidently became caught in a food grinding machine. It was alleged that a predecessor company of Berkel had manufactured the grinding machine and sold it to H. J. Heinz Company. The plaintiff sought to hold Berkel liable for his injuries on a theory of implied warranty. Berkel joined as additional defendants SCM and H. J. Heinz Company.

[ 234 Pa. Super. Page 456]

It was Berkel's position in support of its motion for summary judgment, and is its position now on appeal from the granting of SCM's motion, that SCM and not Berkel succeeded to the liabilities of the manufacturer of the food grinding machine here involved. The following facts established by the record are relevant to this contention. The food grinding machine was manufactured by Enterprise Manufacturing Company in 1924. At some time between 1924 and 1955 it was sold to H. J. Heinz Company. In 1955 the Enterprise Manufacturing Company was merged into Silex Company where an Enterprise Division was maintained which continued manufacture of the same items ...


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