Hymen Schlesinger, Pittsburgh, for appellant.
William E. Hoey, Donald W. Bebenek, Arthur R. Gorr, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring opinion in which Spaeth, J., joins. Watkins, President Judge, and Jacobs, J., dissent.
[ 242 Pa. Super. Page 89]
The Pittsburgh Press Club operates a restaurant at 300 Sixth Avenue, Allegheny County, Pittsburgh, Pennsylvania.
[ 242 Pa. Super. Page 90]
On February 9, 1971, plaintiff-appellant Loretta Lenkiewicz, employed by the Press Club as a waitress, was injured when a room divider collapsed upon her during the course of her employment. Appellant and her husband, plaintiff-appellant Leo Lenkiewicz, filed a complaint in trespass against defendant-appellee Albert L. Lange, the alleged seller and installer of the room divider, basing liability on theories of breach of warranty, negligence, and strict liability under Restatement (Second) of Torts § 402A (1965). Lange then joined Hupp Corporation and Richards-Wilcox Manufacturing Company, the designers and sellers of the room divider, Oliver Tyrone Corporation, the lessor of the room divider, William B. Simboli, t/a/d/b/a William B. Simboli and Associates, the installer of the room divider, Landau Brothers Building Company, the company that built the Press Club,*fn1 and the Press Club as additional defendants.
On May 31, 1974, a jury awarded a verdict of $100,000 for appellants against the Press Club and did not mention Lange and the other additional defendants. The lower court molded the verdict in favor of Lange and the other additional defendants. Motions for a new trial and judgment N.O.V. were denied, and judgment was entered on the verdicts. We affirm.
First, appellants contend that the lower court erred in failing to permit the issues of strict liability and breach of warranty to be considered by the jury. The lower court declined to instruct the jury on these theories because of appellants' failure to introduce evidence of a defect in the room divider.
In 1966, the Press Club moved from 206 Sixth Avenue to its present location. At that time, Mr. R. W. Duhon, general manager of the Press Club, decided that a portable room divider was needed for one of the rooms. Prior
[ 242 Pa. Super. Page 91]
to this time, the Press Club had done all of its buying through Lange. Therefore, Duhon told Lange to determine the feasibility of obtaining Air Walls*fn2 for the Press Club. From 1966 until the day of the accident, the panels were frequently erected and lowered, often as much as three or four times per week.
It is well settled that in order to establish a cause of action for breach of warranty or for strict liability under § 402A, the plaintiff must prove that the product was defective at the time that the seller delivered it to the buyer, and that the defect caused the plaintiff's harm. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974); Oehler v. Davis, 223 Pa. Super. 333, 298 A.2d 895 (1972). The plaintiff may prove the existence of a defect circumstantially, by showing that the product malfunctioned. ...