No. 453 - Appeal from the Court en banc Order of March 4, 1975 (granting a new trial) of the Court of Common Pleas of Westmoreland County, Civil Division at No. 267 October Term, 1972. Nos. 453 & 478 April Term, 1975.
P. Louis DeRose, New Kensington, P. Louis DeRose, III, with them Scales & Shaw, Greensburg, for appellant at No. 453 and for appellee at No. 478.
John E. Kunz, Pittsburgh, for appellant at No. 478, and appellee at No. 453.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Van der Voort, J., files a dissenting opinion.
[ 246 Pa. Super. Page 192]
This is an appeal from an order of the Court of Common Pleas of Westmoreland County granting a new trial to the defendant-appellant, Superior Electric Company, after a verdict in a trespass action in favor of the plaintiffs-appellees in the sum of $45,000.
The action in trespass was based on strict liability under Section 402(a) of the Restatement of Torts for damages caused to the appellees' bar and restaurant in Arnold, Pennsylvania, during a fire which occurred on April 14, 1968. The claim was based on an allegedly defective dimmer switch manufactured by the appellee.
Section 402(a) of Restatement, supra, Section 1, provides:
"(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 this property."
The Court en banc below consisting of Weiss, Keim and Mihalich, JJ. in an opinion written for the court by Keim, J. granted a new trial on the ground that:
The main disputed issue in the trial of the case was whether or not plaintiffs produced sufficient evidence to show that the dimmer switches in question malfunctioned in such a manner as to cause the fire. An examination of the trial transcript shows that beginning at page 276, the Trial Judge expressed to plaintiffs' counsel his opinion that they had not yet made out a case of causation of the fire in question. This colloquy continued at a side bar conference as set forth at pages 276-280 of the trial transcript. Then, from pages 284-286, the Trial Judge conducted questioning of Carl Metz, a State Police Fire Marshal, which resulted in Mr. Metz expressing his opinion as to the causation of the fire. At the time of the Court's questioning, counsel for both parties made objections to the
[ 246 Pa. Super. Page 193]
Court conducting the questioning, which objections were later withdrawn. At that time, the Trial Judge felt that on his own Motion, a Juror should have been withdrawn. However, the ...