A summary of the pertinent factual allegations reveals that the plaintiff resided with her two sons, one of whom is third-party defendant Jacob Young, in one-half of an adjoining semi-detached residence which they rented from third-party defendants, Aaron and Anna Burkholder (the Burkholders). On the premises was a hot-water heater. The heater was manufactured by defendant Rheem and was equipped with an automatic 100 per cent shut-off control device manufactured by defendant Robertshaw. The heater was sold to the plaintiff by third-party defendant Gibble Brothers who installed the heater. Gas for the heater was supplied initially by third-party defendant Nissley Bottled Gas, Inc. (Nissley). In May of 1973, Nissley's business was sold to defendant Texgas, which began supplying gas to the plaintiff on June 18, 1973.
On July 11, 1974, plaintiff and Jacob Young returned home from work and found that there was no hot water in their home. They then discovered that the pilot light in the hot-water heater was not lit. Jacob lit a match to re-light the pilot light and the heater exploded, injuring both persons.
On February 14, 1975, Jacob Young signed a release. In return for $5,500.00 he agreed to release Robertshaw "and all other persons, firms, and corporations" from liability for the accident of July 11, 1974. Plaintiff has brought this action against the three defendants, and third-party complaints were subsequently filed against the third-party defendants.
Before this Court are the following motions: defendant Texgas' motion for summary judgment on the plaintiff's claim and all cross-claims; defendant Rheem's and defendant Robertshaw's motions for summary judgment on third-party defendant Jacob Young's claims and Jacob Young's counter-motion for summary judgment; third-party defendant Gibble Brothers' motion for summary judgment; and defendant Nissley's motion for summary judgment on all claims, including plaintiff's claim and Robertshaw's third-party claim.
TEXGAS' MOTION FOR SUMMARY JUDGMENT
Plaintiff states in her pre-trial memorandum that her theory of liability for all three defendants is grounded in both negligence and products liability law. Texgas in its motion contends that it cannot be liable under either theory.
Regarding negligence, Texgas states that it was not involved when the hot-water heater was installed and the gas lines connected. Texgas' employee Robert Spinicci asserts in his affidavit the fact that Texgas did not deliver gas to plaintiff until June of 1973 and that Texgas "provided no appliances to the premises in question; did not perform any of the installation work for the L.P. gas cylinders; did not provide any connections from the L.P. gas cylinders to the appliances; never installed any appliances on the premises, and with the exception of one occasion to replace an oven valve, never performed any adjustments, inspection or corrective measures to the L.P. gas hot-water heater" in plaintiff's home. Affidavit of Robert D. Spinicci, p.3, para. 11.
Another employee, Clayton McElhenny, a serviceman for Texgas, declared in his affidavit that he was never called to do any repairs on plaintiff's heater since Nissley was acquired by Texgas. He and a third employee, Donald Nissley, Jr., declare in their affidavits that they went to plaintiff's home after the accident and tested the gas system for leaks, but found none.
None of these facts are in any way contested by plaintiff or any other party. In fact, plaintiff did not file an answer or counter-memorandum in response to Texgas' motion.
Regarding the theory of strict liability, Texgas argues that there has been no allegation that the gas supplied to the heater was in any way defective. Restatement of Torts, 2d, § 402A provides in pertinent part:
"(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 * * *".