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March 31, 1980


The opinion of the court was delivered by: LUONGO

Plaintiffs in this products liability action seek recovery for injuries attributed to a defectively designed skip bridge, which is a component of the blast furnace unit used in the production of steel. At the time of the injury, plaintiff-husband was an employee of United States Steel Corporation (U. S. Steel). Defendant Arthur G. McKee & Company (McKee) is an engineering and contracting firm, which designed and constructed the skip bridge under a contract with U. S. Steel. The complaint premises liability on three theories: (1) negligence, (2) strict liability under § 402A of the Restatement (Second) of Torts, *fn1" and (3) breach of warranty. Jurisdiction is based solely on diversity of citizenship. *fn2"

The case is presently before me on defendant's motion for summary judgment on the section 402A and breach of warranty claims. At oral argument on the motion, plaintiffs conceded that the breach of warranty claim was barred by the statute of limitations. With respect to the section 402A claim, I advised plaintiffs of my difficulties with their theory of defective design and gave them time to submit additional material to support their argument. Now, after reviewing the entire record, including the deposition testimony recently submitted, and after considering anew the arguments raised in the memoranda, I conclude that defendant is entitled to summary judgment on the section 402A claim.

 The evidence of record, which must be viewed in the light most favorable to plaintiffs, reveals the following facts. In the early 1950's, defendant McKee designed and erected two blast furnaces at the U. S. Steel plant in Fairless Hills, Pennsylvania, pursuant to an agreement with and in accordance with specifications prepared by U. S. Steel. Each blast furnace unit comprised a number of structural components in addition to the furnace. Among the supporting structures for each unit were a stockhouse, a skip bridge (the item at issue here), and skip cars. The skip bridge was composed of two sets of steel rails fabricated by U. S. Steel. These rails formed a track along which the skip cars (also manufactured and supplied by U. S. Steel) traveled, carrying materials from the stockhouse to the blast furnace. As originally constructed, the bridge was equipped with a solid steel wheel-guard plate that extended along the outer rail of the bridge throughout the entire skip pit area to a height of two feet or so from the top of the rail. The guard plate was designed and positioned to prevent inadvertent contact with the rails of the skip bridge.

 On October 7, 1975, Abdul-Warith was working in the skip pit near an extension of the skip bridge. He was injured when he placed his hand on one of the rails as a skip car was descending the track; his hand was pinned between the rail of the bridge and the wheel of the car. At the time of the accident, the guard plate was missing from the bridge, and there was neither a barrier to prevent the workers in the skip pit from touching the rails nor a warning device to alert them of the skip car's descent.

 Plaintiffs' claim under section 402A is that the skip bridge was defectively designed because it lacked an adequate safety device. Defendant advances two arguments in support of its motion for summary judgment. It contends, first, that section 402A is inapplicable because McKee is not a "seller" and the skip bridge is not a "product," as those terms have been interpreted by the Pennsylvania courts. In the alternative, McKee asserts that because the skip bridge was originally equipped with a steel guard plate to prevent accidents like Abdul-Warith's, the bridge was not in a defective condition when delivered to U. S. Steel. I will address each of defendant's arguments in turn.

 A. The Scope of § 402A in Pennsylvania

 McKee as a Seller

 Section 402A of the Restatement (Second) of Torts, which makes a seller engaged in the business of selling a product strictly liable for injuries that result from a defect in the product, was adopted by the Supreme Court of Pennsylvania in Webb v. Zern, 422 Pa. 424, 427, 220 A.2d 853, 854 (1966). Subsequent decisions have defined the contours of section 402A. The Pennsylvania courts have imposed strict liability for a defective product on all sellers in the distributive chain, Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 187-88, 242 A.2d 231, 236 (1968), and have brought manufacturers of component parts, Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 324-25, 249 A.2d 563, 566 (1969), used products dealers, Mixter v. Mack Trucks, Inc., 224 Pa.Super. 313, 315, 318, 308 A.2d 139, 140, 142 (1973), and lessors, Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 368-69, 372 A.2d 736, 739-40 (1977), within the sweep of section 402A. Moreover, under Pennsylvania case law, lack of privity does not bar recovery. Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32-33, 319 A.2d 903, 907-08 (1974).

 As these decisions illustrate, the attitude of the Pennsylvania courts has been more expansive than restrictive. The underlying policy has been to hold strictly liable for ensuing harm all suppliers of products who, because they are engaged in the business of selling or supplying a product, have assumed a special responsibility toward the consuming public. Francioni v. Gibsonia Truck Corp., supra, 472 Pa. at 366, 372 A.2d at 738. Nevertheless, the textual limitation of section 402A that the supplier be in the business of selling or supplying the product has been applied to exclude from its reach the occasional seller, McKenna v. Art Pearl Works, Inc., 225 Pa.Super. 362, 365 n.2, 310 A.2d 677, 679 n.2 (1973), and the supplier of services, Lemley v. J & B Tire Co., 426 F. Supp. 1378, 1379 (W.D.Pa.1977).

 Defendant argues that it comes within the recognized exceptions to the strict liability provisions. First, characterizing its agreement with U. S. Steel as a construction contract, McKee casts itself as a supplier of labor and services rather than the seller of a product. McKee notes that U. S. Steel provided the specifications for and fabricated several components of the blast furnace unit. In addition, the contract required McKee to submit all drawings to U. S. Steel for final approval.

 These various factors do not, in my view, take defendant beyond the purview of section 402A. As the Lemley court acknowledged, "there has been no general judicial expansion of (section 402A) to include persons who supply a service." 426 F. Supp. at 1379. That court also noted, however, that a party who supplies a defective product while rendering a service may nevertheless be held accountable under section 402A for injuries attributable to the defective product. Id. Here, McKee unquestionably supplied services in the form of labor and engineering expertise. Yet, the fact remains that in the course of performing this "service," McKee supplied U. S. Steel with the injury-causing instrumentality. *fn3" Nor does it help McKee to argue that U. S. Steel provided the specifications and retained final approval over all drawings for the skip bridge. Although reasonable reliance by a manufacturer on specifications supplied by the buyer may provide a defense in a negligence action or in a suit by the buyer against the supplier for indemnification, see, e.g., Castaldo v. Pittsburgh-Des Moines Steel Co., 376 A.2d 88, 90 (Del.1977), several decisions have suggested that strict liability will attach to the supplier of a defective product even though the purchaser provided or approved the specifications. See, e.g., Schreffler v. Birdsboro Corp., 490 F.2d 1148, 1150 (3d Cir. 1974); Greco v. Bucciconi Engineering Co., 283 F. Supp. 978, 980 (W.D.Pa.1967), aff'd, 407 F.2d 87 (3d Cir. 1969); Pust v. Union Supply Co., 38 Colo. App. 435, 561 P.2d 355 (Colo.App.), rev'd on other grounds, 194 Colo. 316, 572 P.2d 148 (Colo.1977). Accordingly, in view of the admonition by the Pennsylvania Supreme Court in Bialek v. Pittsburgh Brewing Co., supra, 430 Pa. at 187, 242 A.2d at 236, that the supplier need not have caused the defect, I conclude that McKee's reliance on U. S. Steel specifications will not insulate it from section 402A liability in this case.

 McKee also contends that it cannot be held strictly liable for the injuries here claimed because it is not engaged in the mass production or distribution of a product. Insofar as its argument is based upon the "occasional seller" exception, McKee misses the mark. The volume of a defendant's sales is irrelevant to characterization as a seller. "It is sufficient . . . that (the supplier) carried on an established and well-recognized kind of business which has been a regularly maintained activity on (its) part." Stewart v. Uniroyal Inc. (No. 1), 72 Pa. D.&C.2d 179, 202 (C.P.Allegheny Cty. 1974), aff'd, 233 Pa.Super. 761, 339 A.2d 815 (1975). McKee is an engineering and contracting firm involved in the design and erection of plants for the basic process industries. It has, over the years, designed and assembled blast furnaces (and the various components thereof such as the skip bridge at issue here) for a number of ...

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