fact, Sears prevented any determination whether the defect in the tire was the cause of the explosion by withdrawing its crossclaim against Goodyear at the close of evidence.
The time to contest a status or designation as joint tortfeasors has long since passed. Implicit by the position of the parties, the jury's view and the fact that the crossclaims were brought and dismissed, Sears' conduct rises to a waiver of this assertion. Although the procedural tools now used are significantly different, what is actually being requested is a judicial determination of the division or status of liability. This could have been postured at trial for resolution. To attempt to posture it now, long after the jury has been dismissed and near the final stages of the case would be patently unfair. The theory of waiver would appear suited for application to the factual circumstances presented in this case. The question of waiver in federal cases is governed by the federal standard enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938) (intentional relinquishment or abandonment of a known right or privilege).
In support of its motion, Sears cites Burbage v. Boiler Engineering & Supply Co., Inc., 433 Pa. 319, 249 A.2d 563 (1969) and Tromza v. Tecumseh Products Co., 378 F.2d 601 (3d Cir. 1967). However, both these decisions are readily distinguishable from the case at bar. Burbage involved a boiler manufacturer who was held to be entitled to indemnity from the manufacturer of a defective valve sold as a replacement part for a boiler already in operation, on the basis that the responsibility for discovery of the defect lay solely with the valve manufacturer. Similar to the present case, the issue of liability in Burbage was submitted to the jury under Section 402A. However, the similarity ends at this point. Burbage is distinguishable in that the case had not been submitted to the jury under the malfunction theory. In Burbage, a specific defect was alleged and proven through expert testimony. There was no doubt that the defective valve and the defective valve alone caused the explosion. In addition, it was the defendant Boiler Engineering & Supply Co., Inc. (hereinafter "Boiler") which joined the valve manufacturer as an additional defendant on the alternative theories that the valve manufacturer was jointly or severally liable or that the valve manufacturer was liable by way of an indemnity to Boiler. The jury returned a verdict against Boiler and in favor of Burbage and in favor of Boiler against the valve manufacturer for indemnification. No such determination was reached in the present case. The issue of indemnification in the present case as stated earlier was never submitted to either the jury or the court. The jury however did determine that both Sears and Goodyear were strictly liable.
The decision of the United States Court of Appeals for the Third Circuit in Tromza v. Tecumseh Products Co., 378 F.2d 601 (3d Cir. 1967) is likewise cited by Sears. In Tromza, the Court found a manufacturer of a defective compressor unit who failed to detect the defect by proper inspection primarily liable for injuries that occurred when the unit exploded. The party who had incorporated the unit into the refrigerator which was then sold was determined to be only secondarily liable since its liability only arose because of its failure to discover the defect. Again, a specific defect was demonstrated that was attributable to the manufacturer of the compressor unit.
The Court finds that the relationship between Sears and Goodyear is one of joint or several liability. Accordingly, the Uniform Contribution Among Joint Tortfeasors Act, supra, is applicable. Inasmuch as the release executed between the Plaintiff and Goodyear did not specifically provide for the release of Sears, Sears remains liable to the Plaintiff. The Defendant Sears' motion will be denied.
An appropriate Order will be entered.