The opinion of the court was delivered by: BECHTLE
This is a products liability action brought by plaintiff, Carl Savini, as Administrator of the Estate of Carlo Savini, the decedent. Plaintiff seeks damages based on claims of negligence, warranty and strict liability. Presently before the Court is defendant's motion for summary judgment. The issue presented is whether defendant Charles Ross & Son Co., Inc. is a successor corporation to Kent Machine Works, Inc. for purposes of this product liability action. For the reasons which follow, defendant's motion will be granted and judgment will be entered against plaintiff and in favor of defendant.
On January 11, 1978, plaintiff's decedent, Carlo Savini, sustained serious bodily contusions and a fracture of his right knee after his sweater became caught in a three roll ink mill machine operated by Savini for his employer, Crown, Cork & Seal Co., located in Philadelphia, Pennsylvania. On March 26, 1979, Savini died after suffering a heart attack. Plaintiff now asserts, on behalf of the decedent, that the injuries suffered in January, 1978, aggravated and compounded the decedent's pre-existing heart condition and thus caused his death. Plaintiff seeks damages on behalf of the surviving family members and the estate.
The three roll ink mill machine was manufactured and designed by Kent Machine Works, Inc. ("Kent") and sold to decedent's employer, Crown, Cork & Seal Co., in 1939. Kent was incorporated in 1919 and was located in Brooklyn, New York. Kent manufactured mixers and three roll mills until January 28, 1970, when its shareholders formally voted to cease operations and dissolve the corporation. In the course of liquidating assets prior to dissolution, Kent sold its real estate, which included the manufacturing plant and some of its contents, to Bernard Magrill Company and Consolidated Edison Company of New York, Inc. for cash in an amount exceeding $ 100,000.00. In addition, Kent contracted with Charles Ross & Son Co., Inc. ("Ross") to sell to Ross the following assets shown in the Bill of Sale dated May 14, 1969:
... all of its rights to the name "KENT MACHINE WORKS", telephone number (212 TR 5-8470), all of its patent, trademark and trade name rights, all company records, list of all company customers, list of machinery locations, all manufacturing, files, all drawings (tracing and sepias), all patterns, jigs and fixtures for manufacturing company's products, and inventory as set forth hereafter.
A proviso was contained in a contemporaneous agreement of sale that provided:
Agreement, Paragraph 1 (May 14, 1969). See also Letter from Kent Machine Works, Inc. to New York Department of State (February 9, 1970) (notification of dissolution of Kent Machine Works, Inc.). Ross paid $ 18,704.00 total consideration for these assets on an "as is where is" basis.
Kent was dissolved in 1970.
Charles Ross & Son, Inc. is a close corporation incorporated in 1899 and located in Hauppauge, New York. Ross, which owns a number of other small subsidiaries, employs approximately fifty employees and has annual sales of approximately $ 5,000,000.00 each year. Deposition of Richard Ross, at 5-6, 10. Ross manufactures and sells industrial equipment including rolling devices and mixing machines. See Ross Mixing Equipment Brochure.
Richard Ross, President of Ross, states in his deposition that, pursuant to the agreement, the company received some blueprint and file cabinets, a gear cutter, machine parts and a set of old rolls. Deposition of Richard Ross, at 17-19. It is not known whether these file cabinets also contained old Kent records, customer lists and machinery locations for most of these records have been destroyed. Deposition of Richard Ross, at 19; Deposition of Jerome S. Medowar, at 88-89. Prospective customer inquiries and letters for Kent equipment were also forwarded to Ross by the Post Office under a forwarding order at Kent Machine Works, Inc. following the sale. Deposition of Jerome Medowar, at 95-97. Ross rebuilt Kent three roll ink mills, which were in need of servicing, both before and after the sale. Deposition of Richard Ross, at 44.
Ross manufactures and sells laboratory three roll ink mills in a bench model and a floor model. Ross Mixing Equipment Brochure, at 9. This floor model three roll ink mill was originally manufactured by Roy Allen, an independent manufacturer, and marketed by Ross under the name "GPE mill." After acquiring the trademark rights to "Kent Machine Works" in the asset sale in 1969, Ross renamed the "GPE mill" manufactured by Roy Allen, the "Kent mill" and marketed it under that name. Roy Allen went out of business in 1980 and Ross itself took over the manufacture of the "Kent mill." Deposition of Richard Ross, at 51-53. According to estimates, Ross sells five to ten "Kent mills" each year. Deposition of Richard Ross, at 53-54. The current price of Kent mills is about $ 6,000.00 each. See Price Sheet, 4 X 8 Laboratory High Speed Three Roll Mill (Effective February 15, 1981). The sale of Kent mills, thus, accounts for approximately two to three percent of the company's annual sales. Deposition of Richard Ross, at 79.
A. Corporate Successor ...