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December 8, 1981

Joseph S. LESNEFSKY and Mary Lesnefsky

The opinion of the court was delivered by: BRODERICK


In this action the plaintiff, Joseph S. Lesnefsky, claims that on January 3, 1977 he was burned by boiling hops during the course of his employment at the brewery of C. Schmidt & Sons, Inc. (the Brewery). The plaintiff alleges that Fischer & Porter Co., Inc. (Fischer & Porter) is liable for his injury on the basis of negligence, warranty and § 402A of the Restatement (Second) of Torts for the defective design and manufacture of the control panel which Mr. Lesnefsky was operating. Following extensive discovery by the parties, Fischer & Porter filed a motion for summary judgment. For the reasons hereinafter set forth, the Court will grant Fischer & Porter's motion for summary judgment.

 In determining the propriety of granting a motion for summary judgment, the Court must consider whether there exists a genuine issue as to any material fact. Hicks v. A.B.T. Assoc., Inc., 572 F.2d 960, 967 (3d Cir. 1978); Abdallah v. Caribbean Security Agency, 557 F.2d 61, 63 (3d Cir. 1977). On the basis of uncontroverted depositions and affidavits, the Court finds that there is no genuine issue of any material fact. The uncontroverted record may be summarized as follows.

 On the day of the accident the plaintiff, an employee of the Brewery, was attending a large metal mash cooker, bringing the water inside the cooker up to a prescribed temperature and adding the "malt". Instruments on the control panel for the cooker showed that the temperature inside the cooker was rising above the pre-set automatic shut-off point. The plaintiff walked to the telephone to call his supervisor about the problem when boiling mash spilled out of an access port on the cooker burning him and causing his injury.

 The mash cooker, built in 1970, is operated by a control panel manufactured by Fischer & Porter. Fischer & Porter manufactured the control panel pursuant to the specifications and blueprints provided by the Brewery. The Brewery has accepted full responsibility for design of the entire system including development of the control panel and the automatic operation system.

 Plaintiffs allege § 402A liability claiming both that the control panel was defectively designed and that Fischer & Porter failed to warn plaintiff of the risks. The plaintiffs also claim that Fischer & Porter was negligent in designing the control panel because it was not designed or manufactured with a temperature override control or a secondary steam shut-off valve and because Fischer & Porter had a duty to warn the user of the inherent risk involved in operating the cooker without such safety devices.

 Fischer & Porter contends that it is not liable for the defective design of the control panel on the grounds that it did not design the panel but merely manufactured it in strict accordance with the specifications provided to it by the Brewery, a knowledgeable and experienced purchaser and user.

 The facts set forth in the affidavits, which affidavits remain uncontradicted, show that Fischer & Porter did not design the control panel nor was the panel manufactured defectively. Plaintiff merely contends that his own expert's report, showing no manufacturing defect, is not conclusive of the issue as to manufacturing defects but there is no affidavit or deposition which claims a manufacturing defect. A party opposing summary judgment on the grounds that there exists a genuine issue of material fact must respond to an affidavit with more than a general denial. Federal Rules Civil Procedure, Rule 56, Tunnell v. Wiley, 514 F.2d 971 (3d Cir. 1975); Lockhart v. Hoenstine, 411 F.2d 455, 459 (3d Cir. 1969). The Court may not assume the existence of a factual issue where none exists. Lockhart at 459. The plaintiff has had ample opportunity over the last two and one-half years to have Mr. Goldberg or any other expert examine the malt cooker to look for manufacturing defects. He has also had the opportunity to review all the reports concerning the accident. As heretofore stated, the plaintiffs have failed to respond to Fischer & Porter's affidavits with more than a general denial.

 The plaintiffs do not respond to those portions of Fischer & Porter's affidavits which establish that it was not responsible for the design of the control panel. Therefore, we must accept as a fact for the purpose of Fischer & Porter's summary judgment motion that the control panel was designed by the Brewery and not by Fischer & Porter. In addition, the plaintiffs have not controverted the affidavit of Fischer & Porter that the control panel was not so obviously dangerous that Fischer & Porter had an obligation to warn the ultimate user of the risk or to refuse to manufacture the panel without making modifications. The uncontroverted affidavits show that Fischer & Porter lack the expertise required to recognize risks which might arise in the operation of the control panel in the Brewery.

 Thus the Court is presented with the question as to whether a manufacturer who produces a component sub-assembly in accordance with the specifications of a buyer who has superior knowledge and experience in the field is liable for injury to a user caused by the defective design of the product.

 Federal courts sitting in diversity cases must ascertain and apply state law. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 822, 82 L. Ed. 1188 (1938). When an issue is presented and applicable state precedent is absent, Federal courts must predict the law of the state. Gerr v. Emrick, 283 F.2d 293, 294 (3d Cir. 1960), cert. den. sub nom., Pennsylvania Turnpike Comm. v. Gerr, 365 U.S. 817, 81 S. Ct. 698, 5 L. Ed. 2d 695 (1961).

 The Pennsylvania Supreme Court adopted § 402A of the Restatement (Second) of Torts in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). The Court has since modified application of § 402A by removing the term "unreasonably dangerous" and other negligence terms from § 402A jury instructions because it considers such an instruction misleading to a jury deciding issues of strict liability. Azzarello v. Black Bros., 480 Pa. 547, 391 A.2d 1020 (1978). The deletion of "unreasonably dangerous" from the jury instructions did not, however, abolish the concept inherent in § 402A that a manufacturer is not an insurer of his product. As the Supreme Court stated in Azzarello :

While this expansion of the supplier's responsibility for injuries resulting from defects in his product has placed the supplier in the role of a guarantor of his product's safety, it was not intended to make him an ...

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