The opinion of the court was delivered by: MARSH
This is a products liability action in which the defendant, Harley Davidson, Inc., has filed a motion for summary judgment. After hearing and consideration of the arguments of counsel, and upon review of the pleadings, affidavits, depositions and briefs submitted, we find that there still remains a disputed issue of material fact which precludes the granting of a motion for summary judgment.
In a motion for summary judgment, all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. First Pa. B. & T. Co. v. United States Life Ins. Co., 421 F.2d 959, 962 (3rd Cir. 1969). The burden is upon the moving party to demonstrate that no genuine issue as to any material fact exists and that said party is entitled to judgment as a matter of law.
As stated in 6 Moore's Federal Practice P 56.15(3) at pp. 56-463 to 467:
"The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which under applicable principles of substantive law, entitle him to judgment as a matter of law.
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Footnotes omitted.)
Judge Maris in Toebelman v. Missouri-Kansas Pipe Line Co., 130 F.2d 1016, 1018 (3rd Cir. 1942) stated:
"Upon a motion for summary judgment it is no part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried .... All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment. Weisser v. Mursam Shoe Corporation, 2d Cir. 1942, 127 F.2d 344."
The facts viewed in a light most favorable to the party opposing the motion are as follows:
Plaintiff, Jeffrey Bernotas, was injured on June 7, 1980, when the motorcycle he was riding collided with a telephone pole. At the time of the accident, plaintiff was operating a 1978 Harley Davidson Sportster, Model XLCH, motorcycle which he had purchased from a friend in March or April, 1979. This motorcycle was manufactured by the defendant and was equipped with a side kickstand on the left side of the motorcycle. On the day of the accident, the plaintiff had stopped briefly at a gasoline station and talked to a person who he thought he recognized (Deposition Tr. 31). He did not get off his motorcycle, but did put the kickstand down because he was talking to someone and sitting on the motorcycle (Deposition Tr. p. 32).
Plaintiff pulled out of the gas station and admittedly forgot to put the kickstand up. He travelled between 20 and 40 feet and heard the kickstand scraping on the ground as he leaned into a turn (Deposition Tr. pp. 32-33). The kickstand appeared to be jammed in the forward position so plaintiff tried to get some of his weight off the front wheel by sitting back further in his seat (Deposition Tr. p. 33).
However, the plaintiff was unable to control the motorcycle because the stand acted in a manner to hinder its movement and sent the motorcycle off at an angle hitting the telephone pole (Deposition Tr. p. 33), thereby causing injuries primarily to plaintiff's right leg which was broken in three places.
Plaintiff had previously owned other motorcycles and, on at least one occasion, when he forgot to put the kickstand up, it automatically moved up when the kickstand touched the road (Deposition Tr. pp. 38-39). A federal regulation requires manufacturers of motorcycles to provide said motorcycle with a kickstand which will automatically move rearward and upward upon contact with the road surface.
In Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 337 A.2d 893, 898 (Pa.1975), the Supreme Court of Pennsylvania set forth the elements of proof in a products liability suit as follows:
"Strict liability requires, in substance, only two elements of requisite proof: the need to prove that the product was defective, and the need to prove that the defect was a proximate cause of the plaintiff's injuries. Thus, the plaintiff cannot recover if he proves injury from a product absent proof of a defect .... Neither can plaintiff recover by proving a defect in the product absent proof of causation.... Also, plaintiff must prove the defect causing the ...