The opinion of the court was delivered by: BRODERICK
In this action plaintiff, Brian G. Wright (plaintiff), alleges that defendant, Federal Machine Co. (Federal), is liable in negligence, assumpsit, and under § 402A of the Restatement of Torts (Second), for his injuries that occurred when his arm was caught in a leather press that he was operating in the course of his employment at McAdoo and Allen, Inc. (McAdoo) of Quakertown, Pennsylvania. In connection with the plaintiff's 402A action, he contends that Federal is liable because it is a successor in interest to Carley Machine Co. (Carley), the manufacturer of the press and that Federal is also liable because it sold replacement parts for the press to McAdoo without having offered to provide a safety guard for the moving parts and without having provided a warning that the parts were dangerous without a guard.
After discovery, Federal filed this motion for summary judgment claiming that it is not a successor in interest to Carley and that it owes no duty as the mere supplier of replacement parts to provide a safety guard or a warning for the fifty-year-old machine which it did not manufacture and which it has never seen. Plaintiff filed a cross-motion to strike Federal's motion because it was not filed within a sixty-day period established by the Magistrate. The Court denied plaintiff's cross-motion on November 19, 1981 and now, for the reasons hereinafter set forth, the Court will grant Federal'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 the uncontroverted facts set forth in depositions and affidavits, the Court finds that there is no genuine issue of material fact. The uncontroverted facts may be summarized as follows:
Plaintiff was injured on October 2, 1978, his first day on the job for McAdoo, when he reached down into the leather press he had been operating to retrieve a hide which had fallen. The press was somehow activated, spinning rollers which caught and injured plaintiff's arm. Plaintiff's complaint alleges that his injuries were caused by several design defects in the press, including an absence of safety guards over the rollers, absence of a shutoff switch and absence of a safety release on the clutch lever.
The leather press, a "Quirin 70 inch", was manufactured by Carley in about 1922 and sold to McAdoo at that time. In 1971 Carley apparently went out of business and Federal purchased some items from Carley for $ 600.00, including a small inventory of parts for the "Quirin 70 inch" press. In 1972 and 1973, Federal sold some of these parts to McAdoo, including two "wringer" rollers which caught plaintiff's arm.
We are mindful of our responsibility to resolve in favor of the non-moving party any doubt concerning whether there is a genuine issue of material fact. Our examination of the affidavits and depositions shows that Federal has met its burden of showing that there is no genuine issue of material fact.
Plaintiff filed the affidavit of George F. Dale, plaintiff's counsel in the action. Mr. Dale asserts that Federal "may" have designed or manufactured parts for the "Quirin 70 inch" press and that Federal has continued the enterprise of Carley. Mr. Dale, however, provides no evidentiary support for his statements. Mr. Dale further concludes that the sale of two wringer rollers without providing either a safety guard or a warning constitutes a sale of a defective part. Mr. Dale's affidavit consists of nothing more than unsubstantiated legal conclusions, which are not sufficient to create an issue of material fact within the meaning of F.R.Civ.P. 56(e). His affidavit presents no material facts which contradict Mr. Canty's affidavits and for this reason it is nothing more than a general denial. A party opposing summary judgment on the ground that there exists a genuine issue of material fact must respond to the moving party's depositions and affidavits with more than just a general denial. F.R.Civ.P. 56(e). Tunnell v. Wiley, 514 F.2d 971 (3d Cir. 1975); Lockhart v. Hoenstine, 411 F.2d 455, 459 (3d Cir. 1969).
The Court must accept as a fact for the purpose of this summary judgment motion the statements set forth in Mr. Canty's affidavits that Federal's sole connection with the plaintiff's injury was its purchase of parts from Carley and its resale of those parts, some of which were used on the press which injured the plaintiff.
The Court is presented with two legal issues: (1) whether Federal is liable under § 402A because it is a successor in interest to Carley; and (2) whether Federal may be liable under § 402A because it sold replacement parts for a fifty-year-old machine which it did not design or manufacture, without providing safety devices or warnings.
This is a diversity action and the parties are in agreement that Pennsylvania law should be applied. The controlling Pennsylvania law concerning the 402A liability of a successor corporation has been most recently stated in Dawejko v. Jorgensen Steel Co., 290 Pa.Super. 15, 434 A.2d 106 (1981), cited by my colleague, Judge Bechtle, in Savini v. Kent Machine Works, Inc., 525 F. Supp. 711, E.D.Pa. 1981, wherein Judge Bechtle states the general rule:
... when one company sells or transfers all its assets to another company, the latter is not liable for the debts and liabilities of the transferor simply by virtue of its succession to the transferor's property. In order to find that this general rule is not applicable and that the transferee does acquire such liability, one of the following must be shown: (1) the purchaser expressly or impliedly agrees to assume such obligation; (2) the transaction amounts to a consolidation or merger; (3) the purchasing corporation is merely a continuation of the selling ...