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HELEN M. WALASAVAGE v. TONY MARINELLI AND JOSEPH MARINELLI (09/21/84)

filed: September 21, 1984.

HELEN M. WALASAVAGE, ADMINISTRATRIX OF THE ESTATE OF FRANCIS R. WALASAVAGE, APPELLANT,
v.
TONY MARINELLI AND JOSEPH MARINELLI, D/B/A CITY WELDING AND MANUFACTURING COMPANY, A/K/A CITY WELDING, V. GEORGE MCCLYMONDS, MARK MCCLYMONDS, FRANK A. WEBER, THE CHESTER ENGINEERS, INC., ROBINSON SERVICE AND EQUIPMENT COMPANY, INC., MARONA CONSTRUCTION COMPANY, MGM SPRING BRAKES, INC. V. ROBINSON SERVICE & EQUIPMENT, INC.; HELEN M. WALASAVAGE, ADMINISTRATRIX OF THE ESTATE OF FRANCIS R. WALASAVAGE V. TONY MARINELLI AND JOSEPH MARINELLI, D/B/A CITY WELDING AND MANUFACTURING COMPANY, A/K/A CITY WELDING V. GEORGE MCCLYMONDS, MARK MCCLYMONDS, FRANK A. WEBER, THE CHESTER ENGINEERS, INC. ROBINSON SERVICE AND EQUIPMENT COMPANY, INC., MARONA CONSTRUCTION COMPANY, MGM SPRING BRAKES, INC. V. ROBINSON SERVICE & EQUIPMENT, INC., APPELLANT. HELEN M. WALASAVAGE, ADMINISTRATRIX OF THE EST. OF FRANCIS R. WALASAVAGE V. CITY WELDING AND MANUFACTURING COMPANY, INC., APPELLANT, V. GEORGE MCCLYMONDS, MARK MCCLYMONDS, FRANK A. WEBER, THE CHESTER ENGINEERS, INC., ROBINSON SERVICE AND EQUIPMENT COMPANY, INC., MARONA CONSTRUCTION COMPANY, MGM SPRING BRAKES, INC. V. ROBINSON SERVICE & EQUIPMENT INC., TONY MARINELLI AND JOSEPH MARINELLI



No. 874 Pittsburgh, 1982, Appeal from the Judgment of the Court of Common Pleas, Civil Division-Law, of Butler County, at No. C.P. 82-1234 Book 184, Page 273. No. 985 Pittsburgh, 1982, Appeal from the Order dated July 12, 1982 of the Court of Common Pleas, Civil Division-Law, of Butler County, at No. C.P. 82-1234, Book 184, Page 273. No. 1062 Pittsburgh, 1982, Appeal from the Judgment of the Court of Common Pleas, Civil Division-Law, of Butler County, at No. C.P. 82-1234, Book 184, Page 273.

COUNSEL

Lee C. McCandless, Butler, for Robinson, appellant (at No. 874) and appellee (at Nos. 985 and 1062).

Thomas B. Rutter, Philadelphia, for Walasavage, appellant (at No. 985) and appellee (at Nos. 874 and 1062).

Richard Audino, New Castle, for City Welding, appellant (at No. 1062) and appellee (at Nos. 874 and 985).

Brosky, Del Sole and Montgomery, JJ.

Author: Montgomery

[ 334 Pa. Super. Page 402]

On August 25, 1978, Francis R. Walasavage was working beside a chute at the rear of a triaxle dump truck which was owned by George McClymonds, and was being operated by Mark McClymonds. Mr. Walasavage was controlling the flow of hot asphalt from the truck bed, through the chute, and into a sewer trench when the entire tailgate of the truck suddenly opened, burying him in hot asphalt. He lost

[ 334 Pa. Super. Page 403]

    his life as a result of the injuries he received. The truck's tailgate assembly was manufactured by City Welding & Manufacturing Company (hereinafter referred to as "City Welding"). The dump truck had been sold to George McClymonds by Robinson Service & Equipment, Inc. (hereinafter referred to as "Robinson").

Subsequently, Helen M. Walasavage, widow of Francis, and Administratrix of his estate, instituted this wrongful death and survival action against City Welding as the result of her husband's death. City Welding joined George and Mark McClymonds, the owner and the operator of the dump truck as additional defendants. The McClymonds then brought Robinson into the case as an additional defendant. City Welding also joined several other persons and entities as additional defendants. The lower court directed verdicts in favor of all such other parties. They are no longer involved in the case or the instant appeal, and we are presented with no issues regarding them.

The case was bifurcated for trial. Thus, the jury considered the possible liability of City Welding and Robinson on strict liability grounds, and the possible liability of George and Mark McClymonds on theories of negligence. A verdict in favor of the Plaintiff was returned against City Welding and Robinson, and the jury found both McClymonds to be free of liability. Subsequently, the lower court granted Robinson's motion to mold the verdict, ordering that Robinson was entitled to indemnity from City Welding as a matter of law.

After post-trial proceedings in the lower court, the Plaintiff, Robinson, and City Welding have all filed appeals to our Court which have been consolidated for our consideration. We shall review the claims of each appellant, below.

Appeal of Robinson Service and Equipment, Inc.

(No. 874 Pittsburgh, 1982)

Robinson first argues that it should not have been held liable under Section 402A of the Restatement (Second) of Torts, as it was not a "seller" of dump trucks within the

[ 334 Pa. Super. Page 404]

    meaning of that term in the Restatement section. Robinson claims that it acted only as an intermediary between George McClymonds and City Welding by installing the dump truck body on the chassis and cab it had sold to McClymonds. Robinson further contends that as the seller of the chassis and cab, it cannot be held liable for an injury which resulted from a defect in the dump body manufactured according to the specification of George McClymonds, which it merely relayed to City Welding on behalf of McClymonds.

In Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), the Pennsylvania Supreme Court adopted Section 402A of the Restatement ...


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