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RICHARD E. CUMMINS v. FIRESTONE TIRE & RUBBER CO. (07/05/85)

filed: July 5, 1985.

RICHARD E. CUMMINS, JR., APPELLANT,
v.
THE FIRESTONE TIRE & RUBBER CO., GOODYEAR TIRE & RUBBER CO., MACK TRUCKS, INC., MILL SERVICE, INC., BRAKE DRUM AND EQUIPMENT CO., VIVIAN YUKEVICH, KELSEY-HAYES CO., REDCO CORP., THE BUDD CO., TRAILMOBILE, INC., FRUEHAUF CORP., COLL TIRE DISTRIBUTORS, INC., FIRESTONE CANADA, INC., MOTOR WHEEL CORP., THE DAYTON RUBBER CO., ERIE MALLEABLE IRON CO., HEIL CO., WEBB CO., ALCOA ALUMINUM CORP., GUNITE CO. V. MCCLAIN AND CONNELLY AUTO REPAIR



Appeal from the Order of January 25, 1983 in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 82-08884.

COUNSEL

Robert A. Seewald, Pittsburgh, for appellant.

Lowell A. Reed, Jr., Pittsburgh, for Firestone Tire, appellee.

Howard K. Hilner, Pittsburgh, for Redco Corp., appellee.

Joseph A. Macerelli, Pittsburgh, for Trailmobile, Inc., appellee.

James F. Manley, Pittsburgh, for Fruehauf, appellee.

Scott E. Becker, Pittsburgh, for Firestone Canada, Inc., appellee.

David P. Helwig, Pittsburgh, for Heil Co., appellee.

Edward C. Schmidt, Pittsburgh, for The Budd Co., appellee.

Olszewski, Hester and Shiomos, JJ.*fn*

Author: Hester

[ 344 Pa. Super. Page 14]

The matter before us for review is an Order sustaining preliminary objections of three of the twenty appellees herein, Fruehauf Corporation (hereinafter "Fruehauf"), The Budd Company (hereinafter "Budd"), and The Heil Company (hereinafter "Heil").

The issue is whether appellant, who cannot identify the particular manufacturer of the tire and rim assembly which allegedly caused his injury, or in fact the offending product itself, can maintain an action against those manufacturers who produced substantially all of the particular parts of the machinery.

Under the circumstances of this case, we hold that appellant has failed to state a cause of action against these appellees.*fn1

On December 8, 1980, appellant entered a service garage to visit a friend-employee. While there, appellant was allegedly injured when a multi-piece tire and rim assembly exploded as it was being inflated. The wheel was being inflated by McClain Tire Service, which repaired and serviced the vehicles of Mill Service, Inc. as agent for Coll Tire Distributors Company.

The actual multi-piece assembly involved in the accident was irrevocably lost. After the accident, the service garage operator remounted the rim and tire parts without incident and returned them to the stream of commerce, but failed to notice the brand or manufacturer of the assembly.

Appellant's initial complaint, filed on April 30, 1982, alleged causes of action in negligence and strict liability against five appellees. By consent of court, appellant eventually filed three subsequent amended complaints, adding

[ 344 Pa. Super. Page 15]

    fifteen additional appellees and three more counts. Thus, the complaint, as amended, identified the following as appellees:

Manufacturers of truck wheel rims :

Firestone, Goodyear, Kelsey-Hayes, Redco, Budd, Firestone-Canada, Motor Wheel, Dayton Rubber, Erie Malleable, Webb, Alcoa and Gunite.

Owner of fleet of trucks :

Mill Service, Inc.

Manufacturers of truck trailers :

Trailmobile, Fruehauf and Heil

Manufacturer of truck tractors :

Mack Trucks

Supplier of truck tires and rims :

Brake Drum and Equipment and Coll Tire ...


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