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VENDALE COAL COMPANY v. VOTO MANUFACTURING SALES COMPANY (06/11/86)

filed: June 11, 1986.

VENDALE COAL COMPANY, INC., APPELLANT,
v.
VOTO MANUFACTURING SALES COMPANY, BETHLEHEM STEEL CORPORATION, PITTSBURGH CONTRACTORS EQUIPMENT COMPANY AND CLARK EQUIPMENT COMPANY, APPELLEES



Appeal from the Order Entered April 10, 1985 in the Court of Common Pleas of Clarion County, Civil No. 805 of 1981 and 248 of 1982.

COUNSEL

Daniel R. Gigler, Pittsburgh, for appellant.

Howard W. White, Jr., Franklin, for Bethlehem Steel, appellee.

Eric N. Anderson, Pittsburgh, for Clark Equipment, appellee.

John H. Smith, Pittsburgh, for Pittsburgh Contractors, appellee.

Brosky, Olszewski and Popovich, JJ.

Author: Olszewski

[ 353 Pa. Super. Page 636]

This matter is before this Court on appeal from an order of the lower court granting appellees' motions for summary judgment and certifying the issues raised below as appealable pursuant to 42 Pa.C.S.A. Sec. 702(b). The relevant events giving rise to this appeal occurred on two separate occasions. On September 29, 1979 and later on March 9, 1980, appellant Vendale Coal Company, Inc., which is involved in surface mining operations, was operating its dragline when the boom cable snapped causing damages in excess of $69,000 to the component parts of the dragline. Consequently, appellant commenced two separate lawsuits

[ 353 Pa. Super. Page 637]

    against each of the four appellees; however, these actions were later consolidated for trial. In Counts I and II of its complaint, appellant stated causes of action for breach of implied warranties of merchantability and fitness for a particular purpose while Counts III and IV, respectively, stated claims for strict liability and negligence. Essentially, appellant alleged that the dragline, manufactured by Clark Equipment Company and distributed by Pittsburgh Contractors Equipment Company, was defectively designed and that this design caused the wire cable to break prematurely. In addition, appellant alleged that the wire cable used in the dragline operation, which was manufactured by Bethlehem Steel Corporation and distributed by Voto Manufacturing Sales Company, was defective. As a result of this defect, the cable broke causing a substantial amount of damage to the dragline.

In response to appellee Pittsburgh Contractors' motion for summary judgment, the trial court found that Counts I and II of the complaint did not set forth a cause of action since the implied warranties were expressly excluded from the purchase agreement for the sale of the dragline. The court further held that Count III did not set forth a cause of action since appellant, acting as a commercial buyer, was not entitled to recover economic losses through tort claims. This order granting summary judgment in favor of appellee Pittsburgh Contractors was entered on March 15, 1985. Contrary to the arguments of the remaining appellees, a review of the record reveals that no other judgment, similar to the one outlined above, was entered on the record with respect to these parties. Consequently, our decision in this case is only applicable to appellant and appellee Pittsburgh Contractors. See Pa.R.App.P. 301. On April 10, 1985, following appellant's request, the trial court certified the present appeal from the interlocutory orders pursuant to 42 Pa.C.S.A.Sec. 702(b). The notice of appeal was filed on May 2, 1985.

On procedural grounds, the appeal was challenged for the following reasons: (1) the ...


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