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LUZZADER v. DESPATCH OVEN CO.

December 30, 1986

BETTY JANE LUZZADER, Executrix of the Estate of DAVID P. LUZZADER, Deceased, Plaintiff,
v.
DESPATCH OVEN COMPANY and ECLIPSE, INC., Defendants, v. HONEYWELL, INC., Third-Party Defendant



The opinion of the court was delivered by: COHILL

 Plaintiff, Betty Jane Luzzader, brought this diversity action against defendants, Despatch Oven Company ("Despatch") and Eclipse, Inc. ("Eclipse"), based on theories of strict liability, intentional tort, negligence, breach of warranty and loss of consortium for the wrongful death of her husband, David P. Luzzader. Plaintiff's decedent was seriously injured when a heat-treating oven exploded at the Brockway Glass Company ("Brockway") in Washington, Pennsylvania, where he was employed. The oven, a large, natural gas-fired furnace, was used to heat molds which are installed in glass bottle-making machines. It was designed and manufactured by Despatch and sold to Brockway in March of 1965. The oven contained an atmospheric box burner, manufactured by Eclipse, which regulated the supply of gas that entered the oven-burning chamber. It also contained a protectorelay or combustion safeguard, manufactured by Honeywell, Inc. ("Honeywell"), which constituted part of a safety system intended to prevent explosions caused by improper or unsafe oven operation. The Despatch oven was connected to the Brockway plant's system of ductwork to provide for fresh air intake and exhaust. Deposition of Robert Jung at 20-21. Since the oven was gas-fired, it was also connected to the plant's gas pipeline system. Deposition of Gregory Allen Bushko at 28.

 The oven exploded on December 2, 1980 while Mr. Luzzader, a foreman at Brockway, was checking it. Plaintiff alleges that the oven exploded because the "spud" which was screwed into the atmospheric burner box became unthreaded and fell out, permitting an explosive amount of gas to enter the oven. On May 1, 1982, Mr. Luzzader committed suicide, allegedly because of the intolerable injuries he sustained in the explosion.

 This action was filed on December 1, 1981. Thereafter, defendants Despatch and Eclipse filed cross-claims against each other for indemnification and/or contribution. Defendant Eclipse also filed a third-party complaint against Honeywell for indemnification and/or contribution in the event that Eclipse was found liable. Honeywell, in turn, filed a similar third-party cross-claim against Despatch. Collectively, the defendants have moved for summary judgment on the grounds that plaintiff's claim is barred by Pennsylvania's 12-year statute of repose, 42 Pa. C.S.A. § 5536 which provides, in pertinent part, as follows:

 
§ 5536. Construction projects
 
(a) General rule. -- . . . a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
 
(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
 
(2) Injury to property, real or personal, arising out of any such deficiency.
 
(3) Injury to the person or for wrongful death arising out of such deficiency.
 
(4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).
 
. . .
 
(c) No extension of limitations. -- This section shall not extend the period within which any civil action or proceeding may be commenced under any provision of law.

 Here, the Despatch oven was incorporated into the Brockway plant more than 15 years before the accident occurred. Thus, the undisputed chronology of events leading to this litigation is such that if § 5536 is applicable, plaintiff's claim is time-barred.

 Plaintiff argues that this statute does not apply because (1) it is a statute of limitations which was waived by the defendants; (2) the oven did not constitute an "improvement to real estate" within the meaning of § 5536; and (3) defendants Eclipse and Honeywell are manufacturers of component parts ...


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