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filed: June 2, 1987.


Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Allegheny County at No. G.D. 81-5217.


Frederick N. Egler, Jr., Pittsburgh, for appellants.

Irving M. Portnoy, Pittsburgh, for appellee.

Cirillo, President Judge, and Rowley and Popovich, JJ. Cirillo, President Judge, concurs in the result.

Author: Popovich

[ 364 Pa. Super. Page 39]

This is an appeal from a judgment (verdict and delay damages) of $171,350.00 entered against the defendant and additional defendant, ITT Holub Industries and Cincinnati Fan and Ventilator Company, respectively.*fn1 We reverse.

[ 364 Pa. Super. Page 40]

The facts, viewed in a light most favorable to the verdictwinner, reveal that on the 26th day of May, 1979, the plaintiff James A. Staymates, Jr., as general foreman for Paul Bunyan Rustic Furniture Company, was making a tour of the plant to assess the progress of an order that had to be shipped that day. As he approached the sanding area, Robert Ault was feeding the automatic sander and Thomas Garrity was stacking the boards being emitted.

The dust and wood chips produced by the sanding action were carried, by means of a hose situated atop the sander through which air flowed, to a dust collector. The air stream (suction) was generated by a motorized impeller (fan) contained within the dust collector housing and gravity would cause the heavier, incoming wood particles to fall into a 55-gallon drum upon which the dust collector sat. The lighter particles would be propelled into a cloth bag, 19-square feet in size, attached by a ring clamp to the discharge port of the dust collector. The accompanying air would be expelled through the porous bag.

As the plaintiff stood eight to ten feet away from the dust collector, the cloth bag blew off and landed at his feet. He "instinctively" grabbed the bag and yelled to someone (Ault or Garrity) to "Shut it down." Then, with his arms fully extended, and a great deal of dust blowing in his face, he moved toward the discharge port to "capture as much dust into the bag or cut down as much flow of the dust into the air as [he] could" to prevent the tables (8-10) located nearby to dry for that day's delivery from being ruined. Next, as described by the plaintiff:

Neither the plaintiff nor any of the witnesses who testified could recall whether the dust collector had been turned off at the time of his injury. Even if it had been shut down, testimony indicated that the impeller blade rotated freely

[ 364 Pa. Super. Page 41]

    with the power off until it gradually came to a complete stop.

The entire incident took place within a few seconds and resulted in the plaintiff sustaining permanent injury to the fingers on his right hand.

On March 4, 1981, a three-count complaint in trespass was filed alleging the design and manufacture of a defective product (Ace Dust Collector, Model A-27) by ITT Holub Industries, and its ultimate sale or distribution, through Metwood Industrial (distributor) and First Seneca Bank and Trust Company (lessor), to the plaintiff's employer (lessee).

It was alleged that the "product's defective condition" was the proximate cause of the plaintiff's injury and was in existence "[a]t the time of the sale or distribution . . . by the Defendants." Thus, it was asserted, each was strictly liable for the resultant damages incurred. Further, the plaintiff sought recovery on the basis of negligence and breach of warranty by the named defendants as alternative grounds for his recoupment of damages.

On April 29, 1981, ITT Holub Industries filed a complaint to join Cincinnati Fan and Ventilator Company as an additional defendant on the grounds that it (Cincinnati Fan) "designed, manufactured, produced and sold the Dust Collector that is the subject of the Plaintiff's claim." For the reasons just recited, assuming that the product was found to be unfit or defective, ITT Holub Industries averred that Cincinnati Fan was solely liable.

After the interchange of interrogatories, the taking of depositions and the securement of relevant documents and reports, the case came to trial and resulted in a jury award in favor of the plaintiff and against the defendant and additional defendant. With the denial of post-verdict motions and the reduction of the verdict to judgment, this timely appeal followed.

The defendant and additional defendant, represented by the same counsel at trial and on appeal, raise five issues for our consideration. The first charges the trial court with

[ 364 Pa. Super. Page 42]

    error in refusing to submit the issue of the plaintiff's comparative negligence to the jury. This question, as noted by the plaintiff in his brief to us, is unprecedented in this Commonwealth given that the negligence phase of the case was premised only upon the provisions of Section 402A of the Restatement (Second) of Torts, and the liability aspect was based solely upon strict liability in tort. The appellants likewise agree that the question presented is one of first impression and would have us adopt the approach taken by a number of other jurisdictions*fn2 and apply the law of comparative negligence to strict liability cases involving a claimed defective product.

In this country, strict liability had its origin in the ancient rule that one who engaged in a business of supplying individuals with products, which might endanger their safety or property, owed a "special responsibility" to make sure that the product was not "defective" so as to be "unreasonably dangerous" to the user or consumer. Restatement (Second) of Torts ยง 402A, Comments f and g. This concept "represented a departure from, and an exception to, the general rule that a supplier of chattels was not liable to third persons in the absence of negligence or privity of contract." Id. at Comments b and l. Liability was based purely on the law of tort, i.e., a legal wrong committed upon the person or property of another independent of a contract. Black's Law Dictionary 1660 (4th Ed. 1968). Of course, ...

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