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July 28, 1987

Keith E. Whitmore
Bobst Group, Inc. and American Bobst Holding, Inc.

The opinion of the court was delivered by: BECHTLE


 Presently before the court are defendants' motions to alter or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, for judgment notwithstanding the verdict pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, for a new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure, to stay execution of or on any proceeding to enforce the judgment pursuant to Rule 62(b) of the Federal Rules of Civil Procedure, and plaintiff's petition for delay damages pursuant to Pennsylvania Rule of Civil Procedure 238. For the reasons stated herein, all of defendants' motions and plaintiff's petition will be denied.


 Plaintiff, Keith Whitmore, injured his right hand on August 14, 1984, in an industrial accident. At the time of the accident he was employed by the Denney-Reyburn Company in West Chester, Pennsylvania, as a printing press machine ("press" or "press machine") operator. The press, a New Era 12 x 12, produces printed tags, stickers, labels and similar packaging items which are formed to a specified size in what is known as the toggle head area of the press. At the time of the accident plaintiff was attempting to clear a paper jam at the toggle head area and a die descended upon three fingers of his hand inflicting crush-type injuries.

 Plaintiff had been operating this particular press for approximately one year before his injury in 1984. The press could be started and stopped using either on/off buttons on the press or with levers assembled on the operator's side of the press, along a common shaft that runs parallel to the length (40 to 45 feet) of the press. The levers were brake levers which were used to bring the moving parts of the press to a halt without turning off the power to the press. When the clutch was disengaged by means of one of these levers bringing the operations of the press to a halt, the press continued to be energized (the power was still on). Thus, when plaintiff stopped the press by means of the lever and reached into the toggle head area, the press was still operational. As the plaintiff reached into the unguarded toggle head area, the press suddenly started up. No explanation has been established as to why this happened. Plaintiff was unable to withdraw his hand fast enough to avoid injury.

 At trial, plaintiff contended that the press machine was defective in that it lacked features essential to its safe use. Specifically, plaintiff contended and offered evidence: (1) that the toggle head area, where the die exerted a pressure of between 10,000 and 20,000 pounds, should have been guarded; (2) that the press should have been equipped with a device or devices that emitted audible and/or visual warnings that the still press machine was about to become operational; and (3) that there should have been printed warnings in the area of the toggle head advising of the danger of putting a hand into that area while the press' power was still on.

  The press which injured plaintiff's hand had been manufactured, sold and delivered to plaintiff's employer in 1945 by the New Era Manufacturing Company ("New Era"). Two former officers of New Era formed Powers & Eaton Industries, Inc. ("Powers & Eaton") and in February, 1965, New Era became a division of Powers & Eaton and New Era ceased to exist. See P-71(A) and (B). On June 30, 1969, Powers & Eaton changed its name to Star-New Era, Inc. ("Star-New Era"). See P-108(A) through (C). On May 19, 1971, Star-New Era sold its assets involved in the manufacture, sale and maintenance of its press machine lines to Bobst-Champlain, Inc. ("Bobst-Champlain"). See P-94(A) through (I). A few years later on June 27, 1974, Star-New Era dissolved and ceased to exist. See P-72(A) and (B). From May or June, 1971 through July, 1978, Bobst-Champlain continued to manufacture and sell this line of 12 x 12 presses. The predecessor companies of Bobst-Champlain have continued to service New Era presses and to sell parts to present owners of New Era presses. Plaintiff introduced into evidence pages from two different 1986 New Jersey Bell Telephone Directories which contain listings for the "New Era Products Department of Bobst-Champlain." See P-119 and P-120. On December 29, 1982, Bobst-Champlain merged into defendant American Bobst Holding, Inc. ("American Bobst") with a complete transfer of all assets and a dissolution of Bobst-Champlain. See P-124(A) through (I). Defendant Bobst Group, Inc. ("Bobst Group") is a part of American Bobst.

 This case was tried before a jury from October 21 to October 24, 1986. The case was submitted to the jury by way of special interrogatories for its verdict. The jury answered those interrogatories and rendered a verdict in plaintiff's favor on October 24, 1986, by finding that the press machine was defective because it did not have a guard; because it did not have visible or audible warnings that would warn an operator that it was about to start up from a stopped position and because it did not have a printed warning to the operator to keep his or her hands out of the toggle head area. The jury also found that at least one of these defective conditions was the proximate cause of plaintiff's injuries; that the plaintiff did not assume the risk of injuries to his hand; and, that plaintiff was entitled to recover damages in the amount of $ 100,000.00. Judgment was entered on these verdicts on October 28, 1986, and it is from this judgment that defendants seek relief by means of the post-trial motions now before the court.

 At the close of plaintiff's case-in-chief and at the close of all of the evidence, the defendants made a timely motion for a directed verdict on the issue of successor liability. With respect to the issue of the "product line" exception to the general rule of corporate successor non-liability, the court denied defendants' motion for directed verdict. The court, applying the product line exception as Pennsylvania law, ruled that plaintiff had made out his prima facie case that Bobst Group and American Bobst were successors in liability to Star-New Era and that Star-New Era in turn was the successor in liability to New Era, the manufacturer of the machine. At the close of the evidence, there being no dispute as to the various entities and their role in the chain of existence, the court concluded that there was no genuine issue as to those facts and that plaintiff was entitled to a ruling, as a matter of law, that successor liability was established.

 Defendants contend that this court erred in: (1) granting plaintiff's motion for a directed verdict on the issue of the product line theory of liability; and (2) denying defendants' motion for a directed verdict on that issue. Defendants ask the court to: (1) grant their motion for judgment notwithstanding the verdict; (2) vacate and set aside the judgment on the verdict; and, (3) enter judgment in favor of defendants. Defendants ask in the alternative that the court set aside the jury verdict and grant defendants a new trial on the issues of defect, substantial change and assumption of risk. Defendants raise numerous issues and arguments in their over 130 pages of post-trial motions and supporting memoranda. Since the arguments contained in defendants' memoranda are so numerous and the court addressed many or all of them at trial, the court will not discuss each of them here. The court, however, believes a discussion of its ruling on the issue of the "product line" theory of liability is appropriate.


 A. Standard For Judgment N.O.V.

 The standard for granting a motion for judgment n.o.v. is the same as that for a directed verdict. E. J. Stewart, Inc. v. Aitken Products, Inc., 607 F. Supp. 883, 888 (E.D.Pa. 1985); Neville Chemical Company v. Union Carbide Corp., 422 F.2d 1205, 1210 n.5 (3d Cir. 1970), cert. denied, 400 U.S. 826, 27 L. Ed. 2d 55, 91 S. Ct. 51 (1970). The jury's verdict will be set aside only if manifest injustice will result if such verdict is allowed to stand. To grant such a motion the court must find as a matter of law that there can be but one reasonable conclusion as to the proper judgment. Woodward & Dickerson, Inc. v. Yoo Hoo Beverage Co., 502 F. Supp. 395, 397 (E.D.Pa. 1980), aff'd mem., 661 F.2d 916 (3d Cir. 1981). In ruling on defendants' motion the court should view the evidence, and all inferences therefrom, in a light most favorable to plaintiff. Thomas v. E. J. Korvette Inc., 476 F.2d 471 (3d Cir. 1973).

 B. Corporate Successor Liability

 Under Pennsylvania law *fn1" the general rule as to corporate successor liability is that:

. . . when one company sells or transfers all its assets to another company, the latter is not liable for the debts and liabilities of the transferor simply by virtue of its succession to the transferor's property. In order to find that this general rule is not applicable and that the transferee does acquire such liability, one of the following must be shown: (1) the purchaser expressly or impliedly agrees to assume such obligation; (2) the transaction amounts to a consolidation or merger; (3) the purchasing corporation is merely a continuation of the selling corporation; or (4) the transaction is fraudulently entered into to escape liability.

 Husak v. Berkel, Inc., 234 Pa. Super. 452, 456-57, 341 A.2d 174, 176 (1975). See also, Polius v. Clark Equip. Co., 802 F.2d 75 (3d Cir. 1986), reh'g and reh'g en banc denied, (October 23, 1986); Philadelphia Elec. Co. v. Hercules, Inc., 762 F.2d 303, 308-09 (3d Cir. 1985); Knapp v. North American Rockwell Corp., 506 F.2d 361, 363-64 (3d Cir. 1974), cert. denied, 421 U.S. 965, 44 L. Ed. 2d 452, 95 S. Ct. 1955 (1975); Jacobs v. Lakewood Aircraft Serv., Inc., 512 F. Supp. 176, 179 (E.D.Pa. 1981); Savini v. Kent Mach. Works, Inc., 525 F. Supp. 711 (E.D.Pa. 1981); Woody v. Combustion Eng'g, Inc., 463 F. Supp. 817, 819 (E.D.Tenn. 1978) (applying Pennsylvania law).

 Plaintiff does not assert that any of these four traditional exceptions to the general rule of the non-liability of a successor corporation apply to the instant facts. Instead plaintiff asserted that the policies underlying strict tort liability for defective products compel a fifth exception to the general rule: the product line exception or product line theory. This court must examine whether Pennsylvania law recognizes the product line exception.

 C. Predicting State Law Re: Product Line Exception

 In ascertaining state law in federal diversity cases, the court must look to the state's highest court. Connecticut Mut. Life Ins. Co. v. Wyman, 718 F.2d 63, 65 (3d Cir. 1983). Since the Pennsylvania Supreme Court has yet to decide this important issue, this court once again finds itself in the difficult position of having to predict Pennsylvania law. *fn2"

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