Appeal from the Judgment entered in the Court of Common Pleas of Philadelphia County, Civil Division, No. 6526 APRIL TERM 1983.
James M. Marsh, Philadelphia, for appellant (at 1680) and for appellee (at 1892).
Maria Zulick, Philadelphia, for appellant (at 1892) and for appellee (at 1680).
Daniel J. Siegel, Philadelphia, for Lonon, appellee.
Cavanaugh, McEwen and Tamilia, JJ.
[ 371 Pa. Super. Page 294]
This case involves two consolidated appeals. All appellants appeal from judgment entered on May 26, 1987. The facts and procedural history surrounding the case are as follows.
In April of 1983, John and Rebecca Lonon brought an action against appellee/cross-appellant, The Pep Boys, Manny, Moe and Jack. The complaint alleged that on December 7, 1981, John Lonon purchased from Pep Boys a sixty-month automobile battery which Pep Boys installed in Lonon's automobile. When, on December 21, 1981, the battery failed to operate, John Lonon attempted to boost or
[ 371 Pa. Super. Page 295]
jump-start it from another battery. While Lonon was affixing the battery booster cables to the battery, the battery:
burst or exploded causing the plaintiff to be violently struck with battery fragments, causing sulfuric acid solution to be splashed onto his eyes, face and body and causing him to fall backwards onto the ground injuring his neck, back and left knee.
Complaint at p. 2. The initial complaint alleged breaches of both implied warranties of fitness for a particular purpose and merchantability, as well as trespass.
Later, on October 3, 1983, The Pep Boys filed a complaint seeking to join as an additional defendant General Battery Corporation, as designer, manufacturer and distributor of the battery in question. Pep Boys made the following averments:
If the allegations contained in Plaintiff's Complaint should be proved at the trial of this action, then plaintiffs [sic] injuries were cause[d] by the battery in that the said battery was defective in its design and/or manufacture and/or it lacked adequate warnings and instructions, and/or it was not properly tested or inspected and/or it was in breach of express or implied warranty and such defective condition, lack of warning, failure to inspect or breach of warranty was the result of acts, ommissions [sic], or other conduct of additional defendant, General Battery Corporation.
Complaint to join additional defendant at pp. 2-3. The Pep Boys demanded that the Lonon's complaint be dismissed or, in the alternative, that sole liability be found against the additional defendant or that there be a finding of contribution or indemnity from the additional defendant.
At trial, in February of 1986, appellee Lonon produced an expert who theorized that an internal spark caused by a defective weld in the battery had produced the explosion. General Battery offered expert testimony to the effect there was no defect in the battery. Instead, the expert opined Lonon's failure to heed the warning on the battery which advised ...