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filed: January 29, 1988.


Appeal from the Judgment entered March 5, 1985 in the Court of Common Pleas of Lackawanna County, Civil Division, at No. 80 Civ. 2029.


Nicholas S. Mattise, Scranton, for appellants.

Stephen W. Saunders, Scranton, Pittsburgh, for appellee.

Cirillo, President Judge, and Brosky, Wieand, Olszewski, Del Sole, Montemuro, Tamilia, Popovich and Johnson, JJ. Wieand, J., files a dissenting opinion. Olszewski, J., files a concurring and dissenting statement.

Author: Del Sole

[ 370 Pa. Super. Page 614]

We consider an appeal from the judgment entered in Appellee's favor in a products liability action. Following the denial of post-trial motions and judgment, an appeal to this Court was filed in which a panel of this Court affirmed the trial court. We have granted reargument, however, for three principal reasons:

1. to clarify the role which "state of the art" evidence, including evidence of industry custom and federal safety standards, plays within the context of a strict liability action;

2. to re-examine the rule which prohibits hearsay statements appearing in learned treatises and other informational material from being admitted into evidence and used as substantial proof of the matters to which they relate; and,

3. to determine the admissibility of evidence of similar prior accidents to show constructive, post-sale notice of a defective product.

The underlying facts of this case are as follows. On April 20, 1978, Appellant-Henry Majdic (Majdic) was employed by National Standard Company. Majdic's duty on that date was to operate a power press which was designed, manufactured, and sold by Appellee-Cincinnati Machine

[ 370 Pa. Super. Page 615]

Company (Cincinnati). The power press was utilized to perform various functions in conjunction with the punching, stamping, bending, or sheering of metal. In operating the press, Majdic hand fed sheet metal between the dyes attached to the ram and bed of press, which shaped and formed the metal.*fn1 The procedure entailed further steps which necessitated Majdic to reach into the machine to remove the work in process at least ten times. The power press, however, was not equipped with a guard to prevent an operator's hands from coming in contact with the point of operation. Likewise, no safety feature was attached to bar the operation of the press while the user's hands were between the ram and bed. No warning signs were posted on the machine advising of the danger involved in exposing one's hands to the point of operation.

On the date in question, the ram of the power press descended upon Majdic's right hand as he operated the machine. Thereafter, on April 8, 1980, Majdic and his wife, Ann, commenced an action against Cincinnati, the manufacturer of the power press, for the injuries he received from the accident. Three theories of recovery were asserted: negligence, breach of implied and expressed warranties, and strict liability. The action, however, was tried solely on the strict liability theory. By his complaint, Majdic contended that Cincinnati had manufactured and sold the press in a defective condition. This averment was based on the Restatement (Second) of Torts § 402A.

It was Majdic's position at trial that the power press was defectively designed inasmuch as it did not contain a guard which would have prevented the operator's hands from entering the point of operation. In addition, Majdic claimed that the machine was defective since it was not equipped with a mechanism to prevent operation of the press while the user's hands were in the pinchpoint. Further, the lack of a warning of the danger involved in placing one's hand in

[ 370 Pa. Super. Page 616]

    the work area was cited as a ground for the claim of defective design.

During the course of trial, Cincinnati did not dispute Majdic's allegation that the power press had not been equipped with guards and warnings discussed, supra. Rather, Cincinnati maintained that the press brake was a general purpose, multifunctional unit which was unequipped with dies and had no point of operation when sold. Thus, Cincinnati claimed that only Standard Machine Company, which incorporated the press brake into its manufacturing system, could determine and install the guards and warnings necessary for the particular function assigned to the press. (Appellant's Brief, 12). Cincinnati posited that, for this reason, the responsibility for providing the guards and warnings rested solely with Standard Machine Company, Majdic's employer. The verdict returned by jury was in Cincinnati's favor. Majdic filed a Motion for a New Trial which contained assignments of error allegedly committed by the trial court in its evidentiary rulings.

Before beginning an analysis of the evidentiary rulings involved, it is important that we remain mindful of the broad and sound social policy which underlies a seller's liability as established by the Restatement (Second) of Torts, § 402A. Section 402A provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) the rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

[ 370 Pa. Super. Page 617]

The social policy sought to be effected by the implication of the seller's liability is very basic, very simple and very sound. As between an innocent user of a product and a manufacturer or seller who is engaged in the business of manufacturing or selling a product, risk of loss for injuries resulting from the use of a defective product shall be borne by the manufacturer and/or seller. Salvador v. Atlantic Boiler Co., 457 Pa. 24, 319 A.2d 903, 907 (1974). See: Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966) (§ 402A adopted as the law of Pennsylvania).

With this guiding principle in mind, one can readily analyze the application of liability under § 402A. In a product liability case, principles of negligence have no place. Dambacher By Dambacher v. Mallis, 336 Pa. Super. 22, 27, 485 A.2d 408, 428 (1984). Liability does not focus upon a manufacturer's reasonableness in the design or manufacture of the product. Nor does it concern the manufacturer's use of "state of the art" concepts. Rather, liability rests where there is a defect in the product which caused injury to the user. Whether or not the defect was known or could have been anticipated at the time of the design or manufacture is of no concern. Id.

[ 370 Pa. Super. Page 618]

Section 402A does contain the term "unreasonably dangerous," which arguably introduces negligence concepts into products liability cases. However, our Supreme Court has explained that that term was included within § 402A "to foreclose any argument that the seller of a product with inherent possibilities for harm would become 'automatically responsible for all the harm that such things do in the world.'" Berkebile v. Brantly Helicopter Company, 462 Pa. 83, 95, 337 A.2d 893, 900 (1975) (quoting Prosser, Strict Liability to the Consumer in California, 18 Hast.L.J. 9, 23 (1966)). Later, in Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978), the term "unreasonably dangerous" was found to impose on the trial court the responsibility of determining "as a matter of law and by resolving considerations of 'social policy', whether 'the risk of loss should be placed upon the supplier.'" Dambacher, Page 618} supra, 336 Pa. Superior Ct. at 59-60, 485 A.2d at 426 (quoting Azzarello, supra, 480 Pa. at 556, 391 A.2d at 1025). We now consider the propriety of the evidentiary rulings challenged by Majdic on appeal.

I. "State of the Art" Evidence

We are mindful that questions concerning the admission and exclusion of evidence are vested within the trial court's discretion. Absent an abuse of that discretion, such rulings will not be reversed. Burch v. Sears, Roebuck and Co., 320 Pa. Super. 444, 456, 467 A.2d 615, 621 (1983). In assessing the propriety of the trial court's actions, a fundamental consideration in determining the admissibility of evidence is its relevance. Evidence is relevant if it tends to make a fact at issue more or less probable. Martin v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983).

Over Majdic's objection, Joseph L. Schwalje was permitted to testify concerning the custom in the industry in 1949 with respect to power press brakes. Cincinnati sold the press which injured Majdic to National Standard Machine in 1949. The witness testified that it was customary practice at that time for an employer or another party implementing the press brake into a metal forming system to provide the necessary safety devices. Further, Schwalje was permitted to refer to the 1973 American National Standards Institute (ANSI) Safety Standards for power presses to demonstrate that the standard in 1973 was the same as the trade custom prevalent in 1949.

At trial, Majdic argued that evidence of industry practices or trade customs was inadmissible in strict liability cases since it related to the reasonableness of a manufacturer's conduct. The trial court rejected this argument and found the testimony to be relevant as to whether the press brake was defective at the time it was sold to National Standard. The written 1973 ANSI reports were excluded from evidence; however, Schwalje was permitted to refer to them in order to determine the industry custom during 1949.

Recently, our Supreme Court in Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590

[ 370 Pa. Super. Page 619]

(1987), considered the identical issue presented by Majdic -- the admissibility of custom and usage as well as industry standards in a products liability case. In Lewis, the plaintiff was injured while using a control box to operate an overhead hoist. The plaintiff stumbled and struck one of the control buttons, causing the overhead hoist chain to disengage, swing forward, and hit both of his legs. During trial, the trial court admitted the plaintiff's evidence that if the control box had been designed in a different fashion, the accident would have been prevented. The defendant attempted to put into evidence a publication of the American Society of Mechanical Engineers, which set forth standards with respect to the manufacture of electric hoists and other industrial lifting equipment. Likewise, the defendant sought to introduce evidence by an expert witness that at least ninety percent of the electric hoists manufactured in this country had control panels devoid of safety guards around the activating buttons. Both types of evidence were excluded by the trial court on grounds that such evidence injected into the case concepts of negligence. On appeal the Superior Court upheld the trial court's ruling and our Supreme Court affirmed.

In this bellwether decision, the Pennsylvania Supreme Court noted that there existed a general consensus among the various jurisdictions that the manufacturer's due care has no bearing in a products liability case. However, there is a discrepancy among the courts with respect to the relevance and admissibility of evidence demonstrating industry standards, customs and practices of the design of products. Id., 515 Pa. at 342, 528 A.2d at 593. After embarking upon an analysis of the treatment of such evidence among our sister states, the Lewis court opined:

[ 370 Pa. Super. Page 620]

[h]aving reached the conclusion that evidence of industry standards relating to the design of the control pendant involved in this case, and evidence of its widespread use in the industry, go to the reasonableness of the appellant's conduct in making its design choice, we further conclude that such evidence would have improperly Page 620} brought into the case concepts of negligence law. We also conclude that such evidence would have created a strong likelihood of diverting the jury's attention from the appellant's control box to the reasonableness of the appellant's conduct in choosing its design. For those reasons we conclude that the trial court correctly ruled the evidence to be irrelevant and hence inadmissible.

Id., 515 Pa. at 343, 528 A.2d at 594. (Emphasis supplied).

Further, the Concurring Opinion of Mr. Justice Larsen adds:

[t]he injection of industry standards into a design defect case would be not only irrelevant and distracting, but also, because of the inherently self-serving nature of 'industry standards', would be highly prejudicial to the consumer/plaintiff. By our determination today, we have made it clear that a manufacturer cannot avoid liability to its consumers that it injures or maims through its defective designs by showing that 'the other guys do it too.'

Id., 515 Pa. at 344, 528 A.2d at 595.

We are aware that there exists in Pennsylvania cases which have discussed, and even suggested, that custom or usage and state of the art, as well as similar matters, should be admissible in design/defect cases. It is abundantly clear that the rationale employed in this body of cases has been expressly rejected by Lewis. Likewise, to the extent that the dicta in the recent panel decision of this Court in Foley v. Clark Equipment Co., 361 Pa. Super. 599, 523 A.2d 379 (1987) seems to suggest that a change in the law in this area would be desirable, we disapprove of that language.

For the reasons cited above, we reverse the trial court's decision to admit into evidence testimony concerning the custom in the industry during 1949 as it related to power brakes. Further, we hold that the trial judge improperly permitted evidence of the 1973 ANSI Safety Standards ...

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