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March 7, 1988

PPG Industries, Inc., Plaintiff,
Sundstrand Corporation, Defendant

The opinion of the court was delivered by: MENCER

 GLENN E. MENCER, United States District Judge

 This is a contract and tort action arising out of an contract for engineering design services performed for the plaintiff, PPG Industries, Inc. ["PPG"], by the defendant, Sundstrand Corporation ["Sundstrand"]. The complaint consists of five counts, the first of which is for breach of contract. The second count is for professional negligence, the third for ordinary negligence. Count Four alleges misrepresentation by nondisclosure, and the fifth count is also for misrepresentation. We must now decide upon a motion by Sundstrand for partial summary judgment on all but the contract claim in count one.


 PPG, a Pennsylvania corporation with its principal place of business in Pittsburgh, maintains manufacturing facilities throughout the nation. In the mid-seventies, PPG was preparing to solicit quotations and award contracts for the manufacture and supply of new winder and collet systems for the manufacture of fiberglass at its North Carolina facilities. In September, 1976, PPG engineers met with representatives of Task Corporation in Anaheim, California, where Task was located, and Task undertook to develop new designs for winders and collets and to perform analyses of that design. Task later moved its facilities to Fullerton, California, and was acquired by Sundstrand, a Delaware corporation with its principal place of business in Rockford, Illinois. PPG and Sundstrand entered into an "Engineering Services Agreement" in 1977, in which Sundstrand agreed to do analysis and testing work on the stress and fatigue life of the collet fingers to assure that the specified minimum life of 250,000 cycles was attainable. Design review meetings were held on April 19-20, 1977, in Rockford, Illinois, on June 30, 1977 in Shelby, North Carolina, and on October 17-18, 1977 in Denver, Colorado. On October 27, 1977 the results of a preliminary design study on one of the new winder configurations was held in Rockford, Illinois. Another review meeting was held in Anaheim, California on January 24-25, 1978. Sundstrand did stress and fatigue life analyses of a collet finger, which was an aluminum extrusion machined on both the inside and outside surfaces, and certified that the collet finger, as designed, would last well in excess of 250,000 cycles, the required life specified by PPG. Sundstrand's primary stress analyst was Mari Wolf, who was located at the Anaheim, California office of Sundstrand. She was supervised by Benjamin Gay, also located in California. Mari Wolf spent a considerable portion of 1977 in Rockford, Illinois performing the stress analyses, and apparently drafted Sundstrand's reports to PPG in California. Based on Sundstrand's findings, PPG issued various purchase orders to Sundstrand for the manufacture and supply of winders and collets.

 After Sundstrand had begun supplying PPG with new winders, PPG inquired of Sundstrand whether less expensive collet fingers, not machined on the inside surfaces [called "as extruded" collet fingers] would still meet the stress and fatigue life criteria. The parties dispute the genesis of the design revision. PPG claims that Sundstrand informed them that they were going to discontinue machining the inside surfaces and would supply "as extruded" collet fingers. Sundstrand claims PPG ordered it to undertake a "Value Engineering Study" to identify strategies to reduce costs. In either event, Sundstrand advised PPG that eliminating the machining of the inside surface could reduce the cost of the collet fingers by 42 percent. PPG alleges that Sundstrand gave it written assurance that the change would not affect the stress and fatigue life of the collet fingers. PPG states that Sundstrand supplied it with at least 354 winders with "as extruded" collet fingers. PPG's complaint alleges that in May, 1986 it discovered that these "as extruded" collet fingers were developing stress cracks below the specified minimum life. They allege that this rendered the collet fingers unfit for further service, causing PPG extensive engineering costs in its efforts to replace all the "as extruded" collet fingers supplied by Sundstrand.

 PPG filed this action alleging a breach of the Engineering Services Agreement, causing damage to the collet fingers themselves as well as the cost of replacement. In addition, PPG's complaint contains causes of action in tort. PPG alleges that Sundstrand breached its duty to perform its design work in a professional and non-negligent manner. PPG also claims that the defendant misrepresented by not disclosing that it had not tested the "as extruded" collet fingers, and by insisting that the "as extruded" collet fingers would meet the design criteria.

 Sundstrand's motion for partial summary judgment claims that PPG's remedies for the cost of replacement, an economic loss, are defined exclusively in an action under the contract. Therefore, Sundstrand argues, PPG's tort claims fail to state a cause of action for which relief can be granted. PPG responds that choice of law requires that this Court apply the laws of California, Illinois or North Carolina, and not that of Pennsylvania, and that those states would recognize a tort remedy for this loss where the contract is for professional services.


 A. Summary Judgment Standard

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted if, upon a review of the materials properly before the court, "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment may properly be granted in the face of some alleged factual dispute between the parties, because Rule 56(c) requires only that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 211 (1986). While a court must view the evidence in a light most favorable to the non-moving party, Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983), summary judgment must be granted "against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265, 273 (1986); C. Wright, A. Miller, M. Kane Federal Practice And Procedure ยง 2727 (Supp. 1987).

 B. Is Economic Loss Recoverable Under Tort Theory ?

 Sundstrand's motion for summary judgment is grounded on the proposition that the cost of replacement of the collet fingers is an economic loss, and "when the failure of a product results only in economic loss, the owner's remedy is in contract and not in tort." Memorandum in Support of Defendant's Motion for Partial Summary Judgment, p. 3. Sundstrand's position enjoys considerable support from the United States Supreme Court in East River Steamship Co. v. Transamerica Delaware, Inc., 476 U.S. 858, 106 S. Ct. 2295, 90 L. Ed. 2d 865 (1986), and the Third Circuit in Aloe Coal Co. v. Clark Equipment Co., 816 F.2d 110, 117 (3d Cir.), cert. denied, 484 U.S. 853, 98 L. Ed. 2d 111, 108 S. Ct. 156 (1987).

 In East River, charterers of supertankers brought suit against turbine manufacturers seeking damages from alleged design and manufacturing defects which caused the supertankers to malfunction while on the high seas. 476 U.S. 858, 106 S. Ct. 2295, 90 L. Ed. 2d 865. The suit had originally alleged breach of contract and warranty as well as tort claims for strict liability for design defects and negligent supervision of the installation. Due to statute of ...

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