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April 21, 1988

Leonard Long
Krueger, Inc. and Cutler-Federal, Inc., et al.

The opinion of the court was delivered by: VAN ANTWERPEN


 Before me are DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, filed by defendant Krueger, Inc. (Krueger) on November 17, 1987, and MOTION FOR SUMMARY JUDGMENT OF DEFENDANT, CUTLER-FEDERAL, INC. (Cutler), filed November 19, 1987. Defendants claim that plaintiff has not and cannot prove who manufactured a certain stool which allegedly injured the plaintiff. After hearing oral argument on these motions and after reviewing the briefs of counsel, I feel I should grant both motions.

 The applicable law has been stated many times. Fed.R. Civ.P. 56(c) instructs a court to enter summary judgment when the record reveals that "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." This rule provides the court with a useful tool when the critical facts are undisputed, facilitating the resolution of a pending controversy without the expense and delay of conducting a trial made unnecessary by the absence of factual dispute. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). Summary judgment is inappropriate, however, where the evidence before the court reveals a genuine factual disagreement requiring submission to a jury. An issue is "genuine" only if the evidence is such that a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). At the summary judgment stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 2511. However, if the evidence is merely "colorable" or is "not significantly probative", summary judgment may be granted. Id. In making its ruling on a summary judgment motion, the court must view all inferences in a light most favorable to the non-moving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982), must resolve all doubts against the moving party, Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S. Ct. 537, 88 L. Ed. 2d 467 (1985), and must take as true all allegations of the non-moving party that conflict with those of the movant, Anderson, supra, 106 S. Ct. at 2513.

 As the court recently said in Childers v. Power Line Equipment Rentals, Inc., 842 F.2d 689 (3d Cir. 1988):

"Where a party opposing a motion for summary judgment has the burden of persuasion, and the moving party has identified sufficient facts of record to demonstrate that no genuine issue of material fact remains, the nonmoving party is obliged to identify those facts of record which would contradict the facts identified by the movant. See First Nat'l. Bank of Pa. v. Lincoln Nat'l. Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987)(nonmoving party with burden of persuasion may not rest on mere denials to withstand motion for summary judgment); Equimark, 812 F.2d slip op. at 144 (nonmoving party with burden of persuasion must make showing of record evidence sufficient to withstand motion for summary judgment); see also Celotex, 477 U.S. at , 106 S. Ct. slip op. at 2552-53; Fed.R.Civ.P. 56(e).
We realize that the rule of law announced here can be interpreted as an extension of Celotex. We believe, however, that allowing a nonmoving party opposing a motion for summary judgment to rest on mere denials where there are unidentified facts of record which may contradict the facts identified by the movant would be an unworkable and illogical rule. It would require the district judge to search through an often voluminous written record for facts which might support the nonmovant's claim, and would require this Court to review the district judge's search to insure that no facts were missed. It would permit the party to present facts, and argument based on those facts, to the Court of Appeals where that party had not identified those facts to the district court. We also believe that any other holding would misread the requirement of Rule 56(e) that the nonmoving party 'set forth specific facts showing that there is a genuine issue for trial.'" Fed.R.Civ.P. 56(e).

 The facts developed in discovery since this case was filed some two years ago are not disputed and may be summarized as follows. Plaintiff, Leonard Long, is a security officer with the United States Postal Service. On April 25, 1984, while on duty at the Employees' Entrance, Post #2, at the Post Office at 30th and Market Streets in Philadelphia, plaintiff allegedly was injured when the four-legged "carrier stool" on which he was sitting collapsed underneath him. The stool, according to plaintiff's affidavit, was old and worn looking, and a metal retaining ring normally located inside the legs approximately three-fourths of the way to the bottom of the stool, was missing. According to the allegations of the complaint, this ring had been welded to the legs, and the welds had broken off. There is no allegation or evidence about how old the stool was at the time of the accident, when the retaining ring had broken, or of any markings on the stool which would identify the manufacturer.

 Plaintiff, in his affidavit, says that in the late summer of 1985 he obtained from the Post Office a stool similar to the one in question. This stool bore markings indicating that it had been manufactured by Krueger Metal Prod. in August, 1978. In his affidavit, plaintiff further states that in 1986 he noted a similar stool at the Post Office which bore markings indicating that it had been manufactured by Federal Equip. Co., Carlisle, Pa., no date indicated. Suit was filed against these two defendants in April, 1986.

 After suit was filed, plaintiff obtained a letter dated December 8, 1987 from the United States Postal Service Procurement Division which indicates that in the ten year period prior to the accident carrier stools were purchased nationally from four suppliers, one of which is defendant Krueger. *fn1" Although it was not named in the letter, defendant Cutler admits that stools of this kind were furnished to the United States Government prior to 1975 by its predecessor acting as a local supplier. *fn2"

 To summarize the uncontroverted evidence before me, the plaintiff was allegedly injured by the collapse of a stool, similar to at least five makes of stools used by his employer, the United States Postal Service. There is no evidence of identifying or warning markings on the stool. The stool failed because a critical component, a retaining ring, which had been welded to the stool at the time of manufacture, broke off. There is no allegation that the ring failed suddenly under use, or even any evidence to indicate that it failed prematurely. The stool was well worn and apparently old, although there is no evidence as to its age. Plaintiff had an opportunity to inspect the stool, or to attempt to obtain it or preserve it as evidence, but did not do so. According to plaintiff's affidavit, there were no labels or markings on the stool regarding its use when in damaged condition, i.e., when the retaining ring was missing. Plaintiff's suit is based upon the theory that the stool was defective because the ring failed and because no warning was given not to use the stool if the ring did fail.

 Both motions for summary judgment are grounded on the proposition that, since the allegedly defective instrumentality, a four-legged "carrier stool", cannot be identified as having been manufactured by either of these defendants, summary judgment must be granted in their favor. Plaintiff's theory, on the other hand, is that since each of the defendants has been identified as having made for use at the Post Office in Philadelphia a stool of the type which caused the injury, on a theory of alternative liability each of these defendants can be held liable for the injury to plaintiff.

 When federal courts sit in diversity cases, they must apply the substantive law of the states where they sit. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). When they are required to interpret or apply state law, they must consider and accept the decisions of the state's highest court as the ultimate authority regarding state law. Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 553 (3d Cir. 1985); Connecticut Mutual Life Insurance Co. v. Wyman, 718 F.2d 63, 65 (3d Cir. 1983). When, however, the highest court of the state has not authoritatively considered the issue, "our disposition of such cases must be governed by a prediction of how the state's highest court would decide were it confronted with the problem." McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 611 (3d Cir. 1980), cert. denied, 449 U.S. 976, 66 L. Ed. 2d 237, 101 S. Ct. 387 (1980). See also Becker v. Interstate Properties, 569 F.2d 1203, 1205 (3d Cir. 1977), cert. denied, 436 U.S. 906, 56 L. Ed. 2d 404, 98 S. Ct. 2237 (1978). In this effort, the federal court must give ...

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