then sued his employer's parent company and his employer's
wholly owned subsidiary for providing him with a defective snap
hook. The complaint contains three causes of action. The first
cause of action is negligence, the second is strict product
liability and the third is breach of warranty.
The parent company named as the defendant in this action is
UGI Development Company ("UGI"). At the time of the accident
Mr. Chelton was employed by International Petroleum Services
Company ("IPSCO"), a wholly owned subsidiary of UGI. IPSCO also
has a wholly owned subsidiary named Keystone Oilfield Supply
Company ("KOSCO") which Mr. Chelton also named as the defendant
in his suit.
IPSCO drills oil and gas on property owned or leased by its
customers. KOSCO sells oilfield drilling supplies to drillers.
The plaintiff has presented evidence that, in the early 1980's,
IPSCO instigated a policy that IPSCO would purchase all
supplies from KOSCO. As a result, Mr. Chelton named KOSCO as a
defendant as well.
Both KOSCO and UGI are defendants because the plaintiff
contends they supplied him with the defective hook. The sellers
of a defective product could be liable to the plaintiff under
any of the three theories of liability in the complaint.
KOSCO/UGI subsequently filed cross claims against Henssgen
Hardware Corporation ("HHC") and Baron Manufacturing Company
("Baron"), supposedly the only distributors of this type of
snap hook in the United States. After further investigation,
KOSCO also joined Mittelman & Company ("Mittelman"), the
alleged manufacturer of the snap hook, and its wholly owned
subsidiary, Henssgen Karabinerhaken G.m.b.H. ("HK").
HK is the sales arm of Mittelman, responsible for marketing
Mittelman's products. HHC is the wholly owned subsidiary of HK.
HHC, the permanent distribution center for HK in the United
States, was created by HK to be the exclusive importer of
Mittelman products into the United States. However, HK could
still market and import Mittelman products into the United
States provided that HHC received an 8%, commission on all HK
sales within the United States.
Neither HHC, HK or Baron sell products directly to oilfield
supply companies like KOSCO. Generally, these companies are
wholesalers which sell the products to hardware stores and
discount stores where they are purchased by consumers.
KOSCO/UGI filed cross claims against these companies seeking
contribution or indemnity for any judgment entered against
KOSCO/UGI for the plaintiff's injuries. The basis for these
cross claims is that the manufacturers and distributors of a
defective product share liability with the seller for any
injuries resulting from the defect.
However, months of discovery failed to uncover a paper trail
documenting this snap hook's journey from the factory to oil
rig # 6. Thus, no one knows quite yet exactly who sold,
manufactured or distributed this particular snap hook.
The plaintiff has provided two affidavits that were
subsequently corroborated by deposition stating that KOSCO sold
the snap hook to IPSCO. Both HHC and Baron maintain that since
there is no evidence to positively prove that either of them
sold the snap hook, they should be dismissed as parties to this
law suit. Mittelman and HK dispute whether the snap hook in
question was actually manufactured by Mittelman. Given that the
facts questioned above are central to the motions of the
individual parties, the details of these disputes will be
discussed in conjunction with the relevant motion.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) requires a grant of
summary judgment when the moving party has shown "that there is
no genuine issue as to any material fact that the moving party
is entitled to judgment as a matter of law." The United States
Supreme Court has said that no genuine issue for trial exists
when "the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party." Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S.Ct. 1348, 1356, 89 L.Ed.2d 538
(1986). A genuine issue of fact exists 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,
91 L.Ed.2d 202 (1986).
Given this relatively strict standard, we find that there are
several genuine issues of material fact in this case. The most
important factual issue is who sold and manufactured the snap
hook. All the third-party defendants argue that because none of
the discovery in this case has uncovered any air tight evidence
that any one of them sold or manufactured the snap hook, there
are no genuine issues of material fact and they should be
dismissed from the law suit. We interpret this lack of
conclusive evidence quite differently.
If there is no conclusive proof that one party sold,
manufactured or distributed the product, but the plaintiff has
presented credible evidence to suggest that any of the
defendants in the suit could be liable, then a genuine issue of
material fact exists. The evidence presented by both the
plaintiff and the defendants is more than colorable and a
rational trier of fact could find in favor of the plaintiff.
However, none of the parties, plaintiff, defendants or third
party defendants have provided any conclusive proof of
liability or the lack thereof. Thus, we will deny all the
summary judgment motions now before this court, leaving the
question of who manufactured, sold and/or distributed the snap
hook to the jury.
We hold that the plaintiff has presented enough evidence to
withstand KOSCO/UGI's motion for summary judgment against the
plaintiff. To survive this summary judgment motion, the
plaintiff must point to some evidence in the record which
refutes KOSCO/UGI's factual claims. Childers v. Joseph,
842 F.2d 689, 694-695 (3d Cir. 1988).
The plaintiff presented two affidavits of the individuals
responsible for ordering supplies for IPSCO rig # 6 in 1985,
Scott Strand and Barry Johnston. In their subsequent
depositions, these individuals both testified that they
received instructions from IPSCO to purchase their supplies
from KOSCO. Mr. Johnston even remembered that particular snap
hook arriving in an order delivered to them by KOSCO. Johnston
Dep. at 58 — 68. If a jury found these individuals credible,
they could easily find that KOSCO sold IPSCO the snap hook.
Thus, the plaintiff has presented significantly probative
evidence to refute KOSCO's claim that it did not supply the
snap hook to IPSCO.
Mittelman argues that there is no evidence connecting it with
the snap hook at issue in this case. The third-party defendant
argues that no one can positively identify the snap hook as
being a Mittelman product. Thus, Mittelman maintains that it
should be dismissed from this suit, essentially alleging that
the lack of evidence resolves all the factual issues in its
favor. While we realize that identification of the snap hook is
difficult, we also feel that these factual questions alone are
enough to survive any motion for summary judgment.
The hook in question is not intact. The top half of the hook
has disappeared. All that remains is the eye and part of the
hook. There are no identifying marks on the remnant except the
word "Germany." There are only two German manufacturers of snap
hooks, Mittelman and Gerbruder Batz G.m.b.H. ("Batz"). Batz
marks its hooks with "W. Germany" and Mittelman simply uses
"Germany." Batz does not make any die cast zinc alloy hooks
with dimensions similar to the hook in question. Record in
Support of Defendants/Third Party Plaintiffs' Motions for
Summary Judgment at 269.
However, the dimensions of the hook, its composition (die
cast zinc alloy) and even the word "Germany" closely correspond
with the Mittelman's model 126-120 snap hook (HK's model #
249-5). See, Record at 206. Thus, while there is no conclusive
proof that Mittelman manufactured the snap hook, there is
enough evidence to raise a significant question of fact for a
jury to decide at trial. This evidence, while not conclusive,
is "significantly probative"
of the issue of who manufactured the hook. See, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986). With this information, the third-party plaintiff
has provided enough probative evidence to survive this
third-party defendant's motion for summary judgment. We also
find this evidence sufficient to support denial of Mittelman's
Motion for Summary Judgment against KOSCO/UGI.
Baron, HHC and HK
The potential liability of the third party defendant
distributors is a more difficult and subtle dilemma. During the
relevant time period, 1983-1985, Mittleman produced 18,776
model 126-120 snap hooks. Mittelman sold 18,384 of these hooks
to HK and the remaining 394 to HHC. Thus, all of the model
126-120 snap hooks made by Mittelman were sold to either HK or
HHC. However, only 2,894 of the total number of 126-120 hooks
were exported to the United States. HK sold 2000 of these
imported snap hooks to Baron. HHC sold all of its 394 hooks to
various clients in the United States. Record at 345 — 346.
Thus, KOSCO/UGI joined all the possible importers and
distributors of Mittelman 126-120 snap hooks in the United
States through its third-party complaint.
HHC disputes this conclusion, pointing to one statement in a
deposition given by Ronald Shaw. Mr. Shaw, an officer of HHC,
stated that other companies purchased snap hooks from Mittelman
or HK. However, there is no evidence on the record, aside from
this one statement, that these companies purchased Mittelman
model 126-120 snap hooks between 1983 and 1985. Thus, we feel
that there is sufficient evidence on the record to support the
conclusion that KOSCO/UGI has joined all the primary
distributors of Mittelman 126-120 snap hooks over the relevant
Liability would only attach to these distributors if the jury
decided that the hook was manufactured by Mittelman and was
distributed in the United States through Mittelman's normal
distribution channels. At that point, liability would attach
under strict liability, and possibly negligence, because all
those who participated in the commercial transfer of the
product are liable. See, Restatement (Second) of Torts § 402A;
Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). However, the
question remains whether the third party plaintiffs must
specifically identify the company that actually distributed the
defective snap hook.
Because this case is before us through diversity jurisdiction
we must apply the substantive law of the state of Pennsylvania.
Erie Railroad Comp. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82
L.Ed. 1188 (1938). However, the Pennsylvania Supreme Court has
not decided this issue. Thus, we must predict how
Pennsylvania's highest court would decide this case. McKenna v.
Ortho Pharmaceutical Corp., 622 F.2d 657 (3d Cir. 1980), cert.
denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980).
Baron, HK and HHC argue that Pennsylvania law requires that
the plaintiff (or third-party plaintiff) be able to
specifically identify the manufacturer, distributor or retailer
that dealt with the specific defective product. All three
parties cite the same cases. The earliest of these cases is
Cummins v. Firestone Tire & Rubber Co., 344 Pa. Super. 9,
495 A.2d 963 (1985). Cummins involved an individual who was injured
when a tire and rim assembly exploded while being inflated. The
tire and rim assembly was lost before the plaintiff could
examine it to determine the manufacturer. Thus, the plaintiff
sued all manufacturers of similar tire and rim assemblies. The
plaintiff could not identify the particular part in the rim
assembly that was defective let alone the manufacturer or
distributor of the tire and rim assembly. Thus, the court held
that liability could not attach under negligence or strict
The Cummins court also declined to apply the market share or
alternate liability theories to the strict liability claim
before it. Market share liability holds defendant manufacturers
liable for defective products even though the plaintiff cannot
identify the manufacturer of the specific product that she
used. Under that theory, all manufacturers joined in the suit
are liable to the plaintiff in proportion to their market
share at the time the product was sold. See, Sindell v. Abbott
Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924,
cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140
Alternate liability means that, where the plaintiff cannot
identify the individual tortfeasor that caused his injury, the
burden shifts to the defendants to exculpate themselves. The
classic example of this theory is Summers v. Tice, 33 Cal.2d 80,
199 P.2d 1 (1948). In Summers, two hunters simultaneously
fired shots in the direction of another hunter. The third
hunter was injured by a shotgun pellet from one of the
defendants' guns but could not identify which gun had
discharged the pellet. The court ruled that both defendants
were negligent, thus, the burden shifted to the defendants to
discover which hunter had actually shot the pellet in order to
While Pennsylvania courts have applied this theory in the
past they have not decisively applied it in strict liability
cases. See, Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707
(1970); Sommers v. Hessler, 227 Pa. Super. 41, 323 A.2d 17
(1974). Recognizing this state of the law, the Cummins court
stated that it declined to apply "either market share liability
or alternative liability with respect to the case at bar."
Cummins, 344 Pa.Super. at 27, 495 A.2d at 972.
Subsequently, the United States District Court for the
Eastern District of Pennsylvania used Cummins to predict that
the Pennsylvania Supreme Court would not apply the alternate
liability theory to strict liability actions. In Long u.
Krueger, Inc., 686 F. Supp. 514 (E.D.Pa. 1988), the court held
that where the plaintiff could not identify the manufacturer of
an allegedly defective stool because the stool was no longer
available, that the alternate liability theory did not apply.
The court also held that Cummins required a plaintiff to
specifically identify the manufacturer or seller of the product
in order to recover under strict liability or negligence. Id.
At least one other Pennsylvania court has held that the
manufacturer or supplier of the product must be identified by
the plaintiff. Eckenrod v. GAF Corp., 875 Pa. Super. 187,
544 A.2d 50 (1988). Eckenrod is an asbestos case, thus the majority
of the court's opinion dealt with proof of the ingestion of the
asbestos fibers. However, at the beginning of its analysis the
court did state that "for liability to attach in a products
liability action, plaintiff must establish that the injuries
were caused by a product of the particular manufacturer or
supplier." Id. at 190-191, 544 A.2d at 52.
Thus, three separate courts have interpreted Pennsylvania law
as requiring specific identification of the manufacturer or
supplier of the defective product. However, none of these
courts faced a situation similar to the instant case. In
Cummins, the plaintiff could not identify the part in the
assembly that was defective let alone the manufacturer of the
part. As a result, the plaintiff sued all possible
manufacturers or suppliers of all similar tire and rim
assemblies. In addition, the defective assembly itself was not
Long involved a broken postal carrier stool. The plaintiff
made no attempt to preserve the stool, and it was destroyed by
the postal service for safety reasons. The plaintiff in turn
sued all suppliers of stools to the postal service in the area
over several years. Thus, both Long and Cummins involve a
plaintiff taking a "shotgun" approach to products liability.
The theory being that if you cannot identify the manufacturer,
sue all possible manufacturers, in hope that one will be the
These cases are qualitatively different from the case at
hand. The plaintiff, Mr. Chelton, sued only the company most
likely to have supplied him with the hook KOSCO/UGI. KOSCO/UGI,
in turn, only joined the manufacturer most likely to have made
the hook and that manufacturer's distributors. Thus, this case
is quite tailored. The plaintiff and the third-party plaintiffs
did not sue all manufacturers of snap hooks and all their
distributors. These parties only sued the most likely
manufacturer and its distributors after a
reasonable and diligent investigation of the accident.
The third party plaintiff is unable to identify the specific
distributor of the hook through no fault of its own. These
companies have presented significantly probative evidence that
Mittelman manufactured the hook. However, they do not have any
information, after diligent investigation, as to which of
Mittelman's distributors sold this particular hook. Thus, a
question of fact remains for the jury to decide at trial. To
facilitate the resolution of this question at trial, we feel
that this is an appropriate case to shift the burden to the
third party defendants to prove which of the distributors sold
this particular hook.
We do not feel that this result is contrary to the
Pennsylvania Superior Court ruling in Cummins. The Cummins
court distinguished its ruling from a trial court ruling that
applied alternate liability to a "DES" (diethylstilibestrol)
strict product liability case. See, Erlich v. Abbott
Laboratories, 5 Phila. 249 (1981). The Cummins court mentioned
certain "pivotal" factors which differentiated its case from
cases where market share liability or alternate liability were
First, the plaintiff was unable to identify the
manufacturer of the offending product through no
fault of her own. Second, she had joined those
manufacturers who marketed approximately 90% of
the DES in the Philadelphia area. Third, she
alleged that all defendants were tortfeasors by
placing an allegedly defective product on the
market. Finally, she averred that the products
were identical and shared the same defective
qualities. Cummins, 344 Pa.Super. at 27, 495 A.2d
The instant case satisfies those pivotal factors. First,
after months of discovery, the third-party plaintiffs have not
uncovered any paper trail identifying the supplier of the hook.
However, we do not believe that this means that no paper trail
could be found. Any information relating to the sales of these
products would be in the files of the third party defendant
distributors. While these third party defendants have been
reasonably cooperative and produced much information to aid the
third-party plaintiff, we believe that if the burden of
uncovering this hook's route from Germany to rig # 6 is placed
on the distributors the path will become substantially clearer.
Second, the third party plaintiff has joined all potential
distributors of this hook. If the Cummins court was satisfied
with having 90% of the liable parties in the suit, 100% of the
potential distributors should certainly be sufficient.
Because the plaintiff has alleged a design defect in this
hook, all these distributors could be tortfeasors. Complaint
¶ 20. The tort occurs when they participate in the commercial
transfer of a defective product. See, Webb v. Zern, 422 Pa. 424,
220 A.2d 853 (1966). If the jury determines that this hook
is a Mittelman product and its design is defective, then all
these defendants participated in the commercial transfer of a
defective product. However, if the jury determines that the
design was not defective but the individual hook was, shifting
the burden to the distributors should facilitate determining
which company sold this particular hook.
We must emphasize that this decision should not be read to
apply universally the theory of alternate liability in strict
liability cases. This is a unique case. The third party
plaintiff has presented substantial evidence to suggest that a
single manufacturer produced the product in question. However,
the third party plaintiff has not been able to determine which
of this manufacturer's distributors sold the product. Thus,
there are a limited number of potentially liable parties which
would owe the defendant indemnity or contribution and only if
the jury finds that Mittlemann produced the product.
This is not a case where the plaintiff has made no effort to
determine which manufacturer created the product and sued all
possible manufacturers. Nor is this a case where it would be
impossible to determine which party is liable. A substantial
factual question remains as to which third-party defendant sold
this snap hook. This case
simply shifts the burden of proving which party sold the hook
to the companies which have the information readily at hand.
Thus, we will deny third party defendants Baron, HK and HHC's
motions for summary judgment against the third party
Additionally, we will deny Baron's motion for summary
judgment against Mittelman and HK. Given the substantial
factual questions remaining in this case, we find it would be
improper to dismiss Baron's claim for indemnity against
Mittelman and HK.
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