The opinion of the court was delivered by: D. Brooks Smith, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs Jacque Snyder and Eloise Simon filed these
separate wrongful death and survival actions in which they seek
to recover damages from ISC Alloys, Ltd. ("ISC").*fn1
Plaintiffs allege several theories of liability in their
complaint including negligence, strict products liability and
breach of warranty. The cases are now before the Court on ISC's
motion for summary judgment
which requires the Court to address, inter alia, a question of
first impression: Specifically, whether the package of designs,
technical drawings and professional advice ISC sold decedents'
employer constitute a product within the meaning of Section
402(A) of the Second Restatement of Torts. Because this Court
concludes that the package of designs, technical drawings and
information ISC supplied is not a product, ISC's motion for
summary judgment is granted in part. There are, however,
questions of material fact that cannot be resolved based on the
record currently before the Court, and that preclude the Court
from granting ISC's request for summary judgment on the theory
of negligent design.
Decedents John Simon and Harold Snyder both worked at St.
Joe's Resources Company ("St. Joe") in Monaca, Pennsylvania.
Both sustained fatal injuries in 1985 when they entered a zinc
dust plant located at St. Joe.
St. Joe operated the zinc dust plant pursuant to an exclusive
licensing arrangement with defendant ISC Alloys, Limited
("ISC"), a British corporation. ISC developed and held patents
on a process for converting solid zinc metal into zinc dust. In
July of 1976, ISC granted St. Joe an exclusive license to use
its process to manufacture zinc dust in the United States.
Pursuant to the licensing agreement, ISC agreed to provide St.
Joe with both the technical information and services necessary
to use ISC's patented process. The technical information
consisted of drawings illustrating the major components of the
physical plant and an operating manual. The services provided
by ISC to St. Joe consisted of advice during the design and
construction of the plant. ISC personnel also trained St. Joe's
employees to operate the plant once it had been constructed.
St. Joe hired an independent contractor who built the plant
in accordance with ISC's specifications. The plant was
completed in March 1978, and ISC provided personnel to train
St. Joe's employees in the operation of the plant. St. Joe
operated the zinc plant until December 1979 when poor economic
conditions caused the company to close it. St. Joe then
reopened the plant in July 1981.
On two separate occasions, St. Joe personnel visited the ISC
zinc plant in Bloxwich, England, to observe the zinc dust
process used there. ISC sent its own personnel to the St. Joe
facility to train St. Joe's employees when the facility was
first opened in March 1978, and again in July 1981 when the
plant went back into operation. ISC did not, however, have a
continuing role in the operation of St. Joe's zinc dust plant.
The zinc dust plant used ISC's electrothermal process to
convert slabs of zinc into zinc dust. This is accomplished by
first turning a slab of zinc into a zinc vapor which is then
blown by fans into the condenser. There, the vapor is condensed
into zinc dust. Because the zinc dust is explosive in nature,
the oxygen content in the condenser unit is kept as low as
possible to reduce the possibility that a zinc cloud might
ignite. Consequently, during the process the condenser unit's
atmosphere is composed primarily of carbon monoxide, thereby
rendering that atmosphere potentially fatal to any human
exposed to it.
The condenser unit must undergo occasional maintenance. The
ISC Operating Manual states that the condenser must be cooled
and the air inside ventilated before workers can enter to
service the unit. (Defendant's Ex. D, § 3(e)(i)-(iii)).
On July 24, 1985, both Harold Snyder and John Simon died as
a result of entering St. Joe's zinc dust plant condenser unit
before it had been properly ventilated. ISC claims that St. Joe
had altered the ventilation procedure recommended by ISC in its
operating manual. (Defendant's Brief at 6) The St. Joe
ventilation procedure consisted of opening the entry door to
the condenser and inserting a dracco hose to ventilate the
atmosphere for a period of one hour, and then testing for the
presence of carbon monoxide. The person responsible for
the condenser also tested for the presence of carbon
On the morning of July 24, 1985, Harold Snyder, a trained
zinc dust group leader, entered the condenser unit to perform
routine maintenance. Snyder began his employment with St. Joe
on September 30, 1982, and received his safety training from
other St. Joe employees, not from ISC personnel. Snyder allowed
the condenser to vent for approximately one-half hour before
entering. While inside the condenser, he was overcome by the
carbon monoxide and collapsed into a hopper at the bottom of
the condenser unit.
The remaining zinc dust plant employees immediately made a
call for emergency assistance, to which several St. Joe
employees, including decedent John Simon, responded. Simon, who
worked as a Larvik Oxide Packer in another plant at St. Joe's
Monaca facility, volunteered to enter the condenser to save
Snyder. Simon had never worked at the zinc dust plant and had
never received any training or information regarding its
Before entering the condenser, Simon donned a self contained
breathing apparatus. This equipment included an oxygen tank
which Simon wore on his back. Unfortunately, Simon could not
get through the condenser door with the oxygen tank strapped to
his back. He therefore removed the tank and climbed into the
condenser. He was about to retrieve the mask connected to the
oxygen tank when he was overcome by the carbon monoxide. Simon
tumbled to the bottom of the condenser and fell into the hopper
on top of Snyder.
Eventually, other St. Joe employees succeeded in entering the
condenser with oxygen tanks strapped on their backs. They
removed Snyder and Simon from the condenser unit. Harold Snyder
died from carbon monoxide poisoning on July 24, 1985. John
Simon likewise died from carbon monoxide poisoning on July 25,
The instant wrongful death and survival actions advance three
theories of recovery:
(1) negligence; (2) strict products liability; and (3) breach
of warranty. Defendant ISC filed a motion for summary judgment
in which ISC claims that it cannot be held strictly liable
because the technical information and services it supplied to
St. Joes do not constitute "products", and that it cannot be
held liable under the two remaining theories because ISC did
not owe a duty of care to the decedents.
Rule 56 of the Federal Rules of Civil Procedure allows a
party to obtain summary judgment upon a showing that there are
no genuine issues of material fact and that the moving party is
entitled to judgment as a matter of law. Fed.R.Civ. 56(c).
Summary judgment is not "regarded as a disfavored procedural
shortcut but rather as an integral part of the Federal Rules."
Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548,
2555, 91 L.Ed.2d 265 (1986). When reviewing a motion for
summary judgment, the Court must view the evidence in the light
most favorable to the nonmoving party. Lang v. New York Life
Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). The primary issue
raised by this motion for summary judgment, specifically,
whether the plans ISC sold to St. Joe constitute a "product"
within the meaning of section 402A, is a pure question of law.
For the reasons set forth below, I will grant defendant ISC's
motion for summary judgment on the 402A strict liability count,
as well as on the breach of warranty count. I will also grant
ISC's motion on the counts alleging that ISC was negligent in
failing to adequately test the venting procedures and failing
to provide adequate warnings regarding the hazardous conditions
in the zinc dust condenser because the duty to implement proper
safety procedures and provide warnings had, as a matter of law,
passed to St. Joe at the time of the decedents' deaths. On this
record, however, I must deny ISC's motion on the counts
alleging that ISC was negligent in designing a defectively
small access door.
These actions were brought pursuant to the Court's diversity
jurisdiction. In diversity cases, federal courts must apply the
choice of law principles of the forum state in determining
which state's law will govern the substantive issues in the
case. Klaxon v. Stentor Electric Manufacturing Co., Inc.,
313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Blakesley v.
Wolford, 789 F.2d 236, 238 (3d Cir. 1986). Therefore, this
Court must follow Pennsylvania choice of law principles.
Pennsylvania has adopted a flexible interest analysis which
requires the Court to determine which jurisdiction is "most
intimately concerned with the outcome of [the] particular
litigation," Griffith v. United Airlines, 416 Pa. 1,
203 A.2d 796, 806 (1964) (citations omitted), and then to apply the law
of that jurisdiction. Id. See also Cipolla v. Shaposka, 439 Pa. 563,
267 A.2d 854 (1970); Blakesley, 789 F.2d at 238.
The parties seem to agree that the substantive law of
Pennsylvania controls the disposition of this case.*fn3 The
Court also concludes that Pennsylvania has the greatest
interest in this case. Both decedents were residents of
Pennsylvania and were injured and died in Pennsylvania. The
decedents' heirs remain residents of Pennsylvania, and
Pennsylvania has a significant interest in their welfare. This
Court will therefore apply the substantive tort law of
Pennsylvania has adopted the doctrine of strict products
liability as set forth in section 402A of the Second
Restatement of Torts. Webb v. Zern, 422 Pa. 424, 220 A.2d 853
(1966). Pursuant to this theory, a manufacturer who sells a
product in a defective condition unreasonably dangerous to the
user will be held liable for any injuries or damages that
result even if the seller has used all possible care in the
preparation and sale of the product. Restatement (Second) of
Torts, § 402A(1)2(a). Webb v. Zern, 220 A.2d at 854. Since
adopting section 402A, Pennsylvania Courts have taken an
expansive, rather than restrictive, view of who may be held
strictly liable for placing defective products in the stream of
commerce. See Abdul-Warith v. Arthur McKee & Co., 488 F. Supp. 306,
310 (E.D.Pa.) aff'd, 642 F.2d 440 (3d Cir. 1980). Indeed,
Pennsylvania Courts have imposed strict products liability for
a defective product on all sellers in the chain of
distribution. See Bialek v. Pittsburgh Brewing Co., 430 Pa. 176,
187-88, 242 A.2d 231, 236 (1966) (plaintiff need not show
which particular seller in the chain of commerce caused the
defect); Francioni v. Gibsonia Truck Corp., 472 Pa. 362,
372 A.2d 736, 738-740 (1977) (Pennsylvania Supreme Court held §
402A strict liability applicable to lessors in the business of
leasing goods to the public); Burch v. ...