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August 16, 1991


The opinion of the court was delivered by: D. Brooks Smith, District Judge.


I. The Facts

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 servicing the condenser also tested for the presence of carbon monoxide.*fn2

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 operation.

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, 1985.

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.

II. Analysis

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.

A. Strict Liability

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 ยง 402A strict liability applicable to lessors in the business of leasing goods to the public); Burch v. ...

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