of caster decks and other conveyor systems, knew that the conveyor was lacking adequate safety devices which rendered it unreasonably dangerous to its users. According to Plaintiffs, this knowledge, coupled with Doty's ongoing business relationship with Federal Express, imparts upon Doty the duty to inform Federal Express of the existence of any dangerous conditions. Since Doty is not within the chain of distribution, the imposition of strict liability on it would not serve the purpose of § 402A, which is to place the burden of compensating for injuries on those parties who can control the defect and are able to spread its cost through increased prices. Id.
Plaintiffs go on to argue that Doty's contract required it to comply with ANSI Standard B20.1 which details safety requirements for conveyors and related systems. In support of this claim, Plaintiffs proffer a letter from Federal Express to Doty which attaches a list of various standards. (Attached as Exhibit F to Plaintiffs' Brief). This letter is actually a request by Federal Express for Doty to submit quotations to install a conveyor at the Philadelphia International Airport. This is not evidence that Doty assumed the duty to perform a safety inspection of the conveyor or report any dangerous conditions to Federal Express.
With regard to the fourth factor, the fact that Doty does not distribute the type of conveyor in question prevents it from distributing the cost of compensating for any resulting injuries. While price increases will serve to distribute the cost of compensating for injuries caused by conveyors that Doty does distribute, the objectives of § 402A will not be served by the imposition of strict liability in this instance. Furthermore, Doty bids on its installation jobs and incorporating such costs into its bids would not allow Doty to remain competitive in the installation market. For these reasons, Doty is unable to distribute its costs of compensating for these injuries through increased prices.
In addition to the four factors discussed above, Doty argues that strict products liability does not extend to parties who provide only services. Villari v. Terminix Intern, Inc., 677 F. Supp. 330, 334 (E.D. Pa. 1987); Klein v. Council of Chemical Ass'ns, 587 F. Supp. 213, 223 (E.D. Pa. 1984); Hinojasa v. Automatic Elevator Co., 92 Ill. App. 3d 351, 416 N.E.2d 45, 48 Ill. Dec. 150 (Ill. App. Ct. 1980). In Villari, the court found that Terminix could be held strictly liable for injuries caused by its treatment of plaintiffs' home for termites because Terminix supplied the chemicals as well as the service. The court stated that such a "hybrid sale-service transaction" is within the purview of § 402A. Villari v. Terminix Intern. Inc., 677 F. Supp. 330, 334 (E.D. Pa. 1987). However, the court recognized that "federal courts applying Pennsylvania law have made clear that strict products liability has not been expanded to include persons who provide only services." Id.
Doty does not fall within the "hybrid sale-service" category because it did not supply the allegedly defective conveyor, it merely installed the conveyor. Moreover, an installer is a provider of services and not a seller of goods. In re Merritt Logan, Inc., 901 F.2d 349, 353 (3d Cir. 1990). Therefore, Doty merely provided a service and does not come within the reach of § 402A. Id. ; Villari v. Terminix Intern, Inc., 677 F. Supp. 330, 334 (E.D. Pa. 1987); Klein v. Council of Chemical Ass'ns, 587 F. Supp. 213, 223 (E.D. Pa. 1984).
The reasoning of Hinojasa is additional grounds for this Court to conclude that strict liability should not be extended to installers. In Hinojasa, the plaintiff brought suit against the installer of an elevator for injuries sustained when the overhead door fell on him. The Illinois court held that the installer was not liable under § 402A. The court reasoned that an installer is not involved in the sale of the product and does not receive a profit from placing a defective product in the stream of commerce. The court further reasoned that an installer lacks the purchasing power of a retailer or distributor, and is thus less able to exert pressure on the manufacturer to enhance the safety of the product. This Court finds that the rationale of Hinojasa is persuasive and germane to the matter at hand.
Plaintiffs cite Michalko v. Cooke Color and Chemical Corp., 91 N.J. 386, 451 A.2d 179 (N.J. 1982) in support of their contention that an installer can be held strictly liable for injuries when the installer fails to make the product safe or to warn of dangers inherent in its use. However, Michalko did not concern an installer of a machine, but rather an independent contractor who rebuilt a transfer press which was later determined to be defective. As such, Michalko does not support Plaintiffs' argument.
For these reasons, this Court predicts that the Supreme Court of Pennsylvania will conclude that strict products liability does not extend to mere installers of defective products. Thus, Doty's Motion for Summary Judgment on this matter is granted.
II. BREACH OF WARRANTY
Plaintiffs also assert a claim for breach of warranty pursuant to the Pennsylvania Uniform Commercial Code. 13 Pa. C.S.A. § 2102. Plaintiffs contend that warranty protection extends as far and as broad as strict liability under § 402 A. Lemley v. J & B Tire Co., 426 F. Supp. 1376, 1377 (W.D. Pa. 1977); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (Pa. 1968), overruled on other grounds by AM/PM Franchise v. Atlantic Richfield, 526 Pa. 110, 584 A.2d 915 (Pa. 1990). However, this Court has ruled that Doty, as the installer of the conveyor, is not subject to strict products liability under § 402A.
Moreover, the supplying of services does not constitute a sale under the U.C.C. In re Merritt Logan, Inc., 901 F.2d 349 (3d Cir. 1990); Angell v. Tubies, 36 Pa. D. & C. 3d 41 (1983). In Merritt Logan, the Third Circuit found that an installer is a provider of services and not a seller under the U.C.C. As such, Doty does not fall within the purview of the U.C.C. Therefore, summary judgment is granted on this claim.
Doty claims that summary judgment should likewise be granted on Plaintiffs' negligence claim because it did not owe to Plaintiffs or Federal Express the duty to ensure that the conveyor possessed the proper safety features. Plaintiffs argue that Doty failed to comply with ANSI B20.1, and therefore breached its duty of care. ANSI B20.1 provides that conveyors should be equipped with tread plates as well as nip and shear point guards. (Attached as Exhibit D to Plaintiffs' Brief). Plaintiffs maintain that Doty should have installed these safety devices or notified Federal Express that these safety devices were absent. In addition to a contractual duty, Plaintiffs contend that Doty had a social duty to ensure that all appropriate safety devices were made a part of the conveyor. St. Clair v. B & L Paving Co., 270 Pa. Super. 277, 411 A.2d 525 (Pa. Super. 1979).
Plaintiffs' evidence does not show that Doty assumed a duty to comply with ANSI B20.1 or that Doty assumed the duty to conduct any safety inspections of the conveyor. As previously noted, the letter sent from Federal Express merely requested Doty to submit a bid to install a conveyor at the Federal Express Depot. Doty did not assume any duty as a result of this letter. Without the assumption of this duty, Doty does not have a legal obligation to create the safety devices or notify Federal Express of the alleged defect even though Doty may have had knowledge of the dangerous condition. See Wenrick v. Schloeman-Siemag Aktiengesellschaft, 523 Pa. 1, 564 A.2d 1244 (Pa. 1989).
Moreover, knowledge of a potential danger created by others does not give rise to a duty to abate the danger or to liability for injuries caused by such danger. Id. In Wienrick, the Pennsylvania Supreme Court held that a designer of an electrical box was not negligent since the designer did not have any control over the placement of the box, and such placement was the cause of the injuries. Similarly, Doty cannot be held liable for injuries caused by the lack of safety features because Doty did not have any control over the design of the conveyor. Doty's duty was to install the conveyor as it was received from the manufacturer. It was not Doty's obligation to re-design the conveyor or to ensure that the safety features were incorporated into the design of the conveyor. Accordingly, summary judgment is granted on this claim.
Based on the foregoing reasons, this Court enters the following Order:
AND NOW, this 15th day of April, 1993, upon consideration of Defendant Doty Conveyor's Motion for Summary Judgment and all responses thereto, it is hereby ORDERED that said Motion is GRANTED.
BY THE COURT:
Robert F. Kelly, J.