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BRANTNER v. BLACK & DECKER MFG. CO.

August 26, 1993

THOMAS S. BRANTNER and LINDA BRANTNER, his wife, Plaintiff
v.
BLACK & DECKER MFG. CO., a/k/a BLACK & DECKER (U.S.), Inc.), Defendant.



The opinion of the court was delivered by: BY THE COURT; D. BROOKS SMITH

 SMITH, District J.

 What remains after my August 23, 1993 Memorandum Order granting summary judgment on plaintiffs' strict liability claims are plaintiffs' causes of action in negligence and breach of warranties. I rule as follows on defendant's motion for judgment as a matter of law. Fed.R.Civ.P. 50(a):

 Breach of warranties:

 Plaintiffs' complaint in count III alleged a breach of Black & Decker's implied and express warranties to Brantner. To establish the existence of an implied warranty of fitness for a particular purpose, there must be evidence that (1) the seller had reason to know of the particular purpose for which the buyer is purchasing the product and (2) the seller knows that the buyer is relying on its skill and judgment to furnish the proper good. 13 Pa.C.S. § 2315; see Altronics of Bethlehem Inc. v. Repco, Inc., 957 F.2d 1102, 1105 (3d Cir.1992). Some evidence has been introduced to support plaintiffs' allegation, Complaint P 21, that at the time of sale in 1960 Black & Decker knew or had reason to know that the drill was being purchased for the particular purpose for which Brantner eventually employed it. That evidence was the testimony by Mr. Kotler that Branter's use of the drill was foreseeable to Black & Decker in 1960. There was, however, no evidence which tended to show that Black & Decker knew that its skill and judgment was being relied on to furnish a suitable product.

 The claim for breach of the implied warranty of merchantability is summarily dismissed. The evidence of record shows that the drill functions adequately as a drill and has done so for more than thirty years. It is, therefore, fit for its "ordinary purpose." 13 Pa.C.S. § 2314(b)(3).

 Any claim for breach of express warranties made at the time of sale or afterward was deemed withdrawn at oral argument on the Rule 50 motions.

 Negligence

 This matter is not a negligence case any more than it is a breach of warranties case. Once the strict liability count was dismissed, *fn1" plaintiffs should have withdrawn, or plaintiffs and defendant should have agreed to dismiss with prejudice, the two tag-along counts and proceeded to take an appeal if the correctness of my ruling on the motion for summary judgment is at issue. Nonetheless, defendant did not timely move for summary judgment on the negligence count, and plaintiffs appear not to have prepared their case with an eye to trying anything but a strict liability claim. It has been necessary, therefore, to proceed with a live jury trial to a conclusion that has been foreseeable, to use a term of art, since the opening statement.

 As the Court of Appeals stated in Griggs v. BIC Corp., 981 F.2d 1429, 1434 (3d Cir.1993):

 
Pennsylvania courts have set forth the elements of negligence as follows:
 
1) A duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks;
 
3) A causal connection between the conduct and the ...

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