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JONES v. SEPTA

September 13, 1993

ROGER JONES, Plaintiff
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, and NATIONAL RAILROAD PASSENGER CORPORATION, a/k/a AMTRAK, VANALT CO., INC. and MORRISON-KNUDSEN ENGINEERS, INC., a Morrison-Knudsen Company and ELLIOTT EQUIPMENT CORPORATION, t/a Elliott Hi-Reach, Defendants



The opinion of the court was delivered by: WILLIAM H. YOHN, JR.

 Yohn, J.

 September 13, 1993

 Defendant, Vanalt Company, Inc. ("Vanalt") has filed a motion for partial summary judgment on plaintiff's claims in strict product liability and breach of warranty. For reasons discussed below, the court will grant the motion.

 The following facts are essentially undisputed. Plaintiff initiated this action as a result of an accident in which he was severely injured when the lift bucket truck in which he was working encountered live electrical wires on November 18, 1989. Plaintiff's Complaint at 1. In his complaint, plaintiff alleges that the bucket truck was in a defective condition and that this defective condition contributed to the accident. Plaintiff's Complaint, Counts II, III.

 Vanalt owned and still owns the bucket truck involved in the accident. Vanalt's primary business was and is electrical contracting. Taschek Deposition at 7. It had bid for the project on which the accident occurred, but another contractor, Innovations Engineering Products, Inc. ("IEP"), won the contract, having submitted a lower bid. Id. at 13-14. IEP then leased the bucket truck in question from Vanalt for the project, with an option to buy it. Plaintiff's Memorandum, Exhibit B.

 Vanalt argues that plaintiff's claims against it in strict liability and breach of warranty cannot be sustained because Vanalt does not qualify as a seller under the product liability section of the Restatement (Second) of Torts or under Uniform Commercial Code. It claims that it comes under the "occasional seller" exception to section 402A of the Restatement (Second) of Torts, strict product liability.

 II. LEGAL STANDARDS

 Under Federal Rule of Civil Procedure 56, the court will grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, . . . together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-32, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Any issue of material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). The court must take the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmoving party. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980).

 Pennsylvania adopted the strict liability section of the Restatement (Second) of Torts, section 402A, in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Section 402A provides that:

 
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
 
(a) the seller is engaged in the business of selling such a product, and
 
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it was sold.
 
(2) The rule stated in Subsection (1) applies although
 
(a) the seller has exercised all possible care in the preparation and sale of his product, and
 
(b) the user or consumer has not bought the product from or entered into any contractual ...

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