The opinion of the court was delivered by: BY THE COURT; JOSEPH L. MCGLYNN, JR.
This case comes before the court on Defendant Start Plastics, Inc.'s ("Start") Motion for Partial Summary Judgment on Counts V and VI of Plaintiffs' Complaint, and Start's Motion for Protective Order to preclude the deposition of Arthur Heppner. Plaintiffs allege that Start is liable based upon theories of strict product liability and breach of warranty as the seller and supplier of a defective conveyor system. For the reasons discussed below, Defenadant Start's motion for Partial Summary Judgment is GRANTED. Defendant Start's Motion For Protective Order is DISMISSED as moot.
When Defendant Start manufactured brine tank systems, it was its practice to supply them without conveyors. In March of 1988, however, Maggio and Defendant Start entered an agreement whereby Start would supply Maggio with a brine tank system complete with a conveyor for use in processing cheese. From the time Maggio agreed to that contract, it understood that Start did not design, manufacture or sell conveyor systems. (Dep. Tr. of Lorenzo P. Maggio, Oct. 15, 1992, at 11-12, 40-48.) As a concession to Maggio, who wanted to deal with only one vendor, Defendant Start contacted the Marchetta Elevator Company ("Marchetta"), who designed, manufactured, and installed the conveyor. Id. Thereafter, Defendant Start sold Maggio the complete brine tank and conveyor system. This was the first of three such complete systems ever sold by Defendant Start.
The issue in the instant case is whether by virtue of the March 1988 sale and two subsequent unrelated sales of conveyor systems, Defendant Start is engaged in the business of selling such equipment for purposes of imposing liability for product defects under section 402A of the Restatement (Second) of Torts and implied warranty liability under the Uniform Commercial Code. Under Federal Rule of Civil Procedure 56(c), summary judgment may be granted when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. This rule is a procedural device which enables the court to facilitate the resolution of a pending controversy without the expense and delay of conducting a trial when the critical facts of a case are not in dispute. In Re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992); Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358 (3d Cir. 1992). For a dispute to be "genuine", the evidence must be such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, , 106 S. Ct. 2505, (1986); Williams v. West Chester, 891 F.2d 458, 460 (3d Cir. 1989). To establish a genuine issue of material fact, the non-moving party must introduce evidence beyond the mere pleadings to create an issue of material fact of "an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); In Re Paoli R.R. Yard PCB Litigation, 811 F. Supp. 1071 (E.D. Pa. 1992). The burden of demonstrating the absence of genuine issues of material fact is initially on the moving party regardless of which party would have the burden of persuasion at trial. Pennbarr v. Ins. Co. of North America, 976 F.2d 145 (3d Cir. 1992); U.S. v. Premises Known as 717 Woodward Street, 804 F. Supp. 716 (E.D. Pa. 1992). Following such a showing in a case where the non-moving party is the plaintiff and thus bears the burden of proof, as here, plaintiff must present evidence through affidavits, depositions and/or admissions sufficient to establish the existence of every element essential to that party's case. Celotex, 477 U.S. at 323.
In ruling on a motion for summary judgment, the court must consider the evidence presented in a light most favorable to the non-moving party (plaintiff here), Matsushita Elec. Indus. Co. v. Zenith Radio Corp, 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Williams v. New Castle County, 970 F.2d 1260, 1264 (3d Cir. 1992); Boyle v. Governor's Veterans Outreach & Assistance Center, 925 F.2d 71, 75 (3d Cir. 1991), must give that party the benefit of all reasonable inferences arising from that evidence, Big Apple BMW, 974 F.2d at 1368, and must take as true all allegations of the non-moving party that conflict with those of the movant. Anderson, 477 U.S. at 255. However, when the record will not support a rational finding that an essential element of the non-moving party's claim or defense exists, summary judgment must be entered for the moving party. Celotex, 477 U.S at 322.
The principle issues that arise under Rule 56(c) are whether a factual dispute exists; whether the dispute is material to the outcome of the case; and whether the dispute is genuine. This interpretation and application of Rule 56 is a matter of federal law. Farmland Industries v. Grain Bd. of Iraq, 284 U.S. App. D.C. 276, 904 F.2d 732, 736 (D.C. Cir 1990). Although the characterization of issues and the determination of the materiality and of the sufficiency of the factual showing will often be intertwined with questions of state law, whether a trial is necessary is a matter of federal law. Id.
There is a spectrum ranging from fact to law in which a large continuum between the two extremes is occupied by mixed questions of fact and law and by questions of ultimate fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Celotex v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548, (1986). At one extreme of the spectrum lie so-called historical facts; a thing done, an action preformed, or an event or occurrence. Id. The resolution of a dispute over historical facts or the inferences to be drawn from them is a jury function. Id. At the other extreme, the court considers issues of law. Id. When facts material to the application of a pure rule of law are undisputed, as here, the application is a matter of law for the court. See Edwards v. Aguillard, 482 U.S. 578, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987) (When no dispute over the sufficiency of evidence establishing facts that control the application of the rule of law, summary judgment is the appropriate means of deciding the issue); Heller v. Champion International Corp., 891 F.2d 432, ...