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November 17, 1993

CATHERINE M. BEAVER, Individually and as the Administratrix of the Estate of WAYNE LEON BEAVER, Deceased, Plaintiff,

The opinion of the court was delivered by: BY THE COURT; ANTWERPEN


 November 17, 1993

 This matter is before the court on defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). Jurisdiction is based on diversity. 28 U.S.C. § 1332. On February 3, 1993, plaintiff, Catherine M. Beaver, filed a complaint in the Philadelphia Court of Common Pleas commencing a wrongful death action and a survival action as the administratrix for the estate of Wayne Leon Beaver. This suit arises out of the death of plaintiff's husband, Wayne Leon Beaver. He died in the course of his employment, while he was working with a flaskless molding machine manufactured by defendant Dansk Industri Syndicat A/S ("DISA") and installed under the supervision of defendant Disamatic, Inc. ("Disamatic"). The case has been removed to this court by the defendants, and we now review their motion for summary judgment.


 The court shall render 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S. Ct. at 2510. All inferences must be drawn and all doubts resolved in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S. Ct. 537, 88 L. Ed. 2d 467 (1985).

 On motion for summary judgment, the moving party bears the initial burden of identifying for the court those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. Id. at 321 n.3, 106 S. Ct. at 2552 n.3 (quoting Fed. R. Civ. P. 56(e)); see First Nat. Bank v. Lincoln Nat. Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-49, 106 S. Ct. at 2510-11.


 After comparing the statement of facts submitted by plaintiff with those submitted by defendants, we are of the view that while some facts remain in question, for the purposes of deciding this motion, no material facts are at issue. The basic facts of this case are neither complicated nor in dispute. Defendant DISA is a foreign corporation based in Denmark. DISA designs, manufactures and sells various types and models of molding machines. Defendant Disamatic, an Illinois corporation, is the exclusive distributor of DISA's Disamatic automatic molding machines in North America. DISA is the sole shareholder of Disamatic.

 In 1968, defendant DISA designed, manufactured and sold the Disamatic molding machine Model 2011 to plaintiff's decedent's employer, Stanley G. Flagg & Company, Inc. ("Flagg"), a division of Amcast Industrial Corp. ("Amcast"). Flagg manufactures pipe fittings, and operates an iron foundry and a brass foundry for that purpose.

 The machine in question is one of at least five Disamatic molding machines in Flagg's iron foundry, where it is designated as machine No. 4. This Model 2011 molding machine was designed for the purpose of making castings. Machine No. 4 is six to eight feet wide, 15 to 20 feet long, and approximately eleven feet high. It weighs an estimated 40,000 pounds. Disamatic, DISA's exclusive distributor, supervised and observed the installation and start-up of machine No. 4 at the Flagg foundry.

 The molding machines at the Flagg foundry are integrated with other components and systems in the building. A large sand conveyer system runs above the row of five molding machines at the Flagg iron foundry, and a molten metal pouring process is connected to each machine. Machine No. 4 was bolted to the building's floor in 1968 and is connected to various utilities, including electric, air and water supplies. These utilities are connected by hard piping and conduit.

 Wayne Leon Beaver, plaintiff's deceased husband, was employed by Flagg at its iron foundry. On September 16, 1992, Beaver was working with molding machine No. 4 when the molding chamber of the machine suddenly and unexpectedly opened. Beaver suffered crush injuries to the head which resulted in his tragic death. Subsequently, on February 3, 1993, plaintiff filed a three count complaint which was removed to this court. Plaintiff contends that the recklessness and negligence of defendants, and errors in the manufacturing of the aforementioned Disamatic molding machine, rendered the machine unreasonably dangerous and defective and that this condition proximately caused Mr. Beaver's death.

 In response to plaintiff's complaint, defendants have filed this motion for summary judgment. Defendants' sole argument is that Pennsylvania's twelve-year statute of repose set forth in 42 Pa. C.S. § 5536 bars plaintiff's action. Plaintiff disagrees. We discuss both parties' arguments below.


 A. The Pennsylvania Statute of Repose

 Defendants believe the plaintiff's suit to be time-barred by the Pennsylvania statute of repose, which provides:

(a) General Rule. -- Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
* * * * *
(3) Injury to the person or for wrongful death arising out of ...

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