trial court had ruled that summary judgment was appropriate because plaintiffs had deprived defendant "the most direct means of countering their allegations via expert testing and analysis." Id. at 225, 599 A.2d at 687.
In Roselli, the plaintiff-wife was a waitress who had been injured when an allegedly defective coffee carafe shattered. Plaintiffs had the fragments of the broken carafe in their possession, but lost them prior to allowing defendant to inspect them. Id. at 225, 599 A.2d at 685.
The Superior Court stated that as a policy matter, permitting claims for defective products where the product has been disposed of before defendant was given the opportunity to examine the product would encourage false claims and make the legitimate defense of valid claims more difficult. Numerous courts applying Pennsylvania law have agreed. See Sipe v. Ford Motor Company, 837 F. Supp. 660 (M.D. Pa. 1993); Lee v. Boyle-Midway Household Products, Inc., 792 F. Supp. 1001 (W.D. Pa. 1992). See also Schmid v. Milwaukee Electric Tool Corporation, 13 F.3d 76, slip op., (3d Cir. 1994), 1994 U.S. App. LEXIS 20, n.2. Recently, the Superior Court extended the Roselli holding to include instances when a plaintiff never even had control of the product, and the product was discarded by a third party. See DeWeese v. Anchor Hocking Consumer and Industrial Products Group, 427 Pa. Super. 47, 628 A.2d 421 (1993).
The rationale behind the Roselli decision is a sound one and could have no better application than this case, where plaintiff not only had possession of the product under dispute, but chose to allow that product to be destroyed, months before the filing of this case, after first having his own expert inspect it. That plaintiff admittedly did so because he did not want to pay for the costs of storage is bad enough, but it is particularly shocking that he did so after first receiving an expert report which provided no support whatsoever to his potential claim against Subaru.
The spoliation of evidence issue by itself would be sufficient to warrant summary judgement in favor of Subaru. However, summary judgment is also required by the undisputed facts on the record. The Pennsylvania Supreme Court has stated that a plaintiff has made out a prima facie case under the "malfunction" theory if it presents no evidence of a reasonable secondary cause in its case in chief. Rogers v. Johnson & Johnson Products, 523 Pa. 176, 565 A.2d 751 (1989). However, as the Superior Court noted in Roselli, defendants in malfunction cases do not have the burden of proving the existence of secondary causes or abnormal use, only of identifying other possible non-defect oriented explanations. 599 A.2d at 688. In Roselli, the Superior Court cited its prior decision in Lonon v. The Pep Boys, 371 Pa. Super. 291, 538 A.2d 22, 26 (1988), where it stated that:
where an explanation consistent with
the existence of a defect is as probable
as an explanation inconsistent with the
existence of a defect, the plaintiff cannot
be held to have met his burden. A jury
may not be permitted to speculate... It is
the duty of the trial court to determine
whether or not this requirement has been met
in the first instance before the issue can
be submitted to the jury.
Roselli, supra, at 688.
This case is about to enter the Court's trial pool, and plaintiffs have never identified a single part or component manufactured by Subaru which caused the "malfunction" they allege took place. This is unusual even in a malfunction case. Even more unusual is the extreme obviousness of both an alternative reasonable secondary cause, i.e., the relatively advanced age and, therefore, wear and tear on the car, and abnormal use, i.e., Schwartz' driving after drinking.
These facts make it inconceivable that plaintiffs' case would be able to survive a directed verdict motion at the close of evidence. In addition, plaintiff's own testimony, or more accurately, his complete absence of testimony, on the subject of the accident itself provides no support for his malfunction theory, or for any other theory of liability.
In short, given the above, I find that the undisputed facts of this case do not allow for even the most circumstantial of inferences that the accident was attributable to a defect present when the vehicle left the control of defendant Subaru in 1983.
Accordingly I am entering the following order:
AND NOW, this 5th day of May, 1994, upon consideration of defendant's motion for summary judgment and plaintiffs' response, it is ORDERED that:
1. Defendant's motion for summary judgment is GRANTED; and
2. The Clerk of Court is directed to list this case as CLOSED.
By the Court:
Robert F. Kelly, J.