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WELLSBORO HOTEL CO. v. PRINS

August 24, 1995

WELLSBORO HOTEL COMPANY, Plaintiff
v.
LEON D. PRINS, t/d/b/a CREST PAINTING-WALLPAPER HANGING and SOUTHWESTERN PETROLEUM CORPORATION, Defendants



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 August 24, 1995

 BACKGROUND:

 Plaintiff Wellsboro Hotel Company filed this products liability action *fn1" to recover for damage to its building allegedly caused by the application of defendant's product. Plaintiff owns and operates the Penn Wells Hotel located in Wellsboro Pennsylvania.

 In April, 1990, plaintiff contracted with defendant Leon Prins t a Crest Painting to apply a coating to the exterior, masonry walls of the hotel. The contract specified the use of a product manufactured by defendant Southwestern Petroleum Corporation (SWEPCO) marketed as SWEPCO Masonry Coating and promoted as a "protective coating designed for use on a variety of porous masonry surfaces." (Plaintiff's complaint, P 7)

 Work on the project was completed on or around August 1, 1990. Two years later, plaintiff observed cracking, chipping and peeling and crumbling of the paint and the underlying masonry. Plaintiff attributes these problems to the application of defendant's product and brings this action against Prins and SWEPCO for damage to its building.

 Plaintiff asserts claims against SWEPCO for: 1) breach of express and implied warranties (Count I); 2) negligence (Count II); 3) breach of contract (Count III); and 4) strict liability (Count IV). Liability is asserted against Prins on theories of: 1) negligence (Count V); 2) breach of express and implied warranties (Count VI); and 3) breach of contract (Count VII).

 Defendant SWEPCO moves for partial summary judgment on the strict liability claim asserted in Count IV on two grounds. It asserts that: 1) plaintiff cannot prevail on its claim of strict liability since only property damage is alleged; and 2) the only damages sought constitute economic loss unrecoverable as a matter of law under a theory of strict liability. (Record document no. 18) SWEPCO seeks, in the alternative, a preliminary determination from the court that imposition of liability against it under a theory of strict liability is contrary to social policy. Id.

 DISCUSSION

 Summary judgment standard

 Summary judgment is appropriate 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(c)

 
...The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

 Celotex v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing...that there is an absence of evidence to ...


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