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2-J Corporation t/a Dr. Feelgoode's v. Tice III

October 2, 1997

2-J CORPORATION T/A DR. FEELGOODE'S, APPELLANT

v.

WILLIAM E. TICE, III, T/A TICE CONSTRUCTION COMPANY; JEWELL BUILDING SYSTEMS, INC.



On Appeal From the United States District Court For the Eastern District of Pennsylvania

(D.C. Civil ActionNo. 96-cv-00090)

BEFORE: STAPLETON and LEWIS, Circuit Judges, and WALLS,* District Judge

STAPLETON, Circuit Judge

Filed October 2, 1997

Argued: May 8, 1997

(Opinion Filed October 2, 1997)

OPINION OF THE COURT

We are here asked to resolve whether under Pennsylvania law a commercial purchaser of a pre-engineered warehouse may recover in tort from the manufacturer of the warehouse for damage caused to its contents when the warehouse collapsed. The district court concluded that the Supreme Court of Pennsylvania would interpret the economic loss doctrine as barring tort recovery in these circumstances. We will reverse the district court's grant of summary judgment for the manufacturer and remand for further proceedings.

I.

Plaintiff-appellant 2-J Corporation is a New Jersey corporation engaged in retail sales of spas, swimming pools, and other recreational equipment. In 1987, 2-J hired defendant William E. Tice, III, to construct a building in Bethlehem, Pennsylvania that would serve as a warehouse and provide showroom space for 2-J's inventory. Tice then contracted with defendant-appellee Jewell Building Systems, a North Carolina corporation, to purchase a pre-engineered steel structure to be constructed by Tice on 2-J's premises. Jewell calls its product a "building in a box"; it sent Tice the materials necessary to construct the warehouse and a design plan that Tice followed in erecting the structure. Tice completed construction of the Jewell warehouse for 2-J in December 1987.

2-J used the warehouse until January 17, 1994, when the supports for the roof assembly failed, causing a catastrophic collapse of the warehouse's roof and exterior walls. The warehouse was destroyed. Inventory and other items that 2-J was storing in the warehouse at the time of the collapse were also destroyed. Unfortunately for 2-J, the five-year warranty on the warehouse had expired over a year earlier in November 1992.

Seeking to recover damages for loss of the contents of the warehouse, 2-J initiated this action. It asserted negligence and strict products liability tort claims against Jewell as well as a breach of contract claim based on the warranty. Jewell moved for summary judgment, arguing that tort recovery was barred by the economic loss doctrine, which limits the availability of tort remedies in favor of contract law among commercial parties when products fail to perform as expected. With respect to 2-J's contract claim, Jewell urged that summary judgment was appropriate because the warranty had expired by the time the warehouse collapsed. The district court agreed with Jewell on both points and granted summary judgment. See 2-J Corp. v. Tice, 926 F. Supp. 55 (E.D. Pa. 1996).

2-J's complaint had also pled claims against Tice. These claims were still pending before the district court following its ruling on Jewell's summary judgment motion. On September 19, 1996, the parties agreed voluntarily by stipulation that all claims against Tice would be dismissed. The district court entered an order dismissing the claims against Tice on November 25, 1996.

2-J filed a notice of appeal on October 16, 1996, seeking review only of the district court's decision to grant Jewell summary judgment on the tort claims. Since there was no final, appealable order until November 25, 1996, 2-J's notice of appeal was premature. However, "a premature appeal taken from an order which is not final but which is followed by an order that is final may be regarded as an appeal from the final order in the absence of a showing of prejudice to the other party." Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977) (emphasis omitted); see also Dowling v. City of Philadelphia, 855 F.2d 136, 138 (3d Cir. 1988). Jewell does not argue that it was prejudiced in any respect by 2-J's premature notice of appeal. Thus, ...


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