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February 13, 1998

JOHN E. BALCZON, Plaintiff

The opinion of the court was delivered by: COHILL


 I. Background

 This negligence and strict liability action was brought by plaintiff John E. Balczon against defendants Machinery Wholesalers Corporation ("Machinery Wholesalers"), E.W. Bliss Inc. ("Bliss"), and Cutler-Hammer Products, a division of the Eaton Corporation ("Cutler-Hammer"). Mr. Balczon's complaint, alleging personal injury as a result of an accident involving a Bliss press, was filed in the Court of Common Pleas of Erie County, Pennsylvania, and was removed to this Court in September 1994. Machinery Wholesalers subsequently impleaded third party defendants Prestolite Electric, Inc. ("Prestolite") and its predecessor company, Auto-Lite Battery Corporation, Owen-Dyneto Division ("Auto-Lite"). Machinery Wholesalers filed a cross claim against Bliss demanding indemnity and/or contribution in the event Machinery Wholesalers is found to be liable to the plaintiff.

 Presently pending before this Court are three motions for summary judgment. The first, filed by Machinery Wholesalers, seeks summary judgment on the grounds that: (a) plaintiff assumed the risk of his injuries, and (b) Machinery Wholesalers was not a "seller" as that term is defined in Section 402A of the Restatement (Second) of Torts. Machinery Wholesalers subsequently filed an Amended Motion for Summary Judgment on the grounds that the subject press was not defective. The third motion for summary judgment was filed jointly by Prestolite and Auto-Lite, which, like Machinery Wholesalers, argue that they are not "sellers" as that term is defined by Section 402A of the Restatement (Second) of Torts.

 In 1983, Prestolite began to liquidate the surplus machinery that it owned, and resold the press to Lakeview Forge, located in Erie, Pennsylvania, using Machinery Wholesalers as its "broker." Machinery Wholesalers is located in Miami, Florida, and is in the business of buying and selling used equipment. Its exposure to the Bliss press was fleeting, and in fact, the press was purchased by plaintiff's employer before Machinery Wholesalers paid Prestolite. *fn1" Machinery Wholesalers never had physical possession of the press and the press was never moved to or stored in a facility controlled or owned by Machinery Wholesalers. Machinery Wholesalers never had any involvement in the design or manufacture of the press and, prior to the 1983 sale of the press, never had any prior business dealings with either Prestolite or Lakeview Forge. Affidavit of Mark Fields in Supp. of Summ. J. Mot. of Machinery Wholesalers at PP 5-9. Lakeview Forge was in possession of the Bliss press for eight years until the plaintiff was injured in 1991.

 The injury occurred as follows. On October 2, 1991, Mr. Balczon, an employee of Lakeview Forge, placed his left hand within the operating point of the press while performing a die adjustment. Prior to performing the adjustment, he turned off one of the two electrical power switches which energized the press. The main power switch, which supplied power to the foot pedal as well as to other components, was not deactivated. Mr. Balczon did not follow other recommended safety measures in that he did not wait for the flywheel to stop rotating, did not place safety blocks in position and did not switch the electrical safety box to the dual button position. It appears that Mr. Balczon's foot then made contact with the foot pedal, causing the press to cycle and the ram to strike the plaintiff's left hand, which was in the die area. His hand was crushed and his left middle finger amputated.

 Count I of the Complaint alleges strict liability and negligence against Machinery Wholesalers; Count II alleges strict liability against Bliss; and Count III alleges strict liability and negligence against Cutler-Hammer. Count I of the third party complaint asserts theories of strict liability and negligence against third party defendant Prestolite. Count II of the third party complaint asserts theories of strict liability and negligence against third party defendant Auto-Lite.

 By Order dated July 30, 1996, we granted summary judgment in favor of co-defendant Bliss and ordered that all cross-claims against Bliss be dismissed with prejudice, on the basis that the addition of a foot pedal, after the subject press left Bliss's control in 1950, constituted a significant change in the press, and thus, the press did not reach the user, Lakeview Forge, in the same condition as originally sold in 1950, as required for liability under the Restatement (Second) of Torts § 402A. We also rejected plaintiff's contention that the cause of the accident was the defective design or configuration of the electrical circuitry of the press, which allowed the press to activate and cycle after the drive motor had been turned "off". When Bliss sold the press, the ram would not cycle unless the dual hand buttons were activated. Thus, the activation of these buttons would have required the operator's hands to be out of the area of danger; the machine could not cycle while the operator's hands were in the area of danger. The posted warnings on the press, if followed, would have allowed for the safe operation of the press. Mr. Balczon testified that he was aware of this warning sticker on the press. "Where warning is given, the seller may reasonably assume that it will be read and heeded." Restatement (Second) of Torts § 402A cmt.j (1965); Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (Pa. 1984). The determination of whether a warning is adequate and whether a product is "defective" due to inadequate warnings are questions of law to be answered by the trial judge. Davis v. Berwind Corp., 547 Pa. 260, 690 A.2d 186, 190 (Pa. 1997).

 II. Discussion

 Summary judgment shall be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is not a 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 facts must be viewed in the light most favorable to the non-moving party. Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir. 1995). The non-moving party must then go beyond the pleadings and designate facts showing that a genuine issue of material fact remains for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Furthermore, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 a. "Sellers" under Section 402A

 As a federal court sitting in a diversity case, we will apply the substantive law of the state's highest court. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). Pennsylvania has adopted § 402A of the Restatement (Second) of Torts. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (Pa. 1966). It provides that:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the ...

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