sale. Although it is conceivable that the economic cost of liability could be passed along by increasing the price charged to the buyer, again, this factor standing alone is insufficient to justify a finding of potential liability under Pennsylvania law. Musser, 562 A.2d at 283. At most, Prestolite and Auto-Lite were occasional sellers.
To hold Prestolite and Auto-Lite strictly liable in this case would lead to an unjust, uneconomic result. "Owners of perfectly good and reusable products will junk them rather than risk product liability for things that simply pass through their hands," and that would be "economic waste." Bevard v. Ajax Mfg. Co., 473 F. Supp. 35, 38 (E.D. Mich. 1979).
If the Supreme Court of Pennsylvania were presented with the facts of this case we predict that the court would hold that Machinery Wholesalers, Prestolite and Auto-Lite cannot be found strictly liable under § 402A of the Restatement (Second) of Torts.
b. Assumption of Risk and Design Defect
Machinery Wholesalers argues that there is no genuine issue of material fact that Mr. Balczon assumed the risk of his injuries and thus, it cannot be held strictly liable in tort. We will deny this portion of the motion on the grounds that the question of assumption of risk is a factual issue to be decided by the jury, Wagner v. Firestone Tire & Rubber Co., 890 F.2d 652, 657 (3d Cir. 1989)(applying Pennsylvania law), and there are sufficient issues of material fact to allow the jury to decide that Mr. Balczon did not assume the risk of his injuries.
The plaintiff has submitted evidence that (i) Mr. Balczon did not fully understand the specific risk involved, (ii) he did not voluntarily choose to encounter the risk, and (iii) the circumstances surrounding the accident do not manifest a willingness to accept the risk. Long v. Norriton Hydraulics, Inc., 443 Pa. Super. 532, 662 A.2d 1089 (Pa. Super. 1995); Hardy v. Southland Corp., 435 Pa. Super. 237, 645 A.2d 839 (Pa. Super. 1994). For example, Mr. Balczon has testified that his injury happened after he pushed the black "off" button on the press, and that he believed at the time that the black button shut off everything on the press, including the motor, the pedal which operated the ram, and the foot pedal to the machine itself. Balczon Dep. at 58, 86-87, 136. He testified that he did not know that the machine would operate if someone touched the foot pedal if the fly wheel was operating after the black button had been pushed to turn the machine off. He stated, "I assumed I turned the controls off, turned the controls of the pedal off." Id. at 166. We hold that this evidence creates a genuine issue of material fact regarding assumption of risk.
In support of its motion, Machinery Wholesalers relies upon our previous ruling, Opinion and Order dated July 30, 1996, that Bliss could not be held strictly liable to Mr. Balczon because the product underwent a substantial change after Bliss marketed and sold the product in 1950. In that opinion we stated that the warning pasted onto the press at the point of operation "was adequate regarding [the press'] present use" and thus, the product was not defective. Opinion and Order dated July 30, 1996 at 9. This is a separate question from assumption of risk; before an assumption of risk defense can be considered, there must first be a determination of whether the product was defective as a result of inadequate warnings or design defect. Liability for failure to warn can be an independent basis for liability, not requiring the jury to find a design defect. Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85, 92-93 (3d Cir. 1976) (applying Pennsylvania law). Our July 30, 1996 opinion has since been bolstered by the Pennsylvania Supreme Court's subsequent decision in Davis v. Berwind Corp., 547 Pa. 260, 690 A.2d 186 (Pa. 1997). The Davis opinion, however, does not hold that the defense of assumption of risk is one and the same as a defect arising from failure to warn.
We therefore will deny this portion of Machinery Wholesaler's Motion for Summary Judgment.
In view of the foregoing, we will deny as moot Machinery Wholesaler's Amended Motion for Summary Judgment.
An appropriate Order follows.
Maurice B. Cohill, Jr.
Senior District Judge
AND NOW, to-wit, this 13th day of February 1998, for the reasons set forth in the accompanying opinion, it is hereby ORDERED, ADJUDGED and DECREED that the Motion for Summary Judgment (Doc. 36) is hereby GRANTED in part and DENIED in part; the Amended Motion for Summary Judgment (Doc. 46) filed by Machinery Wholesalers be and the same hereby is DENIED as moot.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by Prestolite Electric and Auto-Lite Battery (Doc.41) be and the same hereby is GRANTED.
IT IS FURTHER ORDERED that the parties shall appear before the Court for a Pretrial Conference on March 19, 1998 at 9:00 a.m. in Courtroom B, the United States Post Office & Courthouse, Erie, Pennsylvania. Counsel are advised that they should have the authority to negotiate a settlement on behalf of their respective clients.
Maurice B. Cohill, Jr.
Senior District Judge