The opinion of the court was delivered by: Hay, Magistrate Judge
Plaintiffs, Donald E. Meadows, Jr. and Amanda Meadows, commenced this diversity action after Mr. Meadows was injured while installing a long wall shield at the Maple Creek Mine in Bentleyville, Pennsylvania, which was allegedly rebuilt, refurbished and/or repaired by defendant Anchor Longwall and Rebuild, Inc. ("Anchor Longwall").
It appears undisputed that plaintiff's employer, the Maple Creek Mine, contracted with Montgomery Equipment Company of Montgomery ("Montgomery"), to repair approximately 189 of its longwall shields and that Montgomery subcontracted with several repair companies, including Anchor Longwall, to perform the work.*fn1 Anchor Longwall apparently refurbished 39 of the shields which required it to replace damaged components including certain hose kits and valves.*fn2 Plaintiffs allege that while Mr. Meadows was pressurizing one of the refurbished shields against the mine roof a fitting located in the shut off valve, which had been replaced by Anchor Longwall, malfunctioned and pulled loose from the valve assembly housing striking Mr. Meadows on the right side of his face.*fn3 As a result, Mr. Meadows has lost his right eye and suffered significant facial scarring.*fn4
Plaintiffs filed the instant complaint on November 29, 2002, wherein Mr. Meadows has brought claims against Anchor Longwall under theories of strict liability (Count I), negligence (Count II), and breach of warranty (Count III). In addition, Mrs. Meadows has brought claims for emotional distress and loss of consortium (Count IV).
It also appears that Anchor Longwall has filed a third-party complaint seeking contribution and indemnification against Lewis-Goetz and Company, Inc. ("Lewis-Goetz"), the successor-in-interest to Gooding & Shields Rubber Co., which allegedly supplied the valves in question, and Systems Stecko ("Stecko"), which is purported to have designed and manufactured the valves. In addition, Stecko has brought a counterclaim against Anchor Longwall and cross-claims against Lewis-Goetz, and Lewis-Goetz has filed cross-claims against Anchor Longwall in which contribution and indemnification have also been sought (Doc. Nos. 36, 37, 40, 57).
Presently before the Court is a motion for partial summary judgment filed by Anchor Longwall in which it argues that it is entitled to judgment on plaintiff's strict liability claim because Anchor Longwall did not sell or supply a product but merely provided a service which is not subject to strict liability.
Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial ... or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Thus, it must be determined "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52.
It appears undisputed that Mr. Meadows' claim for strict liability is governed by section 402A of the Restatement (Second) of Torts, which 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 condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual ...