The opinion of the court was delivered by: Anita B. Brody, J.
In January 2007, seven-year-old Brooke Wilkinson ("Brooke") injured herself by falling on a baby gate. Her parents Bryan and Kathleen Wilkinson ("Wilkinsons") brought this action in the Court of Common Pleas of Montgomery County, Pennsylvania, on her behalf against Huffy Corporation ("Huffy"), Gerry Baby Products ("Gerry Baby"), Gerry Wood Products ("Gerry Wood"), and Evenflo Company ("Evenflo"). The defendants removed the case to federal court on February 20, 2009.*fn1 Before me are two motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), one filed by Evenflo and the other filed by Huffy (Docs. #5 and #11).
Gerry Baby and Gerry Wood designed, manufactured, and constructed the Gerry Baby Gate in 1995. The Wilkinsons received this gate as a gift in 1996. Brooke fell on the gate in January 2007, striking her face on an exposed metal clip that protruded from it. She suffered severe injuries as a result. (Compl. ¶¶ 10-12.)
Prior to March 7, 1997, Huffy owned Gerry Baby and Gerry Wood. On March 7, 1997, Evenflo purchased Gerry Baby and Gerry Wood from Huffy pursuant to an Asset Purchase Agreement ("Agreement").*fn3 (Compl. ¶¶ 7-8.) With regard to third parties, the Agreement states as follows: "Nothing in this Agreement, whether expressed or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties to it and their respective successors and assigns." (Compl. Ex. A § 13.4.) With regard to indemnification, the Agreement also states as follows:
Huffy and Sellers shall, jointly and severally, indemnify and hold Purchaser and its Affiliates, and their successors and assigns, harmless from and against, and in respect of . . . all obligations and liabilities of Sellers or any of its Affiliates, whether accrued, absolute, fixed, contingent or otherwise, not assumed by Purchaser pursuant to the Assumption Agreement or under any other agreement executed and delivered by the parties in furtherance of the transactions described herein.
When deciding a 12(b)(6) motion a court must "construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotations omitted). "A complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (U.S. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged . . . but it has not 'show[n] . . . that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
In their complaint, the Wilkinsons assert claims of strict liability (Count I), negligence (Count II), breach of express warranty (Count III), breach of implied warranty (Count IV), and failure to warn (Count V) against Gerry Baby, Gerry Wood, and Evenflo. The Wilkinsons also assert a claim for breach of contract (Count VI) against all four defendants, including Huffy. The parties both submitted briefs indicating that Pennsylvania law governs this matter.
The Wilkinsons have conceded that their claims against Gerry Baby and Gerry Wood may be dismissed because the companies no longer exist. They also concede that Counts II to VI (negligence, breach of express warranty, breach of implied warranty, failure to warn, and breach of contract) against Evenflo may be dismissed. However, the Wilkinsons stand by Count I (strict liability) against Evenflo and Count VI (breach of contract) against Huffy. These claims are discussed below.
A. Count I (Strict Liability) Against Evenflo
Section 402A of the Second Restatement of Torts has been adopted in Pennsylvania law. Webb v. Zern, 220 A.2d 853, 854 (Pa. 1966). Accordingly, three types of defects may give rise to strict products liability in Pennsylvania: design, manufacturing, and failure to warn. Phillips v. A-Best Prods. Co., 665 A.2d 1167, 1170 (Pa. 1995). Although the Wilkinsons do not specify which theory of liability they advance, it seems clear from their pleadings that they allege a design defect. To establish strict liability, "a plaintiff has the burden of showing that the product was defective, that the defect was the proximate cause of his or her injuries and that the defect existed at the time the product left the manufacturer." Dansak v. Cameron Coca-Cola Bottling Co., Inc., 703 A.2d 489, 495 (Pa. Super. Ct. 1997) ...