Appeal from the Order Entered October 24, 2007. in the Court of Common Pleas of Philadelphia County, Civil No., October Term, 2000 No. 3340
The opinion of the court was delivered by: Musmanno, J.:
BEFORE: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN*, BENDER, BOWES, PANELLA, DONOHUE, SHOGAN AND ALLEN; JJ. OPINION BY
¶ 1 James Charles Kiak ("Kiak") appeals from the Order of the trial court granting summary judgment in favor of Crown Equipment Corporation ("Crown") in this product liability action. The trial court concluded that this case is controlled by the decision of a panel of this Court in Arnoldy v. Forklift L.P., 927 A.2d 257 (Pa. Super. 2007), and the principles of federal preemption. In Arnoldy, a panel of this Court concluded that the Occupational Safety and Health Act of 1970 ("OSH Act"), 29 U.S.C.A. §§ 651 et seq., and regulations adopted pursuant to the OSH Act, preempted a similar state tort law claim. We hereby overrule Arnoldy, reverse the Order of the trial court and remand for further proceedings.
¶ 2 The trial court summarized the salient facts underlying the instant appeal, as set forth in the pleadings and exhibits, as follows: * Judge Orie Melvin did not participate in the consideration or decision of this case.
At all relevant time[s], [Kiak] was employed by Victualic Co. America, a foundry located in Easton, Pennsylvania, which manufactures couplings to join pipes for sprinkler systems and fire protection. On November 4, 1998, while at the job-site, [Kiak] was injured when a Crown 30TSP Series Turret Stockpicker Truck (TSP), a type of forklift[,] which was being operated by a co- worker, pinned [Kiak] between two boxes and nearly amputated his foot. Although the TSP forklift was equipped with a functioning back-up travel alarm and a strobe light, [Kiak] claims that he was unaware that the forklift was near him until it was a few feet away, and he was unable to get out of its way. [Kiak] further claims that the forklift's back-up travel alarm was defective because the travel alarm did not sound when the forklift coasted backwards while in neutral. The TSP forklift involved herein was manufactured in 1997 by [Crown], and was one (1) of eight (8) 30TSP series forklifts sold to [Kiak's] employer in 1998. According to its description, the 30TSP series forklift, which is approximately twenty-one (21) feet high, ten (10) feet long and five (5) feet wide, is an award winning turret-style forklift specially designed for moving three thousand (3,000) pound palletized loads to a height of thirty-five (35) feet in a high density warehouse environment. The TSP Forklift's maximum speed is six (6) miles per hour and, depending on the height of the forks, the speed will decrease to one (1) mile per hour. [Crown] contends that when [Kiak's] employer ordered its fleet of TSP forklifts, there were numerous options available designed to customize the forklifts to the user's operational needs and the specific work environment. These options included not only performance-related items, such as tire and guidance systems, but also safety-related items, such as audible back-up travel alarms. [Crown] avers that [Kiak's] employer customized the TSP forklifts by adding an audible back-up travel alarm specifically designed to sound when the operator moved the throttle into reverse and stop sounding when the throttle was placed in the neutral or forward positions, regardless of the forklift's actual travel direction.
Trial Court Opinion, 2/29/08, at 2.
¶ 3 Kiak filed a Civil Complaint against Crown and Omnilift, Inc. ("Omnilift"), on October 24, 2000. In his Complaint, Kiak alleged causes of action in negligence, breach of warranty and strict product liability.1 Kiak's product liability claim alleged a defectively designed back-up travel alarm system on the TSP forklift. Complaint, 10/24/00, at ¶¶ 32-36. Prior to trial, Kiak withdrew his negligence and breach of warranty claims. Kiak also settled his case against Omnilift. Thus, the case proceeded on Kiak's sole remaining cause of action against Crown: strict product liability.
¶ 4 On February 4, 2003, following a trial, the jury returned a verdict in favor of Crown. Kiak filed a post-trial Motion challenging the trial court's refusal to give two proposed jury instructions. The trial court denied the post-trial Motion. Thereafter, Kiak appealed the judgment in favor of Crown to this Court. On appeal, this Court vacated the verdict and remanded the case for a new trial. Kiak v. Crown Equip. Corp., 894 A.2d 829 (Pa. Super. 2005). The Pennsylvania Supreme Court denied Crown's subsequent Petition for allowance of appeal. Kiak v. Crown Equip. Corp., 916 A.2d 634 (Pa. 2006).
1 Since Webb v. Zern, 220 A.2d 853 (Pa. 1966), the Pennsylvania Supreme Court has recognized a plaintiff's right to pursue an action in strict liability against the manufacturer of a product pursuant to section 402A of the Restatement (Second) of Torts.
¶ 5 On remand, Crown filed a Motion for summary judgment asserting that this case is controlled by the Pennsylvania Superior Court's panel decision in Arnoldy. On October 17, 2007, the trial court agreed and entered summary judgment in favor of Crown. Thereafter, Kiak filed the instant timely appeal. On February 17, 2009, a panel of this Court filed a decision reversing the Order of the trial court and remanding for further proceedings. This Court subsequently withdrew the panel decision and granted reargument en banc.
¶ 6 Kiak presents the following claims for en banc review by this Court: I. Whether the trial court erred in relying on Arnoldy where the Arnoldy court failed to consider the effect of the OSH Act's savings clause which operates to save [Kiak's] claim from preemption?
II. Whether the trial court erred in failing to acknowledge that [Kiak's] claim was not preempted through the effect of the [the OSH Act's] savings clause, which has been near universally construed to save injured employees['] state tort claims against the suppliers of a defective product?
III. Whether the trial court erred in finding [Kiak's] claim was preempted by federal law when the federal regulation cited by the trial court contains advisory language which is not and cannot be part of federal law?
IV. Whether the trial court erred in finding [that Kiak] failed to establish causation despite [Kiak's] evidence that he would have heeded a backup alarm if the subject Crown TSP [forklift] had a warning that sound[ed] while coasting in reverse?
Brief for Appellant at 4 (issues renumbered for disposition).
¶ 7 Kiak challenges the trial court's entry of summary judgment against him and in favor of Crown. Kiak's first three claims basically challenge the trial court's application of this Court's panel decision in Arnoldy and the court's conclusion that the OSH Act preempted Kiak's state tort claim. As the trial court stated in its Opinion, the issue is "whether the law of [federal] preemption precludes this action." Trial Court Opinion, 2/29/08, at 6. The ...