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Nationwide Insurance Company, As Subrogee of Anthony Lorino v. Sears

April 3, 2013


The opinion of the court was delivered by: Buckwalter, S.J.


Currently pending before the Court is Defendants Sears, Roebuck and Co. and Electrolux Home Products, Inc.'s Motion for Summary Judgment. For the following reasons, the Motion is granted in part and denied in part.


On or about January 24, 2004, Anthony Lorino purchased an electric range from Sears, which was subsequently installed in his home. (Compl. ¶¶ 5--6.) The stove came with a "Use and Care Guide." (Defs.' Mot. Summ. J., Ex. B., Jun. 26, 2012 Deposition of Anthony Lorino ("Lorino Dep."), 46:6--47:7.) This Guide contained a "Master Protection Agreement," which stated:

Congratulations on making a smart purchase. Your new Kenmore appliance is designed and manufactured for years of dependable operation . . . The Master Protection Agreement also helps extend the life of your new appliance. Here's what's included in the agreement: . . . .

"No-Lemon guarantee" - replacement of your covered product if more than 3 product failures occurred within 12 months Product replacement if your covered product can't be fixed. (Pl.'s Opp'n Summ. J., Ex. D, Electric Use and Care Guide ("Use and Care Guide") 6.)

On December 9, 2009, a fire occurred at Mr. Lorino's home, allegedly caused by the electric range. (Id. ¶¶ 2, 7.) The fire was investigated by Bristol Township Fire Marshall Kevin J. Dippolito. In his investigation report, Marshall Dippolito found, Following burn and char patterns, this investigator was lead to the area behind the oven, directly behind the control head that runs the width of the stove. . . Also noted was the significant destruction of the top control panel for the stove. It was noted the face of the control panel was completely consumed by fire, with extensive damage to the interior electronics. While examining the stove, I noted unusual marking along the left side of the back metal panel, which would be directly behind the stove control face.

(Pl.'s Opp'n Summ. J., Ex. F., Investigation Report of Fire Marshall Kevin J. Dippolito ("Fire Marshall Report"), 2.) The range never had any problems between its purchase and installation in 2004 until the fire in 2009. (Lorino Dep. 48:3--7.)

Plaintiff retained Randy Marshall, P.E. to serve as an expert in this case. In the first of two expert reports he prepared for this case, Mr. Marshall stated that the cause of the fire was the range's control panel. (Defs.' Mot. Summ. J., Ex. C, Sept. 17, 2012 Engineering Report of Randy Marshall ("Marshall Report"), 7.) Specifically, Mr. Marshall noted, "The arcing noted and the origin of the fire show that a malfunction occurred in the control panel of the stove. This malfunction caused the fire." (Id.)

On December 1, 2011, Nationwide brought action against Defendants in the Bucks County Court of Common Pleas. Defendants removed the case to this Court on December 28, 2011. Subsequently, Defendants filed the instant Motion for Summary Judgment on January 31, 2013. Plaintiff filed a Response in Opposition on February 25, 2013. The Court will now consider the merits of this Motion.


Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.

On summary judgment, the moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145--46 (3d Cir. 2004). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermkts., Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

Although the moving party must establish an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden by "pointing out . . . that there is an absence of evidence to support the nonmoving party's claims." Id. at 325. Once the movant has carried its initial burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec., 475 U.S. at 586. "[T]he non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322. Moreover, ...

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