J-A09040-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANIEL R. LIPINSKI,                       :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
B&G REBAR & WIRE, INC.; NUCOR             :
CORPORATION; NUCOR BAR MILL-              :
DARLINGTON T/D/B/A NUCOR                  :
CORPORATION, A WHOLLY OWNED               :
SUBSIDIARY OF NUCOR                       :
CORPORATION                               :
                                          :
APPEAL OF: NUCOR CORPORATION              :    No. 1457 WDA 2019

                 Appeal from the Order Dated August 26, 2019
              in the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD 14-009079

BEFORE: SHOGAN, J., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                          FILED JULY 28, 2020

      Nucor Corporation (Nucor) appeals the August 26, 2019 order which

denied Nucor’s motion for summary judgment. Upon review, we quash this

appeal.

      Due to our disposition, a detailed recitation of the facts and procedural

history of this case is unnecessary. Briefly, Daniel R. Lipinski filed suit on May

28, 2014, followed by an amended complaint on August 8, 2014, claiming he

suffered injuries on the job while attempting to bend a piece of steel

reinforcement bar (rebar) during a construction project. Nucor manufactured

the rebar at issue and B&G Rebar & Wire, Inc. (B&G) supplied the rebar for

the project. Lipiniski’s product liability claims sound in negligence, strict

liability, and breach of warranty.

* Retired Senior Judge assigned to the Superior Court.
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      Nucor filed preliminary objections asserting a lack of personal

jurisdiction, which were sustained by the trial court on May 19, 2015, and all

counts against Nucor were dismissed for lack of personal jurisdiction.1 In

September 2016, B&G filed a second amended cross-claim against Nucor,

which incorporated Lipinski’s claims against Nucor set forth in his amended

complaint and sought contribution and/or indemnification from Nucor if it were

found to be liable to Lipinski. In response, Nucor filed an answer, new matter,

and cross-claim on December 9, 2016.

      On May 3, 2019, Nucor filed a motion for summary judgment, seeking

dismissal of the cross-claim against it and claiming that because B&G’s expert

opined the rebar was not defective, B&G could not meet its burden of proof

for its cross-claim against Nucor. B&G did not oppose the motion for summary

judgment, but Lipinski filed a brief in opposition, arguing that there was a

genuine issue of material fact under the malfunction theory2 as to whether the

rebar was defective. After argument, the trial court denied the motion for

summary judgment on August 26, 2019. On September 18, 2019, Nucor filed




1All claims against Nucor Bar Mill-Darlington t/d/b/a Nucor Corporation (Nucor
Bar Mill-Darlington) were dismissed without prejudice on May 19, 2015. Nucor
Bar Mill-Darlington is not involved in this appeal.

2 Our Supreme Court has explained that the malfunction theory “permits a
plaintiff to prove a defect in a product with evidence of the occurrence of a
malfunction and with evidence eliminating abnormal use or reasonable,
secondary causes for the malfunction.” Rogers v. Johnson & Johnson
Products, Inc., 565 A.2d 751, 754 (Pa. 1989) (citations omitted).


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a motion for reconsideration, or in the alternative, permission to appeal the

August 26, 2019 order as interlocutory pursuant to 42 Pa.C.S. § 702(b). The

trial court denied the motion that same date.

        This appeal followed.3 On October 16, 2019, this Court issued an order

directing Appellant to show cause as to why the appeal should not be quashed.

Order, 10/16/2019. Citing Pa.R.A.P. 341 and interpretive case law, we noted

that the appeal was filed from an order denying summary judgment and is

therefore interlocutory. Id. In its October 30, 2019 letter brief response,

Nucor argued that the court’s August 26, 2019 order was immediately

appealable as a collateral order pursuant to Pa.R.A.P. 313. It requested this

Court not quash the appeal or alternatively, defer determination to the merits

panel. Id. By order entered November 1, 2019, this Court discharged our

show-cause order and deferred the issue of appealability to this panel for

consideration. Order, 11/1/2019.

        Nucor presents the following question for our review.

        Whether the order erroneously denied Nucor’s motion requesting
        summary judgment on the cross-claim against it for
        contribution/indemnification in this products liability case, where
        the steel reinforcement bar involved in the accident was available
        for expert metallurgical examination and testing which found it
        not to be defective, but [Lipinski] -- whose direct claims against
        Nucor previously had been dismissed -- alone (and despite cross-
        claimant’s non-opposition) contested the motion and did so on the
        basis of the circumstantial evidence-based “malfunction theory,”
        which is inapplicable under the circumstances as a matter of
        Pennsylvania law. Barnish v. KWI Bldg. Co., 980 A.2d 535 (Pa.


3   Both Nucor and the trial court complied with Pa.R.A.P. 1925.
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      2008) (malfunction theory available only where the allegedly
      defective product has been destroyed or is otherwise unavailable).

Nucor’s Brief at 4 (unnecessary capitalization removed).

      We must first determine whether the order from which Nucor appeals is

appealable, because appealability implicates our jurisdiction. In the Interest

of J.M., 219 A.3d 645, 650 (Pa. Super. 2019). “Jurisdiction is purely a

question of law; the appellate standard of review is de novo and the scope of

review plenary.” Id. (citation and internal quotation marks omitted). To be

appealable, the order must be: (1) a final order, Pa.R.A.P. 341-42; (2) an

interlocutory order appealable by right or permission, 42 Pa.C.S. § 702(a)-

(b); Pa.R.A.P. 311-12; or (3) a collateral order, Pa.R.A.P. 313.

      Generally, a final order is any order that disposes of all claims and all

parties. Pa.R.A.P. 341(b). The August 26, 2019 order does not qualify as a

final order under Pa.R.A.P. 341 because “an order denying a motion for

summary judgment does not terminate the litigation, and thus is not an

appealable order.” Melvin v. Doe, 836 A.2d 42, 44 n.4 (Pa. 2003), citing

Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 394 A.2d

491 (Pa. 1978) and Pa.R.A.P. 341. Nucor does not dispute that the order is

not final or that it is not an order appealable as of right by law. Instead, Nucor

maintains that the order is a collateral order pursuant to Rule 313. Nucor’s

Brief at 1; Nucor’s Reply Brief at 1-10.

      We have explained the collateral order doctrine as follows.



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     The “collateral order doctrine” exists as an exception to the finality
     rule and permits immediate appeal as of right from an otherwise
     interlocutory order where an appellant demonstrates that the
     order appealed from meets the following elements: (1) it is
     separable from and collateral to the main cause of action; (2) the
     right involved is too important to be denied review; and (3) the
     question presented is such that if review is postponed until final
     judgment in the case, the claimed right will be irreparably lost.
     See Pa.R.A.P. 313.

     Our Supreme Court has directed that Rule 313 be interpreted
     narrowly so as not to swallow the general rule that only final
     orders are appealable as of right. To invoke the collateral order
     doctrine, each of the three prongs identified in the rule’s definition
     must be clearly satisfied.

Interest of J.M., 219 A.3d at 655, quoting In re W.H., 25 A.3d 330, 335

(Pa. Super. 2011) (some citations omitted).

     Our Supreme Court has explained the following.

           “We construe the collateral order doctrine narrowly so
           as to avoid ‘undue corrosion of the final order rule,’ ...
           and to prevent delay resulting from ‘piecemeal review
           of trial court decisions.’” K.C. v. L.A., [] 128 A.3d 774,
           778 ([Pa.] 2015) (quoting Pridgen v. Parker
           Hannifin Corp., [] 905 A.2d 422, 427 ([Pa.] 2006)).
           As colorfully explained by then-Justice, later Chief
           Justice, Henry X. O’Brien, “[i]t is more important to
           prevent the chaos inherent in bifurcated, trifurcated,
           and multifurcated appeals than it is to correct each
           mistake of a trial court the moment it occurs.”
           Calabrese       v.    Collier    Township       Municipal
           Authority, [] 248 A.2d 236, 238 ([Pa.] 1968)
           (O'Brien, J., dissenting). Moreover, as parties may
           seek allowance of appeal from an interlocutory order
           by permission, we have concluded that that
           discretionary process would be undermined by an
           overly permissive interpretation of Rule 313.
           Geniviva [v. Frisk], 725 A.2d [1209,] 1214 n.5 [(Pa.
           1999)].



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      Shearer [v. Hafer, 177 A.3d 850, 858 (Pa. 2018)]. See also
      Hession Condemnation Case, [] 242 A.2d 432, 437 ([Pa.]
      1968) (O’Brien, J., dissenting) (commenting regarding statute
      permitting immediate appeal of interlocutory order: “The
      bifurcated appeal foisted upon the courts can only be termed a
      judicial Hydra. Would that a Hercules could appear ... to slay this
      monster.”).

Interest of J.M., 219 A.3d at 655.

      Regarding the first prong, an order is separable from the main
      cause of action if it is entirely distinct from the underlying issue in
      the case and if it can be resolved without an analysis of the merits
      of the underlying dispute.10 Although appellate courts tolerate a
      degree of interrelatedness between merits issues and the question
      sought to be raised in the interlocutory appeal, the claim must
      nevertheless be conceptually distinct from the merits of plaintiff’s
      claim.
            ______
            10 Two classic examples of separable issues include standing

            and discovery. See, e.g., K.C.[, 128 A.3d at 778] (“As the
            issue of whether [the a]ppellants are among the individuals
            who have standing to seek custody ... is a conceptually
            distinct legal question which has no bearing on the central
            issue within the custody action - who is entitled to physical
            and legal custody of [the c]hild in light of her best interests
            - we find that the [a]ppellants have established that the trial
            court’s order is separable from the main cause of action.”);
            Shearer, 177 A.3d at 858 (“The discovery-based issue of
            whether a plaintiff in a civil personal injury action has the
            right to counsel or other representative during a
            neuropsychological examination is a distinct legal question
            which has no bearing on the underlying issues in this
            negligence action.”).

Id. at 655-56 (some quotation marks, citations, and original brackets

omitted).

      In the statement of jurisdiction section of its brief, Nucor sets forth the

three-prong test of Rule 313 and refers us to its October 30, 2019 letter brief

in response to our rule to show cause. See Nucor’s Brief at 1. In this response,

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Nucor argued that the instant appeal is separate from the main cause of action

because it is “limited to a focused legal challenge[,] based on uncontested

facts, that necessarily disposes of any need to assess or consider merits

issues.” Response to Rule to Show Cause, 10/30/2019, at 4. Specifically,

Nucor contended that because Lipinski’s claims against Nucor had been

dismissed, and Lipinski did not conduct his own metallurgical testing of the

rebar or contest B&G’s expert, the malfunction theory was inapplicable as a

matter of law where, as here, the product was available. Id. at 2-6. As to the

second and third prongs, Nucor claimed that public policy considerations of

controlling costs in products liability litigation and the lost cost it would incur

in defending itself at an unnecessary trial warranted immediate review of the

denial of its motion for summary judgment. Id. at 6-7.

      Nucor further argues in its reply brief that its motion for summary

judgment was “completely separable from the merits and did not require for

its granting any consideration of the merits or of any proffered facts in support

of the [c]ross-[c]laim (i.e., none were offered by [] B&G)” because B&G did

not oppose Nucor’s motion. Nucor’s Reply Brief at 5.

      For his part, Lipinski argues that this Court is without jurisdiction over

this appeal. He first points out that the trial court refused to certify the appeal

as immediately appealable, and then argues Nucor has not met the first prong

of the collateral order test. Lipinski’s Brief at 14-18. Lipinski maintains that

the appeal cannot be separated from the main cause of action because the


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“central issue in this case, the alleged defective rebar, is precisely what is at

issue” where Nucor’s “primary contention on appeal is that the rebar is not

defective, while [Lipinski] continues to maintain that the rebar is defective.”

Id. at 16-17.

      Nucor responds by assailing Lipinski’s characterization of the central

issue in its motion for summary judgment as whether the rebar is defective,

and instead claims that its motion involves

      the very different threshold inquiry of whether the [r]ebar was
      available for examination and testing (which it indisputably was),
      rendering the circumstantial evidence-based malfunction theory
      inapplicable as a matter of law. The results of the examination or
      testing (e.g., whether they are available and/or support the
      presence of a defect or not) need not be considered or evaluated
      as part of that dispositive threshold determination. Thus, the
      merits [of] whether the [r]ebar is or is not defective simply [are]
      not implicated or involved in the separability analysis in the
      circumstances of this case.

Nucor’s Reply Brief at 7. Nucor contends that the “focused limited legal issue”

raised on appeal, i.e., whether the malfunction theory is inapplicable as a

matter of law, “eliminates any need to assess any merits, i.e., the cause of

[Lipinski’s] alleged accident and whether or not the [r]ebar was defective.”

Id. at 7-9, citing Pridgen, 905 A.2d 422, and Barnish, 980 A.2d at 539-40.

      The trial court agreed with our Rule to Show Cause Order that the appeal

is interlocutory, stating as follows.

      The denial of summary judgment[,] as [Nucor] admits[] in his
      appeal, is not immediately appealable. The issue remains for the
      jury to decide whether[,] as both parties acknowledge, Nucor’s
      rebar was defective. Therefore, Nucor’s appeal is premature and


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      improper and should be quashed, as the Superior Court originally
      communicated to Nucor.

Trial Court Memorandum in Lieu of Opinion, 12/5/2019, at 3.

      Nucor and Lipinski focus their arguments on the first prong of the

collateral order test. The trial court’s denial of Nucor’s motion for summary

judgment is not clearly separable and collateral from the main action as it had

the potential to decide one or more issues in the case. See Melvin, 836 A.2d

at 44. Nucor’s argument, that the malfunction theory does not apply as a

matter of law, is not entirely distinct from the underlying issue in the case,

i.e., whether the rebar was defective. See Interest of J.M., 219 A.3d at 655.

Although, as Nucor argues, a degree of interrelatedness between merits issues

and the question sought to be raised in the interlocutory appeal is tolerable,

the claim must nevertheless be conceptually distinct from the merits of

Lipiniski’s claim. See id. Unlike the classic examples of standing and

discovery, we cannot say that is the case here.

      Further, it is clear that Nucor has not satisfied the latter two prongs

either: importance of the right and irreparable loss. Pa.R.A.P. 313(b)

(providing that “the right involved is too important to be denied review and

the question presented is such that if review is postponed until final judgment

in the case, the claim will be irreparably lost”). We do not see any compelling

public policy concerns that are too important to be denied review at this stage

of the proceedings. “For purposes of defining an order as a collateral order

under Rule 313, it is not sufficient that the issue be important to the particular

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parties. Rather it must involve rights deeply rooted in public policy going

beyond the particular litigation at hand.” Geniviva, 725 A.2d at 1213-14. Nor

do we find that going to trial constitutes the type of irreparable loss

contemplated by the third prong. To find otherwise would be an archetypal

case of the exception swallowing the rule. See Interest of J.M., 219 A.3d at

655; Rae v. Pennsylvania Funeral Directors Ass'n, 977 A.2d 1121, 1126

(Pa. 2009) (stating “our precedent strongly cautions against permitting the

collateral order doctrine to become an exception which swallows, in whole or

in any substantial part, the final order rule”). It is clear that the claims made

by Nucor are not irreparably lost as there is a means by which to later argue

Lipinski is not entitled to relief. As our Supreme Court noted, “[a]ny

efficiencies gained in reduced trial litigation would be at the expense of

increased appellate litigation.” Geniviva, 725 A.2d at 1214.

      Thus, having concluded that we have no jurisdiction to review the trial

court’s August 26, 2019 order, the appeal is quashed.

      Appeal quashed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/28/2020




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