J-S14010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TIMOTHY MEYERS                           :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
             v.                          :
                                         :
LVD ACQUISITIONS, LLC D/B/A              :
OASIS INTERNATIONAL                      :
                                         :
                   Appellee              :         No. 1740 MDA 2016

             Appeal from the Order Entered September 23, 2016
               In the Court of Common Pleas of Mifflin County
                 Civil Division at No(s): CP-44-CV-261-2015


BEFORE:    GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.:                         FILED MARCH 28, 2017

      Appellant, Timothy Meyers, appeals from the order entered in the

Mifflin County Court of Common Pleas, which granted summary judgment in

favor of Appellee, LVD Acquisitions, LLC., d/b/a Oasis International.        We

affirm.

      In its opinion, the trial court correctly set forth the relevant facts of

this case. Therefore, we have no reason to restate them. We add only the

following fact: Appellee is the manufacturer of the water cooler at issue.

      Procedurally, on February 17, 2015, Appellant filed a complaint against

Appellee, alleging strict liability for a design defect, negligent design and/or

maintenance, and breach of the implied warranty of fitness for a particular

purpose. Appellee answered the complaint on April 27, 2015. On June 6,

_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S14010-17


2016, Appellee filed a motion for summary judgment to dismiss all of

Appellant’s claims.     Appellant timely filed a response in opposition to

Appellee’s summary judgment motion on June 30, 2016. The court held oral

arguments for the summary judgment motion on July 14, 2016, and on

September 23, 2016, the court entered summary judgment and dismissed

all of Appellant’s claims.   On October 20, 2016, Appellant timely filed a

notice of appeal. The court ordered Appellant on October 21, 2016, to file a

Rule 1925(b) statement, which Appellant timely filed on November 7, 2016.

      Appellant raises three issues for our review:

         DID THE TRIAL COURT [ERR] IN GRANTING APPELLEES’
         MOTION FOR SUMMARY JUDGMENT AS IT RELATES TO
         APPELLANT’S STRICT LIABILITY CLAIM[?]

         DID THE TRIAL COURT [ERR] IN GRANTING APPELLEES’
         MOTION FOR SUMMARY JUDGMENT AS IT RELATES TO
         APPELLANT’S    NEGLIGENT      DESIGN     AND/OR
         MAINTENANCE-PRODUCT LIABILITY CLAIM[?]

         DID THE TRIAL COURT [ERR] IN GRANTING APPELLEES’
         MOTION FOR SUMMARY JUDGMENT AS IT RELATES TO
         APPELLANT’S BREACH OF IMPLIED WARRANTY OF FITNESS
         FOR A PARTICULAR PURPOSE CLAIM[?]

(Appellant’s Brief at 7).

      Our standard of review of an order granting summary judgment

requires us to determine whether the trial court abused its discretion or

committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344,

347 (Pa.Super. 2006).

         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing

                                     -2-
J-S14010-17


         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it
         misapplies the law or exercises its discretion in a manner
         lacking reason.       Similarly, the trial court abuses its
         discretion if it does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations omitted).   Our scope of review is plenary.   Pappas v.

Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536

U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002).        In reviewing a trial

court’s grant of summary judgment:

         [W]e apply the same standard as the trial court, reviewing
         all the evidence of record to determine whether there
         exists a genuine issue of material fact. We view the record
         in the light most favorable to the non-moving party, and
         all doubts as to the existence of a genuine issue of
         material fact must be resolved against the moving party.
         Only where there is no genuine issue as to any material
         fact and it is clear that the moving party is entitled to a
         judgment as a matter of law will summary judgment be
         entered. All doubts as to the existence of a genuine issue
         of a material fact must be resolved against the moving
         party.

         Motions for summary judgment necessarily and directly
         implicate the plaintiff’s proof of the elements of [a] cause
         of action.   Summary judgment is proper if, after the
         completion of discovery relevant to the motion, including
         the production of expert reports, an adverse party who will
         bear the burden of proof at trial has failed to produce
         evidence of facts essential to the cause of action or
         defense which in a jury trial would require the issues to be
         submitted to a jury. In other words, whenever there is no
         genuine issue of any material fact as to a necessary
         element of the cause of action or defense, which could be
         established by additional discovery or expert report and
         the moving party is entitled to judgment as a matter of
         law, summary judgment is appropriate. Thus, a record
         that supports summary judgment either (1) shows the


                                     -3-
J-S14010-17


        material facts are undisputed or (2) contains insufficient
        evidence of facts to make out a prima facie cause of action
        or defense.

        Upon appellate review, we are not bound by the trial
        court’s conclusions of law, but may reach our own
        conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

     Preliminarily, we observe:

        In this Commonwealth, the pleadings must define the
        issues and thus every act or performance essential to that
        end must be set forth in the complaint. The purpose
        behind the rules of pleading is to enable parties to
        ascertain, by utilizing their own professional discretion, the
        claims and defenses asserted in the case. This purpose
        would be thwarted if courts, rather than the parties, were
        burdened with the responsibility of deciphering the causes
        of action from a pleading of facts which obscurely support
        the claim.

        While it is not necessary that the complaint identify the
        specific legal theory of the underlying claim, it must
        apprise the defendant of the claim being asserted and
        summarize the essential facts to support that claim. If a
        plaintiff fails to properly plead a separate cause of action,
        the cause he did not plead is waived.

Grossman v. Barke, 868 A.2d 561, 568 (Pa.Super. 2005), appeal denied,

585 Pa. 697, 889 A.2d 89 (2005) (internal citation omitted).

     With regard to Appellant’s strict liability claim:

        Strict liability allows a plaintiff to recover where a product
        in a defective condition unreasonably dangerous to the
        user or consumer causes harm to the plaintiff. There are
        three different types of defective conditions that can give
        rise to a strict liability claim: design defect, manufacturing
        defect, and failure-to-warn defect.          …   A product is

                                     -4-
J-S14010-17


           defective due to a failure-to-warn where the product was
           distributed without sufficient warnings to notify the
           ultimate user of the dangers inherent in the product.

           …[A] plaintiff raising a failure-to-warn claim must establish
           only two things: that the product was sold in a defective
           condition unreasonably dangerous to the user, and that
           the defect caused plaintiff’s injury. To establish that the
           product was defective, the plaintiff must show that a
           warning of a particular danger was either inadequate or
           altogether lacking, and that this deficiency in warning
           made the product unreasonably dangerous.             For the
           plaintiff in a failure-to-warn claim to establish the second
           element, causation, the plaintiff must demonstrate that the
           user of the product would have avoided the risk had he or
           she been warned of it by the seller. If the plaintiff fails to
           establish either of these two elements, the plaintiff is
           barred from recovery as a matter of law.

Phillips v. A-Best Products Co., 542 Pa. 124, 131, 665 A.2d 1167, 1170-

71 (1995) (internal citations and quotation marks omitted).

      Instantly, Appellant argues on appeal that Appellee failed to warn him

of the risks/dangers of the water cooler, to support Appellant’s “design

defect” claim. Importantly, Appellant did not allege a failure-to-warn defect

in his complaint.     Instead, he alleged that the water cooler had a design

defect. Appellant first mentioned a failure-to-warn theory on June 30, 2016,

in his response to Appellee’s motion for summary judgment.            Appellant’s

design defect claim and his failure-to-warn claim are distinct causes of

actions.    See id.    Therefore, Appellant waived any failure-to-warn claim

because he did not plead it in his complaint.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Aaron L.


                                       -5-
J-S14010-17


Gingrich, we conclude Appellant’s issues merit no relief.               The trial court

opinion comprehensively discusses and properly disposes of the questions

presented.    (See Trial Court Opinion, filed September 23, 2016 at 2-6)

(finding: (1) Appellant chose to place water cooler directly on hardwood

floor without protecting surface underneath; risk that area surrounding

water cooler might get wet is well-known, inherent “risk” of using water

cooler; Appellant’s claim fails under consumer expectations theory because

risk water cooler might leak is knowable to ordinary consumer and is not

dangerous beyond reasonable consumer’s expectations; under risk-utility

test, Appellant’s claim requires expert testimony to identify existence of

defective condition in water cooler and how that defective condition caused

Appellant’s damages; Appellant acknowledges he cannot testify as to these

technical matters, yet he failed to procure expert witness; rather, Appellant

relies on statements of Mr. Neff, who allegedly said he fixed defect in valve,

which statements are inadmissible hearsay; functioning of water cooler,

advantages and disadvantages of different designs, and availability of

alternative   designs     are   technical    matters     which   also   require   expert

testimony;    Appellant    admits    he     does   not    have   requisite   knowledge

concerning relevant risk-utility factors; Appellant cannot maintain claim

under risk-utility test because he did not procure expert and cannot produce

evidence to satisfy necessary elements of his claim; (2) again, Appellant

acknowledges that he does not know inner workings of water coolers, so he


                                            -6-
J-S14010-17


requires expert testimony to demonstrate that Appellee negligently designed

and/or maintained water cooler; as Appellant cannot explain how Appellee

negligently designed or maintained water cooler, his claim cannot go to jury;

Appellant’s documents appended to his response to summary judgment

describing water cooler as “faulty” are unauthenticated hearsay; (3)

Appellant purchased water cooler for ordinary purpose, and he chose

particular water cooler because it was what Berube’s had in stock; Berube’s

did not recommend particular type of water cooler to Appellant; Appellant

did not inform Berube’s about any particular needs Appellant had when

purchasing water cooler). Accordingly, we affirm based on the trial court’s

opinion.

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




                                    -7-
