J-A29044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID DOLBY AND SUSAN DOLBY, HIS           :       IN THE SUPERIOR COURT OF
WIFE,                                      :             PENNSYLVANIA
                                           :
                  Appellants               :
                                           :
            v.                             :
                                           :
ZIEGLER TIRE AND SUPPLY COMPANY            :
d/b/a ZIEGLER TIRE EAST, MICHELIN          :
RETREAD TECHNOLOGIES, INC.,                :
KUMHO TIRE USA, INC.                       :            No. 694 WDA 2016

                     Appeal from the Order April 14, 2016
              in the Court of Common Pleas of Allegheny County,
                      Civil Division, No(s): GD 11-008401

BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED FEBRUARY 28, 2017

      David Dolby (“David”) and Susan Dolby, his wife (collectively “the

Dolbys”), appeal from the Order denying their Motion to Remove a

Compulsory Nonsuit (“Motion to Remove”),1 and entering judgment in favor

of Ziegler Tire and Supply Company d/b/a Ziegler Tire East (“Ziegler”) and

Kumho Tire USA, Inc. (“Kumho”) (collectively “Defendants”).2 We affirm.

      On May 8, 2009, David, an employee of Samuel D. Brink Trucking, Inc.

(“Brink”), was operating a 1995 Ford dump truck on State Route 422 in



1
  See Rachlin v. Edmison, 813 A.2d 862, 868 (Pa. Super. 2002)
(explaining that an appeal lies not from the entry of a compulsory nonsuit,
but from the trial court’s denial of a motion to remove it).
2
  We note that the Dolbys dismissed their claims against Michelin Retread
Technologies, Inc. (“Michelin”), prior to trial. Thus, Michelin is not a party to
this appeal.
J-A29044-16


Indiana County. The left front tire on the truck blew out, causing the truck

to drive into the grass median and flip onto its side.        David suffered

numerous injuries, including, inter alia, severe head trauma, eye nerve

damage, a punctured right lung, broken ribs, and a fractured leg.

      Brink purchased the tire in question, a retreaded tire, from Ziegler.

Ziegler manufactured the retreaded tire under a process developed by

Michelin.   As part of the retreading process, Ziegler strips a worn out,

discarded tire, and salvages the casing to use as a component of the

retreaded tire. The retreaded tire in this case was originally manufactured

by Kumho.

      The Dolbys filed a Complaint, raising numerous claims against Alcoa,

the manufacturer of the rim on which the retreaded tire was mounted,

Ziegler, Michelin, and Kumho.     Prior to trial, the Dolbys dismissed their

claims against Alcoa and Michelin.   The case eventually proceeded to trial

solely on the Dolbys’ strict liability claim for failure to warn against

Defendants.

      At trial, the Dolbys presented numerous witnesses, including Robert A.

Nocivelli (“Nocivelli”), a heavy truck and forensic mechanics expert. During

Nocivelli’s testimony, Defendants orally moved for a compulsory nonsuit,

arguing that Nocivelli was not qualified to testify about the failure to warn.

The trial court denied the oral Motion. Following the Dolbys’ case in chief,

Defendants filed a Motion for Compulsory Nonsuit, arguing that the Dolbys



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failed to present any evidence of a failure to warn. The trial court granted

the Motion, finding that Nocivelli conceded that he was not a warnings

expert, and that he did not opine that the cause of the accident was the

failure to warn. The Dolbys thereafter filed the Motion to Remove. The trial

court denied the Motion to Remove.       The Dolbys filed a timely Notice of

Appeal.

      On appeal, the Dolbys raise the following questions for our review:

      1. Was the at[-]issue retreaded tire unreasonably dangerous to
         [David]?

      2. Was the lack of warning on the retreaded tire the legal cause
         of [David’s] injuries, based on the heeding presumption
         doctrine?

      3. Have [the Dolbys] proven, under the malfunction theory,
         through sufficient circumstantial evidence, that placing the
         retreaded tire on the steering axle was the cause in fact of
         the coal truck rollover?

      4. Did the trial court commit reversible error by not recognizing
         and following the malfunction theory and the heeding
         presumption doctrine, necessitating a new trial?

Brief for Appellants at 4.

      Our standard of review is well-established:

      A nonsuit is proper only if the jury, viewing the evidence and all
      reasonable inferences arising from it in the light most favorable
      to the plaintiff, could not reasonably conclude that the elements
      of the cause of action had been established. Furthermore, all
      conflicts in the evidence must be resolved in the plaintiff’s favor.
      In reviewing the evidence presented we must keep in mind that
      a jury may not be permitted to reach a verdict based on mere
      conjecture or speculation. We will reverse only if the trial court
      abused its discretion or made an error of law.



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Harvey v. Rouse Chamberlin, LTD., 901 A.2d 523, 526 (Pa. Super. 2006)

(citations and quotation marks omitted).

      We will address the Dolbys’ first two claims together.      The Dolbys

contend that the trial court erroneously granted Defendants’ Motion for

Compulsory Nonsuit where the Dolbys established a prima facie case of strict

products liability for a failure to warn on the retreaded tire.      Brief for

Appellants at 13.        The Dolbys argue that the retreaded tire was

unreasonably dangerous to David. Id. The Dolbys assert that their expert

witness, Nocivelli, testified that placing the retreaded tire on the steering

axle was dangerous and unsafe when used in a mixed environment (both

line-haul and off-road).    Id. at 14-15.   The Dolbys point out Nocivelli’s

testimony that a warning about the use of a retreaded tire in these

environments was needed. Id.

      The Dolbys also claim that under the heeding presumption doctrine,

the lack of warning on the retreaded tire was the cause of David’s injuries.

Id. at 16.    The Dolbys contend that “where no warning or risk has been

given, such as this case, Pennsylvania courts have found that a plaintiff must

be afforded the presumption that he would have heeded an adequate

warning.”    Id.   The Dolbys argue that because they offered evidence that

the retreaded tire contained no warning, the trial court should have shifted

the burden to Defendants to prove that David would not have heeded the

warning, even if it were present. Id. at 16-17, 19. The Dolbys assert that



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David did not know of the danger of using the retreaded tires and would

have heeded the warning, if it were present. Id. at 17-18, 19; see also id.

at 18 (wherein the Dolbys note that David was not involved in the decision-

making as to which type of tire would be placed on the truck).

      “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.”       Kiak v. Crown Equip. Corp., 989

A.2d 385, 389 n.1 (Pa. Super. 2010).3 “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.” Phillips v. A-

Best Prods. Co., 665 A.2d 1167, 1170 (Pa. 1995). “A product is 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.” Id. at 1171 (quotation marks and citation omitted).

             [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

3
 Our Supreme Court declined to adopt the Restatement (Third) of Torts.
See Tincher v. Omega Flex, Inc., 104 A.3d 328, 410 (Pa. 2014).


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J-A29044-16


      plaintiff fails to establish either of these two elements, the
      plaintiff is barred from recovery as a matter of law.

Id. (citations and footnotes omitted); see also Jacobini v. V. & O. Press

Co., 588 A.2d 476, 479 (Pa. 1991) (noting that in a failure to warn case, the

plaintiff must demonstrate that the injuries were caused by the failure to

warn).

      Here, the Dolbys relied upon the testimony of their expert, Nocivelli, to

support the failure to warn claim. In establishing his expert qualifications,

Nocivelli stated the following, in relevant part:

      [Ziegler]: And you are not a human factors or warnings expert,
      isn’t that correct?

      [Nocivelli]: I’m not a human factors. I missed the second part.

      [Ziegler]: Warnings, warnings.

      [Nocivelli]: That’s right, no.

      [Ziegler]: You don’t hold yourself out as a human factors or
      warnings expert, correct?

      [Nocivelli]: That is correct.

      [Ziegler]: You would rely upon others for that, correct?

      [Nocivelli]: When needed.

N.T., 1/21/16, at 16; see also id. at 26 (wherein Nocivelli testified, in

response from a question from Kumho’s counsel, that he would not offer

“any testimony regarding warnings.”); id. at 43 (wherein Nocivelli stated

that “[t]he only warnings or any warnings such as that were in my report,

but I don’t perceive trying to offer an opinion specifically to that.”).


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        The Dolbys submitted Nocivelli as an expert in heavy trucking and

forensic mechanics.      Id. at 14.    Nocivelli stated that he was qualified to

testify to the “usage of recapped tires[4] on the steering axle of vehicles.”

Id. at 43 (footnote added). Nocivelli testified that on “numerous occasions[,

he] saw the failure of recapped tires on steering axles[,]” and that during

tire service calls, he warned companies not to do that.           Id. at 47, 48.

However, Nocivelli further stated that he was not qualified as a tire expert.

Id. at 20, 49.

        During the case-in-chief, Nocivelli testified that he investigated the

facts and circumstances of David’s accident.          Id. at 63, 69.     Nocivelli

additionally testified to the following:

        [The Dolbys]: Do you have an opinion to a reasonable degree of
        professional certainty in your field of forensic mechanics and
        heavy truck mechanics as to whether recapped duplex tires
        should be employed on steering axles in a class A truck such as
        the one used by David []?

        …

        [Nocivelli]: It’s my opinion, from my knowledge and experience,
        that wide-based duplex tires, recapped tires[,] should never be
        put on a steering axle of any vehicle that is going to live in two
        environments. That’s the key. If it lives in one environment, I
        have no problem with it whatsoever; but[,] whenever you get
        from one rough environment into something a little bit different,
        on the highway, it’s my opinion that that is not the tire to be
        used.

        There are trucks that, like, refuse trucks, for instance, that use
        this type of tire[]; but[,] they don’t live in that environment like
        these coal trucks do. Now, line[-]haul companies that run on

4
    The term “recapped tires” is used interchangeably with “retreaded tires.”


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J-A29044-16


     the Turnpike, interstates, all the time use retread tires; but they
     live in one environment. It’s always, always highway, and
     highway speeds, and smooth roads – much smoother roads than
     a coal pit.

     …

     [The Dolbys]: Okay; and in any way – were you able to
     determine whether there was any evidence whatsoever that
     [Defendants] ever informed users and consumers not to place
     recaps on front steering axles such as the truck that [David] was
     operating?

     [Nocivelli]: I’ve not seen anything like that.

     [The Dolbys]: So just to summarize, with respect to the tire,
     can you tell the jury what exactly you found with this tire?

     [Nocivelli]: A ply separation.

     [The Dolbys]: Okay; and what’s that? …

     [Nocivelli]: The various plies that you are seeing there, the plies
     that go across laterally, across the tire –

     [The Dolbys]: Like this? This?

     [Nocivelli]: … that’s the actual recap body, yes, yes, what you’re
     pointing to; and then what we said before, with regards to the
     broken segments where the metal goes through the tire.

     [The Dolbys]:   Did you examine – go ahead. I’m sorry.

     [Nocivelli]: And just lack of – lack of adhesion is what I saw.

     [The Dolbys]: Can you explain to the jury, what is adhesion?

     [Nocivelli]: Adhesion is what is necessary between the top
     surface where the plies are and the inner part of the actual
     retread. At some point[,] it should be vulcanized together; and I
     saw that – it appears to me that it did not get the proper
     adhesion between the carcass of the tire, the actual carcass of
     the tire, and the tread, recapped tread as you see it laying there.



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J-A29044-16


     [The Dolbys]: Are you aware of any evidence that the [Kumho]
     informed users and consumers, including recappers such as
     Ziegler, not to use this particular size tire, the duplex wide-
     bodied tire, in the application that [David] was using it in on the
     day he was injured?

     [Nocivelli]: I’ve never seen anything like that indicated by either
     Kumho or Ziegler [].

     …

     [The Dolbys]: Do you have an opinion to a reasonable degree of
     professional certainty in your trade and profession as to whether
     the use of this particular wide-bodied duplex tire, in the
     application that [David] was using it in at the time of his injury,
     was acceptable and safe?

     [Nocivelli]: My opinion is that it is not acceptable and safe.

     …

     [Ziegler]: [] Nocivelli, you are completely aware that road
     hazards exist and can cause puncture leaks on any type of tire,
     whether it’s recapped or new, isn’t that correct?

     [Nocivelli]: That is correct. …

     [Ziegler]: And you wrote in your report, you found no causation
     factors for the blow-out tire in this case, isn’t that true?

     [Nocivelli]: Causation factors with regards to a physical piece of
     physical evidence.

     [Ziegler]: And you wrote it, right?

     [Nocivelli]: That’s correct.

     …

     [Ziegler]: … [A] specific causation factor for the blow-out was
     not found, correct?

     [Nocivelli]: That is correct.



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     …

     [Kumho]: So what you’re asking, what you’re saying should be
     done is a warning that’s directed to a smaller percentage of use
     compared to the other types of uses for these tires, true?

     [Nocivelli]: Well, that’s true; but when you begin to localize,
     focus on something like that, it becomes more difficult.

     [Kumho]: And as we – I think we may have agreed earlier, a
     manufacturer or a distributor doesn’t know whether it’s going to
     be used in the line[-]haul, or solely off[-]road, or this mixed
     window, true?

     [Nocivelli]: Well, that’s true. Of course, he wouldn’t know. He
     couldn’t track it. That’s why it needs to be said from the get go.

     …

     [Ziegler]:   …   You will acknowledge to this jury that it is
     absolutely, 100 percent legal to have a recapped tire on a steer
     axle on a truck of this sort? You write it in your report. You
     acknowledge that, correct?

     [Nocivelli]: Correct.

     [Ziegler]: It’s not against NHSTA?        It’s not against PA law,
     correct? It is legal, correct?

     [Nocivelli]: It is, indeed, legal.

     [Ziegler]: And these entities studied the heck out of this kind of
     stuff, correct?

     [Nocivelli]: It’s by regulation.

     …

     [Ziegler]: Once the tire blows, it doesn’t matter if it’s new or
     recap, if it’s on the steer axle, it’s going to cause trouble for the
     driver, correct?

     [Nocivelli]: That is correct.



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N.T., 1/21/16, at 81-86, 87-88, 92, 136, 157, 158.

      The trial court granted Defendants’ Motion for Compulsory Nonsuit,

stating the following:

      [T]he jury could give [Nocivelli’s testimony] no weight because
      [he] conceded [that] he was not a warnings expert. …

      He offered no opinion concerning the causal relationship between
      the failure to warn and this accident.

      Moreover, he never even opined that the accident would not
      have occurred if non-retreads would have been used on the
      steering axle.

      In short, [the Dolbys] have not presented a prima facie case of
      either defect or causation.

N.T., 1/26/16, at 25.

      Here, viewing the evidence and all reasonable inferences arising from

it in the light most favorable to the Dolbys, we conclude that they failed to

establish all of the elements of their failure to warn case.    Initially, the

Dolbys failed to present any evidence supporting their allegation that

Defendants’ failure to warn David about the dangers of the retreaded tire

made the tire unreasonably dangerous.     See Phillips, 665 A.2d at 1171.

Indeed, the Dolbys’ expert, Nocivelli, specifically stated that he would not




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J-A29044-16


offer any testimony regarding warnings.5         Nocivelli also indicated his

preference that a retreaded tire not be used on the front steering axle, but

did not testify that such a placement was defective. Moreover, the Dolbys

did not establish, through any evidence presented at trial, including

Nocivelli’s testimony, that the lack of a warning caused the accident.      In

point of fact, Nocivelli could not identify the specific factor that caused the

blow-out of the retreaded tire.      Finally, the Dolbys’ reliance upon the

heeding presumption doctrine is misplaced as the doctrine “has been

authorized in Pennsylvania only in cases involving workplace exposure to

asbestos.”   Viguers v. Philip Morris USA, Inc., 837 A.2d 534, 537 (Pa.

Super. 2003); see also Moroney v. Gen. Motors Corp., 850 A.2d 629,

634 n.3 (Pa. Super. 2004) (refusing to extend the heeding presumption to a

failure to warn defect case). Thus, the Dolbys’ first two claims are without

merit.


5
  We additionally recognize that “limits on a manufacturer’s duty to warn are
placed at issue where … the manufacturer supplies a mere component of a
product that is assembled by another party and dangers are associated with
the use of the finished product.” Jacobini, 588 A.2d at 478. At trial,
Nocivelli testified that the original manufactured tire would complete its
entire service life prior to the tire being retreaded. N.T., 1/21/16, at 142-
43. Nocivelli stated that during the retreading process, the original tire
would be stripped to its casing, and the casing would be a part of the
retreaded tire. Id. at 143. Nocivelli acknowledged that the original tire
manufacturer would have no control over the design of the retreaded tire.
Id. at 144-45. Here, the Dolbys have not demonstrated that Kumho had
control over the assembly of the retreaded tire or had the duty to warn
David. See Toth v. Econ. Forms Corp., 571 A.2d 420, 423 (Pa. Super.
1990) (noting that a company that did not manufacture or supply the
product is not liable under a failure to warn claim).


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      In their third claim, the Dolbys contend that under the malfunction

theory,6 they have proven that the placement of the retreaded tire on the

steering axle caused the tire to blow out. Brief for Appellants at 19, 27. The

Dolbys argue that the evidence presented at trial ruled out various abnormal

uses or reasonable, secondary causes for the tire blowout. Id. at 22-27, 29-

31. The Dolbys assert that the circumstantial evidence thus demonstrates

that the tire was defective under the malfunction theory and was the cause

of the tire blowout. Id. at 27, 29, 31.

      Here, the Dolbys have not cited to any cases extending the

malfunction theory to failure to warn cases.      See Dansak v. Cameron

Coca-Cola Bottling Co., 703 A.2d 489, 495–96 (Pa. Super. 1997) (noting

that in cases alleging manufacturing defects, the plaintiff may proceed on

6
   With regard the malfunction theory, our Supreme Court stated the
following:

      [T]he malfunction theory requirements correlate with the three
      elements of a standard 402A claim[, i.e., the product was
      defective, that the defect caused the plaintiff’s injury, and the
      defect existed at the time the product left the manufacturer’s
      control]. First, the “occurrence of a malfunction” is merely
      circumstantial evidence that the product had a defect, even
      though the defect cannot be identified. The second element in
      the proof of a malfunction theory case, which is evidence
      eliminating abnormal use or reasonable, secondary causes, also
      helps to establish the first element of a standard strict liability
      case, the existence of a defect. By demonstrating the absence
      of other potential causes for the malfunction, the plaintiff allows
      the jury to infer the existence of defect from the fact of a
      malfunction.

Barnish v. KWI Bldg. Co., 980 A.2d 535, 541 (Pa. 2009) (citation
omitted).


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J-A29044-16


a malfunction theory). In fact, the Dolbys have not indicated how a warning

could malfunction or fail. Because the Dolbys only pursued a strict liablity

failure to warn case, the malfunction theory is not applicable to this case.7

      In their final claim, the Dolbys contend that the trial court erred in

failing to apply the heeding presumption doctrine or the malfunction theory

prior to granting the Motion for Compulsory Nonsuit. Brief for Appellants at

32.

      However, as noted above, the heeding presumption doctrine and the

malfunction theory are not applicable to the Dolbys’ strict liability failure to

warn case. Thus, the Dolbys are not entitled to relief on their final claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/2017




7
  Further, as noted above, Nocivelli could not establish the reason for the tire
blow-out.    Thus, the Dolbys did not eliminate all of the abnormal or
secondary causes that could have produced the defect.


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