J-A16022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CARTER WILLIAMS                                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.


ANDERSON EQUIPMENT COMPANY AND
KOMATSU AMERICAN CORPORATION
                      V.
JERRY WHITE, ROBERT ROBB & GENE
RAYMAN CONSTRUCTION, INC.
----------------------------------------------
CARTER WILLIAMS
                           Appellant
                      v.
ROBERT ROBB, GENE RAYMAN
CONSTRUCTION, INC., AND JERRY
WHITE
                                                    No. 1454 WDA 2013


                     Appeal from the Order August 6, 2013
             In the Court of Common Pleas of Armstrong County
            Civil Division at No(s): No. 2007-01291 & 2009-00217


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 07, 2014

      Carter Williams appeals from the order entered August 6, 2013, in the

Armstrong County Court of Common Pleas, granting summary judgment in




subsequent order, entered September 3, 2013, certifying the former order

for appeal pursuant to Pa.R.A.P. 341(c). On appeal, Williams contends the
J-A16022-14



trial court erred in granting summary judgment in favor of Komatsu and

Anderson. For the reasons set forth below, we affirm.




court as follows:

           This case arises out of an accident that occurred on or
      about March 14, 2006. Defendant Robert Robb was operating a
      wheeled front-end loader construction vehicle manufactured by

      Construction, Inc., by Anderson[]. Mr. Robb was driving the
      loader through Worthington Borough/West Franklin Township on
      two-lane Butler Road. Robb was returning with the loader to a
      worksite along a private road that connects with Butler Road.

      below a set of amber-
      The loader also comes equipped with an additional set of
      amber-colored hazard/flasher lights that are mounted on

      visible from both the front and back.

           Defendant Jerry White was operating a 1989 Cadillac
      Coupe DeVille immediately behind the loader. [Williams] was

      private road where the worksite was located, Mr. Robb had to
      make a left-hand turn off of Butler Road. Prior to negotiating
      the turn, Mr. Robb slowed his pace by steadily pressing the

      White accelerated the Cadillac and attempted to pass the loader
      on the left side. The Cadillac struck the front bucket of the

      hood, windshield, and roof. Both [Williams] and Mr. White were
      ejected from the vehicle on impact. Both sustained serious
      injuries.

            In his deposition, Mr. White testified several times that he

      were on when he attempted to pass the loader. Although he

      that those were the red lights identified on the pictures of the
      loader and not the yellow signal or hazard lights. Mr. Robb

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J-A16022-14


       made several statements both prior to and at his deposition
       regarding whether he had activated the yellow hazard lights
       prior to initiating the left-hand turn. In statements made to an
       insurance representative and to his boss, Charles Boggs, Mr.
       Robb stated that he did not have the hazard signals on when he
       initiated the left turn. At his deposition, approximately five
       years after making those statements, Mr. Robb testified that he
       could not remember for sure whether the statements were
       correct. He also testified at his deposition that he believed that
       the yellow hazard lights were on at the time when he activated
       his left turn signal.

Trial Court Opinion, 8/6/2013, at 2-4 (emphasis supplied).

       On January 18, 2007, Williams filed a negligence action in Allegheny

County against Jerry White (the driver of the Cadillac), Robert Robb (the

driver of the front-

Inc.   Thereafter, on March 12, 2008, he filed a products liability action in

Allegheny County against Komatsu and Anderson, contending the loader was

defectively designed.      The actions were subsequently transferred to

Armstrong County, and consolidated.

       Over the ensuing five years, discovery and pleadings were exchanged.

Ultimately, on January 22, 2013, Komatsu and Anderson filed a joint motion



Specifically, they argued Williams was unable to prove that a defective

design in the front-loader caused the accident. On August 6, 2013, the trial

court granted the motion for summary judgment, dismissing the action

against Komatsu and Anderson, and denying as moot their request to

                                 rts. The negligence claims against the other

defendants are still pending.


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         On August 14, 2013, Williams filed a motion for reconsideration,

asserting that the trial court improperly made credibility determinations in

granting the motion for summary judgment.1            The trial court denied the

motion on August 16, 2013. That same day, Williams made an oral motion

requesting that the trial court certify its August 6, 2013, order as a final

order pursuant to 42 Pa.C.S. § 702(b).2          The trial court denied Williams

oral motion on August 27, 2013.

         Thereafter, on August 30, 2013, Williams filed an application for a

determination of finality pursuant to Pennsylvania Rule of Appellate



applic



timely appeal followed.3




____________________________________________


1
    That motion was not entered on the docket until August 19, 2013.
2
    The statute permits a trial court to certify an otherwise interlocutory order

controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may
materially advance th
702(b)
3
  On September 9, 2013, the trial court ordered Williams to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
                                       ive and filed a concise statement on
September 27, 2013.



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J-A16022-14



      Preliminarily, we address the argument of Komatsu and Anderson that

this appeal should be quashed because the trial court improperly certified its

August 6, 2013, order as a final order pursuant to Rule 341(c). See Bailey

v. RAS Auto Body, Inc., 85 A.3d 1064, 1067-

appealability of an order directly implicates the jurisdiction of the court



      Rule 341 defines a final, appealable order as one that disposes of all

claims and of all parties, or one that is expressly defined as final by statute.

Pa.R.A.P. 341(b).     An order, such as the one here, granting summary

judgment in favor of some, but not all defendants is not a final order since it

does not dispose of all claims and all parties.       See Pa.R.A.P. 341, Note;

Spuglio v. Cugini, 818 A.2d 1286, 1287 (Pa. Super. 2003) (holding that




       However, a party that wishes to appeal an interlocutory, non-

appealable order, such as the one sub judice, may seek a determination of

finality by the trial court, as provided in subsection (c), in relevant part:

      (c) Determination of finality. When more than one claim for relief
      is presented in an action, whether as a claim, counterclaim,
      cross-claim, or third-party claim or when multiple parties are
      involved, the trial court or other governmental unit may enter a
      final order as to one or more but fewer than all of the claims and
      parties only upon an express determination that an
      immediate appeal would facilitate resolution of the entire
      case. Such an order becomes appealable when entered.




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Pa.R.A.P. 341(c) (emphasis supplied). The Note to Rule 341(c) further

states:

      Factors to be considered under Subdivision (c) include, but are
      not limited to:

          (1) whether there is a significant relationship between
          adjudicated and unadjudicated claims;

          (2) whether there is a possibility that an appeal would be
          mooted by further developments;

          (3) whether there is a possibility that the court or
          administrative agency will consider issues a second time;

          (4) whether an immediate appeal will enhance prospects of
          settlement.

Pa.R.A.P. 341, Note.    This Court has empha

                                                                       Bailey,

supra, 85 A.3d at 1069, citing Pullman Power Products of Canada Ltd.

v. Basic Engineers, Inc., 713 A.2d 1169, 1173 (Pa. Super. 1998).

Moreover, a



                                                               Bailey, supra,

85 A.3d at 1069, quoting Robert H. McKinney, Jr., Associates, Inc. v.

Albright, 632 A.2d 937, 939 (Pa. Super. 1993).


      In the present case, the trial court provided the following rationale for

its decision to certify its August 6, 2013, order as immediately appealable:

      [T]he Court finding [(1)] based on
      that the remaining Defendants in this case have tendered their
      policy limits in agreement to settle the case, [and (2)] based on

                                     -6-
J-A16022-14



     execute a settlement and release of claims with those
     Defendants without also releasing the claims against Defendants


     the entire case so as to prevent the potential necessity of

     Order is reversed on appeal after trial [is conducted] against the
     remaining Defendants, NOW THEREFORE, the Court expressly
     finds and determines that an immediate appeal of its August 6,
     2013 Order will facilitate resolution of the entire case[.]

Order, 9/3/2013.

     Komatsu and Anderson argue, however, that permitting an immediate

appeal will not expedite the disposition of the entire case, because Williams



justify an immediate appeal. Komatsu/Anderson Brief at 14. Further, they

emphasize Williams has already rejected the settlement offers tendered by

the other defendants. Id. at 13 Moreover, Komatsu and Anderson assert



inconsistent with its prior ruling refusing to certify the appeal as final

pursuant to 42 Pa.C.S. § 702(b). Id. at 14.

     We detect no basis upon which to disturb the ruling of the trial court



Pa.R.A.P. 341(c).   The court acted within its discretion when it accepted



remaining defendants because they required him to sign a general release,

which would have included his claims against Komatsu and Anderson. See

Application for Determination of Finality, 8/30/2013, at ¶ 8.      While the


                                    -7-
J-A16022-14



claims against Komatsu and Anderson involve different causes of action than

those against the remaining defendants, they all originate from the same

motor vehicle accident.          Furthermore, should the order granting summary

judgment be reversed after trial against the remaining defendants, Williams

would be forced to re-try the case on the merits.

        Moreover, we summarily reject the claim of Komatsu and Anderson



refusal to certify the appeal pursuant to Section 702(b).                  Certification

pursuant to the latter statute requires the trial court to determine that the

or



involved in this appeal.          Therefore, since we decline to disturb the trial

                                   ion that an immediate appeal would facilitate
                                      4
                                          we proceed to a discussion of the sole

substantive claim raised by Williams on appeal.

        Williams contends the trial court erred in granting summary judgment

in favor of Kamatsu and Anderson because the court usurped the function of

a    jury,   and   based   its    decision     on   improper   factual   and   credibility



____________________________________________


4
    Pa.R.A.P. 341(c).




                                             -8-
J-A16022-14



                                                            nd the testimony




order of the trial court only where it is established that the court committed

                                           Murphy v. Duquesne U. Of The

Holy Ghost, 777 A.2d 418, 429 (Pa. 2001), citing Capek v. Devito, 767

A.2d 1047, 1048, n.1 (Pa. 2001).

      As with all questions of law, our review is plenary. In evaluating
                                                                 e focus
      on the legal standard articulated in Pa.R.C.P. 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. Where the nonmoving
      party bears the burden of proof on an issue, he may not merely
      rely on his pleadings or answers in order to survive summary
      judgment.

Keystone Freight Corp. v. Stricker, 31 A.3d 967, 971 (Pa. Super. 2011)

(internal citations omitted). See also Pa.R.C.P. 1035.2.

      Thus, our responsibility as an appellate court is to determine
      whether the record either establishes that the material facts are
      undisputed or contains insufficient evidence of facts to make out
      a prima facie cause of action, such that there is no issue to be
      decided by the fact-finder. If there is evidence that would allow
      a fact-finder to render a verdict in favor of the non-moving
      party, then summary judgment should be denied.

Jones v. Levin, 940 A.2d 451, 453-54 (Pa. Super. 2007) (internal citations



record in the light most favorable to the non-moving party, and all doubts as




                                    -9-
J-A16022-14



to the existence of a genuine issue of material fact must be resolved against

                      Keystone Freight Corp., supra, 31 A.3d at 971.

      In the present case, Williams contends the front loader, manufactured

by Komatsu and distributed by Anderson, contained a design defect, namely,

                                                                      he hazard




be alerted that the machine was preparing to turn if the hazard lights were

also activated. Id.




defect.


      pursue an action in strict liability against the manufacturer of a
      product pursuant to section 402A of the Restatement (Second)
      of Torts. A plaintiff presents a prima facie case of strict liability
      by establishing that the product was defective and that the
      product caused the plaintiff              .

Wiggins v. Synthes (U.S.A.), 29 A.3d 9, 14 (Pa. Super. 2011) (emphasis

supplied).   See also Davis v. Berwind Corp., 640 A.2d 1289, 1295

(1994), aff'd, 547 Pa. 260, 690 A.2d 186 (1997) (explaining that, to prevail

                                intiff must establish: (1) that the product was

defective; (2) that the defect existed when it left the hands of the




                                     - 10 -
J-A16022-14



      In granting summary judgment, the trial court explained the basis of

its ruling as follows:

             Our review of the record, in the light most favorable to
      [Williams], indicates that [Williams] has provided some
      evidence, via the testimony of Mr. Robb, that [Robb] activated
      the yellow hazard lights prior to making the left-hand turn.
      [Robb] also testified that he activated his left turn signal. Taken
      by itself, this testimony could potentially be sufficient to create a
      disputed issue of fact with regard to whether both the turn signal
      and the hazard signal lights were activated simultaneously just
      before Mr. White attempted to pass the loader. Any issues

      of his prior inconsistent statements, would be resolved by the
      trier of fact.
             We also note, however, that Mr. White, the operator of the
      vehicle in which [Williams] was a passenger, testified that he

      or while passing the loader were the red brake lights. He
      did not see the amber-colored lights located either
      directly above the red brake lights or those mounted on
      stems on the sides of the loader. He further testified, in
      response to a leading question by counsel, that it was possible
      that the amber-colored signal lights could have been flashing but
                 tice them because of their proximity to the red brake

      he never saw any activated amber-colored signals on the loader,

                 s leading question to be insufficient to create a
      genuine issue of material fact. Indeed, to create a genuine
      issue of material fact regarding proximate causation,
      [Williams] must adduce evidence showing both that the
      amber hazard lights had been activated and that Mr.
      White saw them prior to making his attempted pass.

      immaterial to the accident.

            Although we must review the facts of record in the light
      most favorable to [Williams] and attribute to [Williams] all
      reasonable inferences from those facts, no reasonable
      inference that Mr. White in fact saw the activated amber-
      colored hazard lights can be made from the evidence of


                                     - 11 -
J-A16022-14


     record.

     let alone reasonable, factual bases on which [Williams] could
     prove proximate causation. Accordingly, we find that [Williams]
     has failed to present sufficient evidence in the record to support
     a prima facie case of design defect strict liability.

Trial Court Opinion, 8/6/2013, at 6-8 (emphasis supplied).

     Our review of the record reveals no basis to dis

Indeed, White testified several times during his deposition that he saw only

red lights illuminated on the front-loader before he attempted to pass:

     Q.
     flashers flashing on the front loader. Is that right?
     [White:]     Yes, I did.

     Q. Okay. Do you have any idea where the flashers are on this
     front loader?

     [White:]      The ones that were flashing were these ones
     (indicating).

        [ATTORNEY:] Indicating for the record the red lights
        in the middle?

        [White:] Yes.

                                   ****

     Q.
     Correct?

     [White:] Yes.

     Q. So, is it possible that the turn signal was on?

     [White:] No.


     all?

     [White:] No. Because there were two lights flashing instead of
     one.

     Q. What two lights?

                                    - 12 -
J-A16022-14


      [White:] Two red lights that I seen.

      Q. Are you a hundred percent positive that the yellow
      light was not flashing?

      [White:] Yes.

                                     ****
                   going to circle two locations on this loader. [Circling
      the turn signal/flasher stems protruding from the side of the
      front loader]

           Did you see either of those lights flashing as you
      approached the loader

      [White:] No.

      Q.

      [White:] No.

      Q. Are you 100 percent certain you did not see either of
      those lights flashing before as you approached the
      loader?

      [White:] Yes.

Motion for Summary Judgment, 1/22/2013, Exhibit C, Deposition of Jerry A.

White, 10/21/2010, at 218, 269, 305 (emphasis supplied). Therefore, White

testified that he did not see the amber/yellow-colored lights illuminated.




p

            The testimony of Robert Robb at his deposition confirms
      that the hazard signal lights were activated at the time of the
      accident. Additionally, Jerry White stated at his deposition that
      he saw the flashers flashing.




                                     - 13 -
J-A16022-14


              Jerry White specifically stated that he saw the flashers
       flashing, which in fact had to be the flashers and not the brake
       lights since Robert Robb stated at his deposition that he was not
       pumping the brakes, but applying them steadily.

Id. at 16-17 (record citations omitted and emphasis supplied). Accordingly,

Williams asserts the testimony of White and Robb, taken together, leads to a

reasonable inference that White saw the amber-colored lights flashing.

       For purposes of summary judgment, we must presume, based upon

                                                                             -

colored flashers and the left turn signal, at the time of the accident. 5 See



2/20/2013, Exhibit B, Deposition of Robert Robb, 3/28/2011, at 93.

However, White testified that the only lights he saw illuminated on the

front-loader were the red brake lights, which he described as flashing. In



light was not

Exhibit C, Deposition of Jerry A. White, 10/21/2010, at 269 (emphasis
____________________________________________


5



Response to Motion for Summary Judgment, 2/20/2013, Exhibit B,
Deposition of Robert Robb, 3/28/2011, at 93. Moreover, he acknowledged
earlier in his deposition testimony that on the night of the accident, he gave
a statement to the insurance company indicating that, at the time of the
accident, he only had his turn signal activated, and not his four-way
flashers. Reply Memorandum of Law in Support of Motion for Summary
Judgment, 4/8/2013, Exhibit A, Deposition of Robert Robb, 3/28/2011, at
88-89; Exhibit B, Recorded Statement of Robert Robb, p. 6. However, for
purposes of summary judgment, we must view the evidence in the light
most favorable to the non-moving party. Keystone Freight, supra.



                                          - 14 -
J-A16022-14



supplied).     See also id. at 305.    Williams contends that White must be

mistaken and a genuine issue of material fact exists as to whether the



                                                              response to a

leading question on rehabilitation, where he acknowledged that it was



he did not notice them because they were located so close to the red brake

lights.   Plaintiff

2/20/2013, Exhibit A, Deposition of Jerry A. White, 10/21/2010, at 220. We



issue of material fact precluding summary judgment.

      Regardless of whether the amber-colored turn signal/hazard lights

were activated, Williams failed to present any evidence that White noticed

the amber-colored lights were illuminated, and as a result of the

alleged design defect, i.e., that the turn signals and hazard lights were

incorporated into the same bulb, White was confused by them.

Accordingly, Williams presented no evidence that the alleged design defect

of the single turn signal/hazard bulb was a proximate cause of the accident

that resulte

      Because we conclude the trial court did not base its decision on

improper credibility determinations, and we agree that Williams failed to set




                                      - 15 -
J-A16022-14



forth a prima facie case of products liability, we affirm the order granting

summary judgment in favor of Komatsu and Anderson.6

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2014




____________________________________________


6
 We note that, to the extent Williams also asserts a products liability claim
based upon the

5/19/2008, at ¶ 10. Williams failed to develop any argument regarding this
alternative design defect in the argument portion of his brief. Indeed, the



r


what way the trial court erred in granting summary judgment on this claim,
waives this issue for our review. See Commonwealth v. Johnson, 985

waived for review on appeal), cert denied, 131 S.Ct. 250 (U.S. 2010).



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