J-A12014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ERIC URBIETA AND KRISTI URBIETA,                 IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellants

                    v.

ALL-AMERICAN HOSE, LLC; DAVIS
STANDARD CORPORATION; HAGERTY
PRECISION TOOL, INC.; FASTENAL
COMPANY; ERIE COMMERCE, LLC;
LEWCO, INC.; LEWCO INTERNATIONAL,
LLC; PERFORMANCE FIBERS, INC.;
T/D/B/A DURAFIBER TECHNOLOGIES;
PERFORMANCE FIBERS OPERATIONS,
INC., T/D/B/A DURAFIBER
TECHNOLOGIES; DURAFIBER
TECHNOLOGIES,

                         Appellees                  No. 1224 WDA 2018


               Appeal from the Order Entered July 31, 2018
               In the Court of Common Pleas of Erie County
                    Civil Division at No(s): 11413-2015

BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                     FILED JULY 26, 2019

     Appellants, Eric Urbieta and Kristi Urbieta, appeal from the trial court’s

July 31, 2018 order, granting summary judgment in favor of Appellees, All-

American Hose, LLC (“AAH”); Davis Standard Corporation (“Davis”); Hagerty

Precision Tool, Inc. (“Hagerty”); Fastenal Company (“Fastenal”); Erie
J-A12014-19



Commerce, LLC;1 Lewco, Inc.; Lewco International, LLC;2 Performance Fibers,

Inc., t/d/b/a Durafiber Technologies; Performance Fibers Operations, Inc.,

t/d/b/a Durafiber Technologies; and Durafiber Technologies.3 We affirm.

       The trial court aptly summarized the background of this case as follows:
       [Mr.] Urbieta … suffered a traumatic brain and right shoulder
       injury when he was struck by an industrial hose on May 3, 2013,
       while working at [AAH] as a temporary employee supplied by
       Remedy Intelligent Staffing, Inc. (“Remedy”). At the time of the
       accident, [Mr.] Urbieta was working as a hose “normalizer.”
       Normalization is a quality control process in which high pressure
       steam is injected into the hose, made by [AAH], to test it for leaks.
       [Mr.] Urbieta was responsible for placing an adapter inside one
       end of a hose. He then had to clamp the hose fabric between the
       adapt[e]r and a “bell and cable system.” [Hagerty] manufactured
       the adapt[e]r using [AAH’s] specifications. The bell and cable
       system consisted of various parts, including nuts made by
       [Fastenal]. During testing, the hose was stretched out on a non-
       motorized roller table made by [Lewco]. The table was equipped
       with a safety strap designed and installed by [AAH].

       On the day of the accident, before steam was injected into the
       hose as part of the normalization process, [Mr.] Urbieta was
       tasked with inserting the adapt[e]r into the hose and clamping the
       bell and cable system around [the] adapt[e]r and hose end. [Mr.]
       Urbieta found a stripped screw or bolt on the bell and cable
       system.     Instead of obtaining a new screw or bolt, the
       maintenance man, Mike Sammons, drove to [AAH’s] Union City
       [p]lant and retrieved a new bell and cable system. This bell and

____________________________________________


1 Based on our review of the docket, it appears that a stipulation of voluntary
discontinuance of Erie Commerce, LLC, with prejudice, was entered on
December 5, 2016.

2 We refer to Lewco, Inc., and Lewco International, LLC, collectively as
“Lewco.”

3 We refer to Performance Fibers, Inc., t/d/b/a Durafiber Technologies;
Performance Fibers Operations, Inc., t/d/b/a Durafiber Technologies; and
Durafiber Technologies collectively as “Durafiber.”

                                           -2-
J-A12014-19


     cable system was smaller than the ones provided at the Erie plant
     because the hoses manufactured in Union City were smaller. It is
     unknown whether [Mr.] Urbieta was aware of the difference in
     sizes. [Mr.] Urbieta affixed the new bell and cable system. The
     hose was filled with pressurized steam and the[n,] suddenly, the
     bell and cable system and the adapt[e]r blew off the end of the
     hose. The hose, powered by the steam coursing through it,
     whipped around striking [Mr.] Urbieta and violently throwing him
     across the room. [Mr.] Urbieta sustained serious injuries.

     Prior to the accident, [Mr.] Urbieta had only been in the
     normalizing position for less than a week. He was a temporary
     employee hired out by Remedy on a “temp-to-hire” basis.
     Remedy reviewed [Mr.] Urbieta’s work history, training and
     educational background and classified him in order to place him
     with an appropriate employer. Remedy forwarded [Mr.] Urbieta’s
     résumé to its client, [AAH], for its consideration. [AAH] selected
     [Mr.] Urbieta, among others, to work in its Erie plant. [Mr.]
     Urbieta reported directly to [AAH] each work day. No one from
     Remedy accompanied new hires to [AAH]. No one from Remedy
     was present at the [AAH] job site. [Mr.] Urbieta received all work
     assigned for [AAH]. [Mr.] Urbieta began his employment at [AAH]
     doing maintenance work. On approximately April 25, 2013, [AAH]
     assigned [Mr.] Urbieta to work as a hose normalizer. He was
     trained and directed on how to do the job solely by representatives
     of [AAH]. [AAH] provided [Mr.] Urbieta with all equipment
     necessary for the job including gloves, eye protection, hearing
     protection and tools. [AHH] had the power to promote or reject
     [Mr.] Urbieta as an employee. If unsatisfied with [Mr.] Urbieta’s
     work, [AAH] could return him to Remedy. [AAH] also had the
     power to hire [Mr.] Urbieta to full[-]time status.

     Procedurally, [the Urbietas] initially brought suit against [AAH]
     only[] at Docket No. 10646-2015. They subsequently filed a
     second lawsuit against [AAH] and the other [Appellees] at the
     above[-]noted Docket No. 11413-2015. Pursuant to a stipulation
     with [AAH], [the Urbietas] elected to abandon the action at Docket
     No. 10646-2015 in favor of pursuing this case. [The Urbietas’]
     claims sound in negligence, strict liability, breach of warranty, and
     loss of consortium. [The Urbietas] have filed two expert reports
     with their pretrial narratives. Discovery is now closed and each
     [remaining Appellee] has filed a Motion for Summary Judgment.
     []Hagerty joined in [the Urbietas’] Responses in Opposition to
     [AAH]’s Motion for Summary Judgment under the theory that the


                                     -3-
J-A12014-19


      adapt[e]r Hagerty manufactured was designed by [AAH] and
      subsequently altered by [AAH].

                                      ***

      [AAH] investigated the accident and did not find that any of the
      component parts of the normalization process had failed. The bell
      and cable system was still secured together and the nuts were still
      fastened to the bolts. Rather, [AAH] found that the adapter and
      bell and cable system had slipped off the end of the hose. [AAH]
      concluded that the wrong sized bell and cable system was
      obtained by another [AAH] employee and erroneously provided to
      [Mr.] Urbieta. [AAH] also concluded that [Mr.] Urbieta did not
      affix the seat belt type strap used to secure the hose to the table
      and that [Mr.] Urbieta failed to properly secure the bell and cable
      system around the hose and adapt[e]r assembly.

      [The Urbietas’] experts, James L. Glancey, Ph.D.[,] and Jack R.
      Vinson, Ph.D., submitted two expert reports: (1) Engineering
      Letter Report, June 20, 2017; and (2) Supplemental Engineering
      Report, August 10, 2017. [The Urbietas’] experts conclude that,
      “[b]y all accounts, the [b]ell and [c]able system that was used to
      secure the normalizing hardware to the hose failed.” In their June
      20, 2017 report, [the Urbietas’] experts identify specific
      shortcomings of Lewco, the manufacturer of the non-motorized
      table, and Fastenal, the maker of the nuts used to secure the bell
      and cable system together. In their August 10, 2017 report, [the
      Urbietas’] experts also cite specific shortcomings on the part of
      Hagerty, the manufacturer of the adapt[e]r.

      [The Urbietas’] experts do not mention [Davis], the manufacturer
      of the extruder machine that applied a coating to the hose, nor do
      [the Urbietas] mention … Durafiber…, manufacturers of the
      yarn/fibers used to construct the hose.            Furthermore, [the
      Urbietas’] experts do not make any findings that implicate the
      hose, its fibers, or its coating as contributing factors or sources of
      the accident.

Trial Court Opinion (“TCO”), 7/31/2018, at 2-5 (footnote and internal citations

omitted).

      As mentioned by the trial court, AAH, Davis, Hagerty, Fastenal, Lewco,

and Durafiber each filed a motion for summary judgment. On July 31, 2018,


                                      -4-
J-A12014-19



the trial court issued an opinion and order, granting summary judgment in

favor of each of these Appellees.       That same day, it entered judgment

accordingly. On August 27, 2018, the Urbietas filed a timely notice of appeal.

The trial court directed the Urbietas to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, and they timely complied. In

their Rule 1925(b) statement, the Urbietas asserted errors pertaining to only

Hagerty and Lewco.      Consequently, on November 26, 2018, AAH, Davis,

Fastenal, and Durafiber filed an application for relief with this Court,

requesting that we dismiss them from the appeal because there was no appeal

or claimed error involving them before us. On December 10, 2018, this Court

entered a per curiam order, dismissing the appeal as to those parties.

      Presently, the Urbietas raise the following issues for our review:
      1. Did the trial court err in finding that [the Urbietas] failed to
      produce evidence that Hagerty’s adapter failed?

      2. Did the trial court err by deciding issues of fact in holding that
      [Lewco was] not aware of the use of its table in the normalization
      process and therefore was not required to affix proper warnings?

      3. Did the trial court err by deciding issues of fact in holding that
      [Lewco was] not required to supply proper guards for its tables?

Urbietas’ Brief at 4.

      At the outset, we acknowledge our standard of review for orders

granting summary judgment:
      It is well settled that summary judgment is appropriate only in
      those cases where the record clearly demonstrates that there is
      no genuine issue of material fact and that the moving party is
      entitled to judgment as a matter of law. In ruling on such a
      motion, the trial court must take all facts of record and reasonable
      inferences therefrom in a light most favorable to the non-moving

                                      -5-
J-A12014-19


      party and resolve all doubts as to the existence of a genuine issue
      of material fact against the moving party. Where the non-moving
      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. [F]ailure of a non-moving party to adduce sufficient
      evidence on an issue essential to his case and on which he bears
      the burden of proof establishes the entitlement of the moving
      party to judgment as a matter of law. Thus, a proper grant of
      summary judgment depends upon an evidentiary record that
      either (1) shows the material facts are undisputed or (2) contains
      insufficient facts to make out a prima facie cause of action or
      defense.

      On appeal, this Court

         may reverse a grant of summary judgment if there has been
         an error of law or an abuse of discretion. But the issue as
         to whether there are no genuine issues as to any material
         fact presents a question of law, and therefore, on that
         question our standard of review is de novo. This means we
         need not defer to the determinations made by the lower
         tribunals.

      To the extent that this Court must resolve a question of law, we
      shall review the grant of summary judgment in the context of the
      entire record.

         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.

Dunlap v. Federal Signal Corp., 194 A.3d 1067, 1069-70 (Pa. Super. 2018)

(footnote, internal quotation marks, and internal citations omitted).

      In their first issue, the Urbietas argue that the trial court erred by finding

as a matter of law that they failed to produce evidence that Hagerty’s adapter

failed. See Urbietas’ Brief at 18. They explain that they produced expert


                                       -6-
J-A12014-19



reports wherein their experts identified multiple defects in the drawings used

by Hagerty to machine the adapter.             Id. at 16.   The Urbietas claim that,

“[d]espite these deficiencies, Hagerty failed to contact [AAH] before

machining a final product, and ultimately produced a defective product.” Id.

According to the Urbietas, “[t]he defect in the final product materially

contributed to the adapter failing and injuring Mr. Urbieta.” Id. Thus, they

assert that Hagerty defectively designed the adapter and should be liable

under Section 402A of the Restatement (Second) of Torts. Id. at 18-20.

       Our Supreme Court has stated that Pennsylvania “remains a Second

Restatement jurisdiction….” Tincher v. Omega Flex, Inc., 104 A.3d 328,

400 (Pa. 2014).4 Section 402A of the Second Restatement provides:
       (1) One who sells any product in a defective condition
       unreasonably dangerous to the user or consumer or to his
       property is subject to liability for physical harm thereby caused to
       the ultimate user or consumer, or to his property, if

          (a) the seller is engaged in the business of selling such a
          product, and

          (b) it is expected to and does reach the user or consumer
          without substantial change in the condition in which it is
          sold.

       (2) The rule stated in Subsection (1) applies although

          (a) the seller has exercised all possible care in the
          preparation and sale of his product, and

          (b) the user or consumer has not bought the product from
          or entered into any contractual relation with the seller.
____________________________________________


4 Our Supreme Court cautioned us, however, that “[t]he language of a
restatement … is not necessarily susceptible to ‘statutory’-type construction
or parsing.” Id. at 401.

                                           -7-
J-A12014-19



Restatement (2D) of Torts § 402A (1965).

     This Court has explained that:
     To prevail in an action under [S]ection 402A, the plaintiff must
     prove that the product was defective, the defect existed when it
     left the defendant’s hands, and the defect caused the harm. The
     threshold inquiry in all products liability cases is whether there is
     a defect. This threshold

        can be crossed … either by proving a breakdown in the
        machine or a component thereof, traditionally known as a
        manufacturing defect; or in cases where there is no
        breakdown, by proving that the design of the machine
        results in an unreasonably dangerous product, traditionally
        known as a design defect.

     A third doctrine recognized under [S]ection 402A is the “failure-
     to-warn” theory, under which the plaintiff may recover for the
     defendant’s failure to provide adequate instructions to the user on
     how to use the product as the product was designed. To succeed
     on a claim of inadequate or lack of warning, a plaintiff must prove
     that the lack of warning rendered the product unreasonably
     dangerous and that it was the proximate cause of the injury.

Barton v. Lowe’s Home Centers, Inc., 124 A.3d 349, 354-55 (Pa. Super.

2015) (internal citations and some quotation marks omitted).

     With respect to Hagerty, the Urbietas only challenge the trial court’s

granting of summary judgment in favor of Hagerty on their defective design

claim against it. See Urbietas’ Brief at 18-20. For design defects,
     [t]he plaintiff may prove defective condition by showing either
     that (1) the danger is unknowable and unacceptable to the
     average or ordinary consumer, or that (2) a reasonable person
     would conclude that the probability and seriousness of harm
     caused by the product outweigh the burden or costs of taking
     precautions. The burden of production and persuasion is by a
     preponderance of the evidence.

     … Whether a product is in a defective condition is a question of
     fact ordinarily submitted for determination to the finder of fact;


                                      -8-
J-A12014-19


      the question is removed from the jury’s consideration only where
      it is clear that reasonable minds could not differ on the issue.

Tincher, 104 A.3d at 335.

      In granting summary judgment in favor of Hagerty, the trial court

explained:
      Hagerty is a tool and die business that manufactured the adapt[e]r
      used to cap the end of the hose. Hagerty machined the adapt[e]r
      to the precise specifications provided by [AAH]. In their August
      10, 2017 report, [the Urbietas’] experts note that they reviewed
      the mechanical drawings provided by [AAH] to Hagerty. Based on
      their review of the drawings, [the Urbietas’] experts opine that the
      drawings are defective in that: (1) there is a missing dimension in
      the drawing[;] (2) there is an improper call out for a [threaded]
      hole[;] (3) there is no specification for surface finish; and (4)
      Hagerty used a different steel alloy than specified by the drawings.
      However, [the Urbietas’] experts do NOT say that any of the
      imperfections in the drawings actually caused the adapt[e]r to fail.
      On the contrary, they specify that it was the “Bell and Cable
      System” used to secure the normalizing hardware (i.e.[,] the
      adapt[e]r) to the hose that failed. Consequently, [the Urbietas’]
      claims against Hagerty, based on negligence, products liability,
      and warranty theories all fail for lack of any evidence evincing
      proximate cause.

TCO at 14 (emphasis in original).

      We agree with the trial court. While the Urbietas do not contest that

evidence of proximate cause is required, they fail to point to specific evidence

establishing that any purported defect in the adapter caused Mr. Urbieta’s

harm. Specifically, with respect to causation, the Urbietas argue:
      The [June 20, 2017] Engineering Letter Report does note that the
      bell and cable system used to secure the normalizing hardware,
      including the at[-]issue adapter, failed. R.R. 1403. However,
      there is nothing in the June 20, 2017 Report that exculpates …
      Hagerty from liability in this matter. Rather, a fair reading of the
      June 20, 2017 Report and August 10, 2017 Supplemental Report,
      reveals that the issues identified in the Supplemental Report


                                     -9-
J-A12014-19


      caused or contributed to [the] overall failure of the bell and cable
      system and Mr. Urbieta’s injuries.

Urbietas’ Brief at 22-23. Problematically, the Urbietas do not cite to where

their experts opined that the purported defects in the adapter caused or

contributed to the overall failure of the bell and cable system and Mr. Urbieta’s

harm, nor do they develop an argument — with citations to specific evidence

— to otherwise support this proposition. As Hagerty persuasively discerns,

“[t]here exists no genuine issue of material fact for a jury to decide. Nowhere

in either of [the] Urbietas’ expert reports does the expert say that Hagerty’s

adapter caused [Mr.] Urbieta’s accident.      Reasonable minds cannot differ.

Summary judgment was appropriate.”         Hagerty’s Brief at 11.   We concur.

Accordingly, we conclude that the trial court did not err in entering summary

judgment in favor of Hagerty on this basis.

      In their second issue, the Urbietas advance that the trial court “erred by

deciding issues of fact in holding that [Lewco] was not aware of the use of its

table in the normalization process and therefore was not required to affix

proper warnings.”    Urbietas’ Brief at 24 (unnecessary emphasis omitted).

They contend that Lewco “had a legal duty to warn of dangerous propensities

of [its] products, a legal duty that [Lewco has] made impossible to fulfill based

on their online ordering system,” and aver that Lewco failed to provide

warnings “regarding the amount of weight or force that could be exerted on




                                     - 10 -
J-A12014-19



the machine, despite sufficient knowledge to do so.” Id. at 28.5 They argue

that “[a] portion of the conveyor supplied by Lewco … was functionally

destroyed during the incident which injured [Mr. Urbieta],” and claim that

“[t]he combined weight and force exerted by the hose exceeded the conveyor

table’s physical capabilities and ultimately caused the conveyor table to fail.

If that at[-]issue conveyor table did not totally break down during the at[-

]issue incident, [Mr. Urbieta] would not have been injured.” Id. at 27, 28.

Thus, the Urbietas advance that Lewco was negligent in failing to warn users

of the recommended weight and force to be exerted on the table. See id. at

24, 26-27.

       It is well established that:
       Negligence is the absence of ordinary care that a reasonably
       prudent person would exercise in the same or similar
       circumstances. To prove a negligence claim, the plaintiff must
       prove the following four elements: (1) a legally recognized duty
____________________________________________


5 By way of background, with respect to Lewco’s online ordering system, the
Urbietas explain that Lewco’s online configurator “allowed customers to input
necessary parameters for a required conveyor, such as the length, width,
roller diameters, roll centers, light support, elevations[,] and other pertinent
information, and the configurator would generate a quote with options for the
customer.” Urbietas’ Brief at 9. However, they say that “a customer is unable
to enter information about an end user’s application in which the conveyor
would be used.” Id. Moreover, the Urbietas note that Lewco does not “sell
[its] products directly to end users. Rather, [its] products are sold only to
resellers….” Id. As a result, the Urbietas assert that Lewco purposely avoids
learning of how their conveyors will be used. See id. at 24 (“It is clear [that]
… Lewco [is] attempting to escape liability for [its] products by[] 1) selling
[its] products through a third party, and 2) designing and running an online
configurator that protects them from knowledge they would need to warn
those who would come into contact with their products.”).



                                          - 11 -
J-A12014-19


       that the defendant conform to a standard of care; (2) the
       defendant breached that duty; (3) causation between the conduct
       and the resulting injury; and (4) actual damage to the plaintiff.

Zimmerman v. Alexander Andrew, Inc., 189 A.3d 447, 452-53 (Pa. Super.

2018) (internal citations and quotation marks omitted).

       Initially, the Urbietas do not adequately develop an argument to

demonstrate that Lewco had a duty to warn AAH of the table’s weight and

force limitations.6 To support that Lewco had a duty, the Urbietas cite to two

cases for seemingly general propositions, but fail to discuss those cases and

analyze them in light of the circumstances in the case sub judice.         See

____________________________________________


6 We note that the trial court did not examine whether Lewco was negligent
in failing to warn AAH of the weight/force capacity of the conveyor table, but
instead focused its analysis on whether Lewco was negligent for failing to warn
AAH not to use the table without guarding. See TCO at 11, 13; see also
Urbietas’ Brief in Opposition to Lewco’s Motion for Summary Judgment, dated
6/11/2017, at 9 (“There was no warning or instruction on the at[-]issue
conveyor belt system which informed users of the recommended weight and
force to be exerted on the machine, a warning that, if present, would have
shifted liability to the user for using the conveyor belt against Lewco’s
warnings and instructions.”). Nevertheless, that the trial court did not
specifically address this argument does not preclude our review because “we
can look to the record to ascertain the reasons for the order.”
Commonwealth v. Hood, 872 A.2d 175, 178 (Pa. Super. 2005) (citation
omitted). We surmise that the trial court did not address it in light of the
Urbietas’ expert report, which proffers opinions on the conveyor table’s guards
and safety features, but not its weight/force capabilities. See TCO at 8
(determining that expert testimony is required in this case because “the cause
of this accident is not within the ability of the average person of ordinary
intelligence to determine on their own”). Despite the content of their expert
report, the Urbietas do not raise a negligent failure to warn argument
pertaining to guarding on appeal, and therefore we do not address it. See
Urbietas’ Brief at 24-28 (making argument that Lewco was negligent for failing
to warn of the amount of weight or force that could be exerted on the conveyor
table).



                                          - 12 -
J-A12014-19



Urbietas’ Brief at 24.7 We decline to perform that analysis for them. See

Pa.R.A.P. 2119(a) (“The argument shall be … followed by such discussion and

citation of authorities as are deemed pertinent.”); Commonwealth v. Hardy,

918 A.2d 766, 771 (Pa. Super. 2007) (“[I]t is an appellant’s duty to present

arguments that are sufficiently developed for our review.          The brief must

support the claims with pertinent discussion, with references to the record and

with citations to legal authorities. Citations to authorities must articulate the

principles for which they are cited.”) (citations omitted).

       Furthermore, setting aside that the Urbietas failed to establish that

Lewco had a duty to warn, the Urbietas also failed to prove that the lack of

warnings regarding the weight/force capacity of the table proximately caused

Mr. Urbieta’s injuries. In their brief, the Urbietas state that if the table did not

break down during the incident, Mr. Urbieta would not have been injured.

Urbietas’ Brief at 28. However, they provide no citation to record evidence,

particularly their expert reports, to support this proposition. See Pa.R.A.P.

2119(c) (“If reference is made to the … evidence … or any other matter

appearing in the record, the argument must set forth, in immediate connection

therewith, or in a footnote thereto, a reference to the place in the record where

____________________________________________


7 We note that one of these cases — Harsh v. Petroll, 840 A.2d 404, 415
(Pa. Cmwlth. 2003) — is a decision from the Commonwealth Court, which is
not binding on this Court. See In re Barnes Found., 74 A.3d 129, 134 n.2
(Pa. Super. 2013) (citation omitted). Additionally, the other citation provided
by the Urbietas is to a portion of a dissenting opinion from a Supreme Court
case. See Urbietas’ Brief at 24 (citing Sherk v. Daisy-Hedon, A. Div. of
Victor Comptometer Corp., 450 A.2d 615, 626 (Pa. 1982)).

                                          - 13 -
J-A12014-19



the matter referred to appears….”); see also TCO at 8 (noting that expert

testimony is necessary in the case at bar because “the cause of this accident

is not within the ability of the average person of ordinary intelligence to

determine on their own”); Lewco’s Brief at 10 (“The facts of this case revealed

that … Lewco[’s] actions relative to the sale of the conveyor were not the

proximate cause of [Mr. Urbieta’s] injuries.        … [The Urbietas have] not

produced an expert report to support any other conclusion.”). Our own review

of the Urbietas’ expert report shows that their experts rendered opinions on

Lewco’s failure to provide or recommend a guarding system, not its failure to

warn AAH of the weight/force capacity of the table. Thus, we conclude that

the Urbietas did not demonstrate that Lewco’s failure to warn AAH of the

table’s weight/force capacity proximately caused Mr. Urbieta’s injuries. See

Sherk, 450 A.2d at 617 (determining that the evidence presented precluded

a finding that the allegedly inadequate warnings caused the harm).

Accordingly, the trial court did not err in entering summary judgment in favor

of Lewco on this basis.

      In their final issue, the Urbietas claim that the trial court erred by

deciding that Lewco was not required to supply proper guards for its tables.

Urbietas’ Brief at 28.    By not supplying guarding, the Urbietas argue that

Lewco provided a defective conveyor table. See id. at 33. In advancing this

argument, the only case reference they provide is to Tincher, which they

briefly point to for the principle that “a product is in a defective condition if ‘a

reasonable person would conclude that the probability and seriousness of

                                      - 14 -
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harm caused by the product outweigh the burden or costs of taking

precautions.’” Id. at 29 (quoting Tincher, 104 A.3d at 335). Relying on this

tenet, they contend that “the probability and seriousness of harm caused by

an unguarded conveyor plainly outweighs the burden or costs of taking

precautions, such as providing or recommending guarding.” Id. at 31. In

support, they explain that “it cannot be claimed that there is [an]

unreasonable burden [on Lewco] in recommending guarding for its conveyors,

especially when the same is recommended on a daily basis. Nor can Lewco …

claim the cost of recommending or supplying guarding would be prohibitive,

especially where [it is] the seller[] of the product and could expect the

customer to reasonably pay for the additional guarding to the conveyor table.”

Id. at 32 (citing deposition testimony of Lewco’s corporate designee wherein

he represented that he recommends guarding on a daily basis).

      We deem this argument waived. “[A]rguments not raised initially before

the trial court in opposition to summary judgment cannot be raised for the

first time on appeal.” Krentz v. Consolidated Rail Corp., 910 A.2d 20, 37

(Pa. 2006) (citations omitted).     This rule “is consistent with our Supreme

Court’s efforts to promote finality, and effectuates the clear mandate of our

appellate rules requiring presentation of all grounds for relief to the trial court

as a predicate for appellate review.”          Id. (citation and quotation marks

omitted). Here, in their response to Lewco’s summary judgment motion, the

Urbietas did not argue that the probability and seriousness of the harm caused

by an unguarded conveyor outweigh the burden or costs of taking precautions.

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They also did not raise therein that, because Lewco recommends guarding on

a daily basis, it would not be burdensome for it to do so. Likewise, they did

not aver in their response that it would not be cost-prohibitive for Lewco to

supply guarding, as users would bear the cost of buying the additional

guarding from Lewco.         Rather, the Urbietas countered Lewco’s motion for

summary judgment by arguing that Lewco was strictly liable because the

conveyor table purportedly lacked the strength to hold the weight and force

of the hose. See Urbietas’ Brief in Opposition to Lewco’s Motion for Summary

Judgment, dated 6/11/2017, at 10-14.8 We will not permit the Urbietas to

raise new arguments on appeal.            Accordingly, based on the foregoing, we

affirm the trial court’s granting summary judgment in favor of Lewco.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2019


____________________________________________


8 The Urbietas also do not examine and discuss other design defect cases that
have applied a risk-utility analysis. See Hardy, supra. Given the relatively
recent changes to products liability law in Pennsylvania, as well as the
complexity of this area of the law, more than a generic, meager cite to
Tincher is warranted.

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