J-A08031-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GAIL R. CALLENDER, SR., AN                 IN THE SUPERIOR COURT OF
INDIVIDUAL AND WENDY A.                          PENNSYLVANIA
CALLENDER, HIS WIFE

                          Appellants

                     v.

BRIGHTON MACHINE COMPANY, INC. A
CORPORATION

                v.

DANIELI HOLDINGS, INC. A
CORPORATION AND ITS SUCCESSOR
CORPORATIONS AND/OR SUCCESSOR IN
INTEREST, DANIELI CORPORATION A
CORPORATION AND DINIELI
CORPORATION, DANIELI WEAN UNITED
AND DANIELI SERVICE, AND/OR
DANIELI TECHNOLOGY, INC. A
CORPORATION, AND/OR DANIELI WEAN
INC., A CORPORATION, AND/OR
DANIELI UNITED, INC., A
CORPORATION, AND/OR WEAN UNITED
FOUNDRY PRODUCTS, INC. A
CORPORATION, AND/OR WEAN UNITED,
INC. AND/OR UNITED ENGINEERING,
INC., A CORPORATION, AND/OR UNITED
ENGINEERING AND FOUNDRY CO., A
CORPORATION
                      Appellee                  No. 755 WDA 2013


            Appeal from the Order Entered on April 8, 2013,
           In the Court of Common Pleas of Allegheny County
                   Civil Division at No.: GD-07-026651


BEFORE: ALLEN, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                  FILED SEPTEMBER 17, 2014
J-A08031-14



       Appellants, Gail R. Callender, Sr. (“Callender”), and his wife, Wendy A.

Callender (collectively, “the Callenders”), appeal from the order of April 8,

2013, which granted the second motion for summary judgment of Appellee,

Brighton Machine Company, Inc. (“Brighton”), and dismissed all of the

Callenders’ and any other parties’ claims against Brighton with prejudice.

We affirm.

       The following facts are summarized from the trial court’s opinion of

July 31, 2013. On December 18, 2005, Callender, an employee of Allegheny

Ludlum Steel Corporation (“Allegheny Ludlum”), suffered a degloving injury

to his left hand when it became trapped in the rollers of a leveller1 on the

No. 3 Blast & Pickle line at Allegheny Ludlum’s Brackenridge facility. Trial

Court Opinion (“T.C.O.”), 7/31/2013, at 2. Callender had noticed that the

leveller was not functioning properly and informed a co-worker that he was

going into the repair pit beneath the machine to grease its gears. Id. For

unknown reasons, the co-worker did not turn off the line. Id. Callender lost

his balance while positioning himself to oil the swing gear on the leveller,

and his left hand contacted the leveller rollers and was pulled into the

machine. Id. at 3.

____________________________________________


1
       The leveller and other components on the No. 3 Blast & Pickle line
unwind and straighten coiled steel, crimp coils to each other, clean the
resulting sheet of steel, and then recoil it. T.C.O. at 2. The leveller at issue
was installed at Brackenridge on April 26, 1952, and has never been
removed. Id. at 7.




                                           -2-
J-A08031-14



       Since 1980, Brighton has serviced, built, and rebuilt component parts

for the No. 3 Blast & Pickle line at the Brackenridge facility, including the

leveller. Id. at 4. Brighton manufactures and supplies various parts based

upon customers’ technical drawings and engineering specifications, but it is

not the only parts supplier to the Blast & Pickle line. Id. at 7. Allegheny

Ludlum performs the majority of work and maintenance in-house, and the

line is laid out similarly to lines at other strip processing plants. Id. Joseph

Downie, owner of Brighton, has visited the facility numerous times, but has

never studied the line or needed to know how the Brighton-manufactured

replacement components work in the overall machine, nor does Brighton do

any work on the leveller’s electronics, wiring, safety devices, or emergency

devices.    Id. at 7-8.     Any modifications in Allegheny Ludlum’s designs by

Brighton are related to the maintenance, strength, or reliability of the

component, not the overall functionality of the machines. Id. at 7.

       On April 1, 2008, the Callenders filed a complaint against Brighton

raising claims of, inter alia, negligence, strict liability, and breach of

warranty.2    Brighton answered with a new matter and cross-claim against
____________________________________________


2
      The Callenders also filed complaints against United Foundries, Inc.,
f/k/a United Engineering Foundry Products, Inc., Wean United Foundry
Products, Inc., UEI, Inc., f/k/a United Engineering, Inc., and UEFC, Inc.
However, these defendants resolved the Callenders’ claims in “an amicable
Joint Tortfeasor Release and Settlement Agreement” and are not parties to
the instant appeal. Letter of James F. Marrion to Prothonotary, 10/18/2013,
at 1.




                                           -3-
J-A08031-14



the other defendants on July 9, 2008. The parties undertook discovery in

the form of interrogatories and depositions of Downie and James Kunst, a

designated representative of Allegheny Technologies.

       On May 4, 2010, Brighton filed a motion for summary judgment,

which, after a hearing and supplemental briefing, the trial court denied. See

Order, 8/31/2010.        After more discovery, and following settlement of the

Callenders’ claims against all of the other defendants, Brighton Machine filed

a second motion for summary judgment on July 5, 2012.          The Callenders

opposed the motion, and, after briefing and oral argument, the court

ordered the parties to file position statements regarding Count XXX of the

complaint for breach of warranty.3 On April 5, 2013 (filed April 8, 2013), the

trial court granted Brighton’s motion for summary judgment and dismissed




____________________________________________


3
       As explained by the trial court:

       Both of Brighton’s motions for summary judgment and brief[s] in
       support thereof specifically referred to and requested dismissal
       of all counts against it. Brighton, however, did not make specific
       argument as to why Count XXX (relating to breach of warranty)
       should be dismissed. Conversely, [the Callenders] made no
       argument in support of Count XXX. On February 14, 2013, [the
       court] ordered the parties to address the issue of Brighton’s
       alleged breaches of warrant[y] under the Pennsylvania Uniform
       Commercial Code (UCC).         [The Callenders] filed a Position
       Statement and Brighton filed a Reply Brief.

T.C.O. at 24.




                                           -4-
J-A08031-14



all of the Callenders’ and any other parties’ claims against Brighton with

prejudice. The Callenders timely appealed.4

       The Callenders present the following questions for our review:

       [1.] Does a party opposing summary judgment establish a
       genuine issue of material fact regarding the existence of a defect
       when the undisputed evidence of record establishes that the
       machine in question was not functioning as expected to the point
       where its user attempts to correct the issue and that it lacked
       adequate safeguards and warnings that would [have] rendered
       the machine less dangerous to its users?

       [2.] Is a party who seeks summary judgment in its favor on
       the basis that it played an insignificant role in the maintenance
       and repair of defective equipment entitled to judgment as a
       matter of law when the party opposing summary judgment
       presents evidence showing the movant provided engineering
       services as well as participated in the design and upkeep of the
       machinery?

       [3.] Does a party opposing summary judgment establish a
       genuine issue of material fact that component parts to a larger
       machine supplied by a party seeking summary judgment are
       unreasonably dangerous, i.e. defective, when the parts supplied
       are the ones that substantially contributed to a party’s loss and
       the supplier knew of or should have known of the danger [its]
       products posed to users of the integrated machine?

       [4.] Does an entity who repairs and rebuilds antiquated
       equipment for consideration, including taking steps to increase
       the longevity thereof, over the course of over two decades owe a
       duty to warn users of dangers associated with the repaired
       machine?

       [5.] If a party establishes genuine issues of material fact
       alleging failure to warn defects and defective design defects in

____________________________________________


4
      The trial court did not order the Callenders to file a Rule 1925(b)
statement, but entered an opinion on July 31, 2013. See Pa.R.A.P. 1925.




                                           -5-
J-A08031-14


      regard to component parts, should that party’s claims for breach
      of implied warranty’s [sic] also survive summary judgment?

Callenders’ Brief at 3-4.

      Our standard of review of a trial court’s order granting summary

judgment is well-settled:

      A reviewing court may disturb the order of the trial court only
      where it is established that the court committed an error of law
      or abused its discretion. As with all questions of law, our review
      is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. 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 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. Failure of a
      non-moving party to adduce sufficient evidence on an issue
      essential to his case and on which it bears the burden of proof
      . . . establishes the entitlement of the moving party to judgment
      as a matter of law. Lastly, we will 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.

Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa.

2001) (case citations omitted).

      [T]he 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.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)

(citations omitted).


                                    -6-
J-A08031-14



      In their first issue, the Callenders assert that the court erred in

dismissing their strict liability   claim   because “[t]he    leveller and its

components were defective and unreasonably dangerous to their users.”

Callenders’ Brief at 19.      Specifically, the Callenders argue that they

established genuine issues of material fact as to whether the leveller was

“not functioning properly,” thus “diminish[ing]” their “duty to establish a

specific defect.”   Id. at 20.      They also maintain that their “experts

established genuine issues of material fact that the equipment responsible

for Mr. Callender’s injury contained design defects as well as failure to warn

defects.” Id. at 21. We disagree.

      We begin with the Callenders’ argument that their claims should have

survived summary judgment because they had a “diminished” duty to

establish a specific defect due to the leveller’s malfunction. Id. at 20.

      When advancing a theory of strict product liability, a plaintiff has
      the burden of showing that the product was defective, that the
      defect was the proximate cause of his or her injuries and that
      the defect existed at the time the product left the manufacturer.
      In certain cases of alleged manufacturing defects, however, the
      plaintiff need not present direct evidence of the defect. When
      proceeding on a malfunction theory, the plaintiff may “present a
      case-in-chief evidencing the occurrence of a malfunction and
      eliminating abnormal use or reasonable, secondary causes for
      the malfunction.” O’Neill v. Checker Motors Corp., 567 A.2d
      680, 682 (Pa. Super. 1989). . . . From this circumstantial
      evidence, a jury may be permitted to infer that the product was
      defective at the time of sale.

         Although proof of a specific defect is not essential to
         establish liability under this theory, the plaintiff cannot
         depend upon conjecture or guesswork. The mere fact that



                                     -7-
J-A08031-14


        an accident happens, even in this enlightened age, does
        not take the injured plaintiff to the jury.

     The malfunction theory, thus, does not relieve the burden of
     establishing a defect.     However, the malfunction itself is
     circumstantial evidence of a defective condition.

Dansak v. Cameron Coca-Cola Bottling Co., 703 A.2d 489, 495-96 (Pa.

Super. 1997) (some citations and internal quotation marks omitted; citations

modified).

     Accordingly, a plaintiff may often rely on circumstantial
     evidence, and the inferences that may reasonably be drawn
     therefrom, to prove his case. Although the mere happening of
     an accident does not establish liability, . . . the addition of other
     facts tending to show that the defect existed before the accident,
     such as its occurrence within a short time after sale, or proof of
     the malfunction of a part for which the manufacturer alone could
     be responsible, may make out a sufficient case . . . So likewise
     may proof that other similar products made by the defendant
     met with similar misfortunes, or the elimination of other likely
     causes by satisfactory evidence. In addition, there are some
     accidents, as where a beverage bottle explodes or even breaks
     under normal handling, as to which there is common experience
     that they do not ordinarily occur without a defect; and this
     permits the inference. This Court in MacDougall v. Ford Motor
     Co., [257 A.2d 676 (Pa. Super. 1969)], held that “the
     occurrence of a malfunction of machinery in the absence of
     abnormal use and reasonable secondary causes is evidence of a
     ‘defective condition’ within the meaning of [the Restatement
     (Second) of Torts] § 402A . . . .” Id. . . . at 680. After
     MacDougall, Pennsylvania courts have been consistent in
     holding that the malfunctioning of a product is circumstantial
     evidence of a defective condition in spite of the lack of evidence
     of any specific defect in the product.

Cornell Drilling Co. v. Ford Motor Co., 359 A.2d 822, 826 (Pa. Super.

1976) (some citations omitted).

     Based    upon   this   case   law,   if   the   leveller   malfunctioned,   the

malfunction would constitute circumstantial evidence of the defect element

                                      -8-
J-A08031-14



of a strict liability claim.      However, the Callenders have not adduced any

additional    evidence     that    the   leveller   malfunctioned.   Their   experts

concededly did not inspect the machinery. Report, 2/23/2012, at 5 § 4.

       More importantly, the Callenders have failed to carry their burden of

proof with regard to the remaining elements: that the “defect was the

proximate cause of [Callender’s] injuries and that the defect existed at the

time the product left the manufacturer.”               Dansak, 703 A.2d at 495.

“Liability in negligence or strict liability is not imposed upon a manufacturer

simply for the manufacture of a defective product. Rather, the plaintiff must

demonstrate that the injuries sustained were proximately caused by the

product’s defect.” Sherk v. Daisy-Heddon, Div. of Victor Comptometer

Corp., 450 A.2d 615, 617 (Pa. 1982).

       Here, the Callenders’ experts opined:

       Based on our review of all documents and our experience with
       these types of machinery and safety related issues, we conclude
       that if additional safety features were implemented on the
       No.[]3 Blast & Pickle line in Allegheny Ludlum’s Brackenridge
       Plant, the accident involving Mr. Callender could have been
       prevented on December 18, 2005. This conclusion has been
       reached with a reasonable degree of engineering certainty.

Report at 5 § 5.5        Thus, the Callenders’ experts attribute the cause of

Callender’s injuries to the lack of safety features on the line, not the
____________________________________________


5
      The     expert report “reserve[d] the right to revise this Report if
additional    information and facts become available.” Report at 5 § 5.
However,     as noted by the trial court, the Callenders did not file any
additional   or revised expert reports. T.C.O. at 3 n.1.



                                           -9-
J-A08031-14



allegedly malfunctioning leveller. The Callenders also have failed to adduce

any evidence that any replacement parts manufactured by Brighton were

installed in the leveller at the time of Callender’s injury. See T.C.O. at 11.

Absent such evidence, the Callenders cannot establish that any defect

existed when the components left Brighton. See Dansak, 703 A.2d at 495.

Thus, the Callenders’ argument that the court erred in granting summary

judgment simply because the leveller allegedly malfunctioned does not merit

relief where they failed to support the remaining elements of their claim.

       Second, the Callenders argue that they carried their burden of proof

regarding their design defect and failure to warn claims.

       It is well established that there are circumstances where a
       manufacturer’s failure to warn of latent dangers in the use or
       operation of a product can render a properly designed product
       unreasonably dangerous and defective for purposes of strict
       product liability.   It is also recognized that limits on a
       manufacturer’s duty to warn are placed at issue where, as in the
       present case, 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 v. V. & O. Press Co., 588 A.2d 476, 478-79 (Pa. 1991).

       A   plurality   decision     by   our   Supreme   Court   in   Wenrick   v.

Schloemann-Siemag Aktiengesellschaft, 564 A.2d 1244 (Pa. 1989), is

particularly instructive.6 In Wenrick, a mechanic working in the Cerro Metal

____________________________________________


6
      While we recognize that a plurality opinion by the Supreme Court is
not binding precedent on this Court, we may find it to be persuasive. See
In re K.D., 744 A.2d 760, 761 (Pa. Super. 1999).



                                          - 10 -
J-A08031-14



Products plant was killed while repairing an extrusion press when a billet

loader retracted and crushed him.     Id. at 1245.    Circumstantial evidence

showed that an unguarded switch was accidentally triggered by a workman

descending steps into the press’ repair pit, causing the billet loader to

retract. Id. at 1246. The mechanic’s widow brought claims against, inter

alia, Eaton Corporation, the successor-in-interest to Cutler-Hammer, the

supplier and designer of the press’s electrical control system, alleging as

follows:

      [T]he absence of a guard to cover the actuating part of the
      switch was a defect in design and manufacture as installed and
      as used. [The expert witness] also testified that, in his opinion,
      in accordance with accepted engineering practice Cutler-Hammer
      had a duty to warn SMS AG[, the manufacturer and designer of
      the press,] about the danger posed by the location of the
      unguarded switch above the steps.

Id. at 1246. The jury found against Eaton for strict liability and negligence,

and the trial court denied Eaton’s motion for judgment notwithstanding the

verdict. This Court reversed, and remanded for entry of judgment in favor

of Eaton. Ultimately, the Court affirmed the decision of the Superior Court

for the following reason:

      Cutler-Hammer’s task in designing the electrical control system
      did not include the physical placement of any mechanisms on the
      manufactured product. All the decisions and actions whereby
      the danger was created—the type of switch (unguarded), its
      location, and the location of the service pit and its access steps—
      were the responsibility of SMS AG.

Id. at 1248.    Accordingly, Cutler-Hammer, and its successor-in-interest,

Eaton, had no duty to warn about the unguarded switch.


                                    - 11 -
J-A08031-14



      Similarly, Brighton manufactures and supplies spare parts according to

Allegheny Ludlum’s specifications.       Brighton modifies Allegheny Ludlum’s

specifications to the extent that it seeks to improve the strength, durability,

and reliability of the components it manufactures. Brighton does not dictate

the layout of the leveller, its electronic systems, the configuration of its

repair pit, or the layout of the No. 3 Blast & Pickle Line, all of which predate

Brighton’s repair work and are “basically the same” and relatively standard

across the steel industry as a whole. Callenders’ Brief, at 9, 12; see also

Deposition of Joseph Downie, 12/18/2009, at 53-54.             Thus, like Cutler-

Hammer     in   Wenrick,    Brighton’s   task    in   manufacturing   replacement

components for existing machinery did not include determining the physical

placement or layout of the machines responsible for Callender’s injury. It is

not enough that Brighton was knowledgeable about the line as a whole. See

Wenrick, 564 A.2d 1248.          The Callenders have failed to adduce any

evidence that Brighton had any control over “the assembly of the final

product” and, therefore, had a duty to act or warn Callender or Allegheny

Ludlum that the leveller was dangerous. Jacobini, 588 A.2d at 478-79; see

also Wenrick, 564 A.2d at 1248.          Thus, the trial court did not abuse its

discretion in dismissing the Callenders’ strict liability claim, and the

Callenders’ first issue does not merit relief.

      In their second issue, which to some extent responds to the above

analysis, the Callenders assert that “genuine issues of material fact exist

regarding Brighton Machine’s role with the equipment involved.” Callenders’

                                      - 12 -
J-A08031-14



Brief at 22.          Specifically, they claim that the trial court erred in its

determination of the extent of Brighton’s role at Allegheny Ludlum and that

the court was “obligated to place the burden of proving the nonexistence of

material facts upon Brighton Machine.” Id. at 25. They also argue that the

court violated the Nanty-Glo rule7 by relying upon the depositions of Joseph

Downie, James Kunst, and Amos Glen, and implicitly relied upon an improper

credibility    determination      resolving    apparent   inconsistencies   in   the

testimonies of those witnesses. Id. at 25-26. We disagree.

       [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, 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.

Sokolsky v. Eidelman, 93 A.3d 858, 862 (Pa. Super. 2014) (citations and

quotation marks omitted).

       The Callenders contend that they established a genuine issue of

material fact regarding Brighton’s role at Allegheny Ludlum because

Allegheny Ludlum’s representative, James Kunst, testified that Brighton

supplies      spare    parts,   “engineering-type   services,”   and   “works    with

____________________________________________


7
       See Nanty-Glo v. Am. Surety Co., 163 A. 523 (Pa. 1932).




                                          - 13 -
J-A08031-14



[Allegheny Ludlum] on upgrades to equipment design.” Callenders’ Brief at

24. Callender’s supervisor, Mark Graham, stated that Joseph Downie is an

engineer with “the capability of certifying things for ‘insurance purposes,’”

and   Allegheny   Ludlum    had   been   downsizing   its   own   maintenance

department. Id.

      Based upon our review of the depositions, we agree with the trial court

that “[t]here is no evidence that Brighton was ever consulted with regard to

safety issues.” T.C.O. at 21. Graham repeatedly stated that Brighton was

only one of “several” manufacturers fabricating replacement parts for the

line at Allegheny Ludlum.   Deposition of Mark Graham, 9/13/2012, at 14,

19, 38. Furthermore, while Graham stated that Allegheny Ludlum’s in-house

maintenance department “seems to be . . . shrinking,” he also observed that

“[Allegheny Ludlum] still do[es] a lot, but we always did send things out.”

Id. at 37.    Thus, the Callenders failed to adduce sufficient evidence to

connect Brighton’s work with the safety engineering or placement of the

leveller within the No. 3 Blast & Pickle line, or to establish that Brighton

exclusively had taken over relevant maintenance work on the line.        See

Sokolsky, 93 A.3d at 862. Therefore, the Callenders failed to raise an issue

of material fact regarding the scope of Brighton’s involvement with the

leveller and the No. 3 line, and the trial court did not err in granting

summary judgment. Id.

      Furthermore, the trial court did not violate the Nanty-Glo rule.

Specifically, the Callenders contend that “the trial court adopted the oral

                                    - 14 -
J-A08031-14



testimony of Joseph Downie, James Kunst and Amos Glen where these

gentlemen testified [that] Brighton Machine played no role in the design and

maintenance of the machines at issue.” Callenders’ Brief at 25.

      The Nanty-Glo rule provides that “oral testimony alone is generally

insufficient to establish the absence of material fact necessary for the entry

of summary judgment.”         Checchio by and through Checchio v.

Frankford Hosp.—Torresdale Div., 717 A.2d 1058, 1062 (Pa. Super.

1998).

      Initially, it must be determined whether the plaintiff has alleged
      facts sufficient to establish a prima facie case. If so, the second
      step is to determine whether there is any discrepancy as to any
      facts material to the case. Finally, it must be determined
      whether, in granting summary judgment, the trial court has
      usurped improperly the role of the jury by resolving any material
      issues of fact.

Dudley v. USX Corp., 606 A.2d 916, 920 (Pa. Super. 1992). “If credibility

is in issue, oral proof requires the jury’s consideration and prevents the

entering of a summary judgment. But if plaintiff fails to establish a prima

facie case, the mere fact that his proof is oral does not provide a basis for

placing the issue before a jury.”   Thompson Coal Co. v. Pike Coal Co.,

412 A.2d 466, 474 (Pa. 1979).

      Here, the trial court stated that it “reviewed and considered the

pleadings, record, [the Callenders’] experts’ report, [and the] briefs and

arguments of the parties.” T.C.O. at 6. The court noted that it “read the

excerpts” from the depositions, but also “reviewed the multitude of exhibits

filed by [the Callenders].” Id. The court referred to the Callenders’ “parts-

                                    - 15 -
J-A08031-14



related exhibits,” comprised of, inter alia, invoices, packing lists, written

work orders, and price quotes, and concluded that “[t]he record reflects that

any changes made by Brighton were at [Allegheny Ludlum’s] request or per

discussions with [Allegheny Ludlum], and subject to [Allegheny Ludlum’s]

approval.”   Id. at 11 (footnote omitted).     The court explicitly relied upon

these exhibits to determine that “[t]here is no evidence of record to

establish that the parts in place on the date Mr. Callender was injured were

manufactured by Brighton.”      Id. at 11.    Thus, the trial court did not rely

exclusively upon depositions in determining that the Callenders failed to

state prima facie claims for strict liability, negligence, or breach of warranty.

Id. at 22, 23, and 27. Accordingly, there is no violation of the Nanty-Glo

rule. See Checchio, 717 A.2d at 1062; see also Thompson Coal Co., 412

A.2d at 474. This issue does not merit relief.

      In their third issue, the Callenders argue that “[i]ssues of material fact

exist as to whether the component parts Brighton Machine designed,

manufactured and supplied caused the Callenders’ loss and whether the

same were foreseeable to Brighton Machine.”           Callenders’ Brief at 26.

Specifically, the Callenders contend Brighton is liable under section 402A of

the Restatement (Second) of Torts because “Brighton Machine was aware or

should have been aware of the danger its products [posed to] users of the

leveller” and “yet failed to provide warnings [f]or Mr. Callender or his

employer.” Id. at 28. We disagree.




                                     - 16 -
J-A08031-14



       “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).8 Section 402A provides:

       § 402A Special Liability of Seller of Product for Physical
       Harm to User or Consumer

       (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.


____________________________________________


8
       But see Tincher v. Omega Flex, Inc., 64 A.3d 626, 626 (Pa. 2013)
(granting review on the question: “Whether this Court should replace the
strict liability analysis of Section 402A of the Second Restatement with the
analysis of the Third Restatement”). Nonetheless, our Supreme Court has
not yet decided the case, and “we are bound to apply the law of
Pennsylvania as it now exists.” Swanson v. Carlson, 527 A.2d 577, 578
(Pa. Super. 1987).




                                          - 17 -
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Restatement (Second) of Torts 402A.

      To state a claim under this section, the Callenders must establish: “1)

a product; 2) the sale of that product; 3) a user or consumer; 4) the product

defect which makes the product unreasonably dangerous; and 5) the

product defect was the proximate cause of the harm.” Toth v. Economy

Forms Corp., 571 A.2d 420, 422 (Pa. Super. 1990) (citations omitted).

      The imposition of liability in any products case, including one
      based on [s]ection 402A strict liability, requires a showing that
      the plaintiff’s injury was caused by some defect in the product.
      Thus, where a finding that the product is defective within the
      meaning of section 402A is predicated on the theory that the
      manufacturer failed to provide adequate warnings of the
      dangerous propensities of the product the plaintiff must prove
      the failure to warn caused plaintiff’s injury.

Sherk, 450 A.2d at 620.

      [L]imits on a manufacturer’s duty to warn come into play where,
      as in the present case, the manufacturer supplies a mere
      component of a final product that is assembled by another party
      and dangers are associated with the use of the finished product.
      This is particularly true where the component itself is not
      dangerous, and where the danger arises from the manner in
      which the component is utilized by the assembler of the final
      product, this being a matter over which the component
      manufacturer has no control.

Jacobini, 588 A.2d at 478-79.         Furthermore, a company that neither

manufactured nor supplied the defective product is not liable under a theory

of strict liability or failure to warn. See Toth, 571 A.2d at 422-23.

      Here, the trial court determined that “[t]here is no evidence of record

to establish that the parts in place on the date Mr. Callender was injured




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were manufactured by Brighton.” T.C.O. at 11. In response, the Callenders

direct our attention to Graham’s deposition, which identified:

       1) A spindle that supplied the rotational force to leveller rollers,
          without which the levellers could not turn;

       2) Bearing caps, half-bearing retainers and a housing cap for
          consideration of [sic] that held the leveller rollers in which Mr.
          Callender’s left ha[n]d was caught[.]

Callenders’ Brief at 27 (record citations omitted). The parts identified by the

Callenders are documented, respectively, in a purchase order dated October

10, 1995, and a job order for a bearing cap, a housing cap, and a half-

bearing retainer.     See Graham Deposition at 50, 53.          Although Graham

appears to establish that these are the components of a leveller, the

Callenders identify no evidence showing that these particular parts were

installed in the leveller at the time of Callender’s injury, who had installed

them, or whether they were installed “without substantial change in the

condition in which [they were] sold.”              Restatement (Second) of Torts

§ 402A.    Furthermore, the Callenders’ experts concededly never inspected

the leveller or the No. 3 line. Report at 5 § 4. Therefore, the Callenders

have failed to establish that Brighton parts were, in fact, involved in

Callender’s injury.

       Moreover, as previously discussed, the duty to warn Callender resided

with   Allegheny      Ludlum,   not    Brighton,    which   supplied   replacement

components to a preexisting assembly line laid out in a manner over which

Brighton exercised no control.        See Wenrick, 564 A.2d 1248.        Thus, the



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Callenders failed to state a claim under section 402A for which they could

recover from Brighton.   See Toth, 571 A.2d at 422.       This issue does not

merit relief.

      In their fourth issue, the Callenders contend that, under Section 404 of

the Restatement (Second) of Torts, “[a] company that services equipment

for over twenty-five years, [and] redesigns, manufactures[,] and supplies

component parts with knowledge as to their use owes duties to users of the

integrated machine.”     Callenders’ Brief at 29.    They argue that, under

common law negligence principles, Brighton owed Callender a duty of care.

Id. at 29-31. We disagree.

      Section 404 provides:

      § 404 Negligence in Making, Rebuilding, or Repairing
      Chattel

      One who as an independent contractor negligently makes,
      rebuilds, or repairs a chattel for another is subject to the same
      liability as that imposed upon negligent manufacturers of
      chattels.

Restatement (Second) of Torts § 404.         “It is axiomatic that in order to

maintain a negligence action, the plaintiff must show that the defendant had

a duty to conform to a certain standard of conduct; that the defendant

breached that duty; that such breach caused the injury in question; and

actual loss or damage.” Phillips v. Cricket Lighters, 841 A.2d 1000, 1008

(Pa. 2003) (citation and quotation marks omitted).

      The Callenders cite Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000), for

the proposition that “actors have the general duty to refrain from causing

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J-A08031-14



harm to others as a general principle under common law.” Callenders’ Brief

at 30. They contend that “Mr. Downie himself has stated that he has rebuilt

nearly every piece of equipment” on the line, and that the court erred in

relying upon oral testimony in granting summary judgment.               Id. at 31.

However, as previously discussed, the Callenders failed to establish a

genuine issue of material fact as to whether Brighton’s components were in

the leveller at the time of Callender’s injury. See T.C.O. at 11. Moreover,

“if plaintiff fails to establish a prima facie case, the mere fact that his proof is

oral does not provide a basis for placing the issue before a jury.”

Thompson Coal Co., 412 A.2d at 474.            Thus, the Callenders cannot rely

upon Downie’s testimony to establish the existence of a genuine issue of

material fact.    See Murphy, 777 A.2d at 429.           The Callenders are not

entitled to relief on this issue.

      Finally, in their fifth issue, the Callenders assert that their “warranty

claims should proceed to trial.”     Callenders’ Brief at 31.    They argue that

they have “established genuine issues of material fact in regard to the

§ 402A claims” because they have established:

      several malfunctions, the most important being that the leveller
      and its components lacked appropriate visual warning signs that
      it was operational, the leveller and its components lacked
      adequate guarding to prevent entry into the zone of danger
      while it was operational and the leveller and its components
      lacked appropriate kill switches.

Id. at 31, 32.




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     As previously discussed, the Callenders have failed to establish that

Brighton, as a components manufacturer who did not control the final layout

of the No. 3 line, owed Callender a duty to warn of latent dangers in the use

or operation of Allegheny Ludlum’s leveller. See Jacobini, 588 A.2d at 478-

79; see also Wenrick, 564 A.2d at 1248. Thus, the Callenders have failed

to raise a genuine issue of material fact that would render their breach of

warranty claim viable. Murphy, 777 A.2d at 429. The trial court did not

abuse its discretion in granting Brighton’s motion for summary judgment on

the breach of warranty claim. Accordingly, this issue lacks merit.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2014




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