J-S14010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

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


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

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

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

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

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

affirm.

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

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

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

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

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

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

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

_____________________________

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


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

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

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

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

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

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

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

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

      Appellant raises three issues for our review:

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

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

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

(Appellant’s Brief at 7).

      Our standard of review of an order granting summary judgment

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

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

347 (Pa.Super. 2006).

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

                                     -2-
J-S14010-17


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

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

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

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

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

court’s grant of summary judgment:

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

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


                                     -3-
J-S14010-17


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

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

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

(internal citations and quotation marks omitted).

     Preliminarily, we observe:

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

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

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

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

     With regard to Appellant’s strict liability claim:

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

                                     -4-
J-S14010-17


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

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

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

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

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

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

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

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

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

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

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

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

because he did not plead it in his complaint.

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

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


                                       -5-
J-S14010-17


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

opinion comprehensively discusses and properly disposes of the questions

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

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

floor without protecting surface underneath; risk that area surrounding

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

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

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

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

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

defective condition in water cooler and how that defective condition caused

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

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

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

which statements are inadmissible hearsay; functioning of water cooler,

advantages and disadvantages of different designs, and availability of

alternative   designs     are   technical    matters     which   also   require   expert

testimony;    Appellant    admits    he     does   not    have   requisite   knowledge

concerning relevant risk-utility factors; Appellant cannot maintain claim

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

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

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


                                            -6-
J-S14010-17


requires expert testimony to demonstrate that Appellee negligently designed

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

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

Appellant’s documents appended to his response to summary judgment

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

Appellant purchased water cooler for ordinary purpose, and he chose

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

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

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

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

opinion.

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




                                    -7-
                                                                                      Circulated 03/01 /2017 04:30 PM




        IN THE COURT OF COMMON PLEAS OF MIFFLIN COUNTY, PENNSYLVANIA

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                                                  ORDER

       AND NOW, this        2J1_ day of September,     2016, after Oral Argument held July 14, 2016, and

upon consideration of the parties' briefs and the relevant law, it is hereby ORDERED and DECREED that

Defendant's Motion for Summary Judgment is GRANTED.

                                          FINDINGS OF FACT

       On April 4, 2014, Plaintiff purchased three water coolers from Stephanie Neff d/b/a Berube's

Crystal Clear Water, LLC ("Berube's" hereafter). Robert Neff of Berube's delivered the three coolers to

Plaintiffs home and installed the items. Plaintiff placed one of the coolers ("Water Cooler" hereafter),

which contained a five-gallon bottle, on his hardwood floor in the living room, sitting room, wet bar area.

He did not place a mat or any other form of protection under the Water Cooler.

       Within a week of the installation, Plaintiff noticed several floorboards near the Water Cooler had

heaved. Plaintiff avers the floorboards heaved due to a leak of the Water Cooler. Plaintiff never observed

the Water Cooler leaking or saw any puddles of water on the floor. Nor could Plaintiff recall how much

water was left in the five-gallon bottle, upon noticing the heaved boards. Plaintiff could only recall that

"it wasn't a huge leak because there was still a lot of water in the bottle." (Meyers Dep. 22:19-23:1)

       Plaintiff called Mr. Neff who removed the Water Cooler from Plaintiffs home. Mr. Neff repaired

the Water Cooler, returned it to Plaintiffs     residence and gave Plaintiff a new water bottle.                Oasis




                                                    - 1 -
International ("Defendant" hereafter) did not manufacture the original or the substituted water bottle that

was used in the Water Cooler.         Plaintiff does not know what Mr. Neff did to repair the Water Cooler

while it was out of his possession.

                                                 DISCUSSION

       Pursuant to the Pennsylvania Rules of Civil Procedure, summary judgment is appropriate when

there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of

law. Pa.R.C.P. No. 1035.2. When the party who will bear the burden of proof at trial has failed to

produce evidence of facts essential to the cause of action which would require th!!.i~Y~S.lQ.PS:-.Pr~.s.ente_c;:L_

to the jury, the court must grant summary judgment. Lance v. Wyeth, 624 Pa. 231, 258 (2014). Summary

judgment may be entered only in those cases that are clear and free from doubt. Johnson v. Harris, 615

A.2d 771 (Pa. Super. 1992).

        Furthermore, a court may consider only pleadings, depositions, answers to interrogatories,

admissions and affidavits, and reports signed by an expert witness. Pa R.C.P. 1035.1. As such, this Court

will only consider evidence that would be admissible at trial and strikes all inadmissible evidence from

the record in consideration of Defendant's Motion for Summary Judgment.


Count 1- Strict Liability Defect in Design- Product Liability

        In a design defect case, a Plaintiff must prove that a seller, distributor or manufacturer placed a

product on the market in a defective condition. Tincher v. Omega Flex, 104 A.3d 328, 384 (2014). The

Court will not presume a product to be defective until a plaintiff affirmatively proves otherwise. In

Pennsylvania, a plaintiff can prove a defective condition by showing either that (1) the danger is

unknowable and unacceptable to the average or ordinary consumer (the consumer expectations test), or

(2) a reasonable person would conclude that the probability and seriousness of harm caused by the

prodncn5utwe1gl1theburden or costsot'laking precautions (tbe ris~tntty-testµU:at 401.



                                                      -2-
                              The consumer expectations test defines a defective condition "as a condition, upon normal use,

             dangerous beyond the reasonable consumer's contemplations."                                                                                 Id, at 387. A product is not defective if the

             ordinary consumer would reasonably anticipate and appreciate the dangerous condition of the product and

             the attendant risk of injury of which the plaintiff complains. Id. The nature of the product, the identity of

             the user, the product's intended                                                use and user, and any express or implied representations                                                                                    by the

             manufacturer or other seller are among the relevant considerations when assessing the reasonable

             consumer's expectations. Id.

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             mat or protective surface underneath. The risk that the area surrounding the Water Cooler might get wet

             during the course of its use is a well-known and inherent 'risk' of using a water cooler. Furthermore, no

             express implied representations were given to Plaintiff by Berube's or Defendant. The Court finds this

            risk in not unknowable or unacceptable                                                           to the ordinary consumer and is not dangerous beyond the

             reasonable consumer' s contemplations.                                                         Therefore, Plaintiff cannot prove that the water cooler was

             defective under the consumer expectations theory.

                             Under the risk-utility theory, the test consists of a cost-benefit analysis. Id. at 389.                                                                                                                  Factors

            relevant to this risk-utility analysis include: (1) the product's usefulness and desirability, (2) its safety

            aspects, (3) the availability of a substitute product which would meet the same need and not be as unsafe,

            (4) the manufacturer's ability to eliminate the unsafe character of the product without impairing its

            usefulness or making it too expensive to maintain its utility, (5) the user's ability to avoid danger by

            exercising care when using the product, (6) the user's anticipated awareness of the dangers inherent in the

            product either because of general public knowledge of the obvious condition of the product, or because of

            the· existence-of-suitable-warnings-and                                                instructions, and (7) the feasibility of.spreading.the.Ioss.by.setti ..... ng.,
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            the price of the product or carrying liability insurance. Id. at 389-90.




                                                                                                                              -3-
       In reviewing these factors, Plaintiff acknowledges that he cannot testify as to the alleged defect in

the Water Cooler. (Meyers Dep. 37:17-18.) Nor can he articulate what made the Water Cooler defective

or specify what measures could be taken to remedy the alleged defect.         (Meyers Dep. 37:11-18.) Yet,

Plaintiff has not procured an expert to testify regarding these technical matters. Rather, Plaintiff relies on

a statement made by Mr. Neff, whereby Mr. Neff informed Plaintiff that he had fixed a defect in a valve.

       The functioning of the Water Cooler, the advantages and disadvantages of different designs and

the availability of alternative designs are technical matters that are not within the range of ordinary

training, knowledge, intelligence, and experience of the jury. The Court finds Plaintiff cannot maintain

his claim under a risk-utility theory. Plaintiff admits he does not have the requisite knowledge concerning

the risk-utility factors. Therefore, Plaintiffs claim requires expert testimony to identify the existence of a

defective condition in the Water Cooler and how that defective condition caused Plaintiff's damage.

Plaintiff does not have an expert, nor can he produce evidence, necessary to establish the elements of his

design defect claim and therefore cannot succeed under the risk-utility theory.

        Plaintiff avers that he can prove his case to a jury, by submitting an exhibit offered at deposition

that demonstrates an issue with the drain plug that caused water to leak onto Plaintiff's floor. However,

Plaintiff has offered no affidavits, as required by Rule 1035.1, or any other evidence authenticating any of

the exhibits offered in support of his argument.     Where a party simply appends exhibits to a summary

judgment   briefing without authenticating     documentation, those documents cannot be considered in

support of the brief.   US. Bank. NA., v. Harlow, Case No. 889 EDA 2015, 2016 Pa. Super. Unpub.

LEXIS 1183, at 14 (Pa. Super. April 12, 2016). As such, Plaintiffs exhibits are inadmissible and cannot

be considered by the Court. Defendant is entitled to summaryjudgment on this claim.




                                                      -4-
Count 2- Negligent Design and/or Maintenance- Product Liability

        To prove a negligence claim, a plaintiff must establish (I) a duty or obligation recognized by law;

(2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4)

actual damages. Brandon v. Ryder Truck Rental, Inc., 34 A.3d 104, 108 (Pa. Super. 2011 ). A plaintiff

must identify and prove the existence of a specific defect in the design or maintenance of a product to

show that the manufacturer breached a duty to the plaintiff and to succeed on a negligent design or

maintenance claim. Id. Where the subject matter of the inquiry involves special skills and training not

common    to   a lay person, a plaintiff must present expert testimony in order to prove both a defect and

show that the defect caused damages. Id

        As stated above, Plaintiff has acknowledged that he does not know the inner workings of water

coolers. (Meyers Dep. 3 7: 1 7-18.) Plaintiff, therefore, requires expert testimony to demonstrate that Oasis

negligently designed and/or maintained the Water Cooler.        As Plaintiff cannot provide how Defendant

was negligent in the design or maintenance of the Water Cooler, Plaintiff's claim could not be proven to a

jury.   While Plaintiff argues that he does not require an expert to support his claims because he has

attached a document to his summary judgment response describing the Water Cooler as "faulty," this

document is unauthenticated hearsay. Defendant is entitled to summary judgment on this claim.


Count 3- Breach of Implied Warranty of Fitness for a Particular Purpose

        To establish the existence of an implied warranty of fitness for a particular purpose, the seller must

know, at the time of contracting: ( 1) any particular purpose for which the goods are required, and (2) that

the buyer is relying on the skill or judgment of the seller to select or furnish suitable goods.

13 Pa. C.S.A. § 2315. A claim for breach of warranty of fitness for a particular purpose "is based upon a

special reliance by the buyer on the seller to provide goods that will perform a specific use envisaged -and

communicated by the btryer" Gall v. Allegheny County flea/th Dep't, 555 A.2d 786, 790 (Pa. 1989)



                                                     -5-
Further, "[a] 'particular purpose' differs from the ordinary purpose for which goods are used in that it

envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary

purposes for which goods are used are those envisaged in the concept of merchantability and go to uses

which are customarily made of the goods in question." Id.

       As Plaintiff so aptly stated in his deposition, the Water Cooler was not purchased as "an apparatus

to bathe in." (Meyers Dep. 16:14-21.) Plaintiff purchased the Water Cooler for drinking purposes, solely

to drink water. (Meyers Dep. 16: 14-17) Furthermore, Plaintiff chose the particular Water Cooler because

it was what Berube's had in stock. (Meyers Dep. 16:4-6.) Berube's did not provide any recommendations

to Plaintiff as to a particular type of cooler that he should purchase, nor did Plaintiff inform Berube's

about any particular needs he had in purchasing the water cooler. (Meyers Dep. 16:4-17:1.) As such, the

Court finds Plaintiff does not have a cognizable claim for breach of implied warranty of fitness for a

particular purpose and Defendant is entitled to summary judgment on this cause of action.

                                             CONCLUSION

       Summary Judgment should be granted to the movant unless the opposing party offers competent

evidence, which would be admissible at trial, showing there is a genuine issue as to a material fact that

would warrant submitting the case to the trier of fact. Here, Plaintiff has failed to provide evidence,

which would be admissible at trial, showing there are genuine issues of material fact that would warrant

submitting the case to the trier of fact. Defendant's Motion for SummaryJudgment is granted.


    NOTICE OF ENTRY OF ORDER OR DECAE!              BY THE COURT:
    PURSUANTTO PA. R.C.P. NO. 238
    NOTIFICATION·THIS DOCUMENT HAS
    BEEN FILED IN THIS CASE.
    PROTHONOTARV. MIFFLIN COUNTY. PA
                                                 ~/~
                                                    AARON L. GIN~~               -
   .O<\T~   -9./.U../ 1,                            JUDGE


DISTRIBUTION: SEE NEXT PAGE


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     /
c:     Matthew Slivinski, Esq., Slivinski Law Offices
     A        111 N. High Street, Suite One, Selinsgrove,   PA 17870
       'Timothy S. Searer, Esq., Tucker Arensburg, P.C.
              P.O. Box 867, Lewistown, PA 17044
     /c. Darcy Jalandoni, Esq., Porter Wright Morris & Arthur LLP
              41 South High Street, Suites 2800-3200, Columbus, OH 43215-6100
       File




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