J-A17011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARK E. GIBBS                                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellant

                   v.

H.A. DEHART & SON, INC., GSP
MARKETING, INC., FRANK BUCK
MOTORS, INC., PACCAR, INC. AND
PETERBILT MOTORS COMPANY

                        Appellees                     No. 828 EDA 2013


             Appeal from the Judgment Entered March 1, 2013
           In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 002364 June Term, 2010


BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.:                   FILED SEPTEMBER 17, 2014

     Appellant, Mark E. Gibbs, appeals from the judgment entered in

Philadelphia County Court of Common Pleas in favor of Appellees, H.A.



                                                        , and Peterbilt Motors



remove a compulsory nonsuit in this personal injury action. We affirm.

     The trial court set forth the relevant facts of this case as follows:

        The underlying incident of this matter occurred on
        November 18, 2008[,] when Appellant sustained an injury
        while falling from a recycling truck that he was riding on as
        part of his employment with Cheltenham Township. The
                                                              nd the
        cab and chassis was built by Appellee Peterbilt Motors[, a
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         division of Appellee PACCAR, Inc.] [Appellee H.A. DeHart
         was the seller of the truck body and Appellee Frank Buck
         Motors, Inc. (t/a Pocono Peterbilt) is the regional dealer for
         Peterbilt Motors.] The components were assembled by

         Township in 2003 and was designated as vehicle #609.
                                           -
         the right-side steering wheel was removed and a metal
         plate was placed over the right-side gas and brake pedals.]

         side. The right hand side of the vehicle had a seat with a
         seat belt installed and, as the truck was designed to have
         the right hand door stay open, a chain was also included in
         the design to go across the open right hand side doorway
         while the vehicle was moving. Behind the cab and the
         front axle, a step was installed on the left side of the
         vehicle so that a third worker could be a part of the
         recycling crew.

         Appellant had been employed by Cheltenham Township as
         a recycling worker since 1995 and had been working

         purchase in 2003. Appellant testified that he never used
         the safety chain on the door during the entirety of his time
         of employment and represented that he still had no idea of
         its purpose as a safety feature and also admitted that a
         seatbelt was there for his use but that he never used it.
         On the day in question, at the time of the accident the
         vehicle was being driven by Ray Staley and a third worker,
         Charles Hoffner, was on the street in front of the vehicle.
         At the time of the accident Appellant was standing in the
         [cab right-side] doorway of the moving vehicle facing the
         driver[;] when the vehicle started to move[,] Appellant
         somehow slipped off and fell to the ground and was
         injured. There were no allegations the driver of the vehicle
         or anyone else took any negligent actions in operating the
         vehicle that day which di

(Trial Court Opinion, filed January 31, 2014, at 1-2) (internal citations to the

record omitted). Procedurally, Appellant filed a complaint on June 23, 2010,

alleging Appellees were negligent and strictly liable for the defective design


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of the recycling truck and for failing to warn Appellant of the danger of using

the right-side doorway to the cab as a riding platform.

      As the trial approached, on October 9, 2012, GSP filed a motion in

limine, joined by H.A. DeHart, to preclude all evidence of liability against

GSP as manufacturer of the truck.      On that same day, GSP also filed a

motion in limine, joined by H.A. DeHart, to preclude all evidence of liability

against GSP, on the basis that the truck had no defect as a matter of law.

On October 22, 2012, H.A. DeHart filed a separate motion in limine to

preclude all evidence regarding a riding step installed by Cheltenham

Township on the left/driver side of the truck behind the cab and front axle.

      Jury selection took place on November 9, 2012. The court granted all

motions in limine on November 13, 2012. Upon motion of all Appellees, the

court entered a compulsory nonsuit against Appellant on the same day.

Appellant filed a post-trial motion on November 21, 2012, requesting the

court to reconsider its orders granting the motions in limine, to remove the



post-trial motion by order of February 21, 2013, and entered judgment

against Appellant on March 1, 2013. Appellant filed a timely notice of appeal

on March 5, 2013. The court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant

timely complied.

      Appellant raises the following issues for our review:


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         WHETHER THE TRIAL COURT ERRED OR ABUSED ITS
         DISCRETION WHEN IT HELD AS A MATTER OF LAW THAT
         THE RECYCLE TRUCK CHELTENHAM TOWNSHIP HAD
         PURCHASED, TRUCK 609, WAS NOT DEFECTIVE.

         WHETHER THE TRIAL COURT ERRED OR ABUSED ITS
         DISCRETION WHEN IT HELD AS A MATTER OF LAW THAT
         [GSP], THE ENTITY WHICH ASSEMBLED TRUCK 609,
         COULD NOT BE FOUND LIABLE AS A MANUFACTURER OF
         TRUCK 609.

         WHETHER THE TRIAL COURT ERRED OR ABUSED ITS
         DISCRETION WHEN IT PRECLUDED THE ADMISSION OF
         ALL EVIDENCE REGARDING A LOOSE STEP WHICH WAS
         SOLD TO CHELTENHAM TOWNSHIP BY [H.A. DEHART] AND
         [GSP].

         WHETHER THE COMPULSORY NON-SUIT ENTERED BY THE
         [TRIAL] COURT SHOULD BE REMOVED BECAUSE
         [APPELLEES] MAY BE FOUND BY A JURY TO BE STRICTLY
         LIABLE AND/OR NEGLIGENT.



      In his issues combined, Appellant claims Truck 609 had a design defect

because it did not have a safe place for him to stand on the right side of the

truck. Appellant maintains the only place he could stand on the right side

was in the open doorway to the right side of the cab in front of a wheel.

Appellant argues it is dangerous and violative of American National




was unreasonably dangerous because when he was riding on the right-side

cab doorway, he fell off the truck and was immediately at risk of being

                                                                  . Appellant


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asserts Appellees H.A. DeHart and Pocono Peterbilt knew Cheltenham

Township would be using a three-man crew on Truck 609, and it was

foreseeable that one of the helpers would use the right-side cab doorway as

a riding platform.   Appellant maintains the safety chain would not have

provided any protection as he stood in the right-side cab doorway.         He

likewise claims it was unreasonable to expect him to sit down or use a

                                                                            h




contends all Appellees had a responsibility to provide either a safe place for

Appellant to stand on the truck while working or appropriate warnings

                                                               -side cab door

opening, i.e., to warn of the danger of being run over by the truck wheels.

Appellant specifically argues GSP should be held strictly liable or negligent

for the defective design of the truck, even though GSP manufactured only

the truck body, and not the cab, where GSP assembled the final product.

With respect to the sale and installation of a riding step between the front

and rear axles on the left side of Truck 609, Appellant argues this evidence

was relevant because it demonstrated H.A. DeHart and GSP assisted in the

unsafe design of Truck 609 and should have anticipated that a helper on the

right side would similarly use the cab doorway as a riding step. Appellant

submits the trial court erred by granting various motions in limine precluding


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nonsuit.    Appellant concludes the court erred in refusing to remove the

compulsory nonsuit and award him a new trial. We disagree.

                                                           in limine is subject to

                                                             Commonwealth v.

Reese, 31 A.3d 708, 715 (Pa.Super. 2011) (en banc).

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

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

(internal citations omitted).



only if the trial court abused i                                            Brinich

v. Jencka, 757 A.2d 388, 402 (Pa.Super. 2000), appeal denied, 565 Pa.

634, 771 A.2d 1276 (2001).

           A motion for compulsory non-suit allows a defendant to
                                                                    y be
           entered only in cases where it is clear that the plaintiff has
           not established a cause of action; in making this
           determination, the plaintiff must be given the benefit of all
           reasonable inferences arising from the evidence. When so
           viewed, a non-suit is properly entered if the plaintiff has
           not introduced sufficient evidence to establish the
           necessary elements to maintain a cause of action; it is the
           duty of the trial court to make this determination prior to
           the submission of the case to the jury. When this Court
           reviews the grant of a non-suit, we must resolve all
           conflicts in the evidence in favor of the party against whom

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        the non-suit was entered.

Kelly v. St. Mary Hosp., 778 A.2d 1224, 1226 (Pa.Super. 2001) (citation

omitted).

        Pennsylvania law characterizes products liability claims as
        follows:

            The Restatement (Second) of Torts § 402A,3 adopted

            claims of products liability and allows recovery where
                                                                 y

            the plaintiff.    Restatement (Second) of Torts, §
            402A(1). Success on such a claim requires the
            plaintiff to prove that (1) the product was defective,
            and (2) the defect was the proximate cause of the
            harm. There are three types of defective conditions
            which may give rise to strict liability: manufacturing


              3
                  Section 402A 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 a 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

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

                 Restatement (Second) of Torts, § 402A (1965).

               The threshold inquiry in all products liability cases is
               whether there is a defect which rendered the product
               unreasonably dangerous.       A product is defective
               when it is not safe for its intended use, i.e., the

               element necessary to make it safe for its intended
               use. Court control of jury action is more extensive in
               products liability cases than in the ordinary



               trial court, the resolution of which depends upon
               considerations of social policy, including weighing
               factors such as the gravity of the danger posed by
               the challenged design; the likelihood that such
               danger would occur; the mechanical feasibility of a
               safer design; and the adverse consequences to the
               product and to the consumer that would result from
               a safer design.

French    v.    Commonwealth        Associates,     Inc.,   980   A.2d    623,   632

(Pa.Super. 2009) (quoting Weiner v. American Honda Motor Co., Inc.,

718 A.2d 305, 307-08 (Pa.Super. 1998)) (some internal citations omitted).



as a matter of law, even where the plaintiff presents evidence tending to

                                         Schindler v. Sofamor, Inc., 774 A.2d

765, 773 (Pa.Super. 2001), appeal denied, 567 Pa. 727, 786 A.2d 989

(2001).




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must prove that the lack of warning rendered the product unreasonably

dangerous and that it was the proxima                                    French,

supra at 632 (quoting Weiner, supra at 309).

         [I]t must be demonstrated that the user of the product

         the seller/manufacturer.   The determination of whether a

         due to inadequate warnings is a question of law to be
         decided by the trial court judge who must determine,
         under an Azzarello [v. Black Bros. Co., Inc., 480 Pa.
         547, 391 A.2d 1020 (1978),] social policy analysis,
         whether the imposition of strict liability would be justified
         under the facts of the case.

Id. at 632-33 (citation omitted).

         The duty to warn, however, does not require a
         manufacturer to educate and instruct a novice in the
                                                 It also does not
         require that a manufacturer warn of obvious dangers
         which are generally known and recognized.                A
         warning of inherent dangers is sufficient if it adequately
         notifies the intended user of the unobvious dangers
         inherent in the product.

Fletcher v. Raymond Corp., 623 A.2d 845, 848 (Pa.Super. 1993) (internal

citations and quotation marks omitted) (emphasis added).            See also

Viguers v. Philip Morris USA, Inc., 837 A.2d 534 (Pa.Super. 2003),

affirmed, 584 Pa. 120, 881 A.2d 1262 (2005) (stating there is no duty to

warn potential users of that which is known to most people).



         Moreover, our Supreme Court has stated:

            [N]egligence concepts have no place in a case based
            on strict liability. Indeed, Section 402A of the

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           Restatement (Second) of Torts makes it clear that
           the imposition of strict liability for a product defect is
           not affected by the fact that the manufacturer or
           other supplier has exercised all possible care. This
           approach is militated by the fact that our strict



French, supra at 633 (quoting Phillips v. Cricket Lighters, 576 Pa. 644,

650, 841 A.2d 1000, 1003 (2003)).

     To prevail in a negligence action, a plaintiff must establish the




                    Merlini ex rel. Merlini v. Gallitzin Water Authority,

602 Pa. 346, 354, 980 A.2d 502, 506 (2009).

        The determination of whether a duty exists in a particular
        case involves the weighing of several discrete factors
        which include: (1) the relationship between the parties;
        (2) the social uti
        of the risk imposed and foreseeability of the harm
        incurred; (4) the consequences of imposing a duty upon
        the actor; and (5) the overall public interest in the
        proposed solution.

Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169

(2000). Pennsylvania has adopted the Restatement (Second) of Torts § 388

in cases involving a claim of negligent failure to warn.     Dauphin Deposit

Bank & Trust Co. v. Toyota Motor Corp., 596 A.2d 845, 850 (Pa.Super.

1991). Section 388 provides as follows:

        § 388 Chattel Known to be Dangerous for Intended
        Use


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J-A17011-14


        One who supplies directly or through a third person a
        chattel for another to use is subject to liability to those
        whom the supplier should expect to use the chattel with
        the consent of the other or to be endangered by its
        probable use, for physical harm caused by the use of the
        chattel in the manner for which and by a person for whose
        use it is supplied, if the supplier

           (a) knows or has reason to know that the chattel is or
           is likely to be dangerous for the use for which it is
           supplied, and

           (b) has no reason to believe that those for whose use
           the chattel is supplied will realize its dangerous
           condition, and

           (c)    fails to exercise reasonable care to inform them of
           its dangerous condition or of the facts which make it
           likely to be dangerous.

Restatement (Second) of Torts § 388.

     Instantly, the trial court reasoned as follows:


        been   provided   and   that   its   absence   was   a   defect

        behind the axle because the driver of the vehicle was
        seated in the left hand of the cab. A similar one was not
        included on the right side because a seat, with a seat belt,
        and a chain to go across the door was included. There was
        no reason for a step to be included since there was space
        for the worker inside the cab on the right side, while there
        was no space for the third worker on the left side.
                                   erly avail himself of the seat and
        safety features would not have been rectified by the
        existence of an outside step behind the [right wheel] axle.
        It is a completely different issue, and in no way related to
        the open and obvious danger of the actions engaged in


(Trial Court Opinion at 4-5). We agree. The evidence of record showed the

right-side interior of the truck cab contained space for a worker to stand or

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J-A17011-14


sit, and the safety features included a seat belt, a chain that could be pulled

across the open doorway, or a door that could be closed. Appellant provided

no evidence that his proposed solution (installation of an exterior riding step

at the right rear of the truck) would have been a safer option than riding

inside the cab.   When Appellant fell off the truck, he was standing in the

open doorway, not within the confines of the cab. None of Appellees placed

a riding step in this location, and no evidence of record indicated the place

where Appellant stood was intended to function as a riding step.           The

possibility that Appellant might nevertheless choose to stand in the open

doorway did not make the truck unreasonably dangerous as designed.

Moreover, installation of a riding step on the right rear of the vehicle would

not have eliminated the possibility that Appellant would still stand in the

open doorway. Truck 609 had a safer alternative for Appellant. He could

have climbed into the cab, sat in the seat, and used the seatbelt and chain.

That it might have been easier for Appellant to get on and off the truck by

standing in the open cab doorway does not control. Appellant failed to prove

a genuine design defect because he was unable to show Truck 609 lacked

any element necessary to make it safe for its intended use. See French,

supra. Likewise, Appellant failed to show that any of Appellees breached a

duty to provide a safe product.    Regardless of whether a worker such as

Appellant might stand in the right cab door opening, the truck had an

interior space equipped with safety features which Appellant declined to use.


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Thus, Appellees cannot be held liable for the negligent manufacture,

assembly, or sale of a defective product.        See Merlini ex rel. Merlini,

supra.

                                        ailure to warn claim, the trial court

reasoned as follows:

           The dangerous condition was not that if a person hanging
           onto the moving vehicle fell while a right turn was being
           made they might be hit, the dangerous condition was that
           a person hanging on to the moving vehicle could fall.
           Whether struck by the wheel, striking another vehicle, or
           striking the ground, all sources of potential injury stem
           from the completely open and obvious danger that if a
           person is hanging onto the outside of a moving vehicle or
           hanging in the doorway of a moving vehicle with no door
           that there is the possibility of falling and being injured.


           likely of the myriad of possible ways that a person could be
           injured when falling from a moving vehicle does not make

           vehicle when the underlying act itself that led to the injury
           was completely and utterly obvious as potentially
           dangerous. [A] warning is necessary only for non-obvious

           experience with the specific vehicle he was in, any
           reasonable person confronted with the question of whether

           obvious risk of danger would indubitably answer in the


(Trial Court Opinion at 3-

falling off the truck while standing in the right cab door opening was

obvious.    It was apparent that Appellant could fall off and sustain injuries

from the impact with the ground, another vehicle, or the wheels of the truck,

if he rode in this area of the cab.     Thus, whether analyzed under a strict

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J-A17011-14


liability or negligence theory, Appellees had no duty to warn of this open and

clear danger.   See French, supra; Fletcher, supra; Dauphin Deposit

Bank & Trust Co., supra.

                                                                            in

limine to preclude all evidence of liability because the truck had no design



motion in limine to preclude evidence regarding a riding step installed on the

left side of the truck, which was used by a third worker, because that

evidence was irrele

rulings on the motions in limine, Appellant could not establish the elements

necessary to maintain his action in strict liability or negligence on the

                                                       ntry of a compulsory

nonsuit was proper. See Kelly, supra. Due to our disposition, we need not

address whether GSP could be considered a manufacturer or assembler of



affirm.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2014

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