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									QUESTION 1.           (40 POINTS) (8 PAGE MAXIMUM)

       Defendant (D) has moved for summary judgment. The parties have agreed that no
genuine issue exists as to the following facts:

       1. Plaintiff (P) was injured when working on a machine manufactured by D.

       2. A cutting blade was loosened from its anchoring and cut deeply into P=s right arm.

        3. P was rushed to a hospital where he was saved by emergency surgery and where he was
a patient for two months.

     4. Three days after the accident, the Occupational Safety and Health Administration
(AOSHA@) removed the machine pursuant to its powers to investigate federal law.

       5. When P=s lawyer began her investigation into the cause of the accident, she learned
that OSHA had misplaced the machine and was unable to locate it.

       6. The machine was lost prior to any OSHA examination so that this federal agency has
no opinion as to the cause of the accident.

       7. P was using the machine in a normal way, as he had been trained to do.

        8. P=s expert, after studying a machine manufactured by D identical to the one which
injured P, opined that a defective metal pin which anchored the blade to the machine=s base was
the cause of the accident.

        9. Neither OSHA, nor P=s employer, nor P, nor D has been able to locate the allegedly
defective pin.

        10. D=s expert opined that installation of the machine by P=s employer might have been
improper, causing excessive vibration which loosened the blade=s anchoring system. When
properly installed, she further opined, the probability of a defective pin causing the blade to be
set free was remote, in the range of one in a thousand.

      11. Because of the machine=s removal by OSHA, no way exists to determine how the
machine was installed by P=s employer.

       Decide the motion and write an opinion justifying your decision. Do not repeat the facts.
The law you will apply is provided in Appendix A. Do not do any research. This would be a
severe Honor Code violation and will result, at a minimum, in a grade reduction. You are to
decide exclusively on the basis of your first semester learning (LDM and other classes) and the
precedents in Appendix A.
       You are a Pennsylvania trial judge in the Court of Common Pleas.


       Start your opinion as follows.

       AStudent, J.

               Summary judgment is granted.@

or     AStudent, J.

               Summary judgment is denied.@


                                        APPENDIX A

(Cite as: 523 Pa. 176, 565 A.2d 751)

Price L. ROGERS and Elaine Rogers, his            patient. Manufacturer appealed. The Superior
           wife, Appellants,                      Court, No. 01037 Philadelphia 1986, Beck, J.,
                    v.                            368 Pa.Super. 109, 533 A.2d 739, reversed
 JOHNSON & JOHNSON PRODUCTS,                      and ordered new trial on basis that patient's
   INCORPORATED, and Lankenau                     malfunction theory of strict liability should
          Hospital and Thomas                     not have been submitted to jury in view of
Jefferson University Hospital, Appellees.         manufacturer's evidence of negligence on part
                                                  of physicians. Patient appealed. The Supreme
                75 E.D. 1988                      Court, No. 75 E.D. Appeal Docket 1988, Nix,
                                                  C.J., held that plaintiff proceeding on strict
      Supreme Court of Pennsylvania.              liability theory of product malfunction will not
                                                  be precluded from having jury decide case if
            Argued Dec. 5, 1988.                  manufacturer of product introduces evidence
                                                  of negligence of another party as cause of
           Decided Oct. 20, 1989.                 malfunction, as long as plaintiff presents
                                                  case-in-chief free of secondary causes and
 Patient, whose leg was burned after plaster of   thus justifies inference of defect in product.
paris was used to temporarily set broken leg,
brought suit against manufacturer of plaster of    Superior Court reversed; remanded.
paris and hospitals. The Court of Common
Pleas, Philadelphia County, Civil Division        Flaherty, J., filed dissenting opinion in which
No. 3846, February, 1981, Armand Della            Zappala, J., joined.
Porta, J., entered judgment on jury verdict for
 Before NIX, C.J., and LARSEN,                    FLAHERTY, ZAPPALA, PAPADAKOS and


                                   2 APPENDIX A
STOUT, JJ.                                         which itself required dipping in tepid or
                                                   lukewarm water *179 and arranging or
                  OPINION                          "reversing" in several layers. When dipped in
                                                   water, the product reacted exothermically, as
NIX, Chief Justice. [FN*]                          it should have.

       FN* This case was reassigned to this         After preparing the splint in this fashion, Dr.
       writer.                                     Naame returned to the holding room. There
                                                   Dr. Dowling held up the injured leg while
 The issue in this case is whether a plaintiff     both physicians applied the insulation and the
proceeding on the strict liability theory of       plaster wrap so as to form a splint on its
product malfunction will be precluded from         underside. Mr. Rogers complained of a
having a jury decide the case if the               sensation of warmth. Dr. Dowling assured
manufacturer of the product introduces             him this was to be expected. When the splint
evidence of the negligence of another party as     began to harden, Dr. Dowling lowered the leg
the cause of the malfunction. Contrary to the      and left the room to arrange for Mr. Rogers'
Superior Court, we conclude not.                   admission into the hospital. Mr. Rogers
                                                   complained to his wife, who was in the
 The facts are that on May 1, 1977, Price          holding room, of a burning sensation. She
Rogers entered Lankenau Hospital for the           applied ice to the uppermost part of the splint,
treatment of a broken leg. Dr. John J.             at the top of her husband's thigh, and left the
Dowling, Lankenau's Chief of Orthopedic            room to locate Dr. Dowling. She found him,
Surgery, and Dr. Lawrence Naame, a third           informed him of her husband's complaints,
year resident on rotation from Thomas              and accompanied him back to the room. At
Jefferson University Hospital, treated Mr.         that point, Mr. Rogers simply requested
Rogers. Dr. Dowling recommended surgery            anesthesia should future painful procedures be
which was scheduled for the following day.         required.
Dr. Dowling ordered the application of a
plaster splint pending the surgery. Unlike a        Prior to surgery the next morning, Dr.
cast, a splint covers only part of an injured      Dowling removed the splint. He discovered
limb. Its application immobilizes the injured      second and third degree burns on the back of
limb so as to prevent complications from, for      the leg. Although able to undergo the open
example, the broken bone interfering with          reduction surgery, Mr. Rogers experienced a
circulation.                                       longer, more painful recuperative period,
                                                   requiring a skin graft, therapy, and home
 Dr. Naame left the holding room to prepare        nursing for several months.
the splint for application. This required
arranging several layers of cotton insulation to
be placed under a plaster wrapping product
 Mr. and Mrs. Rogers filed a complaint in          Hospital. The complaint alleged negligence
trespass against Johnson & Johnson,                and strict liability against Johnson & Johnson
manufacturer of the plaster splint, Lankenau       and Lankenau Hospital. It alleged negligence
Hospital and Thomas Jefferson University           against Thomas Jefferson **753 University


                                   3 APPENDIX A
Hospital. Johnson & Johnson answered by                   statements, he assiduously avoided
denying liability and cross-claimed against the           arguing this theory as one espoused by
hospitals.                                                the plaintiffs. Moreover, his in camera
                                                          references to this claim could not, and
 At trial, the Rogers' case against Johnson &             did not, affect the plaintiff's ability to
Johnson consisted of evidence of malfunction,             recover on a malfunction theory. See
failure to warn, and *180 negligence. [FN1]               infra at 755, n. 6. Similarly we reject
They also presented expert testimony                      Johnson & Johnson's typification of
eliminating medical malpractice as the cause              the plaintiffs' expert testimony
of burns. [FN2]                                           eliminating medical malpractice. We
                                                          find this evidence to be more than
       FN1. The notes of testimony reflect                merely conclusory. The opinion as to
       plaintiffs' fleeting reference to Johnson          the cause of Mr. Rogers' burns
       & Johnson's negligence in failing to               reflected in-depth knowledge of the
       test its product after manufacturing it.           evidentiary and discovery facts upon
       N.T. 1/25/84 at 70. The jury also                  which the expert founded his ultimate
       heard deposition transcripts ostensibly            conclusion of due care, that is, the
       supporting this claim.              These          absence of malpractice.
       depositions do not appear in the record
       and, therefore, this evidence has            Thomas Jefferson University Hospital
       played no part in the conclusion we         likewise adduced evidence eliminating
       reach. We note that Johnson &               medical malpractice as the cause of the
       Johnson has not argued that this            plaster's having burned Mr. Rogers. On the
       evidence of post-manufacturing              other hand, Johnson & Johnson introduced
       negligence mandates a different             expert testimony indicating that the medical
       outcome.                                    malpractice of the doctors had caused the
                                                   splint to overheat and to burn Mr. Rogers.
        FN2. Having carefully reviewed the         The trial court denied all motions for nonsuits
        record we must reject Johnson &            and for directed verdicts save that of
        Johnson's characterization of the          Lankenau Hospital with respect to its
        plaintiffs' case as one which actively     ostensible agency relationship with Dr.
        pursued a claim of medical                 Dowling.
        malpractice.      Although plaintiffs'
        counsel      referred    to   medical
        malpractice in his opening and closing
 At the close of the evidence the jury was         defect was a substantial factor in bringing
given a verdict form which directed it to          about the plaintiffs' harm. The jury returned a
decide first whether the Johnson & Johnson         verdict against Johnson & Johnson only on the
plaster was defective as a result of               malfunction theory by answering affirmatively
malfunction, second whether it was defective       to that question and to the question of the
as a result of failure to warn the user, and if    malfunction's having caused the plaintiffs'
the answer to either of these questions was        harm. The jury *181 did not answer or
affirmative, to decide thirdly whether the         consider the question regarding a failure to


                                   4 APPENDIX A
warn. Per the trial court's instructions, once it       of negligent human intervention as a cause
answered affirmatively as to malfunction and            of the malfunction of a product to enable a
causation, the jury did not reach remaining             trial court to conclude that an independent
questions on the verdict form dealing with the          theory as to the cause of the plaintiff's
negligence of any defendant.                            injuries based on that negligence merits
                                                        submission to the jury, the plaintiff has not
 Johnson & Johnson appealed the judgment                sustained its burden of eliminating other
following the denial of its post-trial motions.         reasonable secondary causes for the
The Superior Court reversed and granted a               malfunction. Thus, the malfunction theory
new trial. The Superior Court concluded that            strict liability claim of such a plaintiff must
because Johnson & Johnson had adduced                   fail in that he has failed to present a jury
sufficient evidence of negligence on the part           question as to the existence of a defect
of Dr. Naame to submit that issue to a jury,            which is an essential element of his cause of
the plaintiffs had not sustained their burden of        action.
proof in eliminating reasonable, secondary             368 Pa.Super. 109 at 127, 533 A.2d 739
causes for the malfunction. The Superior              (1987). We are constrained to disagree.
Court reasoned:
  In a case where there is sufficient evidence
 [1][2] Although the Superior Court has               in which case reliance may be had on the
considered the malfunction theory of strict           "malfunction" theory of product liability. This
liability, see Thompson v. Anthony Crane              theory encompasses nothing more than
Rental Inc., 325 Pa.Super. 386, 473 A.2d 120          circumstantial      evidence     of     product
(1984); MacDougall v. Ford Motor **754                malfunction. See MacDougall, 214 Pa.Super.
Company, 214 Pa.Super. 384, 257 A.2d 676              at 391, 257 A.2d at 680. It permits a plaintiff
(1969), this Court has never fully adopted it.        to prove a defect in a product with evidence of
But see Kuisis v. Baldwin-Lima-Hamilton               the occurrence of a malfunction and with
Corp., 457 Pa. 321, 319 A.2d 914 (1974)               evidence eliminating abnormal use or
(plurality opinion). Since Webb v. Zern, 422          reasonable, secondary causes for the
Pa. 424, 220 A.2d 853 (1966), this Court has          malfunction. See Thompson, 325 Pa.Super. at
recognized a plaintiff's right to pursue an           394, 473 A.2d at 125; MacDougall, 214
action in strict liability against the                Pa.Super. at 391, 257 A.2d at 680. It thereby
manufacturer of a product pursuant to section         relieves the plaintiff from demonstrating
402A of the Restatement (Second) of *182              precisely the defect yet it permits the trier-of-
Torts. [FN3] A plaintiff presents a prima             fact to infer one existed from evidence of the
facie case of strict liability by establishing that   malfunction, of the absence of abnormal use
the product was defective and that the product        and of the absence of reasonable, secondary
caused the plaintiff's injury.           Sherk v.     causes. See Thompson, 325 Pa.Super. at 394,
Daisy-Heddon, 498 Pa. 594, 598, 450 A.2d              473 A.2d at 125; MacDougall, 214 Pa.Super.
615, 617 (1982). In most instances the                at 391, 257 A.2d at 680. We now accept this
plaintiff will produce direct evidence of the         evidentiary approach as appropriate in
product's defective condition.           In some      ascertaining the existence of a defect in the
instances, however, the plaintiff may not be          manufacturing process.
able to prove the precise nature of the defect


                                     5 APPENDIX A
       FN3. The Restatement provides:                Johnson attacked the plaintiffs' evidence
       Special Liability of Seller of Product        eliminating      secondary     causation    by
       for Physical Harm to User or                  introducing evidence of the doctors'
       Consumer                                      malpractice. This evidence was sufficient to
       (1) One who sells any product in a            submit the issue of medical malpractice to the
       defective condition unreasonably              jury. As the Superior Court would have it,
       dangerous to the user or consumer or          however, Johnson & Johnson was entitled to a
       to his property is subject to liability for   directed verdict on the malfunction issue once
       physical harm thereby caused to the           it introduced sufficient evidence of secondary
       ultimate user or consumer, or to his          causation, i.e., medical malpractice, to permit
       property, if                                  this defense to go to the jury. [FN4] We
       (a) the seller is engaged in the business     cannot agree with this circular logic as it
       of selling such a product, and                essentially mandates the grant of a directed
       (b) it is expected to and does reach the      verdict should the defendant manufacturer
       user or consumer without substantial          produce any evidence of reasonable,
       change in the condition in which it is        secondary causation. [FN5]
       sold.
       (2) The rule stated in Subsection (1)                FN4. Interestingly enough, the
       applies although                                     Superior Court did not address the
       (a) the seller has exercised all possible            issue of the trial court's having denied
       care in the preparation and sale of his              the hospitals' motions for nonsuit at
       product, and                                         the close of the plaintiffs' case. Since
       (b) the user or consumer has not                     the plaintiffs abandoned their medical
       bought the product from or entered                   malpractice claims and presented no
       into any contractual relation with the               evidence in support thereof, the trial
       seller.                                              court erred in failing to grant the
                                                            motions for nonsuit as to these claims.
 *183 [3] At the close of the plaintiff's                    Such error, however, would not
case-in-chief, a defendant manufacturer will                preclude      the     plaintiffs   from
have three evidentiary avenues to pursue: the               proceeding to the jury with their
occurrence of the malfunction, the presence of              malfunction theory.
abnormal use or the presence of reasonable,
secondary causes. In this instance Johnson &
        FN5. We are not unmindful of                        requires a plaintiff to hurdle two
        language in the Superior Court                      summary dispositions, first, a
        opinion attempting to limit the scope               compulsory nonsuit at the close of the
        of its application to those cases in                plaintiff's case-in-chief and, second, a
        which a defendant manufacturer                      directed verdict at the close of all the
        presents more than a "scintilla" of                 evidence. We believe that if a
        evidence of reasonable, secondary                   plaintiff's malfunction evidence
        causes. Rogers, 368 Pa.Super. at 128,               suffices to overcome a compulsory
        533 A.2d at 749.        Despite this                nonsuit, then the evidence presented
        disclaimer, the decision essentially                by the defense to establish reasonable,


                                    6 APPENDIX A
       secondary causation constitutes an          Johnson. Contrarily, we believe that so long
       issue to be resolved by the jury.           as the plaintiffs presented a case-in-chief free
                                                   of secondary causes [FN6] which justified the
  **755 [A] directed verdict should not be         inference of a defect in the product, the jury
  granted where there are factual questions to     was free to accept their scenario.
  be submitted to the jury. If there is any
  conflict in the evidence, particularly when             FN6. In their pleadings the plaintiffs
  the evidence consists of oral testimony, if             alleged both hospitals had provided
  different inferences may reasonably be                  negligent care to Mr. Rogers. In
  drawn from the evidence, or if the court                addition, plaintiffs' counsel made
  would be called upon to pass upon the                   statements to the trial court that
  credibility of *184 witnesses or of their               negligence provided a viable,
  testimony, the case is not a proper one for a           alternative theory as to the cause of
  directed verdict.                                       Mr. Rogers' burns. Contrary to the
 9 Standard Pennsylvania Practice 2d, ' 58.73             Superior Court we conclude that such
(1982). See also Miller v. Checker Yellow                 allegations and statements, made
Cab Company of Bethlehem, 465 Pa. 82, 87,                 outside the presence of the jury and
348 A.2d 128, 130 (1975) (trial court must                made without the plaintiffs' having
submit negligence questions to jury); East                presented supporting evidence, cannot
Texas Motor Freight, Diamond Division v.                  defeat the malfunction theory actually
Lloyd, 335 Pa.Super. 464, 470-71, 484 A.2d                pursued by the plaintiffs at trial.
797, 800 (1984) (negligence a jury question
unless facts leave no room for doubt). In this      [4] Nor can we agree with the Superior
instance the plaintiffs' evidence refuted          Court's tacit conclusion that a plaintiff who
medical malpractice while the defendant            has presented a malfunction case will always
manufacturer's evidence supported it.              be precluded from proceeding upon an
Depending on which version of the facts the        alternate theory of negligence. It is altogether
jury chose to believe, which witnesses it          possible that a plaintiff's injuries could be
deemed credible, in other words how it             caused jointly by a defective product and also
resolved conflicting evidence, it could have       by third party negligence so long *185 as the
returned a verdict for either party on the issue   negligence does not constitute a supervening
of malpractice.                                    cause of the malfunction.          "Given the
                                                   occurrence of a malfunction, the [alleged]
 The Superior Court erred because it               negligence assumes legal significance only if
considered incompatible the plaintiffs'            it was a superseding cause.... Questions of
evidence of malfunction in light of the            proximate causation should normally be left to
defendant, Johnson & Johnson's, evidence of a      the finder of fact." Kuisis, 457 Pa. at 330, 319
reasonable secondary cause. It rendered            A.2d at 920. [FN7]
impossible the ability of the plaintiffs to
negate secondary causes suggested by Johnson
& Johnson's evidence and essentially required
a directed verdict in favor of Johnson &
        FN7. In this instance, for example, if            the jury had chosen to believe Johnson


                                   7 APPENDIX A
        & Johnson's evidence that Dr.               a matter of law, the defendant's evidence of
        Dowling's failure to heed Mr. Rogers'       secondary causation negates the plaintiff's
        complaints regarding a sensation of         claim of malfunction is error. Not providing
        warmth constituted negligence such          for a legal determination of whether the
        negligence would not supervene the          plaintiff negated defendant's evidence of
        cause of Mr. Rogers' injuries, namely,      secondary causes (a legal requirement of
        the defective material of which the         stating a malfunction case) before sending the
        splint was made.                            malfunction claim to the jury deprives the
                                                    defendant of his right to *186 challenge
 For the foregoing reasons, the order of the        whether the plaintiff has even stated a cause of
Superior Court is reversed and the matter is        action.
remanded to that Court for expedited
consideration of the remaining issues raised         A malfunction-theory plaintiff argues, in
by Johnson & Johnson in its initial appeal.         essence, that while he has no direct evidence
                                                    that the product is defective, he is prepared to
FLAHERTY, J., files a dissenting opinion in         establish that the product malfunctioned, from
which ZAPPALA, J., joins.                           which the jury may infer that the product was
                                                    defective. Once the plaintiff has established
 McDERMOTT, J., did not participate in the          this, he has stated a prima facie case and his
consideration or decision of this case.             evidence will withstand a motion for non-suit.

 STOUT, former Justice, did not participate in       The defendant, however, may put in evidence
the decision of this case.                          that the malfunction was caused by secondary
                                                    causes separate and apart from any alleged
FLAHERTY, Justice, dissenting.                      defect in the product. If the defendant
                                                    produces such evidence, the plaintiff then
 I dissent. The majority, in what could be said     must negate it, for the survival of his cause of
to be a res ipsa loquitur approach, holds that      action depends upon his establishing that
so long as the plaintiff presents a case-in-chief   nothing outside of the product itself caused
free of secondary causes **756 which justify        the malfunction, since if a "secondary cause"
an inference of defect in the product, the case     created the malfunction, the product itself was
may be sent to the jury on the "malfunction         not defective and the products liability claim
theory" regardless of whether evidence is           would fail.           In other words, a
admitted negating the very essence of the           malfunction-theory plaintiff must negate
theory. In my view, sending the malfunction         evidence that secondary causes were
case to the jury without first allowing the         responsible for the malfunction.
defendant to move for a ruling on whether, as
 The question which this raises, however, is        analogous to deciding whether to grant a
what a malfunction-theory plaintiff must do in      motion for a directed verdict; in both cases
order to negate such secondary cause                the proper inquiry for the court is whether the
evidence. It is my view that the problem of         plaintiff put on evidence which, if believed,
determining whether a malfunction-theory            negates the claim made on the other side, here
plaintiff has negated secondary causes is           that there is evidence of secondary causes of


                                    8 APPENDIX A
the malfunction. [FN1]                                by simply deciding whether plaintiff's
                                                      evidence, if believed, negates evidence of
        FN1. A motion for a directed verdict          secondary causes.
        comes at the end of all of the evidence
        and is either a request for the court to              FN2. Superior Court's requirement
        decide a question of law controlling                  that a malfunction-theory plaintiff may
        the case, or it is an argument that the               proceed only when he has eliminated
        opposing party has failed to prove one                even a jury question as to secondary
        or more necessary elements of the                     causes would require a plaintiff's
        cause of action. In the latter, a                     evidence to be controlling as a matter
        directed verdict may be awarded only                  of law. Any negation of secondary
        where there are no factual questions,                 causes less than this would result in a
        no conflicts in the evidence, and no                  jury question, and would, in Superior
        jury question of credibility of                       Court's view, result in a defeat of the
        witnesses. In other words, when the                   malfunction-theory plaintiff unless he
        claim is that the opposing party failed               was able to negate absolutely
        to put on a prima facie case or defense,              secondary causes, i.e., disprove them
        a court will consider all evidence in                 as a matter of law.
        the light most favorable to the party
        against whom the motion is directed            I conclude, therefore, that when a defendant
        and will not rule in favor of the             has introduced evidence that secondary
        movant if a jury could reasonably             causes, not a defective product, caused the
        conclude that liability rests with the        malfunction, the defendant should be **757
        party making the motion. See 9                allowed, at the close of all the evidence, to
        Standard Pennsylvania Practice 2d '           move for a directed verdict, based upon
        58.73 (1982).                                 plaintiff's alleged failure to negate the alleged
                                                      secondary causes. The court should resolve
 *187 The plaintiff cannot be called upon to          this motion by deciding whether, viewing the
negate evidence of secondary causes                   evidence in the light most favorable to the
absolutely, as Superior Court would have him          plaintiff, he has put on evidence which, if
do, for that would be to place a burden of            believed, negates secondary causes of the
proof too severe upon the plaintiff, too much         malfunction. If he has put on such evidence,
in excess of the requirement that the plaintiff       he has negated evidence of secondary causes
must produce a preponderance of evidence in           and the case should proceed to the jury on the
order to prevail. [FN2] Nor can the trial court       malfunction theory.
be called upon to assess the credibility of
plaintiff's witnesses or the weight of the
evidence, for those are jury functions. But the
trial court is in a position to treat the matter as
it would treat a motion for a directed verdict,
 It may be that under the standard proposed           evidence, if believed, negates evidence of
herein, in which the defendant's motion for           secondary causes, will not change the results
directed verdict is defeated if the plaintiff's       in many cases. Nonetheless, a defendant


                                     9 APPENDIX A
should have the right to move the court to
determine whether the plaintiff has met the
legal *188 requirements of his case before the
case is submitted to the jury.

ZAPPALA, J., joins this dissenting opinion.




                                 10 APPENDIX A
                                                    under "malfunction theory," that product
(Cite as: 410 Pa.Super. 223, 599 A.2d 685)          malfunction occurred in absence of normal
   Louise ROSELLI and Basil Roselli,                use or reasonable secondary causes.
                Appellants,
                    v.                              Affirmed.
  GENERAL ELECTRIC COMPANY.
                                                    Del Sole, J., dissented and filed an opinion.
      Superior Court of Pennsylvania.
                                                    [1] JUDGMENT k181(4)
           Argued Aug. 28, 1991.                    228k181(4)
                                                    Summary judgment should not be entered
             Filed Nov. 25, 1991.                   unless case is clear and free from doubt, and
                                                    trial court must accept as true all well pleaded
 Plaintiffs brought products liability action       facts in nonmoving party's pleadings and must
against manufacturer of coffee maker for            give him or her benefit of all reasonable
injuries sustained by plaintiffs when coffee        inferences to be drawn therefrom.
maker's glass carafe shattered in plaintiff's
hand and sprayed boiling coffee onto her.
After arbitration panel awarded plaintiffs          Before DEL SOLE,             TAMILIA        and
$25,000, manufacturer appealed. The Court           HOFFMAN, JJ.
of Common Pleas, Philadelphia County, Civil
Division, No. 2361, June T., 1988, Lehrer, J.,      TAMILIA, Judge:
granted manufacturer's motion for summary
judgment. Plaintiffs appealed. The Superior         This is an appeal from a January 14, 1991
Court, No. 541 Philadelphia 1991, Tamilia, J.,      Order granting appellee, General Electric's,
held that: (1) public policy required trial court   motion for summary judgment.
to enter summary judgment in favor of
defendant, and (2) plaintiffs failed to prove,
 In June, 1988, appellants, Louise and Basil        1981, four years before appellants said it was
Roselli, filed suit for personal injuries           purchased, and the base was scorched and
sustained by Mrs. Roselli on June 19, 1986,         scarred, indicating frequent use of the
when the glass carafe of her General Electric       machine. On June 26, 1989, *226 an
coffee maker, allegedly purchased in 1985 and       arbitration panel awarded appellants a
allegedly used approximately five times,            combined $25,000. Following an appeal by
shattered in her hand, thereby spraying boiling     General Electric, the trial court granted
coffee onto her leg and abdomen causing             General Electric summary judgment,
severe burns. On May 3, 1989, appellants            reasoning the source of the glass carafe, which
produced the coffee maker for appellee's            was not manufactured by appellee and was
inspection, but failed to produce the glass         unavailable for inspection, could not be
fragments from the glass carafe, which were         determined. As appellants did not allege this
lost by appellants and their former attorney.       defect occurred in all General Electric coffee
Appellees' expert's examination of the              makers of the same type, the court stated
machine indicated it had been manufactured in       examination of the broken fragments of the


                                   11 APPENDIX A
carafe was necessary to determine the validity    grant of summary judgment is proper where
of appellants' claim as well as the product       the pleadings, depositions, answers to
manufacturer of the carafe.                       interrogatories, admissions of record and
                                                  affidavits on file support the lower court's
 Appellants now argue the inadvertent             conclusion that no genuine issue of material
destruction of evidence is not a sufficient       fact exists and the moving party is entitled to
basis for a grant of summary judgment             judgment as a matter of law. Id.; Pa.R.C.P.
because there exist disputed issues of material   1035. We will overturn a trial court's entry of
fact. They also contend the malfunction           summary judgment only if there has been an
theory of products liability permits them to      error of law or a clear abuse of discretion.
prove a product defect with circumstantial        Lower Lake Dock Co., supra.
evidence and with evidence eliminating
abnormal use or reasonable secondary causes.       *227 Appellants contend there existed a
                                                  dispute between the parties as to a material
 [1][2][3] As an appellate court, we are bound    fact and, therefore, the trial court erred in
to consider certain principles which **687        granting summary judgment. Specifically,
dictate when and under what circumstances a       appellants allege the dispute centers around
trial court may properly enter summary            the amount of use of the coffee maker prior to
judgment. Goebert v. Ondek, 384 Pa.Super.         the accident. Appellants alleged in pleadings
100, 557 A.2d 1064 (1989). The trial court        and testimony they used the machine
must accept as true all well-pleaded facts in     approximately five times, while appellee's
the non-moving party's pleadings and must         expert filed an affidavit stating his inspection
give him or her the benefit of all reasonable     of the remains of the coffee maker
inferences to be drawn therefrom. Lower           demonstrated use well in excess of five times.
Lake Dock Co. v. Messinger Bearing Corp.,          There is nothing in the record to indicate the
395 Pa.Super. 456, 577 A.2d 631 (1990).           carafe and heating base came into use at
Summary judgment should not be entered            different times.
unless the case is clear and free from doubt. A
 We agree with appellants that trial by           can infer the court did not deem the dispute
testimonial affidavit is prohibited. In Curran    concerning length of use of the coffee maker
v. Philadelphia Newspapers, Inc., 497 Pa. 163,    to be material. The court based its decision on
183, 439 A.2d 652, 662 (1981), the Supreme        the fact that "in losing the defective product
Court stated "Testimonial affidavits of the       [appellants] have deprived the defense of the
moving party or his witnesses, not                most direct means of countering their
documentary, even if uncontradicted, will not     allegations of a defect via expert testing and
afford sufficient basis for the entry of          analysis." (Slip Op., Lehrer, J., 3/25/91, p. 3.)
summary judgment, since the credibility of the     Another basis for the decision was that in
testimony is still a matter for the jury."        losing the defective product, appellants
(Quoting 2 Goodrich-Amram 2d ' 1035(d)).          deprived appellee the opportunity of
The trial court, however, in granting             determining the identity of the manufacturer
appellants' motion for summary judgment, did      of the glass carafe for indemnity purposes.
not rely on the conflicting testimony as to
amount of use of the machine. Therefore, we       [4] We agree with the public policy rationale


                                 12 APPENDIX A
set forth in the case relied upon by the trial          thrown it away after an accident, would both
court, Martin and Greenspan v. Volkswagan               encourage false claims and make legitimate
of America, No. 88-8261, 1989 WL 81296                  defense of valid claims more difficult. It
(E.D. 5 Pa. July 13, 1989). In Martin and               would put a plaintiff (or plaintiff's attorney)
Greenspan, the plaintiff was injured in an              in the position of deciding whether the
automobile accident allegedly as a result of a          availability of the item would help or hurt
defective accelerator. After the *228 accident,         his or her case. Where producing the
the co-plaintiff and the owner of the car sold          product for defense inspection would
the car, thus making the accelerator                    weaken rather than strengthen a case, we
unavailable for defendant's inspection. The             unfortunately are **688 obliged to conclude
court entered summary judgment for the                  that some plaintiffs and attorneys would be
defendant manufacturer and held:                        unable to resist the temptation to have the
  The defendant has been deprived of the                product disappear.
  opportunity to have an expert examine the            Id. at p. 3 (citation omitted). Whether
  car and to testify, if appropriate, that a defect   appellants used the coffee maker five times or
  did not cause the Audi to malfunction.              fifty times is irrelevant to the undisputed fact,
  Therefore, the plaintiffs should not be             relied upon by the trial court, that important
  permitted to proceed without producing the          evidence was lost or destroyed which
  vehicle.                                            precluded General Electric from examining
                                                      the product, a necessary step in preparation of
                        ....                          its defense.
  To permit claims of defective products
  where a purchaser of the product has simply
 Appellants next rely upon a malfunction              supplier's expert testified the explosion was
theory of products liability and argue                caused by a defective gas pilot light safety
circumstantial evidence of a product defect is        valve of the hot water heater. The building
a question for the trier of fact and thus the trial   site was thereafter leveled and the remains of
court erred in granting summary judgment in           the appliances were destroyed by a neutral
favor of the appellee. Appellant cites Troy v.        party. Thus, neither the plaintiffs nor the
Kampgrounds of America, Inc., 399 Pa.Super.           defendants had an opportunity to examine the
41, 581 A.2d 665 (1990), in support of its            appliances.      The court held summary
malfunction theory of products liability.             judgment could not be granted in favor of the
Although the standard or test for applying the        defendants because the experts' testimony
malfunction theory is correctly stated, we find       regarding the defects had to be weighed by the
Troy does not aid appellants because the facts        jury. Id. In this case, however, neither the
are distinguishable. In Troy, a clothes *229          parties nor any experts ever had the
dryer or propane gas water heater in a laundry        opportunity to examine the glass carafe
room of a campground exploded, causing a              because the appellants lost the product before
fire, which burned the plaintiffs and destroyed       examination could occur. Troy is analogous
the building. State police fire marshalls,            to criminal cases when tests had been
investigators for the campground and                  conducted on evidence which was lost or
investigators for the supplier of the propane         destroyed before trial, but still may be
examined the damaged appliances. The                  admitted at trial, permitting the case to go to a


                                    13 APPENDIX A
jury.                                                 be submitted to the jury.
                                                     Id. (citations omitted).
 [5][6][7] To be successful in a 402A products
liability suit, plaintiffs must prove the product     [8] Reviewing the evidence in the light most
was defective and the defect in the product          favorable to appellants, we find appellants
caused plaintiffs' injuries. Dietrich v. J.I. Case   failed to prove the malfunction occurred in the
Co., 390 Pa.Super. 475, 568 A.2d 1272                absence of abnormal use or reasonable
(1990). Further, they must prove the defect in       secondary causes. Because they cannot
the product existed at the time the product left     account for the product for **689 several
the defendant's control. Toth v. Economy             years (testimony revealed appellants were not
Forms Corp., 391 Pa.Super. 383, 571 A.2d             even sure when the coffee maker was
420 (1990). Plaintiffs may use circumstantial        purchased), combined with appellee's expert's
evidence to establish a defective product. One       testimony following inspection of the coffee
form of circumstantial evidence is the               maker that it was scorched, charred and used
occurrence of a product malfunction along            frequently, appellants failed to eliminate the
with evidence eliminating abnormal use or            realistic possibility the glass carafe broke
reasonable secondary causes for the                  because of its use and handling prior to the
malfunction.        Troy, supra.      Under the      date of the incident. Appellees' evidence
malfunction theory, the plaintiffs have the          raises an explanation of the breakage which is
burden of negating reasonable secondary              as probable as appellants' explanation of a
causes for the accident which are fairly raised      defect. Therefore, under the Lonon and Troy
by the evidence. Rogers v. Johnson &                 standards, appellants failed to satisfy their
Johnson Products, Inc., 523 Pa. 176, 565 A.2d        burden of proving the coffee maker was
751 (1989). Defendants do not have to prove          defective via the malfunction theory of
the existence of secondary *230 causes for the       products liability, and we cannot say the trial
accident or, in this case, abnormal use of the       court committed an error of law or clearly
coffee maker. Their burden is only to identify       abused its discretion.
other      possible       non-defect     oriented
explanations. In Lonon v. The Pep Boys,               In light of the foregoing discussion, we affirm
Manny, Moe & Jack, 371 Pa.Super. 291, 299,           the trial court's grant of summary judgment.
538 A.2d 22, 26 (1988), the court stated:
  [W]here an explanation consistent with the         Order affirmed.
  existence of a defect is as probable as an
  explanation inconsistent with the existence        DEL SOLE, J., dissents.
  of a defect, the plaintiff cannot be held to
  have met his burden. A jury may not be             *231 DEL SOLE, Judge, dissenting:
  permitted to speculate.

                        ....
 [I]t is the duty of the trial court to determine
 whether or not this requirement has been
 met in the first instance before the issue can
I dissent from the Majority's determination          that an award of Summary Judgment was


                                   14 APPENDIX A
appropriate in this case because I find that         amount of use of the machine" in granting the
there exists certain factual disputes which          motion for summary judgment. Majority
should cause Appellants' case to be presented        Opinion at 227. It also remarks that the issue
to a jury.                                           of "whether appellants used the coffee maker
                                                     five times or fifty times is irrelevant to the
 The decision to affirm the award of Summary         undisputed fact, relied upon *232 by the trial
Judgment is based upon the fact that the key         court, that important evidence was lost or
piece of evidence in this case was                   destroyed ..." Majority Opinion at 228. Yet,
inadvertently destroyed. This is not, nor            on page 688-689 of the Majority Opinion it is
should it be the law in this Commonwealth.           stated: "Because they cannot account for the
Many times products are destroyed before suit        product for several years ... combined with
is filed, yet this is not sufficient reason to bar   appellee's expert's testimony following
plaintiffs from pursuing their rights. Plaintiffs    inspection of the coffee maker that it was
continue to have the burden of proof in such         scorched, charred and used frequently,
matters, which burden acts as protection to          appellants failed to eliminate the realistic
defendants.                                          possibility the glass carafe broke because of
                                                     its use and handling prior to the date of the
 In a case such as this where the product no         incident." This proof is proof that Appellants
longer exists and cannot be examined by              have the burden of establishing at trial, not at
either party, the plaintiff may recover under        this stage of the proceedings. The fact that
the "malfunction" theory of product liability,       there is a material factual dispute as to the
which concerns circumstantial evidence of a          amount of use of the product demonstrates
product malfunction. This theory "permits a          that Summary Judgment should not have been
plaintiff to prove defect in a product with          entered in this case.
evidence of the occurrence of a malfunction
and with evidence eliminating abnormal use            As stated in Troy, "on a motion for summary
or reasonable secondary causes for the               judgment, the trial court's task is to determine
malfunction." Troy v. Kampgrounds of                 whether there are controverted issues of fact,
America, Inc., 399 Pa.Super. 41, 581 A.2d            not whether the evidence is sufficient to prove
665 (1990). It was appropriate for Appellants        the particular facts." Id., 399 Pa. Superior Ct.
to seek recovery under this theory, as did the       at 49, 581 A.2d at 669. Because it **690
plaintiffs in Troy where the evidence was also       appears clear to me that there are controverted
destroyed and neither investigators for the          issues of fact in this case, I must dissent from
plaintiffs or the defendants had an opportunity      the decision to affirm the entry of Summary
to examine the evidence before its destruction.      Judgment in favor of the defendant.
 Further, as in Troy, it was not the trial court's
function, nor this court's function, to assess or
weigh the testimony to be offered by either
party in the action. The Majority does,
however, despite its pronouncement
otherwise, engage in such an assessment.
 The Majority states that the trial court "did
not rely on the conflicting testimony as to


                                   15 APPENDIX A
(Cite as: 427 Pa.Super. 47, 628 A.2d 421)           *49 OLSZEWSKI, Judge:
<YELLOW FLAG>
     James C. DeWEESE, Appellant,                    This is an appeal from an order granting
                     v.                             summary judgment in favor of defendants
  ANCHOR HOCKING CONSUMER                           below [hereinafter "Anchor Hocking" and
    AND INDUSTRIAL PRODUCTS                         "Lewis Brothers"]. Appellant [hereinafter
     GROUP and Lewis Brothers and                   "DeWeese"] was injured when a glass carafe
           Sons, Inc., Appellees.                   exploded while he was filling it with hot
                                                    water. The Honorable Livingstone Johnson
      Superior Court of Pennsylvania.               granted summary judgment because DeWeese
                                                    was unable to produce the carafe to defendants
            Argued May 12, 1993.                    for inspection during discovery. We affirm.

              Filed July 8, 1993.                    DeWeese was employed by Highland
                                                    Country Club [hereinafter "the club"] as a
 Busboy brought action against manufacturer         busboy and waiter. On December 1, 1985,
and seller of glass pitcher for damages after       DeWeese was responsible to set up a buffet
pitcher exploded and injured him. The Court         line in preparation for the club's Sunday
of Common Pleas, Allegheny County, Civil            morning brunch. As part of this duty, he filled
Division, No. G.D. 87-18019, Johnson, J.,           numerous chafing dishes with hot water.
entered summary judgment for manufacturer           DeWeese procured one of the glass pitchers
and seller. Busboy appealed. The Superior           which the club had in its store room and
Court, No. 01869 Pittsburgh 1992, Olszewski,        placed it under a coffee urn's hot water spout,
J., held that busboy's failure to produce pitcher   as was his customary practice. As the water
prevented identification of manufacturer and        filled the pitcher, it exploded and injured
thus was fatal to action.                           DeWeese's hand. DeWeese was not holding
                                                    the pitcher, but was standing in its immediate
Affirmed.                                           vicinity when the accident occurred.
                                                    Although no one apparently witnessed the
McEwen, J., concurred in result.                    explosion, several employees rushed to
                                                    DeWeese's aid and summoned an ambulance.
Ford Elliott, J., filed concurring statement.       DeWeese was transported to the hospital and
                                                    the club employees cleaned the area of the
Before McEWEN, OLSZEWSKI and FORD                   accident, discarding the remnants of the
ELLIOTT, JJ.                                        shattered pitcher.

 DeWeese filed a complaint against Anchor           motions for summary judgment. Both parties
Hocking and Lewis Brothers alleging, among          contended that DeWeese's failure to preserve
other things, that the two companies were           the pitcher's glass fragments effectively
strictly liable as manufacturer and seller of the   precluded them from defending against
defective pitcher.      Following discovery,        DeWeese's contention that he was injured as a
Anchor Hocking and Lewis Brothers filed             result of a defect in a pitcher manufactured by


                                    16 APPENDIX A
Anchor Hocking and sold by Lewis Brothers,        (1991). We will overturn a trial court's entry
relying on Roselli v. General Electric Co., 410   of summary judgment only if we find an error
Pa.Super. 223, 599 A.2d 685 (1991), *50           of law or clear abuse of discretion. Lower
appeal discontinued (1993). Judge Johnson         Lake Dock Co., supra.
granted both motions and DeWeese filed this
timely appeal. [FN1]                               The only issue raised on appeal is whether
                                                  Anchor Hocking and Lewis Brothers were
       FN1. In his order directing immediate      precluded from preparing a defense as a result
       transmittal of the record to Superior      of DeWeese's failure to preserve the pitcher
       Court, Judge Johnson indicated that he     fragments. This Court has held that where a
       would file an opinion pursuant to          plaintiff brings an action claiming that he
       Pa.R.A.P., Rule 1925, 42 Pa.C.S.A.,        suffered injury as a result of a defective
       "at a later date." As of the date of       product, his failure to produce the product for
       filing in this case, we have not           inspection by the defense will render summary
       received Judge Johnson's opinion.          judgment against him appropriate. Roselli,
       Since the parties' summary judgment        supra, 410 Pa.Super. at 228, 599 A.2d at
       motions (and their briefs to this Court)   687-688. We held that allowing a cause of
       so clearly rely on Roselli, however, we    action to continue without the allegedly
       have a clear picture of the issues         defective product is contrary to public policy:
       involved and find a remand for an            *51 To permit claims of defective products
       opinion unnecessary.                         where a purchaser of the product has simply
                                                    thrown it away after an accident, would both
 [1][2][3] Summary judgment may be granted          encourage false claims and make legitimate
when the pleadings, depositions, answers to         defense of valid claims more difficult. It
interrogatories, and admissions on file,            would put a plaintiff (or plaintiff's attorney)
together with the affidavits, if any, show that     in the position of deciding whether the
there is no genuine issue as to any material        availability of the item would help or hurt
fact and that the moving party is entitled to       his or her case. Where producing the
judgment as a matter of law. Pa.R.C.P.              product for defense inspection would
1035(b), 42 Pa.C.S.A. When considering a            weaken rather than strengthen a case, we
motion for summary judgment, the trial court        unfortunately are obliged to conclude that
must examine the record in the light most           some plaintiffs and attorneys would be
favorable to the non-moving party, accept as        unable to resist the temptation to have the
true all well-pleaded facts in the non- moving      product disappear.
party's pleadings, and give him the benefit of     Id. (quoting Martin and Greenspan v.
all reasonable inferences drawn therefrom.        Volkswagen of America, No. 88-8261, 1989
Dibble v. Security of America Life Ins., 404      WL 81296 (E.D.Pa., July 13, 1989)
Pa.Super. 205, 590 A.2d 352 (1991); Lower         (unpublished)).      In Roselli, we granted
Lake Dock Co. v. Messinger Bearing Corp.,         summary judgment in favor of a manufacturer
395 Pa.Super. 456, 577 A.2d 631 **423             of a coffee maker after plaintiff discarded the
(1990). Summary judgment should be granted        coffee pot which shattered in her hand.
only in cases that are free and clear of doubt.
Marks v. Tasman, 527 Pa. 132, 589 A.2d 205


                                 17 APPENDIX A
 [4] DeWeese claims that Roselli is                 "Summary judgment is proper when the
distinguishable from this case. He points to        plaintiff has failed to establish that the
Anchor Hocking's answers to interrogatories,        defendant's products were the cause of
in which Anchor Hocking admits that the type        plaintiff's injury." Eckenrod v. GAF Corp.,
of pitcher which is allegedly involved in this      375 Pa.Super. 187, 191, 544 A.2d 50, 52
case is not designed to withstand liquids           (1988), alloc. denied, 520 Pa. 605, 553 A.2d
which are at or near the boiling point. See,        968 (1989).
Reproduced record at 22-31. Thus, DeWeese
contends, Anchor Hocking is not prejudiced in        Here, DeWeese testified that he could not
preparing a defense because an inspection of        recall the type of pitcher he used to fill the
the discarded pitcher would serve no useful         chafing dishes on the day of the accident.
purpose. While we find this argument                When asked how many pitchers were kept in
persuasive, we are constrained to affirm.           the club's storage area, DeWeese testified that
DeWeese's failure to preserve the pitcher is        there were more than a dozen. DeWeese's
fatal in a much more fundamental                    deposition, at 23. He further testified:
respect--without the pitcher, there is simply no      Q: Were the pitchers all the same? Did
evidence tending to establish that the pitcher        they look the same or were there
involved in this case was manufactured by             differences?
Anchor Hocking or sold by Lewis Brothers.             A: There were differences.
                                                      Q: Can you recall how many types of
 [5][6] In order to establish a successful cause      pitchers there were?
of action in products liability, a plaintiff must     A: At a minimum, three.
prove that a defect in a product proximately          **424 Q: Would you have any way of
caused injury to him or her, which defect             knowing if you had actually used this
existed at the time the product left defendant's      particular pitcher before?
control. Roselli, supra, at 410 Pa.Super.             A: No, sir.
228-229, 599 A.2d 685; Dauphin Deposit               Id. DeWeese acknowledged that he did not
Bank and Trust Co. v. Toyota Motor Corp.,           choose a particular type of pitcher to fill the
408 Pa.Super. 256, 596 A.2d 845 (1991). A           chafing dishes, Id. at 27, and that he did not
plaintiff must also *52 establish that the          know who manufactured the pitcher he used.
injuries were caused by a product of a              Id. at 40.
particular manufacturer. Berkebile v. Brantly
Helicopter, 462 Pa. 83, 337 A.2d 893 (1975).
 Robert Duhon, the general manager of the           Reproduced record, at 232- 239. Ms. Doerfler
club, testified that although the club purchased    concludes, in response to an investigatory
Anchor Hocking pitchers from Lewis                  letter sent by DeWeese's counsel inquiring as
Brothers, he had no personal knowledge of the       to the manufacturer of the pitcher, that Anchor
type of pitcher DeWeese used. Duhon's               Hocking manufactured and Lewis Brothers
deposition, at 36-37. In fact, the only evidence    sold the pitcher. After reviewing the letter,
in the record which indicates that Deweese          however, *53 which predates DeWeese's
used an Anchor Hocking pitcher is in a letter       complaint, it becomes evident that it was used
written by Jane Doerfler, the club's office         to form the basis for the factual allegations in
manager at the time of DeWeese's accident.          his complaint.


                                   18 APPENDIX A
                                                   establish that DeWeese was injured by one of
 [7] It is well-settled that a party may not       those pitchers on December 1, 1985. Thus,
defeat a motion for summary judgment by            even though DeWeese argues persuasively
relying on the allegations of his complaint.       that Roselli should be limited to cases where
Rather, he must present depositions,               the allegedly defective component is unique to
affidavits, or other acceptable documents that     the discarded product, [FN3] his failure to
show there is a factual issue for a jury's         preserve the shattered pitcher has precluded
consideration.      Brecher v. Cutler, 396         *54 him from raising a genuine issue of
Pa.Super. 211, 578 A.2d 481 (1990). Ms.            material fact regarding the identity of its
Doerfler's conclusions have not been               manufacturer and seller. Summary judgment
presented by affidavit, deposition, or part of     was properly awarded on this basis in favor of
any verified discovery. We cannot consider         Anchor Hocking and Lewis Brothers.
her statement, which was procured in an effort
to establish factual allegations for DeWeese's            FN3. The United States District Court
complaint, as raising a factual issue regarding           has interpreted Roselli in this manner.
the identity of the pitcher which caused                   In Lee v. Boyle-Midway Household
DeWeese's injury. [FN2]                                   Products, 792 F.Supp. 1001, 1005
                                                          (W.D.Pa.1992) (citing Roselli ), the
       FN2. Even if we could properly                     district court wrote:           "Under
       consider this letter, it is apparent that          Pennsylvania law, in a case in which
       Ms. Doerfler's conclusion is based not             plaintiff does not allege a defect
       on personal knowledge, but on an                   present in all of defendant's products,
       invoice which shows that the club                  a defendant in a products liability case
       purchased six Anchor Hocking                       is entitled to summary judgment when
       pitchers from Lewis Brothers in 1984.              loss or destruction of evidence
        Thus, the letter establishes nothing              deprives the defense of the most direct
       more than what we conclude below;                  means of countering plaintiff's
       the club purchased several Anchor                  allegations." We do not read Roselli's
       Hocking pitchers. There is simply no               holding as being limited to cases
       testimony in this record which would               where a plaintiff's complaint alleges a
       raise a factual issue regarding                    defect not present in all of a
       DeWeese's assertion that he was                    manufacturer's products although we
       injured by one of Anchor Hocking's                 agree that the qualification is
       pitchers.                                          appropriate. As we note above,
                                                          however, our agreement does not
 The only conclusion one can draw, when                   support reversal in this case, because
viewing the depositions and answers to                    DeWeese simply has not established a
interrogatories submitted in this case most               factual      issue    regarding      the
favorably to DeWeese, is that the club                    manufacturer of the allegedly
purchased several Anchor Hocking pitchers                 defective water pitcher.
from Lewis Brothers. There is no testimony
or reliable document, however, which tends to
 Order affirmed.


                                  19 APPENDIX A
McEWEN, J., concurs in the result.                  would have survived beyond the summary
                                                    judgment stage. It is only because of
Concurring statement by FORD ELLIOTT, J.            appellant's failure to identify the manufacturer
                                                    that I concur with the majority's decision to
FORD ELLIOTT, Judge, concurring:                    affirm the order granting summary judgment.

 I join in the majority's decision to affirm the
order granting summary judgment based on its
determination that appellant **425 was unable
to establish that Anchor Hocking
manufactured the subject pitcher.

 However, I respectfully disagree with the
majority's discussion of, and reliance upon,
Roselli v. General Electric Co., 410 Pa.Super.
223, 599 A.2d 685 (1991), appeal
discontinued (1993). As the author of Troy v.
Kampgrounds of America, Inc., 399 Pa.Super.
41, 581 A.2d 665 (1990), I agree with Judge
Del Sole's dissent in Roselli. As Judge Del
Sole correctly observes:
  In a case such as this where the product no
  longer exists and cannot be examined by
  either party, the plaintiff may recover under
  the 'malfunction' theory of product liability,
  which concerns circumstantial evidence of a
  product malfunction. This theory 'permits a
  plaintiff to prove defect in a product with
  evidence of the occurrence of a malfunction
  and with evidence eliminating abnormal use
  or reasonable secondary causes for the
  malfunction.' Troy v. Kampgrounds of
  America, Inc., 399 Pa.Super. 41, 581 A.2d
  665 (1990).
 Roselli, 410 Pa.Super. at 230, 599 A.2d at
689 (dissent by Del Sole, J.).

 *55 Thus, to the extent that the majority relies
upon Roselli to affirm the order granting
summary judgment, I disagree. I believe that
had appellant been able to identify Anchor
Hocking as the manufacturer of the pitcher,
then under the "malfunction theory" this case


                                   20 APPENDIX A
                                                  action, since claimed defect was common to
<YELLOW FLAG>                                     all like products and not just to worker's pants;
    Daniel O'DONNELL and Mary                     (2) fact issue as to whether manufacturer had
    O'Donnell, his wife, Appellant,               made pants worn by worker precluded
                  v.                              summary judgment; and (3) common law
    BIG YANK, INC. and K-Mart                     claims were not preempted by Federal
  Corporation, Clover and McGregor                Flammable Fabrics Act.
             Corporation,
              Appellee.                           Reversed and remanded.
    Daniel O'DONNELL and Mary
        O'Donnell, Appellant,
                  v.
   BIG YANK, INC. and Clover, Inc.
              Appellee.
                                                  Before DEL SOLE, POPOVICH and
      Superior Court of Pennsylvania.             OLSZEWSKI, JJ.

           Argued Jan. 14, 1997.                  DEL SOLE, Judge.

           Filed June 18, 1997.                    Following a ruling on two Motions in Limine
     Reargument Denied Aug. 8, 1997.              which precluded a finding of liability against
                                                  Appellees, the trial court entered an order of
 Worker who was injured when he came into         Summary Judgment in their favor and against
contact with electrical voltage brought           Appellants. The conclusion that an award of
products liability action against manufacturer    Summary Judgment was warranted came after
and seller of pants he had been wearing,          the court ruled that the "spoliation" doctrine
alleging that pants had ignited and melted.       applied in this matter and that Appellants'
The Court of Common Pleas, Philadelphia           claims were pre-empted by federal legislation.
County, Civil Division at No. 477 Oct. Term        Because we have determined that both these
1991, 1786 Feb. Term 1992, Klein, J., granted     conclusions were reached in error, we reverse
summary judgment to defendants. Plaintiff         the award of Summary Judgment and remand
appealed, and the Superior Court, No. 1399        this matter for trial.
Philadelphia 1996, Del Sole, J., held that: (1)
failure of worker to preserve pants did not bar
 Appellants, Mr. and Mrs. O'Donnell, brought      substance which caused or substantially
this action against Appellees claiming that Mr.   enhanced his burn injuries. Appellants assert
O'Donnell sustained injuries while employed       that Mrs. O'Donnell purchased these work
as a cable splicer. [FN1] They claim that he      clothes for her husband at Appellee, K-Mart's
made contact with electrical voltage which        store, and that Appellee, Big Yank *848 Inc.,
arced from an underground substation.             manufactured or otherwise distributed through
Appellants maintain that Mr. O'Donnell's          its vendors the pants worn by Mr. O'Donnell.
garments ignited, quickly melted upon             Appellants allege the pants were defective
exposure to flame and produced a hot tarry        when sold.


                                 21 APPENDIX A
                                                      forth the policy behind this rule. However to
        FN1. Mrs. O'Donnell             made a        properly interpret the holding of Roselli, we
        derivative claim for            loss of       must examine the particular facts of that case
        consortium.                                   to understand the decision.
                                                       In Roselli, the plaintiff alleged she suffered
 Appellees filed Motions in Limine based              personal injuries when a glass carafe from a
upon the undisputed fact that Appellants had          coffee maker shattered in her hand, spraying
discarded the pants Mr. O'Donnell was                 coffee onto her body causing severe burns.
wearing at the time of the accident and were          She brought an action against General
unable to produce them for inspection.                Electric, as manufacturer of the coffee maker,
Appellee also sought relief based upon a              claiming that there existed a defect in this
federal pre-emption theory since the trousers         particular carafe which caused it to shatter.
in question admittedly met federal standards          The defense offered an expert report which
for flammability. The trial court accepted            indicated that the base of the machine was
both arguments. It concluded that because             scorched and scarred which indicated frequent
Appellants were unable to produce the pants,          use. When it was established that the
Appellee, Big Yank, was unable to challenge           remnants of the glass carafe were discarded
whether it was the manufacturer of the                and unavailable for inspection by the defense,
garment. Further, the court ruled that the            the trial court awarded the defendant summary
absence of the trousers prevented Appellees           judgment. The trial court noted that the
from pursuing the defense that grease on the          plaintiff did not claim this defect occurred in
pants, rather than their fiber, caused the fire.      all General Electric coffee makers, and that
With regard to the pre- emption argument, the         under such circumstances the entry of
trial court ruled that Appellants could not           summary judgment was warranted. The
claim that the design of the pants was                award was affirmed on appeal with this court
defective, since it admittedly met federal            commenting that the plaintiff was unable to
safety standards. Accordingly, the court              prove that a malfunction occurred in the
granted the Motions in Limine and entered             absence of abnormal use or reasonable
Summary Judgment against Appellants. This             secondary causes. Id. at 230, 599 A.2d at 688.
appeal followed.                                       We held that the plaintiff failed to eliminate
                                                      the realistic possibility that the carafe broke
 We first address the "spoliation" argument           because of its use and handling prior to the
prompted by the fact that the pants worn by           date of the incident. Id. at 230, 599 A.2d at
Mr. O'Donnell at the time of the accident were        689. Thus, we concluded the plaintiff failed
discarded by Appellants. The trial court cited        to meet her burden of proof and the award of
Roselli v. General Elec. Co., 410 Pa.Super.           summary judgment was affirmed.
223, 228, 599 A.2d 685, 687 (1991), as setting
 The trial court in this case cites Roselli for the   concerning the product can be presented by
untenable proposition that whenever a key             the plaintiff. However the facts of Roselli do
piece of evidence is discarded, preventing the        not call for such a broad conclusion. In
defendant from undertaking its own                    Roselli the summary judgment was based
independent examination of the product, the           upon the uncontested facts that the product
spoliation doctrine applies and no evidence           had been used repeatedly and that the event


                                    22 APPENDIX A
which was claimed to have occurred with this        lamp. The court concluded that because the
one specific carafe could have occurred absent      plaintiff claimed that all lamps made by the
a manufacturer defect. The plaintiff, who was       defendant contained the same design defect,
unable to produce the product, could not offer      the defendant was able to examine its other
evidence in support of her claim of defect.         lamps, and was not prejudiced by the absence
Roselli does not hold that in all cases where       of the particular lamp. In reaching its
evidence has been lost or destroyed prior to        conclusion the court relied upon the decision
suit or inspection, a plaintiff cannot pursue its   in Lee v. Boyle-Midway Household Products,
claim. Rather, traditional concepts of burden       Inc., 792 F.Supp. 1001 (W.D.Pa.1992) which
of proof remain. In Roselli the award of            distinguished its facts from those found in
summary judgment was warranted because the          Roselli, supra. In reference to Lee, the Quaile
plaintiff failed to present evidence which, if      court stated:
believed, would allow her to meet her burden          More recently in Lee v. Boyle-Midway
of proving a defect since the carafe could            Household Products, Inc. the district court in
shatter for reasons unrelated to a defect.            applying Pennsylvania law, noted that where
However, in cases where the plaintiff is able         a plaintiff alleges a defect in all of the
to establish a defect even if the specific            defendant's products as opposed to simply
product is lost or destroyed, the case must be        alleging a defect in the particular product
allowed to proceed. *849 Such is the situation        causing the injury, the case may be
presented before us.                                  distinguished from the holding in Roselli v.
                                                      General Electric which bars recovery on a
 [1] This case involves a pair of pants worn by       defect theory where the product has been
the injured party who alleged the garment was         destroyed. The district court stated:
constructed of highly flammable material,             Plaintiff's case here could conceivably be
which was easily ignitable and which melted           distinguished from Roselli and Martin
into a hot tar-like substance. Unlike Roselli         [Martin v. Volkswagen of America, Inc.,
an examination of the specific product is not         1989 WL 81296 (E.Pa. July 13, 1989) ]
necessary to determine the validity of the            because the plaintiffs in those cases did not
claim because the injured party in this case is       allege a defect present in all of defendants'
not claiming a defect particular to this item,        like products. In this case plaintiff is, at
but rather that the defect occurs in all like         least in part, apparently alleging that
products manufactured and sold by the                 Boyle-Midway's Lewis Red Devil Lye Drain
defendants.                                           Cleaner was unsafe for consumer use--a
                                                      defect which would presumably be present
 This distinction was recognized by the United        in all cans of it.
States District Court in Quaile v. Carol Cable       Quaile v.Carol Cable Co., Inc. at *3, citing
Co. Inc., 1993 WL 53563 (E.D. Pa. Feb. 26,          Lee v. Boyle-Midway Household Products,
1993). There the court refused a request for        Inc., 792 F.Supp. at 1006, n. 4.
summary judgment in an instance where the
plaintiff had discarded an allegedly defective
 Thus, in the instant matter, Appellants can        defendant, and the defendant can offer
seek to prove their case with the introduction      evidence that its product will not react in a
of like products manufactured or sold by the        harmful manner when exposed to


                                   23 APPENDIX A
circumstances like those presented when the        because there was "no evidence tending to
accident occurred. Similarly at trial the          establish that the pitcher involved was
defense can offer evidence regarding the           manufactured or sold by either defendant." Id.
flammability of its product in a variety of        at 51, 628 A.2d at 423. The instant case is
situations, including any differences which        markedly different.
may occur because of repeated use or washing
of the pants or because of any substances           In the present case Appellants were prepared
which may have soiled the clothing Mr.             to offer evidence that the pants in question
O'Donnell was wearing at the time of the           were manufactured by Big Yank and sold by
accident. These are all matters which are          K-Mart. Included in the record *850 is a
more appropriately left for the jury to review.    deposition of Mrs. O'Donnell, who bought the
                                                   work clothing for her husband. She testified
 [2] Likewise we must reject the trial court's     that she purchased her husband's pants at
reasoning which disallowed introduction of         K-Mart about a month before the accident,
evidence regarding the pants because               and on that occasion she purchased three or
Appellee, Big Yank, Inc., was precluded from       four sets of pants and shirts. [FN2] All of the
establishing that it was the manufacturer of       pants were the same except for color, and the
this product. The trial court cited DeWeese v.     remaining unworn work clothing was turned
Anchor Hocking, 427 Pa.Super. 47, 628 A.2d         over by Mrs. O'Donnell to her counsel. She
421 (1993), in support of a conclusion that,       testified that these items presented to her
even in a design defect case, the product is       attorney were "exactly the same make of the
necessary because the plaintiff is unable to       ones he [Mr. O'Donnell] wore that night."
prove a prima facie case absent proof of the       Deposition of Mrs. O'Donnell at 9/14/93 at 53.
identity of the seller or the manufacturer. In
DeWeese an award of Summary Judgment                      FN2. Certainly, the testimony of Mrs.
was affirmed because the plaintiff was unable             O'Donnell that she purchased the pants
to produce a glass carafe which exploded                  at K-Mart is sufficient to conclude it
when he was working as a busboy at a country              was a seller for 402A purposes.
club. The court ruled that the plaintiff's
failure to preserve the pitcher was "fatal"
 Thus, unlike the situation in DeWeese, here       responsible parties. They can question Mrs.
the plaintiffs produced evidence of the identity   O'Donnell, as they did during her deposition,
of the manufacturer and the seller. Even the       about whether she retained any store receipts,
trial court noted "there might be enough           any tags from the clothing or how specifically
evidence for the trier of fact to conclude that    she or her husband can describe the clothing
the clothing was probably made by Big Yank."       he was wearing at the time of the accident.
(Trial court opinion at 4.) Because there was      This evidence can all be presented before a
evidence offered identifying Appellees as the      jury, which can accept or reject it. Appellants
manufacturer and seller of the pants, it was       cannot, however, be deprived of the
inappropriate for the court to enter summary       opportunity to present their case before a jury
judgment. At trial Appellees can offer a           under these circumstances.
defense which seeks to prove that Mrs.
O'Donnell has misidentified them as                ***


                                  24 APPENDIX A
                                                      Yingling t/d/b/a Dean Yingling Used
                                                                      Cars,
(Cite as: 700 A.2d 508)                                             Appellee.

   Stephanie A. LONG, Individually and                   Superior Court of Pennsylvania.
   Stephanie Long, Administratrix of the
Estate of Vincent Robert Long, Deceased,                      Argued April 23, 1997.
                   Appellant,
                        v.                                      Filed Sept. 5, 1997.
 Dean YINGLING, Individually and Dean
 Woman who suffered injuries during accident       KELLY, Judge:
while riding in used vehicle being test-driven
by her husband, in which her husband suffered       In this appeal, appellant, Stephanie Long,
fatal injuries, brought action individually and    asks us to determine whether the Blair County
as administratrix of husband's estate against      Court of Common Pleas erred in denying her
used car dealership. The Court of Common           motion for summary judgment and granting
Pleas, Blair County, Civil Division, No. 397       appellee's, Dean Yingling's, motion for
CP 1994, Callan, J., granted summary               summary judgment. We hold that the trial
judgment to defendant. Plaintiff appealed, and     court properly denied appellant's motion for
the Superior Court, No. 2091 Pittsburgh 1996,      summary judgment. We further hold that the
Kelly, J., held that: (1) plaintiff's failure to   trial court erred in granting summary
produce master cylinder which allegedly            judgment in appellee's favor. Accordingly, we
caused brake failure which led to accident did     affirm in part, reverse in part, and remand this
not bar claim, since cylinder was not in her       matter to the trial court for further
control; (2) fact issues precluded summary         proceedings.
judgment on negligence and strict liability
claims; (3) dealer's failure to produce cylinder    The relevant facts and procedural history of
did not entitle plaintiff to judgment on strict    this appeal are as follows. On October 29,
liability claim since evidence of other causes     1992, appellant and her husband, Vincent
was presented; and (4) plaintiff had stated        Long ("decedent"), visited appellee's used car
claim for negligent infliction of emotional        lot for the purpose of looking at and possibly
distress under both bystander and impact           purchasing a used car. After speaking with
rules.                                             appellant and the decedent, appellee gave the
                                                   couple a 1982 Plymouth Reliant ("vehicle") to
Affirmed in part and reversed in part.             take for a test drive. The decedent took the
                                                   driver's seat and appellant sat in the front
                                                   passenger seat. The couple left appellee's used
                                                   car lot in the vehicle and traveled west on
                                                   Closson Road. As they were traveling west on
                                                   Closson Road, the vehicle went through a stop
                                                   sign protecting State Route 36 and collided
Before KELLY, SAYLOR and EAKIN, JJ.                with a pick-up truck that was traveling north
                                                   on State Route 36. As a result of the collision,


                                  25 APPENDIX A
the decedent was killed and appellant                      wheels when the brake pedal is
sustained severe injuries to her head and                  depressed." Webster's Third New
pelvis.                                                    International Dictionary.

 *511 On February 17, 1994, appellant's             Thereafter, appellant filed a writ of summons
attorney and his expert, Neil Maines, visited      and a petition for discovery asking that the
Donaldson's Salvage Yard where the vehicle         master cylinder be made available for
was taken after the accident. At this time, Mr.    inspection and held for safekeeping until the
Maines inspected the vehicle and saw that the      conclusion of this case. On March 1, 1994,
master cylinder [FN1] was intact. The owner        appellant served the petition for discovery,
of the salvage yard, however, would not allow      along with a Rule Returnable ordering that the
Mr. Maines to purchase, borrow, or inspect         master cylinder be preserved, on appellee and
the master cylinder because appellee still         the salvage yard owner. On May 19, 1994,
owned the vehicle.                                 appellant's agent went to the salvage yard to
                                                   secure the master cylinder for testing. At this
        FN1. The master cylinder is "the           time, however, the master cylinder was
        cylinder in a hydraulic-brake system       missing from the vehicle.
        from which brake fluid is forced to
        produce pressure at the individual
 On August 30, 1994, appellant filed a             further testified that the last thing she
complaint in the Common Pleas Court of Blair       remembered was the decedent being thrown
County alleging that the collision was the         on top of her from the force of the collision.
result of appellee's negligence in allowing the
vehicle to be test driven with a defective          Additionally, appellant filed two sworn
master cylinder and brake system. On               affidavits in which two experts testified that
October 13, 1994, appellant amended her            the cause of the accident was a failure of the
complaint to include a claim of strict liability   brake system of the vehicle, specifically
for permitting the vehicle to be driven in an      caused by a defect in the master cylinder.
unreasonably dangerous condition.                  Furthermore, the investigating police officer,
                                                   Robert Clark, testified at his deposition that
 Thereafter, the parties engaged in extensive      there were no signs of skid marks made by
discovery.      Appellant testified at her         either vehicle involved in the collision prior to
deposition that as she and the decedent            impact. Trooper John Wasicki, who was also
approached the intersection of State Route 36,     one of the investigating officers, testified that
the decedent attempted to apply the brakes and     after inspecting the vehicle, he determined that
the pedal went right to the floor. The             there was no defect in the brake system.
decedent then stomped on the brakes two or         Trooper Wasicki, however, did testify that he
three times and the vehicle traveled through       observed damage to the master cylinder which
the stop sign protecting State Route 36 and        he believed had been caused by the collision.
collided with a truck. Appellant also testified
that as they entered the intersection, the          The record also contains the deposition
decedent attempted to hold her back by             testimony of appellee's mechanic, Michael
putting his arm in front of her. Appellant         Long, who testified that he had inspected the


                                  26 APPENDIX A
vehicle prior to the accident and did not notice   motion for summary judgment. Appellant
any damage to the master cylinder.                 now brings this timely appeal.
Additionally, Mr. Long testified that he had
driven the vehicle prior to the accident and did    Appellant raises the following issues for our
not experience any problems with the brake         review:
system.      Furthermore, Laurie Harrison            A. DID THE COURT BELOW ERR IN
testified at her deposition that she had test        GRANTING DEFENDANT'S MOTION
driven the vehicle approximately two days            FOR SUMMARY JUDGMENT BASED
prior to the accident and did not experience         ON SPOLIATION?
any problems with the brake system. The              *512 B. DID THE COURT BELOW ERR
record also establishes that the vehicle had         IN DENYING THE PLAINTIFFS'
passed state inspection.                             MOTION FOR SUMMARY JUDGMENT
                                                     IN    THIS       CASE       BASED        ON
 At the close of discovery, appellee filed a         SPOLIATION?
motion for summary judgment on August 21,            C. DID THE COURT BELOW ERR IN
1996, and appellant filed a motion for partial       GRANTING DEFENDANT'S MOTION
summary judgment on August 28, 1996.                 FOR SUMMARY JUDGMENT ON
Based upon the aforementioned facts, the trial       PLAINTIFF'S NEGLIGENCE CLAIM?
court, by order dated October 23, 1996, denied
appellant's motion and granted appellee's
  D. DID THE COURT BELOW ERR IN                     omitted); Accu- Weather, Inc. v. Prospect
  GRANTING DEFENDANT'S MOTION                       Communications, Inc., 435 Pa.Super. 93,
  FOR SUMMARY JUDGMENT ON                           98-99, 644 A.2d 1251, 1254 (1994) (citation
  PLAINTIFF'S CLAIM FOR NEGLIGENT                   omitted); Stidham v. Millvale Sportsmen's
  INFLICTION           OF      EMOTIONAL            Club, 421 Pa.Super. 548, 558, 618 A.2d
  DISTRESS?                                         945, 950 (1992), allocatur denied, 536 Pa.
 (Appellant's Brief at 9).                          630, 637 A.2d 290 (1993) (citation omitted).
                                                     The court must examine the record in the
 Initially, we note that our standard for           light most favorable to the non-moving
reviewing a grant of summary judgment is            party and resolve all doubts against the
well settled.                                       moving party. Aetna Casualty and Surety
  [S]ummary judgment is properly entered            Company v. Roe, supra; Accu-Weather v.
  where the pleadings, depositions, answers to      Prospect Communications, supra; Stidham
  interrogatories, and admissions, together         v. Millvale Sportsmen's Club, supra.
  with affidavits demonstrate that no genuine,      Moreover, the burden is on the moving party
  triable issue of fact exists and that the         to prove that no genuine issue of material
  moving party is entitled to judgment as a         fact exists. Accu-Weather v. Prospect
  matter of law. Pa.R.Civ.P. 1035(b); Cosmas        Communications, supra (citing Overly v.
  v. Bloomingdales Bros., Inc., 442 Pa.Super.       Kass, 382 Pa.Super. 108, 111, 554 A.2d
  476, 480, 660 A.2d 83, 85 (1995) (citation        970, 972 (1989)).... We are not bound by
  omitted); Aetna Casualty and Surety               the trial court's conclusions of law, but may
  Company v. Roe, 437 Pa.Super. 414,                draw our own inferences and reach our own
  419-20, 650 A.2d 94, 97 (1994) (citations         conclusions. See Dauphin Deposit Trust


                                  27 APPENDIX A
  Company v. World Mutual Health and               530 Pa. 645, 607 A.2d 255 (1992), appeal
  Accident       Insurance     Company        of   discontinued (1993). See also Pa.R.Civ.P.
  Pennsylvania, 206 Pa.Super. 406, 409, 213        1035.1-1035.4 (effective July 1, 1996).
  A.2d 116, 117 (1965).... We will reverse a
  grant of summary judgment only when the                                 I.
  trial court has committed an error of law or
  abused its discretion.           Cosmas v.        In her first issue on appeal, appellant
  Bloomingdales Bros., Inc., supra; Aetna          contends that the trial court erred in granting
  Casualty and Surety Company v. Roe, supra        appellee's motion for summary judgment
  (citations omitted);      Accu-Weather v.        based upon the theory of spoliation.
  Prospect Communications, supra (citing           Appellant maintains that this theory is
  Kelly by Kelly v. Ickes, 427 Pa.Super. 542,      inapplicable where (1) the allegedly defective
  547, 629 A.2d 1002, 1004 (1993)).                master cylinder was owned and controlled by
 Butterfield v. Giuntoli, 448 Pa.Super. 1, 10,     appellee;    and (2) appellant diligently
670 A.2d 646, 650 (1995). Accord Roselli v.        attempted to secure the allegedly defective
General Electric Co., 410 Pa.Super. 223, 226,      master cylinder. We agree.
599 A.2d 685, 687 (1991), allocatur granted,
 [1] This Court has held that summary                would put a plaintiff (or plaintiff's attorney)
judgment is appropriate based upon the theory        in the position of deciding whether the
of spoliation when a plaintiff brings an action      availability of the item would help or hurt
claiming that she suffered an injury as a result     his or her case. Where producing the
of a defective product, and fails to produce the     product for defense inspection would
product for inspection by the defense.               weaken rather than strengthen a case, we
DeWeese v. Anchor Hocking Consumer and               unfortunately are obliged to conclude that
Industrial Products Group, 427 Pa.Super. 47,         some plaintiffs and attorneys would be
50, 628 A.2d 421, 423 (1993) (citing Roselli         unable to resist the temptation to have the
v. General Electric Co., supra at 228, 599           product disappear.
A.2d at 687-88). Accord Schroeder v.                DeWeese v. Anchor Hocking, supra at 51,
Department of Transportation of the                628 A.2d at 423 (quoting Roselli v. General
Commonwealth of Pennsylvania, 676 A.2d             Electric Co., supra at 228, 599 A.2d at
727, 730 (Pa.Cmwlth.1996), allocatur granted,      687-88). Accord Schroeder v. Department of
546 Pa. 672, 685 A.2d 549 (1996) (citations        Transportation, supra at 730 (citations
omitted). This rule was adopted in order to        omitted).
*513 serve the important public policy of
preventing false claims by plaintiffs who are       Applying the theory of spoliation, the trial
in a position to dispose of the allegedly          court found that appellee was entitled to
defective product, making defense of such          summary judgment because appellant failed to
claims more difficult:                             preserve and produce the allegedly defective
  To permit claims of defective products           master cylinder for appellee's inspection. The
  where a purchaser of the product has simply      trial court, however, failed to recognize the
  thrown it away after an accident, would both     public policy interests which the theory of
  encourage false claims and make legitimate       spoliation was designed to effectuate. Both
  defense of valid claims more difficult. It       the Pennsylvania Superior Court and


                                  28 APPENDIX A
Commonwealth Court have recognized that            defective product would help or hurt their
the policies behind requiring a plaintiff to       case. See id. In light of these policy interests
preserve an allegedly defective product for the    and the facts and circumstances of produce the
defendant's inspection are (1) to prevent          master cylinder for appellee's inspection does
fraudulent claims;       and (2) to remove         not entitle appellee to summary judgment.
plaintiffs from the position of deciding
whether the availability of the allegedly
 [2] Appellant was neither the owner nor in         "The ancient maxim, Cessante ratione legis,
control of the allegedly defective master          cessat et ipsa lex., 4 Co., 34: (the reason for
cylinder. Moreover, appellant was never in a       the law ceasing, the law itself also ceases) has
position to dispose of the master cylinder or to   long been applied in this Commonwealth."
decide whether its availability would help or      Hengst v. Hengst, 491 Pa. 120, 123, 420 A.2d
hurt her case. Cf. Roselli v. General Electric     370, 371 (1980)(citing Appeal of Cummings,
Co., supra (summary judgment is appropriate        11 Pa. 272, 276 (1849); Nice's Appeal, 54 Pa.
based upon theory of spoliation where owner        200, 201 (1867)). Because the policy
of allegedly defective coffee maker which          considerations behind the rule requiring
shattered in her hand failed to produce product    plaintiffs to produce an allegedly defective
for defendant's inspection); Schroeder v.          product for defense inspection are inapplicable
Department of Transportation, supra                under the facts and circumstances of this case,
(summary judgment appropriate based upon           we conclude that appellant's failure to produce
theory of spoliation where owner of allegedly      the allegedly defective master cylinder, which
defective truck failed to preserve truck for       appellee owned and controlled both before
defendant's inspection). Instead, appellee         and after the accident, does not entitle
owned and controlled the allegedly defective       appellee to summary judgment.
master cylinder both before and after the
accident. Thus, it would make no sense to           The trial court also cited DeWeese v. Anchor
require appellant to preserve and produce the      Hocking, supra, for the proposition that even
master cylinder for appellee's inspection when     where the plaintiff had no control of the
appellee owned and controlled the master           allegedly defective product, summary
cylinder at all times. To do so would be           judgment *514 is appropriate based upon the
contrary to public policy in that it would         theory of spoliation. In DeWeese v. Anchor
encourage defendants who own and control an        Hocking, supra, an award of summary
allegedly defective product to dispose of the      judgment was affirmed by this Court because
product, thereby placing themselves in a           the plaintiff failed to produce a glass carafe
position so as to entitle themselves to            which exploded while he was working as a
summary judgment. Cf. DeWeese v. Anchor            bus boy at a country club. We held that the
Hocking, supra at 51, 628 A.2d at 423              plaintiff's failure to preserve the pitcher
(quoting Roselli v. General Electric Co., supra    entitled the defendant to summary judgment
at 228, 599 A.2d at 687-88)(it is contrary to      because there was "no evidence tending to
public policy to put plaintiff in position of      establish that the pitcher involved was
deciding whether availability of product           manufactured or sold by either defendant." Id.
would help or hurt his or her case).               at 51, 628 A.2d at 423.




                                  29 APPENDIX A
 The present case is distinguishable in several
respects. In DeWeese, the allegedly defective                             II.
product was owned and controlled by a third         In her second issue on appeal, appellant
party to the suit, the country club. Here, the     maintains that the trial court erred in denying
allegedly defective product was owned and          her motion for summary judgment based upon
controlled by appellee, the actual owner and       the malfunction theory of products liability
seller of the product. Thus, unlike the            because there is no genuine issue of material
situation in DeWeese, the public policy of         fact as to whether the brakes of the vehicle
preventing plaintiffs who own and control the      malfunctioned. Appellant also claims that she
product from disposing of the product is           was entitled to summary judgment based upon
inapplicable. Moreover, unlike the plaintiff in    the theory of spoliation because appellee
DeWeese, appellant has presented evidence          failed to preserve the master cylinder for her
supporting her claim that the product was          inspection. We disagree.
owned by appellee, and that it was defective.
It is undisputed that appellee was the owner of     [3][4][5] We first address appellant's
the vehicle. Appellant testified at her            argument that she was entitled to summary
deposition that when the decedent applied the      judgment because no genuine issue of material
vehicle's brakes, the pedal went right to the      fact existed as to the malfunctioning of the
floor. The record also demonstrates that the       brakes on the vehicle. It is well settled that:
vehicle did not leave any skid marks prior to        [w]hen advancing a theory of strict product
the collision which is consistent with               liability, a plaintiff has the burden of
appellant's assertion that the vehicle's brakes      showing that the product was defective, that
malfunctioned. Furthermore, appellant has            the defect was the proximate cause of his or
filed two sworn affidavits in which two              her injuries and that the defect existed at the
experts testified that the accident was caused       time the product left the manufacturer.
by a failure of the brake system of the vehicle,     Woodin v. J.C. Penney Co., Inc., 427
specifically caused by a defect in the master        Pa.Super. 488, 490, 629 A.2d 974, 975
cylinder. Thus, we conclude that the trial           (1993); Vernon v. Stash, 367 Pa.Super. 36,
court erred in theory of spoliation because (1)      48, 532 A.2d 441, 447 (1987); Swartz v.
the trial court's granting of appellee's motion      General Elec. Co., 327 Pa.Super. 58, 66, 474
for summary judgment is inconsistent with the        A.2d 1172, 1176 (1984). In certain cases of
public policy of preventing plaintiff's who          alleged manufacturing defects, however, the
own and control an allegedly defective               plaintiff need not present direct evidence of
product from disposing of it; and (2) the            the defect.      When proceeding on a
record contains sufficient evidence from             malfunction theory, the plaintiff may
which a jury could find that the master              "present a case-in-chief evidencing the
cylinder malfunctioned. See O'Donnell v. Big         occurrence of a malfunction and eliminating
Yank, Inc., 696 A.2d 846, 848-49                     abnormal use or reasonable, secondary
(Pa.Super.1997)        (summary       judgment       causes for the malfunction." O'Neill v.
inappropriate based upon theory of spoliation        Checker Motors Corp., 389 Pa.Super. 430,
where record contains sufficient evidence to         435, 567 A.2d 680, 682 (1989). See also:
create genuine issue of material fact as to          Knight v. Otis Elevator Co., 596 F.2d 84, 89
whether product was defective).                      (3d Cir.1979). From this circumstantial


                                  30 APPENDIX A
  evidence, a jury may be permitted to infer       supra at 230, 599 A.2d at 688. Defendant's
  that the product was defective at the time of    only burden is to identify other possible
  sale. Vernon v. Stash, supra, 367 Pa.Super.      non-defect oriented explanations. Id. See also
  at 48, 532 A.2d at 448.                          Lonon v. Pep Boys, 371 Pa.Super. 291, 299,
 *515 Ducko v. Chrysler Motors Corp., 433          538 A.2d 22, 26 (1988)(where defendant
Pa.Super. 47, 50, 639 A.2d 1204, 1205              offers explanation inconsistent with existence
(1994). Furthermore, a defendant does not          of defect which is as probable as explanation
have to prove the existence of secondary           consistent with existence of defect, defendant
causes for the accident or abnormal use of the     has met his or her burden).
product. Roselli v. General Electric Co.,
 [6] Instantly, Trooper Wasicki testified at his   the product for the other party's inspection.
deposition that after inspecting the vehicle, he   See O'Donnell v. Big Yank Inc., supra at 848.
determined that there was no defect in the         Rather, summary judgment is warranted only
brake system. Additionally, the record             where the plaintiff fails to present evidence
contains evidence that the vehicle had passed      which, if believed, would allow her to meet
inspection and that it had been test driven        her burden of proving defect, or where the
approximately two days prior to the accident       defendant fails to rebut plaintiff's evidence
without experiencing any problems with the         with his own evidence which would allow him
brake system. This constitutes sufficient          to meet his burden of identifying other
evidence to raise a genuine issue of material      non-defect oriented explanations. See id. at
fact as to whether the accident was the result     848 (traditional concepts of burden of proof
of a malfunction in the brake system or the        apply to a determination of whether summary
result of operator error. Thus, the trial court    judgment is appropriate based upon theory of
properly denied appellant's motion for             spoliation).
summary judgment based upon her assertion
that there was no factual dispute as to whether     [8] Instantly, the record contains sufficient
the brakes malfunctioned.                          evidence from which a jury could infer that no
                                                   malfunction in the braking system occurred.
 [7] We now turn to appellant's assertion that     As we stated previously, the record
she was entitled to summary judgment               demonstrates that the vehicle had passed
because appellee failed to preserve the master     inspection, and that it had been test driven
cylinder for her inspection. Appellant cites       approximately two days prior to the accident
Roselli v. General Electric Co., supra, for the    without experiencing any problems in the
proposition that summary judgment is               brake system. Additionally, Trooper Wasicki
appropriate in a products liability case           testified at his deposition that after inspecting
whenever the party who owns the product fails      the vehicle, he determined that there was no
to produce the product for the other party's       defect in the brake system. Thus, appellee can
inspection. This claim is meritless in light of    offer evidence disputing appellant's theory of
our recent decision in O'Donnell v. Big Yank,      malfunction, raising an inference that operator
Inc., supra. The O'Donnell Court stated that       error was the cause of the accident. Hence,
Roselli does not hold that summary judgment        the mere fact that appellee failed to preserve
is appropriate whenever the owner of an            the product for appellant's inspection does not
allegedly defective product fails to produce       entitle appellant to summary judgment.


                                  31 APPENDIX A
.
***

 *517 Order affirmed in part and reversed in
part. Jurisdiction relinquished.




                               32 APPENDIX A
(Cite as: 703 A.2d 489)
                                                   .
         Wilma J. DANSAK
                 v.
CAMERON COCA-COLA BOTTLING
COMPANY, INC., Appellant (at 1285),
                 v.
    OWENS-ILLINOIS GLASS
      CONTAINERS, INC. and
Owens-Brockway Glass Containers, Inc.
Wilma J. DANSAK, Appellant (at 1372),
                 v.
CAMERON COCA-COLA BOTTLING
          COMPANY, INC.
                 v.
    OWENS-ILLINOIS GLASS
      CONTAINERS, INC. and
Owens-Brockway Glass Containers, Inc.

      Superior Court of Pennsylvania.

            Argued Feb. 26, 1997.

            Filed Nov. 18, 1997.

 Injured convenience store employee sued
soda bottling company for injuries she
suffered while stocking store cooler, from
broken bottle in box of soda delivered to store,
and bottling company joined glass bottle
supplier as additional defendant. The Court of
Common Pleas, Allegheny County, Civil
Division, Nos. GD93-1481; Louik, J., granted
summary judgment for bottling company and
bottle supplier, based on spoilation of
evidence. Employee appealed. The Superior
Court, No. 1285 and 1372 Pittsburgh 1995,
Ford Elliott, J., held that: (1) employee could
proceed with action even though bottle was
lost, and (2) employee could establish
malfunction products claim against bottling
company.
 Reversed.


                                  33 APPENDIX A
Before BECK, FORD ELLIOTT and                        On the night in question, the boxes were
HESTER, JJ.                                         stacked four-high from the floor in the storage
                                                    area behind the cooler. As was her custom,
FORD ELLIOTT, Judge:                                Dansak removed the six- pack from the
                                                    topmost box, held it in her left arm, and
 In this case, we hold that the trial court erred   removed a bottle from the pack with her right
when it granted summary judgment to                 hand, using a twisting motion. In doing so,
defendants based on the "spoliation of              she cut her right hand on a broken adjacent
evidence" doctrine. We therefore reverse the        bottle, which remained anchored within the
trial court's order granting summary judgment       six-pack's plastic casing. According to
to appellee Cameron Coca-Cola Bottling              Dansak, the entire bottom part of the broken
Company, Inc. ("Cameron") at No. 1372               bottle was missing.
Pittsburgh 1995. We also reverse the trial
court's grant of summary judgment to appellee        Upon noticing that she had been cut, she put
Owens-Brockway Glass Containers, Inc.,              down the six-pack and ran to call for medical
formerly known as Owens-Illinois Glass              assistance. She never went back to the cooler
Containers, Inc. ("Owens") at No. 1285              to examine the six- pack or the box.
Pittsburgh 1995. [FN1]                              However, she states that she would have
                                                    noticed (but did not notice) the presence of
        FN1. Owens is one entity which              broken glass or spilled liquid in the box. She
        changed its name, not two entities, as      tended to her hand while waiting for
        the caption would suggest. (See             assistance to arrive; she was then immediately
        Docket No. 30, && 5-6.)                     hospitalized. She claims that the injury has
                                                    caused, inter alia, nerve damage (reflex
 The facts of the case are drawn from               sympathetic dystrophy) in her hand.
appellant Wilma Dansak's deposition, taken
on June 21, 1994. She stated that she was            Dansak later learned that her store manager
injured on December 3, 1991, while working          threw away the six-pack, including the broken
the midnight-to-8:00 a.m. shift at a CoGo's         bottle. No party to the litigation was
convenience store in White Oak,                     responsible for the bottle's disappearance, and
Pennsylvania. The injury arose as Dansak was        no party ever had the opportunity to inspect
removing glass bottles of soda from their           the product before it was destroyed. While
plastic "six-pack" containers and placing them      Dansak has not consistently identified the
in the store's coolers. The six-packs are           exact type of soda contained in the six-pack,
delivered to CoGo's in cardboard boxes.             [FN2] she has never wavered in identifying
Dansak was the only employee responsible for        the six-pack as coming from a box containing
filling the cooler with soda bottles, and was       Cameron's products.
the only employee in the store at the time.

        FN2. Specifically, on November 4,                  the incident. In the questionnaire, she
        1992, before filing suit, Dansak filled            stated that she was cut on a bottle of
        out a Package Questionnaire supplied               "Coke (Classic?)". (Cameron's R.R.
        by Cameron, in which she described                 110a.) At the time, she believed she


                                   34 APPENDIX A
       had been cut on a bottle of Coca-Cola       402(a) liability involves alleged injury
       Classic. (Id. at 97a.) She later had a      to Plaintiff caused by the breaking of a
       conversation with her store manager,        soda bottle at a convenience store.
       after which she came to believe that        While Plaintiff's case rests on
       she had been cut on a bottle of cream       manufacture defect, the allegedly
       soda or root beer. (Id. at 98a-99a.)        defective bottle is unavailable for
       Cameron does not contest that it sells      inspection.       By Plaintiff's own
       both types of products.                     admission,       convenience       store
                                                   personnel disposed of the bottle
 On January 25, 1993, Dansak commenced an          immediately after the accident. It is
action against Cameron alleging strict             improper to impose liability on a
products liability and breach of warranty.         manufacturer when such manufacturer
Cameron later filed a complaint to join            is unable to inspect the condition of
Owens, its glass bottle supplier, as an            the product. It is difficult to assert a
additional defendant.                              defense and manufacturer is greatly
                                                   prejudiced.
 Cameron filed a motion for summary                Furthermore, Plaintiff herein is not
judgment, alleging that Dansak's claim was         protected by 402(a). Plaintiff was not
barred because (1) she could not produce to        a consumer or a user of the soda
the defense the product that injured her, and      bottle.     Rather, plaintiff was an
(2) she could not proceed on a "malfunction"       employee stocking the soda shelves.
theory of products liability because she could     Plaintiff's status within the chain of
not establish a defect in the product or           distribution amounts to less than a
eliminate reasonable secondary causes for the      bystander. The imposition of 402(a)
product's malfunction. On February 14, 1995,       liability requires more.
without issuing a supporting opinion, the trial    Dansak's Reply Brief, Appendix A, p.
court granted summary judgment to *492             ii.
Cameron. Owens then filed a motion for             We find the second paragraph of the
summary judgment on grounds identical to           court's statement to be of no effect.
Cameron's. The trial court, without issuing a      The "consumer or user" issue had
supporting opinion, granted this unopposed         already been litigated at the
motion on June 13, 1995. After Dansak              preliminary objection stage. At that
appealed to this court, the trial court issued a   time, Judge Judith Friedman overruled
memorandum in support of its judgment in           defendants' preliminary objection in an
favor of Cameron [FN3] on the ground that          opinion dated August 5, 1993.
Cameron was "greatly prejudiced" by                (Docket Nos. 17, 18.)             Judge
Dansak's failure to preserve the product for       Friedman's decision is binding on the
inspection.                                        trial court under the "coordinate
                                                   jurisdiction" doctrine.       Boyle v.
       FN3. The court's statement reads in its     Steiman, 429 Pa.Super. 1, 12, 631
       entirety as follows:                        A.2d 1025, 1031 (1993).
       This products liability case asserting
       [Restatement (2d) of Torts section]


                                  35 APPENDIX A
 [1][2][3] Our standards on appeal for ruling      Pa.Super. 41, 44-46, 581 A.2d 665, 667
on a grant of summary judgment are well            (1990), citing O'Neill v. Checker Motors, 389
known.                                             Pa.Super. 430, 434- 35, 567 A.2d 680, 682
  The trial court must accept as true all          (1989).
  well-pleaded facts in the non-moving party's
  pleadings, and give to him or to her the          [4] The primary question on appeal is
  benefit of all reasonable inferences to be       whether the trial court erred as a matter of law
  drawn therefrom. Jefferson v. State Farm         when it granted summary judgment based on
  Insurance, 380 Pa.Super. 167, 170, 551 A.2d      the spoliation of evidence doctrine.
  283, 284 (1988). Summary judgment
  should not be entered unless the case is clear    In Roselli v. General Electric Co., 410
  and free from doubt. Hathi v. Krewstown          Pa.Super. 223, 599 A.2d 685 (1991), the court
  Park Apartments, 385 Pa.Super. 613, 615,         found that when a plaintiff voluntarily
  561 A.2d 1261, 1262 (1989). A grant of           disposes of the product which he claims is
  summary judgment is proper where the             defective, summary judgment in favor of the
  pleadings, depositions, answers to               defendant is appropriate:
  interrogatories and admissions on file             To permit claims of defective products
  support the lower court's conclusion that no       where a purchaser of the product has simply
  genuine issue of material fact exists and that     thrown it away after an accident, would both
  the moving party is entitled [to] judgment as      encourage false claims and make legitimate
  a matter of law. Pa. R.C.P. No. 1035, 42           defense of valid claims more difficult. It
  Pa.C.S.A.;      Hatter v. Landsberg, 386           would put a plaintiff (or plaintiff's attorney)
  Pa.Super. 438, 440, 563 A.2d 146, 147- 48          in the position of deciding whether the
  (1989). See Penn Center House, Inc. v.             availability of the item would help or hurt
  Hoffman, 520 Pa. 171, 176, 553 A.2d 900,           his or her case. Where producing the
  903 (1989) (entire record before lower court       product for defense inspection would
  must be thoroughly examined and all doubts         weaken rather than strengthen a case, we
  as to the existence of a genuine issue of          unfortunately are obliged to conclude that
  material fact are to be resolved against a         some plaintiffs and attorneys would be
  grant of summary judgment). We will                unable to resist the temptation to have the
  overturn a trial court's entry of summary          product disappear.
  judgment only if there has been an error of       *493 Roselli, supra at 228, 599 A.2d at
  law or a clear abuse of discretion. McCain       687-88 (citation omitted).
  v. Pennbank [379 Pa.Super. 313, 318], 549
  A.2d 1311, 1313 (1988).
 Troy v. Kampgrounds of America, Inc., 399
 Pennsylvania state and federal cases applying     v. Volkswagen of America, No. 88-8261,
this spoliation of evidence doctrine have          1989 WL 81296 (E.D.Pa. July 13, 1989)
consistently granted summary judgment to           (plaintiff sold allegedly defective auto);
defendants when the plaintiff was in any way       Schroeder v. Department of Transportation,
at fault for failing to preserve the defective     676 A.2d 727, 731 (Pa.Cmwlth.1996),
product. See id. (plaintiff simply threw away      allocatur granted, 546 Pa. 672, 685 A.2d 549
allegedly defective glass carafe), citing Martin   (1996) (plaintiff assigned title in allegedly


                                  36 APPENDIX A
defective truck to insurer without good cause;      manufactured by Anchor Hocking or sold by
 third party disposed of truck); Schwartz v.        Lewis Brothers." Id. at 51, 628 A.2d at 423.
Subaru of America, Inc., 851 F.Supp. 191, 192       In other words, DeWeese turned on the fact
(E.D.Pa.1994) (plaintiff stored allegedly           that "[plaintiff's] failure to preserve the
defective auto in lot and failed to pay storage     shattered pitcher has precluded him from
fees; lot owner disposed of auto); Smith v.         raising a genuine issue of material fact
American Honda Motor Co., Inc., 846 F.Supp.         regarding the identity of its manufacturer and
1217, 1221 (M.D.Pa.1994) (plaintiff allowed         seller." Id. at 53-54, 628 A.2d at 424
auto containing allegedly defective seatbelt to     (emphasis added). The instant case differs in
be demolished).                                     one critical respect from DeWeese: here,
                                                    Dansak can identify Cameron as the supplier
 However, a question remains whether                of the six- pack at issue.
Pennsylvania law has extended this doctrine to
situations where, as here, the plaintiff was not     Cameron next points out that two cases
at fault for disposing of the product. Cameron      interpret DeWeese as extending the Roselli
cites several cases as standing for the             rationale to cases where the plaintiff was not
proposition that, indeed, the doctrine applies      at fault in losing the defective product. See
regardless of the plaintiff's fault. We address     Schroeder, supra at 730; Schwartz, 851
each case in turn.                                  F.Supp. at 192. Both cases are not binding on
                                                    this court [FN4] and in any event are
 In DeWeese v. Anchor Hocking Consumer              inapposite. As noted above, the plaintiffs in
and Industrial Products Group, 427 Pa.Super.        both Schroeder and Schwartz were at fault for
47, 628 A.2d 421 (1993), a busboy at a              not preserving the defective product.
country club was injured when the glass
pitcher that he had begun filling with boiling             FN4. Federal cases, such as Schwartz,
water exploded. Plaintiff testified that the               interpreting Pennsylvania law are not
club's storage area contained more than a                  binding on this court.       Clay v.
dozen pitchers of three different types. He did            Advanced Computer Applications,
not recall choosing any particular type of                 Inc., 370 Pa.Super. 497, 506 n. 5, 536
pitcher and could not identify the                         A.2d 1375, 1380 n. 5 (1988), reversed
manufacturer of the pitcher. While plaintiff               in part on other grounds, 522 Pa. 86,
was taken to the hospital, plaintiff's                     559 A.2d 917 (1989). Nor are
co-employees disposed of the pitcher. The                  Commonwealth Court cases such as
trial court granted summary judgment to                    Schroeder.       Commonwealth v.
defendant because "without the pitcher, there              McDermott, 377 Pa.Super. 623, 547
is simply no evidence tending to establish that            A.2d 1236, 1240 (1988).
the pitcher involved in this case was
 More importantly, DeWeese does not support         appropriate." DeWeese, supra at 50, 628 A.2d
the sweeping rule advocated by Cameron. It          at 423. It is also true that the plaintiff in
is true that DeWeese cited Roselli for the          DeWeese was not at fault.         However,
general proposition that a plaintiff's failure to   DeWeese failed to carry a majority on the
produce the product for inspection "will            spoliation issue; thus, any discussion of
render summary judgment against him                 spoliation in DeWeese is not binding on this


                                   37 APPENDIX A
court. [FN5] Further, DeWeese is not a                      verified discovery." Id. at 53 and n. 2,
spoliation case. DeWeese turned on the fact                 628 A.2d at 424 and n. 2.
that plaintiff failed to produce any verified
evidence [FN6] *494 whatsoever that                  Next, Cameron cites Sipe v. Ford Motor
defendants' products were the cause of              Company, 837 F.Supp. 660 (M.D.Pa.1993).
plaintiff's injury--an essential element of a       In that case, plaintiff alleged that he was
prima facie products liability case. Id. at         injured by an electrical charge from a
52-54, 628 A.2d at 424; see also id. at 54-55,      miswired engine block heater. Plaintiff's
628 A.2d at 425 (Ford Elliott, J., concurring).     employer repaired the heater before
Finally, the Roselli rationale is based at least    defendant's expert could inspect it. Citing
in part on the need to deter and punish             Roselli and Martin, supra, the court granted
plaintiffs who voluntarily dispose of an            summary judgment to Ford, despite the fact
allegedly defective product. In short, we see       that the repair was beyond plaintiff's control.
no basis in DeWeese for extending Roselli to        The court reasoned that products liability
cases where, as here, the plaintiff was not at      cases often turn on competing expert
fault and can identify the product supplier.        testimony regarding the product itself: "to
                                                    allow a plaintiff to go forward with a case in
        FN5. In DeWeese, one judge                  which the defendant's expert would not be
        concurred in the result and a second        able to examine the very product at issue
        specifically disagreed with the             would be unfairly prejudicial." Id. at 661.
        majority's discussion of Roselli.           The court also found that while the defendant
                                                    could still cross-examine plaintiff's witnesses,
        FN6. In DeWeese, the country club's         this would provide only an incomplete
        office manager wrote a letter to            defense. Moreover, it would not be feasible to
        plaintiff's counsel, prior to the           inspect another heater, as plaintiff claimed a
        accident, stating that Anchor Hocking       defect in only the specific, now-repaired
        manufactured and Lewis Brothers sold        heater. For these "public policy" reasons, the
        the pitcher. The court found that this      court dismissed the case against Ford. Id. We
        letter could not be considered to create    note that these concerns are echoed in the trial
        a genuine issue of material fact in part    court's opinion. See footnote 3, supra.
        because it was not "presented by
        affidavit, deposition, or part of any
 In addition to the fact that Sipe is not binding   establish that the product could not have been
on this court (see Clay, supra ), we are not        defective as alleged when it left defendant's
persuaded by Sipe 's analysis. First, Sipe          possession. The defendant is also free to
makes no mention of the malfunction theory          present to the jury, through all of the available
of products liability, which will be described      testimonial and documentary evidence in the
further infra. Second, it is not true that the      case, proof that one or more non-
defendant       must      resort     solely    to   defect-oriented factors are more likely to have
cross-examining the plaintiff's witnesses. The      caused the accident than a manufacturing
defendant may be able to present evidence of        defect. We are mindful of the fact that it is the
its business practices and safety procedures, as    plaintiff who retains the burden of proof at
well as expert and witness testimony, to            trial, and that the plaintiff may be just as


                                   38 APPENDIX A
prejudiced as the defendant (if not more so) by     See id. at 513 (where the policy considerations
her inability to present expert testimony based     behind the rule--preventing fraudulent claims
on tests of the product in question. Third,         and removing plaintiffs from being in a
Sipe has been abrogated in the Third Circuit        position of deciding whether to preserve the
by Schmid v. Milwaukee Electrical Tool              product--are absent, the rule should not
Corp., 13 F.3d 76 (1994). Schmid found that         apply).
under both federal and Pennsylvania law, the
spoliation of evidence doctrine is a basis for       [5][6] We conclude that no controlling
sanctioning a litigant for failing to preserve      Pennsylvania authority mandates summary
the product at issue. This sanction may range       judgment whenever the plaintiff fails to
from a mild "spoliation inference" (a jury          preserve the defective product. In fact, a
instruction that "the destroyed evidence would      recent panel of our court has rejected this
have been unfavorable to the position of the        "broad conclusion" as "untenable." O'Donnell
offending party"), to harsher sanctions. Id. at     v. Big Yank, Inc., 696 A.2d 846, 848
78. While Schmid is not factually on point          (Pa.Super.1997) (summary judgment not
with the instant case, it does teach that           warranted for plaintiff's failure to preserve
  the key considerations in determining             defective pants when they caught fire while
  whether a [drastic] sanction is appropriate       plaintiff was wearing them). We understand
  should be: (1) the degree of fault of the         that O'Donnell is distinguishable from this
  party who altered or destroyed the evidence;      case because the plaintiff in O'Donnell alleged
   (2) the degree of prejudice suffered by the      a design defect, and could offer proof of the
  opposing party; and (3) whether there is a        defect by examining other, identical products.
  lesser sanction that will avoid substantial        Nevertheless, we agree that "in cases where
  unfairness to the opposing party and, where       the plaintiff is able to establish a defect even if
  the offending party is seriously at fault, will   the specific product is lost or destroyed, the
  serve to deter such conduct by others in the      case must be allowed to proceed." Id. at
  future.                                           848-49. As set forth below, we find that
 Id. at 78-79, citations omitted. Schmid            under the facts presented here, Dansak can
plainly instructs that the plaintiff's degree of    establish a defect through circumstantial
fault is indeed a major component of whether        evidence even though the product has been
severe sanctions such as dismissal are              destroyed.
appropriate in a given case. This conclusion
is further supported by the recent panel            ***
decision of this court in Long v. Yingling, 700
A.2d 508 (Pa.Super.1997), in which it was            [7][8][9][10][11][12][13] We now address
held that the spoliation doctrine does not *495     Cameron's contention that Dansak cannot
apply where the defendants or agents thereof        establish the elements of a products liability
maintained exclusive possession of the              action under the malfunction theory of
allegedly      defective     product,     which     products liability.
disappeared at some point in the litigation.
  When advancing a theory of strict product           the defect was the proximate cause of his or
  liability, a plaintiff has the burden of            her injuries and that the defect existed at the
  showing that the product was defective, that        time the product left the manufacturer. In


                                   39 APPENDIX A
 certain cases of alleged manufacturing
 defects,[ [FN8]] however, the plaintiff need        Although proof of a specific defect is not
 not present direct evidence of the defect.          essential to establish liability under this
 When proceeding on a malfunction *496               theory, the plaintiff cannot depend upon
 theory, the plaintiff may 'present a                conjecture or guesswork. 'The mere fact that
 case-in-chief evidencing the occurrence of a        an accident happens, even in this
 malfunction and eliminating abnormal use            enlightened age, does not take the injured
 or reasonable, secondary causes for the             plaintiff to the jury.' [Woodin v. J.C.
 malfunction.' O'Neill v. Checker Motors             Penney Co., Inc., 427 Pa.Super. 488, 492,
 Corp., 389 Pa.Super. 430, 435, 567 A.2d             629 A.2d 974, citing ] Stein v. General
 680, 682 (1989).... From this circumstantial        Motors Corp., 58 D. & C.2d 193, 203
 evidence, a jury may be permitted to infer          (Bucks 1972), aff'd, 222 Pa.Super. 751, 295
 that the product was defective at the time of       A.2d 111 (1972)....
 sale....                                            The malfunction theory, thus, does not
                                                     relieve the burden of establishing a defect.
        FN8. When a plaintiff seeks to prove         However, '[t]he malfunction itself is
        that an entire line of products was          circumstantial evidence of a defective
        designed improperly, the plaintiff need      condition.' D'Antona v. Hampton Grinding
        not resort to the malfunction theory.        Wheel Co., Inc., 225 Pa.Super. 120, 124,
        Rather, he or she may prove the defect       310 A.2d 307, 309 (1973)....
        by presenting expert testimony based        Ducko v. Chrysler Motors Corp., 433
        on an examination of similar articles      Pa.Super. 47, 49-53, 639 A.2d 1204, 1205-06
        to the one that injured the plaintiff.     (1994) (other citations omitted).
        See, e.g., O'Donnell, supra at 849.
 [14][15] Thus, in a products liability case the   circumstantial evidence includes (1) the
plaintiff seeks to prove, through whatever         malfunction of the product; (2) expert
means he or she has available under the            testimony as to a variety of possible causes;
circumstances of the case, that a product was      (3) the timing of the malfunction in relation to
defective when it left the hands of the            when the plaintiff first obtained the product;
manufacturer. In some cases, the plaintiff may     (4) similar accidents involving the same
be able to prove that the product suffered from    product; (5) elimination of other possible
a specific defect by producing expert              causes of the accident; and (6) proof tending
testimony to explain to the jury precisely how     to establish that the accident does not occur
the product was defective and how the defect       absent a manufacturing defect. See Litvin &
must have arisen from the manufacturer or          McHugh, Pennsylvania Torts: Law and
seller. In cases of a manufacturing defect,        Advocacy (1996) ' 9.33. However the
such expert testimony is certainly desirable       plaintiff chooses to present his or her case, the
from the plaintiff's perspective, but it is not    goal is the same: to prove that the product
essential. The plaintiff, even without expert      was not only defective, but that such a defect
testimony articulating the specific defect, may    existed when it left the hands of the seller.
be able to convince a jury that the product was
defective when it left the seller's hands by        [16] Conversely, expert testimony is not
producing circumstantial evidence. Such            essential to the defendant's defense. Rather,


                                  40 APPENDIX A
the defendant will present whatever available        was in a defective condition. Rogers, supra at
evidence is appropriate to the circumstances         181-83, 565 A.2d at 754 (1989); Ducko,
of the case in order to convince the jury that       supra at 51-53, 639 A.2d at 1206; Agostino v.
the plaintiff has not carried his or her burden      Rockwell Mfg. Co., 236 Pa.Super. 434,
of proving, by a preponderance of the                443-45, 345 A.2d 735, 740 (1975).
evidence, that the defect was the responsibility
of the defendant.                                     [18][19] Next, construing all facts and
                                                     inferences in Dansak's favor, we find that she
 We must bear in mind that Dansak's case was         can present a case-in-chief free of abnormal
dismissed on summary judgment, not after a           use or reasonable, secondary causes of the
trial. We thus examine the interplay between         accident. She testified that she is the only
our summary judgment standards and the               person who unpacks soda at CoGo's, and that
malfunction theory of products liability.            the bottle at issue was stored within a six-pack
                                                     container inside a cardboard box that
 Cameron and Owens have the burden of                remained unopened in the cooler area until she
establishing that no genuine issue of material       herself opened the box. Dansak's testimony
fact exists and that they are entitled to            does not reveal that the six-pack was ever
judgment as a matter of law. They seek to            actually exposed to handling (or mishandling)
carry this burden by establishing that Dansak        by any other individual.                   Dansak's
cannot present a case-in-chief evidencing the        case-in-chief (that she opened the box,
occurrence of a malfunction and eliminating          removed a broken bottle, and was injured
abnormal use or reasonable, secondary causes         thereon) does not, in and of itself, reveal
for the malfunction. We address each of these        abnormal use or secondary causes of the
contentions in turn.                                 accident. As stated in Schlier v. Milwaukee
                                                     Electrical Tool Corp., 835 F.Supp. 839
 [17] First, accepting as true all facts presented   (E.D.Pa.1993):
by the non-moving party (Dansak) and                   [I]n plaintiff's case-in-chief, plaintiff [need
granting her the benefit of all inferences             not] negate every theoretically conceivable
therefrom, a jury could find that the bottle at        secondary cause for the malfunction. Rather
issue malfunctioned. As noted above, Dansak            ... the plaintiff fails to establish a prima facie
testified that she removed a six-pack of glass         case only if the plaintiff does not negate
bottles from a cardboard box of six-packs              evidence of other reasonable, secondary
supplied by Cameron. She opened the carton,            causes or abnormal use that is actually
removed a six-pack, and was cut by a broken            introduced during plaintiff's case-in-chief.
bottle in the six-pack. Because the bottle was         In other words ... if, based upon his own
obviously broken at some point *497 before it          proof, more than one cause could account
was removed from Cameron's box of                      for the accident.
six-packs, the jury could find that the bottle
 Id. at 841 (emphasis added) (compare:               malfunctioned, his testimony also revealed
summary judgment granted to defendants               that he used the saw improperly).
where plaintiff injured himself using a circular
saw; while plaintiff's testimony was sufficient       [20] Cameron argues that Dansak is unable to
to establish that the product may have               eliminate reasonable secondary causes


                                   41 APPENDIX A
because her deposition testimony reveals that      Defendant manufacturer introduced evidence
the bottle could have been broken at some          at trial that plaintiff's injuries were caused by a
time after it left the control of Cameron.         third party's medical malpractice in applying
Specifically, the box containing the six-packs     the splint, not by a defect in the splint itself.
was stored in the cooler area for an               After the jury held against the manufacturer
undetermined period of time, and that the          on a malfunction theory, this court reversed.
cooler area was accessible to other persons        This court reasoned that since the
besides Dansak during that time. According         manufacturer had presented evidence of
to Cameron, "any one of these individuals          medical malpractice sufficient to offer this
could have mishandled the subject bottle,          alternate cause to the jury, plaintiff failed to
broken it while moving it or dropped               negate alternate causes of the accident. The
something on it, which would all constitute        supreme court reversed: "We cannot agree
abnormal use of the product and/or a               with this circular logic as it essentially
reasonable secondary cause of the break or         mandates the grant of a directed verdict should
fracture of the bottle." (Cameron's brief at       the defendant manufacturer produce any
24.) However, we find that the conflict            evidence of reasonable, secondary causation."
between Dansak's testimony and Cameron's            Id. at 183, 565 A.2d at 754. The supreme
alternative theories must be resolved at trial,    court found that the plaintiff presented a
not on summary judgment.                           case-in-chief free of secondary causes: that is,
                                                   plaintiff presented evidence that the product
 [21] Summary judgment is not warranted            itself caused injury. The defendant produced
simply because the defendant hypothesizes (or      evidence of malpractice as a reasonable
even presents evidence of) reasonable              secondary cause. The supreme court held that
secondary causes.         This principle was       given such conflicting evidence, "the jury was
enunciated in Rogers, supra. In that case,         free to adopt [plaintiff's] scenario," and a
plaintiff sued the manufacturer of a plaster       directed verdict was inappropriate. Id. at 184,
splint under a malfunction theory. The splint      565 A.2d at 755.
caused third-degree burns to plaintiff's legs.
 Later superior court cases have followed          Resources, Inc., 405 Pa.Super. 603, 592 A.2d
Rogers in recognizing that while plaintiff may     1377, 1379 (1991) (trial court erred in
prevail at trial only if she eliminates *498       refusing to instruct jury on malfunction
other reasonable causes of the accident that       theory; plaintiff testified that chair collapsed
are fairly raised by the evidence, it is           while sitting in it normally, while defendant's
inappropriate to usurp the function of the jury    experts found no defect and opined that
and rule as a matter of law for defendants at      abnormal use must have caused accident);
the first sign of an alternate theory of           Troy, supra at 46-50, 581 A.2d at 668-69 (trial
causation. See Ducko, supra at 49-51, 53-54,       court erred by concluding, at summary
639 A.2d at 1205, 1207 (reversing summary          judgment stage, that despite extensive
judgment when plaintiff's testimony suggested      discovery, plaintiffs had not been able to
that auto malfunctioned while defendant's          demonstrate a defect in the appliances "with
expert testimony indicated that operator error     any degree of reasonable certainty"; trial court
caused crash, because jury could credit            also impermissibly credited defendant's
plaintiff's version of events); Brill v. Systems   experts' alternate theories of causation); cf.


                                  42 APPENDIX A
Surowiec v. General Motors Corp., 448               theories of causation and decide as a matter of
Pa.Super. 510, 517-19, 672 A.2d 333, 337-38         law that Dansak cannot prevail.
(1996) (trial court should have allowed
evidence of plaintiff's intoxication as a            [22] We also reject Cameron's contention that
reasonable alternate cause of auto accident;        Dansak has failed to establish that the bottle
with this evidence, new trial is justified          was supplied by Cameron.              Dansak's
because 'two reasonable minds could differ as       testimony to this effect is sufficient, even if
to the cause of the accident'); Long, supra at      she has been equivocal as to the type of
515 (plaintiff's motion for summary judgment        Cameron product at issue.           See, e.g.,
properly denied where evidence conflicted as        O'Donnell, supra at 849; compare DeWeese,
to whether auto accident was caused by              supra at 50-52, 628 A.2d at 423 (1993)
malfunction or by operator error); but see          (summary judgment in favor of defendant is
Roselli v. General Electric Co., 410 Pa.Super.      proper when plaintiff produced no evidence
223, 228-32, 599 A.2d 685, 688-89 (1991)            whatsoever that defendant manufactured the
(summary judgment in favor of manufacturer          allegedly defective carafe).
of glass carafe held appropriate where coffee
maker was scorched, charred, and used                Finally, we turn to Cameron's own appeal
frequently, and where plaintiffs had disposed       with respect to Owens. Cameron was granted
of the product and could not account for the        summary judgment on February 14, 1995. On
product for several years; plaitiffs "failed to     June 13, 1995, Owens was granted summary
eliminate the realistic possibility the glass       judgment on identical grounds as Cameron.
carafe broke because of its use and handling        In light of Dansak's appeal, Cameron filed its
prior to the date of the accident."). See also      own appeal against Owens "for the purpose of
Litvin and McHugh, supra at 341 ("So long as        preserving its cross-claims against Owens."
the plaintiff's evidence of a defect, and lack of   (Cameron's brief at No. 1285 Pittsburgh 1995,
reasonable secondary causes, is sufficient to       at 11.) In short, Cameron argues that if we
withstand a motion for compulsory non-suit, it      reverse the grant of summary judgment to
is for the jury to decide which evidence to         Cameron, we must also reverse the grant of
accept."). In light of this precedent and           summary judgment to Owens because "both
authority, we hold that it is inappropriate to      Cameron and Owens stand in an identical
compare plaintiff's case-in-chief (that she was     position with regard to the issues being raised
injured after removing a broken, defective          by the Plaintiff." Id. We agree and reverse the
bottle from a crate of bottles supplied by          grant of summary judgment to Owens as well.
Cameron) to Cameron's proposed alternate
 Owens argues that summary judgment in its
favor is still proper even if we reverse with        We do not agree that Cameron made such a
respect to Cameron. Citing Cameron's                binding judicial admission. Rather, Cameron
Answer and New Matter, Owens argues that            *499 pleaded in the alternative that it did not
Cameron judicially admitted that the product        supply a defective product to CoGo's, if it is
was non-defective when it left Cameron's            ultimately determined that Cameron is liable
possession--thus, the product must have been        to Dansak, then Owens is solely, jointly, or
non-defective when it left the possession of        otherwise liable as the supplier of the product.
Owens, Cameron's supplier.                           (Cameron's Complaint to Join Additional


                                   43 APPENDIX A
Defendants, & 9, R.R. 25a.) This common
practice of pleading in the alternative is
specifically authorized by Pa. R.C.P. 1020(c),
42 C.S.A. ("causes of action and defenses may
be pleaded in the alternative"), and Pa. R.C.P.
2252, Pa.C.S.A. (allowing original defendant
to allege that a third-party defendant is solely
or jointly liable to plaintiff).

 The order of the court granting summary
judgment to Cameron at No. 1372 Pittsburgh
1995 is reversed.

 The order of the court granting summary
judgment to Owens at No. 1285 Pittsburgh
1995 is reversed.

Jurisdiction is relinquished.

BECK, J., concurs in the result.




                                   44 APPENDIX A
45 APPENDIX A

								
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