The URL can be used to link to this page

Home My WebLink About2006-710 Civil WHIRLPOOL CORPORATION, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : PENSKE LOGISTICS, INC., : PIZZUTI EQUITIES, INC., : EXXCEL CONTRACT MANAGEMENT, : INC., : DEFENDANTS : : V. : : FABCON, LLC, t/d/b/a : FABCON, INC., : ADDITIONAL DEFENDANT : : V. : : WESTFIELD STEEL, INC., : ADDITIONAL DEFENDANT : 06-0710 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF DEFENDANT PIZZUTI EQUITIES, INC. TO PLAINTIFF’S COMPLAINT BEFORE BAYLEY, J. AND EBERT, J OPINION AND ORDER OF COURT Bayley, J., December 4, 2009:-- Plaintiff, Whirlpool Corporation, filed a complaint against defendant, Pizzuti Equities, Inc., et al. Whirlpool avers that on November 20, 1997, it entered into a written agreement with Pizzuti for the construction and lease of a warehouse in Carlisle, Pennsylvania. Thereafter, Whirlpool entered into another written agreement with Pizzuti to purchase the building. Whirlpool avers that Pizzuti designed, 06-0710 CIVIL TERM constructed, assembled and sold the building and components in a defective and unreasonably dangerous condition. On February 6, 2004, a portion of the roof of the warehouse collapsed causing damage to Whirlpool’s property. The collapse was caused by flaws in the design, construction and materials used in the building combined with the accumulation of ice and snow on the roof. Whirlpool alleges causes of action against Pizzuti for strict products liability, negligence, breach of contract, negligent representation, breach of expressed warranty, and breach of implied warranties. Pizzuti filed preliminary objections to the complaint. The issues were briefed and argued on November 25, 2009. Pizzuti demurrers to the cause of action in Count I for strict products liability. In Hadar v. AVCO Corporation, 886 A.2d 225 (Pa. Super. 2005), the Superior Court of Pennsylvania stated: Well-settled law in this Commonwealth provides that a manufacturer or seller will be held “strictly liable if a defect in its product causes injuries to a user. A product is defective if it is unsafe for its intended use.” Burch v. Sears, Roebuck and Company, 320 Pa.Super. 444, 467 A.2d 615, 618 (1983) (citations omitted). To ultimately prevail in a products liability case, a plaintiff must prove that (1) the product is defective, (2) the defect existed when it left the defendant’s hands, and (3) the defect caused the plaintiff’s injury. Schindler v. Sofamor, Inc., 774 A.2d 765, 771 (Pa.Super. 2001) (citation omitted); see also RESTATEMENT (SECOND) OF TORTS. § 402A (1965). Cox v. Shaffer, Pizzuti relies on 223 Pa. Super. 429 (1973), where the plaintiff died from asphyxiation when overcome with lethal fumes after entering a silo through a hatch in the top. The silo was constructed by Donald Shaffer, d/b/a Shaffer -2- 06-0710 CIVIL TERM Construction Co. Suit was instituted by the administratrix of Cox’s estate against Shaffer on a cause of action for strict liability under Section 402A. The trial court granted a demurrer. The Superior Court of Pennsylvania affirmed, stating: [a]s a study of the language of Section 402A reveals, that section applies A silo only to “One who sells any product in a defective condition.” constructed in place on the employer’s land is not a sale of a “product.” We find the section inapplicable by virtue of its very clear language and find no need to resort to any extended reasoning to support a building so constructed on the site is not a our determination that product within the intent and meaning of Section 402A. (Emphasis added.) Lupinski v. Heritage Homes, Ltd., In 369 Pa. Super. 488 (1988), homeowners brought an action against a builder to recover damages caused by the use of insect- infected lumber. The Superior Court concluded that economic damage to the marketability of plaintiffs’ house was not recoverable under Section 402A. The Court stated in a footnote: We are mindful that there exists case law in Pennsylvania which that a building is not a “product” for § 402A purposes. suggests See Cox v. Shaffer, 223 Pa.Super. 429, 302 A.2d 456 (1973) (a silo found not to be a product within the intent and meaning of § 402A). However, we need not decide that question as the Lupinskis have failed to present evidence of damages recoverable under any circumstances within the realm of § 402A actions. (Emphasis added.) Freezer Storage, Inc. v. Armstrong Cork Co., In 476 Pa. 270 (1978), the issue was the constitutionality of a statute limiting the liability of persons performing construction improvements to property. In commenting on the rationale behind adjusting time periods of liability for acts performed according to the substantive scope -3- 06-0710 CIVIL TERM of the liability involved, the Supreme Court of Pennsylvania stated: The scope of liability of the class of builders differs significantly from that of the class of owners. First, the class of persons to whom builders may be liable is larger than the class to which owners may be liable. Landowners may be liable to others who come onto their land. Builders, however, may be liable both to the landowners and to others who use the Second, a builder may be liable for construction defects under land. various legal theories -contract, warranty, negligence and perhaps strict liability in tort. (Emphasis added.) Schmidt v. James Lewis Corp., Sports In 33 Ches. Co. Rep. 409 (1985), and Management Group, Inc. v. Allensville Planing Mill, Inc., 16 Pa. D. & C.3d 760 Freezer Storage (Mifflin County 1980), trial courts, citing what they called the dictum in Inc. v. Armstrong Cork Co., supra, permitted causes of action under Section 402A to proceed on the basis that a building may be considered a product for strict liability Bednarski v. Hideout Homes & Realty, Inc., purposes. In 711 F.Supp. 823 (M.D. Pa. 1989), citing all of the aforesaid cases, the District Court stated: While these authorities are far from conclusive, the court believes they indicate that, if faced with the issue, the Pennsylvania Supreme Court would hold that builders may be held strictly liable under section 402A. The policies behind section 402A are clearly consistent with those behind the Pennsylvania courts recent expansion of builder liability in the area of implied warranties. Whirlpool argues in its brief: The plethora of cases decided after Cox shows that a strict products liability claim can be asserted against a contractor or builder of a building. These cases unquestionably support a strict liability claim, but at a minimum are sufficient to create a question as to the status of the law. Accordingly, Pizzuti’s objection cannot be sustained because Whirlpool’s Complaint does not clearly and without doubt fail to state a claim for which relief may be granted. -4- 06-0710 CIVIL TERM Cox v. Shaffer, supra, Lupinskiv. The holding in contrary to the statement in Heritage Homes, Ltd., supra, was not a suggestion. It is unequivocal: “a building so constructed on the site is not a product within the intent and meaning of Section 402A.” Freezer Storage, Inc. v. Armstrong Cork Co., supra, The comment in that a builder may perhaps be liable for construction defects in strict liability in tort, is at best an 1 aside. This trial court is bound by the authority of an intermediate appellate court. Unlike a federal court, it is not for this court, where such authority exists, to predict whether the Supreme Court of Pennsylvania would hold that builders may be held strictly liable under Section 402A. As set forth by then Circuit Judge Learned Hand in a Spector Motor Service, Inc. v. Walsh, dissenting opinion in 139 F.2d 809 (2d Cir. 1944): “Nor is it desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.” A demurrer will be granted to plaintiff’s cause of action for strict products liability. Pizzuti also preliminarily objects to plaintiff’s complaint seeking to strike paragraph 47(i) in Count III of the cause of action for negligence. After setting forth specific acts of alleged negligence in paragraphs 47(a) through (h), plaintiff pleads in subparagraph (i): “such other acts of negligence as will be determined through Connor v. Allegheny General discovery.” We will strike this paragraph based on Hospital, 501 Pa. 306 (1983). __________ 1 To say that something is “perhaps” true hardly constitutes dictum which is a statement -5- 06-0710 CIVIL TERM For the foregoing reasons, the following order is entered. of opinion or belief. -6- 06-0710 CIVIL TERM ORDER OF COURT AND NOW, this day of December, 2009, (1) The preliminary objection of defendant Pizzuti Equities, Inc., to plaintiff’s cause of IS GRANTED. IS action in Count I of its complaint based on strict products liability, Count I, DISMISSED. IS STRICKEN. (2) Paragraph 47(i) in Count III, By the Court, Edgar B. Bayley, J. Timothy J. Nieman, Esquire Kelly H. Decker, Esquire th One South Market Square, 12 Floor PO Box 1146 Harrisburg, PA 17108-1146 For Plaintiff William D. Kennedy, Esquire One Westlakes 1235 Westlakes Drive, Suite 310 Berwyn, PA 19312-2416 For Pizzuti Equities, Inc. Robert Douglas Billet, Esquire 2000 Market Street, Suite 2803 Philadelphia, PA 19103-3201 For Penske Logistics, Inc. (Penske Logistics, LLC) -7- 06-0710 CIVIL TERM Kate J. Fagan, Esquire Ian C. Walchesky, Esquire Suite 1624 Frick Building 437 Grant Street Pittsburgh, PA 15219-6101 For Exxcel Contract Management, Inc. Gregory S. Hirtzel, Esquire Julie S. Mellett, Esquire 1857 William Penn Way PO Box 10248 Lancaster, PA 17605-0248 For Fabcon, LLC t/d/b/a Fabcon, Inc. L. John Argento, Esquire 4750 U.S. Steel Tower 600 Grant Street Pittsburgh, PA 15219 For Westfield Steel, Inc. :sal -8-