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HomeMy WebLinkAbout2004-3001 Civil VICKIE D. BORGOLlNI AND, HIRAM BORGOLlNI, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM, DEFENDANTS 04-3001 CIVIL TERM IN RE: MOTION OF PLAINTIFFS FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANTS SHEETZ. INC. AND KEYSTONE PETROLEUM BEFORE BAYLEY. J. AND GUIDO. J. OPINION AND ORDER OF COURT Bayley, J., November 22,2005:-- Plaintiffs, Vickie D. Borgolini and Hiram Borgolini, filed an amended complaint against defendants Sheetz, Inc., OPW Engineered Systems, OPW Fueling Components, Richards Industries Valve Group and Keystone Petroleum. Vickie Borgolini avers that on June 27, 2002, she stopped her vehicle at a gas station operated by Sheetz, Inc., in Cumberland County. She alleges that she "was in the process of fueling her vehicle when suddenly and without warning, the nozzle of the gas pump malfunctioned and the nozzle while still in her hand burst from the car with fuel spouting from it causing [her injury]." She alleges that, "At all times hereinafter mentioned Defendants knew, should have known and in the exercise of due care could 04-3001 CIVIL TERM have known that pump no. 5 was malfunctioning or defective." OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group manufactured parts of pump No.5. Keystone Petroleum "sold andlor served the gas pump and pump nozzle #5 at the Sheetz gas station." Plaintiffs plead counts against all defendants for negligence in, inter alia, failing to provide safe equipment with adequate warnings as to proper use; for strict liability based, inter alia, on a defective condition in the equipment without adequate warnings; and for breach of warranty based, inter alia, on equipment that was not "merchantable, fit for use, and suitable and fit for particular purpose." Plaintiffs filed a motion for partial summary judgment on liability against Sheetz and Keystone which was briefed and argued on August 24, 2005. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment. A court: . . . must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non- moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93,101-102,674 A.2d 1038,1042 (1996). The issue as stated by plaintiffs in their motion for summary judgment is, "Whether the failure of Defendants Sheetz and Keystone Petroleum to preserve the -2- 04-3001 CIVIL TERM dispenser unit, hoses, and nozzle after receiving notice of the claim against them was the result of negligence [which] severely prejudiced the Plaintiffs' case, and warrants a sanction of summary judgment on the issue of liability?" Their brief sets forth facts that they contend are in the record and support their motion: On July 10, 2002, Plaintiffs' counsel informed Defendants Sheetz and Keystone Petroleum that they were representing the Plaintiffs and put them on notice of a possible claim against them involving the aforementioned injuries to Plaintiff Vickie D. Borgolini. Approximately two weeks after receiving this notice, Defendant Keystone Petroleum replaced the dispenser unit at pump number five at store 195. Shortly thereafter, Defendant Sheetz replaced the nozzle and hoses on pump number five. In both instances, the evidence was discarded rather than being preserved for inspection by the Plaintiffs. An employee of Sheetz has testified that the nozzle was disposed of in the same manner as any other old equipment that has been replaced. No examination of the nozzle was made by either Defendant, the Plaintiffs, or a third party. In its brief, Sheetz, Inc., sets forth facts that it contends are in the record and show the following: According to the Plaintiff's deposition, the incident occurred as she was attempting to fuel her automobile at Pump #5. She activated the pump mechanism, inserted the nozzle in the tank and began to dispense gasoline. She was not using the automatic triggering mechanism on the pump, but instead, was depressing the trigger with her hand. She claims that in the process of doing so, the nozzle burst out of her gas tank and sprayed her in the face and upper torso. Approximately one month later, on July 24, 2002, the dispenser for Pump #5 was struck by a tractor trailer and the dispenser had to be replaced. (Hyle Deposition Exhibit 1) On July 26, 2002, Keystone Petroleum replaced the dispenser with a used unit. (Weikert 17-18) Keystone representative, Christopher Weikert, was deposed May 10, 2005. Mr. Weikert was not personally involved in the work performed by Keystone on July 26, 2002, but said from looking at the invoice, he believed the existing hoses and nozzles were put on the replacement unit because they were not damaged. -3- 04-3001 CIVIL TERM Sheetz employee, Jason Hyle, was also questioned about the replacement of the dispenser at Pump #5. In his deposition he explained that he was the one who physically replaced the nozzles on the used unit that Keystone had installed. Mr. Hyle said that the nozzles on the used dispenser were all black in color and that Hyle replaced those nozzles with black, blue and red ones so that they would match the other dispensers at the convenience store. In response to a specific question from Plaintiffs' counsel in regard to whether Keystone put the existing hoses and nozzles on the replacement dispenser, Mr. Hyle's response was "I don't remember them doing that." Prior to the replacement of the dispenser on July 26, 2002, Pump #5 had been in continuous operation since the incident reported by Mrs. Borgolini. (Kristina Smith Affidavit paragraph 6) In the course of discovery, Sheetz produced maintenance records for one year after the incident to show that there had been no subsequent reports similar to those Mrs. Borgolini claimed. In the four weeks between Mrs. Borgolini's incident and when the dispenser was replaced, pump 5 was in continuous use without any similar report of problems. (Kristina Smith Affidavit paragraph 5) Moreover, immediately after the incident reported by Mrs. Borgolini, the pump was inspected by Sheetz employee, Kristina Smith, who found the nozzle and dispenser to be in proper working order. (Kristina Smith Affidavit paragraph 5) Based upon this evaluation and the contemporaneous report from Mrs. Borgolini that she was adjusting the positioning of the nozzle at the time of the incident ("The woman put the pump in her car and did not have it in right [went] to fix it and gas [went every] place. . . ."), Sheetz concluded that customer error was the cause of the incident and the pump was not taken from service. (Kristina Smith Affidavit paragraph 5; Sheetz incident Report) Approximately two weeks after this incident, Sheetz did receive a notice of claim letter from a paralegal indicating that Mrs. Borgolini had been injured by a malfunctioning Pump #6 (Second Exhibit attached to Plaintiffs' Motion for Partial Summary Judgment) the letter was misdated (2001 instead of 2002), identified the wrong pump (#6 instead of #5), made no request for preservation or inspection of the pump, dispenser or any component part and identified the nature of the claim as negligence and not strict products liability. Plaintiffs' counsel did not ask to actually see the dispenser or any component part until after litigation had been commenced in mid-2004. (Footnote omitted.) The letter dated July 10, 2001, sent by the paralegal to Sheetz, with a copy to -4- 04-3001 CIVIL TERM Keystone, set forth: Be advised that our office represents Vickie Borgolini with regard to injuries she sustained as a result of your negligence. On the above- mentioned date our client was fueling her car when the hose she was using sprayed her with gasoline. She was saturated with gasoline and suffered sever injuries to her eyes. The cause was an improperly functioning gas pump No.6. Also, it was brought to our attention that on 07/01/02 a repair was conducted on pump No.6 by Keystone Petroleum Co. I ask that you report this accident to your insurance company as soon as possible so that I may deal directly with them. If you are uninsured, please advise this office immediately. We understand you have videotape of the incident and would ask that the tape be preserved. In a reply brief, plaintiffs set forth that there are facts in the record to show that pumps 5 and 6 involve a dispenser unit shared by each other, and is the same dispenser unit that was discarded on July 26, 2002. They cite a summary of service and repairs of Sheetz that shows that one year prior to the accident, the nozzle on pump 5, 87 octane, had been replaced because it would not shut off automatically. The calibration of the pumps was questioned by customers on two occasions. All pumps were inoperable on four occasions. The 87 octane dispenser on pump 5 was not working properly a few weeks after June 27,2002. In Schroeder v. Commonwealth of Pennsylvania, Department of Transportation, 710 A.2d 23 (Pa. 1998), the Supreme Court of Pennsylvania stated that the "case presents the Court's first opportunity to address whether product liability defendants and a non-product liability defendant are entitled to summary judgment when the plaintiff has allegedly failed to preserve a defectively-designed product." To -5- 04-3001 CIVIL TERM resolve that issue, the Court adopted the three-part test set forth in Schmid v. Milwaukee Electric Tool Corporation, 13 F.3d 76 (3rd Cir. 1994). In that case the Court of Appeals stated that in deciding the proper penalty for the spoliation of evidence, a court must examine: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future. In Schroeder, Navistar International Transportation designed and manufactured the cab and the chassis of a truck that it sold to Sheetz Truck Center. Gary and Kelly Schroeder bought the truck from Sheetz. Gary Schroeder was driving it on a road when he lost control, crossed into another lane, struck an embankment and turned over. A fire ignited and Schroeder was killed. The truck's remains were taken to a towing facility. Margala & Sons Salvage purchased the remains through an insurance adjuster. An attorney for Schroeder asked Margala not to destroy the truck's cab until arrangements could be made to examine it. Margala agreed, but later sold some of the truck's parts. Schroeder instituted suit against Navistar, Sheetz Truck Center, and Penn DOT. The claim against Penn DOT alleged the creation of dangerous road conditions and failure to warn. Negligence, strict liability and breach of warranty were alleged against Navistar and Sheetz for manufacturing and selling a truck that was not crashworthy. All defendants filed motions for summary judgment alleging that Schroeder had failed to preserve the truck for litigation purposes. The motions were -6- 04-3001 CIVIL TERM granted. The Supreme Court of Pennsylvania reversed the Commonwealth Court's affirmance of the summary judgments. The trial court found that Schroeder was at fault for signing over the truck's title to an insurance company before filing suit. The Supreme Court noted that, nonetheless, Schroeder's counsel had asked Margala & Sons to preserve the truck before the title was transferred. The Court stated: Although Schroeder's action ultimately led to the loss of the truck, summary judgment motions do not support that the transfer was negligent or in bad faith. Given the request for preservation before the transfer and the conflicting evidence as to how long the preservation was to last, we cannot conclude. . . that Schroeder's fault entitles Appellees to summary judgment. The Court noted that because Schroeder's product liability claim was based on a design defect as to all trucks of its kind, the prejudice to the Appellees is not great. Since Appellees may test and inspect other trucks for the alleged design defect, a lesser sanction such as a jury instruction of the spoliation inference is warranted. Appellees may present evidence of spoliation at trial and court may instruct the jury that it may infer that the truck's parts would have been unfavorable to Schroeder. . . . the burden of proof remains on Schroeder to prove that a product defect caused her harm. The Court further noted that Penn DOT suffered even less prejudice from the loss of the product than the product liability defendants. PennDOT could defend the claims brought against it since they had to do with the condition of the roadway and not the truck itself. In Tenaglia v. Proctor & Gamble, Inc., 737 A.2d 306 (Pa. Super. 1999), a pharmacist at a Rite Aid drug store was injured opening a cardboard box containing packages of diapers manufactured by Proctor & Gamble. The box remained in the -7- 04-3001 CIVIL TERM store after the incident, and was examined by the pharmacist later in the day. She informed her store manager of the incident and her injury. She neither requested that the box be saved nor did she make any attempt to preserve it. She knew that it would be destroyed in a crusher in a basement on the premises, where it is believed that it was ultimately destroyed. Suit was instituted against Proctor & Gamble, alleging that the box contained excess glue that rendered it unusually difficult to open. Proctor & Gamble filed a motion for summary judgment, claiming that plaintiff was responsible for spoliation of the evidence. The judgment was granted. On appeal, the Superior Court of Pennsylvania stated that the test under Schroeder "is a balancing of all three prongs, based upon the facts of each specific case." The Court concluded that the plaintiff bore a degree of fault for the spoliation of the allegedly defective box that caused her injury. She had an opportunity to preserve it before it was destroyed. However, summary judgment is not mandatory simply because the plaintiff bore some degree of fault for the failure to preserve the box. The Court concluded that it was clear that defendant was severely prejudiced by the destruction of the evidence. She was alleging a manufacturing defect in a specific box rather than a design defect of an entire product line. When pursuing a cause of action for a manufacturing defect, the preservation of the product is even more crucial than when pursuing an action on the basis of a design defect. However, a plaintiff may be permitted even to proceed even in a manufacturing defect case without preservation of the product, depending upon the nature of the defect and the ability of defendant to -8- 04-3001 CIVIL TERM rebut the plaintiff's allegations without examination of the product. The Court concluded that the plaintiff could not proceed without preservation of the box because the nature of the defect precluded the ability of the defendant to rebut plaintiff's allegations without examining the product. The Court added: "Moreover, we question whether [plaintiff] can establish the manufacturing defect, the presence of too much glue, without the box." Finally, in affirming the grant of summary judgment, the Court concluded that no lesser sanction was available because Proctor & Gamble was unable to determine whether the box was, in fact, defective, or the cause of any defect, without an opportunity to inspect it. In the case sub judice, we believe that the same three prong analysis done in Schroeder and Tenaglia is required even though in those cases it was the defendants, not the plaintiffs, who sought summary judgment on a claim of spoliation of evidence. On the day of plaintiff's alleged injury, she immediately notified Sheetz of the accident and how it occurred, after which a Sheetz employee wrote an incident report. Thirteen days later, plaintiff's legal representative notified Sheetz as to how she was injured, and made an allegation that Sheetz was negligent. Although the paralegal misidentified the pump number, Sheetz was aware on the date of the incident of the actual pump number. While the paralegal copied Keystone with the letter, there was no allegation of negligence against Keystone. The paralegal did not ask Sheetz to retain the pump for examination. The circumstances under which the equipment was apparently discarded do not indicate an intentional effort to destroy evidence in bad -9- 04-3001 CIVIL TERM faith. Although some degree of fault may be attributed to Sheetz and Keystone for the destruction of the equipment because they knew that a claim regarding it was pending, some degree of fault is also attributable to plaintiff for not requesting its preservation. To the extent that plaintiff is proceeding on a design defect, other similar equipment can be examined for such a defect. As to the allegations which fall into a malfunction theory, in Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, (1989), the Pennsylvania Supreme Court specifically adopted the following malfunction theory of product liability: This theory encompasses nothing more than circumstantial evidence of product malfunction. . .. It permits a plaintiff to prove a 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. . .. It thereby relieves the plaintiff from demonstrating precisely the defect yet it permits the trier-of-fact to infer one existed from evidence of the malfunction, of the absence of abnormal use and of the absence of reasonable, secondary causes for the malfunction. It appears that plaintiff can proceed under this theory without the equipment. See Gordner v. Dynetics Corp., 862 F.Supp. 1303 (M.D. Pa. 1994). To the extent that her claim involves the lack of adequate warnings as to the proper use of the equipment, having the equipment that was discarded is not necessary. Accordingly, the case differs from Tenaglia. As in Schroeder, we conclude that any prejudice suffered by plaintiff as a result of the destruction of the equipment does not warrant the entry of summary judgment against either defendant. It will be up to the trial judge, based on the evidence of spoliation at trial, as to whether an instruction should be -10- 04-3001 CIVIL TERM given to the jury that they may infer that an inspection of the equipment would have been unfavorable to defendants. -11- 04-3001 CIVIL TERM ORDER OF COURT AND NOW, this day of November, 2005, the motion of plaintiffs for partial summary judgment, IS DENIED. By the Court, Edgar B. Bayley, J. Stephanie E. Chertok, Esquire Paul F. D'Emilio, Esquire For Plaintiffs Kevin C. McNamara, Esquire For Sheetz, Inc. Wade D. Manley, Esquire For Keystone Petroleum David F. White, Esquire Adam M. Sorce, Esquire For OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group :sal -12- VICKIE D. BORGOLlNI AND, HIRAM BORGOLlNI, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SHEETZ, INC., OPW ENGINEERED SYSTEMS, OPW FUELING COMPONENTS, RICHARDS INDUSTRIES VALVE GROUP AND KEYSTONE PETROLEUM, DEFENDANTS 04-3001 CIVIL TERM IN RE: MOTION OF PLAINTIFFS FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANTS SHEETZ. INC. AND KEYSTONE PETROLEUM BEFORE BAYLEY. J. AND GUIDO. J. ORDER OF COURT AND NOW, this day of November, 2005, the motion of plaintiffs for partial summary judgment, IS DENIED. By the Court, Edgar B. Bayley, J. Stephanie E. Chertok, Esquire Paul F. D'Emilio, Esquire For Plaintiffs Kevin C. McNamara, Esquire For Sheetz, Inc. 04-3001 CIVIL TERM Wade D. Manley, Esquire For Keystone Petroleum David F. White, Esquire Adam M. Sorce, Esquire For OPW Engineered Systems, OPW Fueling Components and Richards Industries Valve Group :sal -2-