PENNSYLVANIA

[A] Causes Of Action

Product liability lawsuits commonly include causes of action for strict liability, negligence and breach of warranty.

[B] Statutes Of Limitation

Causes of action for personal injuries[fn1] or property damage[fn2] must be brought within two years, whether brought in negligence or strict liability. A rather liberal "discovery" rule applies.[fn3] A cause of action seeking personal injuries or property damage resulting from a breach of warranty must be brought within four years of the date of sale.[fn4] A 12-year statute of repose is applicable to claims involving improvements to real property.[fn5] Generally, manufacturers are not covered by the statute of repose in actions for personal injuries.[fn6]

[fn1] 42 Pa. Cons. Stat. Ann. § 5524(2).

[fn2] Id. § 5524(3).

[fn3] Bohus v. Beloff, 950 F.2d 919 (3d Cir. 1991); Reeser v. Cabot Corp., 223 F. Supp.2d 644 (E.D. Pa. 2002); Murphy v. Diogens Saavedra, M.D., P.C., 560 Pa. 423, 746 A.2d 92 (2000); Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997); Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245 (1995); Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992).

[fn4] 42 Pa. Cons. Stat. Ann. § 5525; 13 Pa. Cons. Stat. Ann. § 2725; Floyd v. Brown & Williamson Tobacco Corp., 159 F. Supp.2d 823 (E.D. Pa. 2001); Cucchi v. Rollins Protective Services Co., 524 Pa. 514, 574 A.2d 565 (1990); Williams v. West Penn. Power Co., 502 Pa. 557, 467 A.2d 811 (1983); Patton v. Mack Trucks, Inc., 360 Pa. Super. 1, 519 A.2d 959 (1986).

[fn5] 42 Pa. Cons. Stat. Ann. § 5536; Freeman v. Paco Corp., No. 99-CV-5906, 2000 WL 709481 (E.D.Pa. June 1, 2000); Vargo v. Koppers Co., Inc., Engineering and Const. Div., 552 Pa. 371, 715 A.2d 423 (1998); Noll by Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81 (1994); McCormick v. Columbus Conveyor Co., 522 Pa. 520, 564 A.2d 907 (1989).

[fn6] Noll by Noll, 537 Pa. 274.

[C] Strict Liability

[C][1] The Standard

Pennsylvania has adopted Section 402A of the Restatement (Second) of Torts.[fn7] However, the determination of whether the product is "unreasonably dangerous" is removed from jury consideration. That element must be decided by the court prior to submitting the case to the jury.[fn8] Because most courts fail to act at all, in most cases the "unreasonably dangerous" requirement is effectively removed. Pennsylvania courts strive to an unusual degree to remove negligence concepts from the strict liability cause of action, which is not always possible.[fn9] In some circumstances the doctrine of res ipsa loquitur may allow a jury to infer the existence of a manufacturing defect or negligence where injury would not have otherwise ordinarily occurred.[fn10]

[fn7] Pavlik v. Lane Ltd./Tobacco Exporters Int., 135 F.3d 876 (3d Cir. 1998); Mazur v. Merck & Co., Inc., 964 F.2d 1348 (3d Cir. 1992); Conti v. Ford Motor Co., 743 F.2d 195 (3d Cir. 1984); Davis v. Berwind Corp., 547 Pa. 260, 690 A.2d 186 (1997); Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).

[fn8] Bowersfield v. Suzuki Motor Corp., 111 F. Supp.2d 612 (E.D.Pa. 2000); Fraust v. Swift and Co., 610 F. Supp. 711 (W.D.Pa. 1985); Davis v. R.H. Dwyer Indus., Inc., 548 F. Supp. 667 (E.D.Pa. 1982); Azzarello v. Black Brothers, Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978).

[fn9] Habecker v. Clark Equip. Co., 36 F.3d 278 (3d Cir. 1994); Skipworth v. Lead Indus., 547 Pa. 224, 690 A.2d 169 (1997); Lewis v. Coffing Hoist Div., 515 Pa. 334, 528 A.2d 590 (1987).

[fn10] Bearfield v. Hauch, 407 Pa. Super. 624, 595 A.2d 1320 (1991).

[C][2] Definition of Defect

The jury is instructed that the product is defective if it left the supplier's control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for its intended use.[fn11]

[fn11] Azzarello, 480 Pa. 547.

[C][3] Causation

It is the plaintiff's burden in any product liability case to demonstrate that the injuries sustained were substantially caused by the product's defect.[fn12]

[fn12] Parks v. Allied Signal, Inc., 113 F.3d 1327 (3d Cir. 1997); Blancha v. Raymark Indus., 972 F.2d 507 (3d Cir. 1992); Jacobini v. V&O Press Co., 527 Pa. 32, 588 A.2d 476 (1991); Sherk v. Daisy-Heddon, 498 Pa. 594, 450 A.2d 615 (1982).

[C][4] Contributory Negligence/Assumption of Risk

Contributory negligence is not a defense,[fn13] but assumption of risk is.[fn14] Evidence of contributory negligence probably is not admissible in strict liability cases, even as it relates to causation, unless the plaintiff's act initiated the accident.[fn15] The form of assumption of risk adopted is that the plaintiff knew and understood the specific danger and potential for serious injury and yet voluntarily chose to encounter it.[fn16] Where an employee is required to use a product furnished by his employer to perform his job, the defense of assumption of risk is unavailable.[fn17]

[fn13] Parks, 113 F.3d 1327; Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3d Cir. 1992); Davis, 548 F. Supp. 667.

[fn14] Wagner v. Firestone Tire & Rubber Co., 890 F.2d 652 (3d Cir. 1989); Lonon v. Pep Boys, Manny, Moe & Jack, 371 Pa. Super. 291, 538 A.2d 22 (1988).

[fn15] Dillinger, 959 F.2d 430; Kern v. Nissan Indus. Equipment Co., 801 F. Supp. 1438 (M.D.Pa. 1992); Clark v. Bil-Jax, Inc., 763 A.2d 920 (Pa. Super. 2000).

[fn16] Davis, 547 Pa. 260; Mackowick v. Westinghouse Elec. Corp., 525 Pa. 52, 575 A.2d 100 (1990); Frey v. Harley Davidson Motor Co., Inc., 734 A.2d 1 (Pa. Super. 1999) appeal denied, 561 Pa. 697, 751 A.2d 191 (2000); Mucowski v. Clark, 404 Pa. Super. 197, 590 A.2d 348 (1991); Staymates v. ITT Holub Indus., 364 Pa. Super. 37, 527 A.2d 140 (1987); Walasavage v. Marinelli, 334 Pa. Super. 396, 483 A.2d 509 (1984).

[fn17] Clark v. Bil-Jax, Inc., 763 A.2d 920 (Pa. Super. 2000); Jara v. Rex Works, 718 A.2d 788 (Pa. Super. 1998).

[C][5] Sale or Lease/Persons Liable

The plaintiff must allege a sale or other commercial transaction of the product by the defendant.[fn18]

Strict liability applies to any seller in the chain of a product's distribution.[fn19] However, the supplier must be in the business of supplying such products.[fn20] Under some circumstances, a distributor may obtain indemnity from the manufacturer.[fn21]

Generally, strict liability applies to lessors who are in the business of supplying products.[fn22] The occasional seller of a product may avoid liability under Section 402A of the Restatement (Second) of Torts.[fn23]

[fn18] Greenwood v. Busch Entertainment Corp., 101 F. Supp.2d 292 (E.D.Pa. 2000); Klein v. Council of Chem. Assocs., 587 F. Supp. 213 (E.D.Pa. 1984); Cafazzo v. Central Medical Health Services, Inc., 542 Pa. 526, 668 A.2d 521 (1994); Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977).

[fn19] Neal v. Carey Canadian Mines, Ltd., 548 F. Supp. 357 (E.D.Pa. 1982), aff'd sub nom. Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481 (3d Cir. 1985).

[fn20] Webb, 422 Pa. 424; Pennsylvania Natl. Mut. Ins. Co. v. Kaminski Lumber, 397 Pa. Super. 484, 580 A.2d 401 (1990); McKenna v. Art Pearl Works, Inc. 225 Pa. Super. 362, 310 A.2d 677 (1973).

[fn21] Walasavage, 334 Pa. Super. 396; Burch v. Sears, Roebuck & Co., 320 Pa. Super. 444, 467 A.2d 615 (1983).

[fn22] Francioni, 472 Pa. 362.

[fn23] Acevedo v. Start Plastics, Inc., 834 F. Supp. 808 (E.D.Pa. 1993); Jones v. SEPTA, 834 F. Supp. 766 (E.D.Pa. 1993).

[C][6] Inherently Dangerous Products

A supplier of products will not be held strictly liable simply because the product is inherently dangerous, unless it fails to give adequate warning of the danger.[fn24]

[fn24] Mazur, 964 F.2d 1348; Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d Cir. 1976); Hahn v. Richter, 543 Pa. 558, 673 A.2d 888 (1994); Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971); Restatement (Second) of Torts, § 402A, cmt. k (1965).

[C][7] Successor Liability

A successor corporation acquiring all or substantially all of the manufacturing assets of another corporation and continuing the same product line may be liable for injuries caused by products made by the predecessor corporation.[fn25] Lack of a remedy against the predecessor corporation is a prerequisite to an action against the successor.[fn26]

[fn25] Kradel v. Fox River Tractor Co., 308 F.3d 328 (3d Cir. 2002); Conway v. White Trucks, A Div. of White Motor Corp., 885 F.2d 90 (3d Cir. 1989); Keselyak v. Reach All, Inc., 443 Pa. Super. 71, 660 A.2d 1350 (1995); Dawejko v. Jorgensen Steel Co., 290 Pa. Super. 15, 434 A.2d 106 (1981).

[fn26] Kradel v. Fox River Tractor Co., 308 F.3d 328 (3d. Cir. 2002); Conway, 885 F.2d 90; LaFountain v. Webb Indus. Corp., 759 F. Supp. 236 (E.D. Pa. 1991), aff'd, 951 F.2d 544 (3d Cir. 1991); Keselyak, 443 Pa. Super. 71.

[C][8] Market Share Liability/Enterprise Liability

Market share liability and enterprise liability have been rejected in the Commonwealth of Pennsylvania.[fn27]

[fn27] Skipworth, 547 Pa. 224; Cummins v. Firestone Tire & Rubber Co., 344 Pa. Super. 9, 495 A.2d 963 (1985).

[C][9] Privity

No privity is required; plaintiffs may sue even though they did not buy the product from the manufacturer.[fn28]

[fn28] Mannsz v. MacWhyte, 155 F.2d 445 (3d Cir. 1946); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968); Moscatiello v. Pittsburgh Contractors, 407 Pa. Super. 378, 595 A.2d 1198 (1991).

[C][10] Failure to Warn

Whether a warning is adequate and whether a product is defective due to inadequate warnings are questions of law for the trial judge.[fn29] If the plaintiffs rely on a theory of failure to warn, they must prove that the absence of the warning was a cause of the loss.[fn30] If no adequate warning is provided, it can be presumed that the end user would have read and heeded an adequate warning.[fn31] In Pennsylvania, the corollary is sometimes followed, so if no warning or an inadequate warning is provided, it may be presumed that the end-user would have read and heeded an adequate warning had one been given by the manufacturer.[fn32] To rebut the presumption in Pennsylvania, the defendant should produce evidence that the plaintiff fully understood the risks, so that a warning would be futile because the plaintiff would already know, or that the plaintiff ignored an adequate warning given later.

[fn29] Mazur, 964 F.2d 1348; Mackowick, 525 Pa. 52; Dauphin Deposit Bank and Tr. Co. v. Toyota Motor Corp., 408 Pa. Super. 256, 596 A.2d 845 (1991).

[fn30] Philips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167 (1995); compare Pavlik, 135 F.3d 876 (there is rebuttable presumption that plaintiff would have heeded an adequate warning had one been provided); Coward v. Owens-Corning Fiberglass Corp., 729 A.2d 614 (Pa. Super. 1999) (same).

[fn31] Comment j to § 402A of the Restatement of Torts provides that "[w]here a warning is given the seller may reasonably assume that it will be read and heeded."

[fn32] Pavlik v. Lane Ltd/Tobacco Exporters Int'l, 135 F.3d 876 (3d Cir. 1998); Coward v. Owens-Corning Fiberglass Corp., 729 A.2d 614, 618, 621 (Pa. Super. 1999), appeal granted, 560 Pa. 705, 743 A.2d 920 (1999) (citing Coffman v. Keene Corp., 133 N.J. 581, 628 A.2d 710, 721 (1993) and Pavlik). But cf. Viguers v. Philip Morris USA, Inc., 2003 WL 22765570 (Pa. Super. Nov. 24, 2003 (refusing to apply heeding presumption outside employment/asbestos context, and, even if applicable, finding presumption rebutted as a matter of law where adequate warning given later was ignored).

[C][11] Post-Sale Duty to Warn and Remedial Measures

Under limited circumstances, a manufacturer may have a post-sale duty to warn, at least where a component manufacturer advises of a defect and a manufacturer fails to pass such information along to the customer.[fn33] Normally, post-manufacture remedial measures are not admissible.[fn34] Subsequent design changes may be admissible to prove the feasibility of an alternate design or for impeachment.[fn35]

[fn33] Walton v. Avco Corp., 530 Pa. 568, 610 A.2d 454 (1992); but see DeSantis v. Frick Co., 745 A.2d 624 (Pa. Super. 1999) (no post-sale duty to warn where no defect at time of sale).

[fn34] Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408 (3d. Cir. 2002); Kelly v. Crown Equip. Co., 970 F.2d 1273 (3d Cir. 1992); Dutchess v. Langston Corp., 564 Pa. 529, 769 A.2d 1131 (2001).

[fn35] Duchess, 564 Pa. 529, 769 A.2d 1131.

[C][12] Learned Intermediary Doctrine/Sophisticated User Defense

A seller of prescription drug products and vaccines has a duty to exercise reasonable care to inform users of the facts that make a product dangerous.[fn36] A seller of such products may satisfy its duty to warn by furnishing adequate warnings and instructions to the prescribing physician, but is not required to give them directly to the patient.[fn37]

Pennsylvania law recognizes that a supplier may reasonably rely on a sophisticated purchaser to warn users about the dangers of its product.[fn38]

[fn36] Mazur, 964 F.2d 1348; Hahn, 543 Pa. 558; Incollingo, 444 Pa. 263.

[fn37] Mazur, 964 F.2d 1348; Taurino v. Ellen, 397 Pa. Super. 50, 579 A.2d 925 (1990).

[fn38] See, e.g., Kalinowski v. E.I. DuPont de Nemours & Co., 851 F. Supp. 149 (E.D. Pa. 1994) (applying sophisticated user defense to bulk supplier of raw material incorporated into medical devices).

[C][13] Substantial Alteration/Abnormal Use

A manufacturer is not responsible for injuries caused by a substantial change in the product that occurs after initial sale[fn39] or due to abnormal use,[fn40] but the substantial change or abnormal use must be one that could not reasonably be foreseen or expected.

[fn39] Davis, 547 Pa. 260; Sweitzer v. Dempster Sys., 372 Pa. Super. 449, 539 A.2d 880 (1988).

[fn40] Brill v. Systems Resources, Inc., 405 Pa. Super. 603, 592 A.2d 1377 (1991); Pegg v. General Motors Corp., 258 Pa. Super. 59, 391 A.2d 1074 (1978).

[C][14] State of the Art

"State-of-the-art" evidence is generally not available as a defense.[fn41]

[fn41] Santiago v. Johnson Mach. & Press Corp., 834 F.2d 84 (3d Cir. 1987); Lewis, 515 Pa. 334.

[C][15] Malfunction

A malfunction of a product in the absence of evidence of abnormal use or reasonable secondary causes is evidence of a defect.[fn42]

[fn42] Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102 (3d. Cir. 1992); Walters ex rel. Walters v. General Motors Corp., 209 F. Supp.2d 481 (W.D. Pa. 2002); Gordner v. Dynetics Corp., 862 F. Supp. 1303 (M.D.Pa. 1994); Rogers v. Johnson & Johnson Prods., 523 Pa. 176, 565 A.2d 751 (1989); Dansak v. Cameron Coca-Cola Bottling Co., Inc., 703 A.2d 489 (Pa. Super. 1997).

[C][16] Standards and Governmental Regulations

Evidence that the product complied with customary standards or industry standards is usually inadmissible with respect to the issue of defect.[fn43]

[fn43] Hoffman v. Niagra Mach. and Tool Works Co., 683 F. Supp. 489 (E.D.Pa. 1988); Lewis, 515 Pa. 334; Leaphart v. Whiting Corp., 387 Pa. Super. 253, 564 A.2d 165 (1989).

[C][17] Other Accidents

Evidence of other accidents is inadmissible unless plaintiff proves that the product is the same and there is substantial factual similarity in time, place, and circumstance. Evidence of lack of prior claims or accidents may be admissible to rebut causation.[fn44]

[fn44] Tait v. Armor Elevator Co., 958 F.2d 563 (3d Cir. 1992); Gumbs v. International Harvester, Inc., 718 F.2d 88 (3d Cir. 1983); Harley v. Makita USA, Inc., No. 94-CV-4981, 1998 WL 156973 (E.D.Pa. July 14, 1998); Spino v. John S. Tilley Ladder Co., 548 Pa. 286, 696 A.2d 1169 (1997); DiFrancesco v. Excam, Inc., 434 Pa. Super. 173, 642 A.2d 529 (1994); Madjic v. Cincinnati Mach. Co., 370 Pa. Super. 611, 537 A.2d 334 (1988).

[C][18] Misrepresentation

Section 402B of the Restatement (Second) of Torts dealing with misrepresentation has been adopted in Pennsylvania.[fn45]

[fn45] Klages v. General Ordnance Equip. Corp., 240 Pa. Super. 356, 367 A.2d 304 (1976).

[C][19] Destruction or Loss of Product

Pennsylvania courts often impose sanctions against parties when the product at issue has been altered, lost or destroyed. Whether sanctions are appropriate and the level of sanctions warranted is determined by: (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) the degree of sanction necessary to avoid substantial unfairness to the opposing party and, if the opposing party is seriously at fault, to deter such conduct by others in the future.[fn46] Courts have disposed of cases on summary judgment when the plaintiff is relying on a manufacturing defect[fn47] and have imposed less severe sanctions depending upon the facts and circumstances of each particular case.[fn48] Where plaintiff is relying on a design defect, however, the case will likely proceed if defendant is able to inspect a product identical to the one no longer available.[fn49]

[fn46] Schmid v. Milwaukee Elec. Tool Co., 13 F.3d 76 (3d Cir. 1994); Schroeder v. Department of Transp., 551 Pa. 243, 710 A.2d 23 (1998); Tenaglia v. Proctor & Gamble, Inc., 737 A.2d 306 (Pa. Super. 1999); Dansak, 703 A.2d 489.

[fn47] Schwartz v. Subaru of America, Inc., 851 F. Supp. 191 (E.D.Pa. 1994); Smith v. American Honda Motor Co., Inc., 846 F. Supp. 1217 (M.D.Pa. 1994); Sipe v. Ford Motor Co., 837 F. Supp. 660 (M.D.Pa. 1993); Martin & Greenspan v. Volkswagen of America, No. 88-CV-8261, 1989 WL 81296 (E.D.Pa. July 13, 1989); Tenaglia, 737 A.2d 306; Roselli v. General Elec. Co., 410 Pa. Super. 223, 599 A.2d 685 (1991).

[fn48] Baliotis v. McNeill, 870 F. Supp. 1285 (M.D.Pa. 1994); Mensch v. Bic Corp., No. 90-CV-6002, 1992 WL 236965 (E.D.Pa. Sept. 17, 1992).

[fn49] Schroeder, 710 A.2d 23; Troup v. Tri-County Confinement Systems, Inc., 708 A.2d 825 (Pa. Super. 1998); Sebelin v. Yamaha Motor Corp., 705 A.2d 904 (Pa. Super. 1998); O'Donnell v. Big Yank, Inc., 696 A.2d 846 (Pa. Super. 1997).

[C][20] Economic Loss

Recovery is permitted only for personal injury or property damage. Recovery solely for economic loss is prohibited in strict liability and negligence actions, but may not be prohibited in fraud or intentional tort actions.[fn50]

[fn50] O’Keefe v. Mercedes-Benz USA, LLC, 214 F.R.D. 266 (E.D. Pa. 2003); Oppenheimer v. York Intern., 2002 WL 31409949 (Pa. Com. Pl. October 25, 2002); but see Wersinski v. Ford Motor Co., 286 F.3d 661 (3d Cir. 2002) (Fraud claim barred); Lucker Mfg. v. Milwaukee Steel Foundry, 777 F. Supp. 413 (E.D.Pa. 1991); Jones v. General Motors Corp., 428 Pa. Super. 544, 631 A.2d 665 (1993); REM Coal Co., Inc. v. Clark Equip. Co., 386 Pa. Super. 401, 563 A.2d 128 (1989); compare 2J Corp. v. Tice, 126 F.3d 539 (3d Cir. 1997) (economic loss doctrine does not preclude recovery for contents of warehouse when warehouse collapses).

[C][21] Crashworthiness/Enhanced Injuries

The "crashworthiness" or "second collision" doctrine, which is a subset of a cause of action for products liability under Section 402A, provides that the manufacturer/seller is liable when the defect increases the severity of an injury over that which would have occurred absent the design defect, even though the defect did not cause the accident or initial impact.[fn51] To prevail, a plaintiff must demonstrate (1) proof of an alternative safer design that is practicable under the circumstances; (2) the resulting injuries if the safer design had been used; and (3) the extent of the enhanced injuries attributable to the defective design.[fn52] Thus, a manufacturer has to include accidents among the intended uses of its product and has a legal duty to design and manufacture its product to be reasonably safe in a crash.[fn53]

In an enhanced injury case the plaintiff has the initial burden of proving that a design defect was a substantial factor in producing damages beyond those that would otherwise have occurred, but once that has been accomplished the burden shifts to the defendant to apportion damages.

[fn51] Roe v. Deere & Co., 855 F.2d 151 (3d Cir. 1988); Kupetz v. Deere & Co., 435 Pa. Super. 16, 644 A.2d 1213, appeal denied, 539 Pa. 693, 653 A.2d 1232 (1994).

[fn52] Id.

[fn53] Id.

[D] Negligence

Unlike strict liability, there are few unique aspects of Pennsylvania product liability cases based on negligence.[fn54] A cause of action based on negligence may well be broader in scope than one based on strict liability. Thus, a manufacturer may be responsible in negligence for a foreseeable injury to an unintended user.[fn55]

Contributory negligence is a defense, but comparative negligence applies unless the plaintiff is more than 50 percent at fault, in which event recovery is barred.[fn56]

[fn54] Thompson v. Pennsylvania Power Co., 402 F.2d 88 (3d Cir. 1968); Rosa v. United States, 613 F. Supp. 469 (M.D.Pa. 1985) (In negligence actions generally, contributory negligence is a defense except where the defendant is wanton or willfully negligent).

[fn55] Surace v. Caterpillar, Inc., 111 F.3d 1039 (3d Cir. 1997); Metzgar v. Playskool Inc., 30 F.3d 459 (3d Cir. 1994); Griggs v. BIC Corp., 981 F.2d 1429 (3d Cir. 1992); compare Riley v. Warren Mfg., Inc. 455 Pa. Super. 384, 688 A.2d 221 (1997).

[fn56] 42 Pa. Cons. Stat. Ann. § 7102; Williams v. United States, 507 F. Supp. 121 (E.D.Pa. 1981); Elder v. Orluck, 511 Pa. 402, 515 A.2d 517 (1986) (per curiam); Christiansen v. Silfies, 446 Pa. Super. 464, 667 A.2d 396 (1995).

[E] Breach Of Warranty

A cause of action for breach of warranty is generally quite similar to a strict liability cause of action.[fn57]

However, with respect to the statute of limitations, the "discovery rule" does not apply.[fn58]

[fn57] 13 Pa. Cons. Stat. Ann. § 2314; Bogacki v. American Mach. & Foundry Co., 417 F.2d 400 (3d Cir. 1969); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975).

[fn58] See note 4, supra.

[F] Punitive Damages

Punitive damages are recoverable in actions in strict liability[fn59] and negligence,[fn60] but not in lawsuits sounding only in breach of warranty.[fn61]

[fn59] Neal, 548 F. Supp. 357.

[fn60] Takes v. Metropolitan Medicine Co., 440 Pa. Super. 101, 655 A.2d 138 (1995), rev'd on other grounds, 548 Pa. 92, 695 A.2d 397 (1997).

[fn61] 13 Pa. Cons. Stat. Ann. § 2714; Rose v. A&L Motor Sales, 699 F. Supp. 75 (W.D.Pa. 1988); Johnson v. Hyundai Motor America, 698 A.2d 631 (Pa. Super. 1997); Thorsen v. Iron and Glass Bank, 328 Pa. Super. 135, 476 A.2d 928 (1984).

[G] Pre- And Post-Judgment Interest

Pre-judgment interest is provided by rule of court and is characterized as delay damages.[fn62] In actions for personal injury and property damage, delay damages begin to accrue one year after service of original process on the original defendant and continue until verdict.[fn63] Delay damages are calculated using the prime interest rate listed in the first Wall Street Journal of each calendar year, plus 1 percent, not compounded.[fn64] Given the backlog in Pennsylvania trial courts, delay damages can constitute a significant element of damages.

Accrual of delay damages ceases for periods in which the plaintiff has caused delay of trial or after the defendant makes a settlement offer amounting to at least 80 percent of the eventual verdict.[fn65] Joint and several tortfeasors are jointly and severely liable for delay damages.[fn66] However, amounts paid by settling joint tortfeasors are deducted from the verdict prior to calculation of delay damages.[fn67]

Plaintiff is entitled to interest on a judgment from the date of the verdict.[fn68] Post-judgment interest is calculated at the statutory rate of 6 percent.[fn69]

[fn62] Pa. R. Civ. P. 238; Kirk v. Raymark Inds., Inc., 61 F.3d 147 (3d Cir. 1995); Willet v. Pennsylvania Med. Catastrophe Loss Fund, 549 Pa. 613, 702 A.2d 850 (1997); Costa v. Lauderdale Beach Hotel, 534 Pa. 154, 626 A.2d 566 (1993); Schrock v. Albert Einstein Med. Ctr., 527 Pa. 191, 589 A.2d 1103 (1991); Sun Pipe Line Co. v. Tri-State Telecommunications, Inc., 440 Pa. Super. 47, 655 A.2d 112 (1994).

[fn63] Pa. R. Civ. P. 238.

[fn64] Id.

[fn65] Schrock, 589 A.2d 1103, 527 Pa. 191 (1991); but compare Sun Pipe Line Co., 440 Pa. Super. 47, 655 A.2d 112 (no delay damages after defendant's full liability policy limits are tendered and no money obtainable from defendant personally); Krysmalaski v. Tarasovich, 424 Pa. Super. 121, 622 A.2d 298 (1993) (when defendant offers full amount available to it, no delay damages following offer regardless of verdict).

[fn66] Sun Pipe Line Co., 440 Pa. Super. 47, 655 A.2d 112.

[fn67] Wirth v. Miller, 398 Pa. Super. 244, 580 A.2d 1154 (1990).

[fn68] 42 Pa.C.S.A. § 8101; Incollingo v. Ewing, 474 Pa. 527, 379 A.2d 79 (1977); Brown v. Nationwide Mut. Ins. Co., 713 A.2d 663 (Pa. Super. 1998); Johnson v. Singleton, 442 Pa. Super. 206, 658 A.2d 1372 (1995).

[fn69] Sun Pipe Co., 440 Pa. Super. 47, 665 A.2d 112.

[H] Employee Immunity

The Pennsylvania Workers' Compensation Act's "exclusive remedy provision" exempts the plaintiff's employer from liability and from being joined as a party to an action for an employee's injuries.[fn70] If, however, the employer deals with the employee in "dual capacities," the employee may be able to sue the employer for tortious conduct arising from the non-employer capacity, unless the employee's compensable injury occurs while he is actually engaged in the performance of his job.[fn71] Additionally, an employer may contractually obligate itself to defend and indemnify a product manufacturer, provided that the employer expressly agrees to be liable for indemnification and contribution in a written contract prior to the injury.[fn72] Although there generally is immunity from liability for the intentional torts of the employer,[fn73] where an employee is claiming that his or her injuries were aggravated by the employer's intentional conduct, the employee can maintain a common law cause of action against the employer.[fn74]

[fn70] 77 Pa.C.S.A. § 481 (West 1991); Heath v. Church's Fried Chicken, Inc., 519 Pa. 274, 276, 546 A.2d 1120 (1988); Callender v. Goodyear Tire & Rubber Co., 387 Pa. Super. 283, 564 A.2d 180 (1989) (products liability claim cannot be asserted against an employer who is also the manufacturer of the equipment that caused the employee's injury), appeal denied, 525 Pa. 593, 575 A.2d 560 (1990).

[fn71] Thomeier v. Rhome-Poulenc, Inc., 928 F. Supp. 548 (W.D.Pa. 1996); Snyder v. Pocono Med. Ctr., 547 Pa. 415, 690 A.2d 1152 (1997) (affirming, by an evenly divided court, superior court's holding of employer immunity because injuries were related to plaintiff's employment); Lewis v. School Dist. of Philadelphia, 517 Pa. 461, 475, 538 A.2d 862, 869 (1988).

[fn72] 77 Pa.C.S.A. § 481(b) (West 1991); Thomeier v. Rhone-Poulnec, Inc., 928 F. Supp. 548 (W.D.Pa. 1996); Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 171 A.2d 185 (1961); Bethlehem Steel Corp. v. MATX, Inc., 703 A.2d (Pa. Super. (1997); Snare v. Ebensburg Power Co., 431 Pa. Super. 515, 637 A.2d 296 (1993); appeal denied, 538 Pa. 627, 646 A.2d 1181 (1994); Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178, 619 A.2d 304 (1993), appeal denied, 539 Pa. 641, 651 A.2d 530 (1994).

[fn73] Barber v. Pitt. Corning Co., 521 Pa. 29, 555 A.2d 766 (1989); Poyser v. Newman & Co., Inc., 514 Pa. 32, 522 A.2d 548 (1987); Snyder v. Specialty Glass Products, Inc., 441 Pa. Super. 613, 658 A.2d 366 (1995).

[fn74] Martin v. Lancaster Battery Co., Inc., 530 Pa. 11, 606 A.2d 444 (1992).

[I] Statutes

Relevant statutes for product liability actions are the statutes of limitation and the commercial code sections when a breach of warranty is alleged.[fn75]

[fn75] 42 Pa. Cons. Stat. Ann. §§ 5524, 5525, 5536; 13 Pa. Cons. Stat. Ann. §§ 2313, 2314, 2315.

[I][1] Age of Majority

The age of majority for substantive purposes in civil matters is 21.[fn76]

[fn76] 1 Pa. Cons. Stat. Ann. § 1991; In Re Pincus Estate, 378 Pa. 102, 105 A.2d 82 (1954). In some family law issues, the age of majority is 18. For purposes of Products Liability, however, 21 is the relevant age of majority.

[J] Joint And Several Liability

[J][1] The Rule

[J][1] a. Actions Accruing Prior to August 19, 2002

Joint tortfeasor status is a question of law to be determined by the court.[fn77] Tortfeasors are considered joint if they acted together or separately to cause a single, indivisible harm.[fn78] Each joint tortfeasor is individually responsible for all harm brought about by the joint tortfeasors, regardless of comparative fault.[fn79]

[fn77] Martin v. Owens-Corning Fiberglas Corp., 515 Pa. 377, 528 A.2d 947 (1987); Brown v. Philadelphia College, 449 Pa. Super. 667, 674 A.2d 1130 (1996).

[fn78] Foflygen v. Zemel, 420 Pa. Super. 18, 615 A.2d 1345 (1992); Farnell v. Winterloch Corp., 106 Pa. Commw. 542, 527 A.2d 204 (1987).

[fn79] Glomb v. Glomb, 366 Pa. Super. 206, 530 A.2d 1362 (1987); Riff v. Morgan Pharmacy, 353 Pa. Super. 21, 508 A.2d 1247 (1986); Wade v. S. J. Groves & Sons Co., 283 Pa. Super. 464, 424 A.2d 902 (1981).

[J][1] b. Actions Accruing After August 19, 2002

Pennsylvania has abolished the common law doctrine of joint and several liability, with a few exceptions.[fn80] For actions accruing after the effective date of the amended statute, August 19, 2002, including strict liability actions, where fault is attributed to more than one defendant, each defendant’s liability shall be several and not joint.[fn81] Damages shall be apportioned among the defendants based on their proportionate share of liability.[fn82]  However, a defendant who is found to be at least 60% at fault or who is found liable in an intentional tort action, will have joint and several liability and will have a judgment in the total dollar award entered against him, with the right of contribution.[fn83]  For purposes of apportioning liability, any party may request that the fact finder consider the percent of fault of any nonparty who has entered into a release with the plaintiff.[fn84]

[fn80] 42 Pa. Cons. Stat. Ann. § 7102.

[fn81] 42 Pa. Cons. Stat. Ann. § 7102(b.1)(1) and (2).

[fn82] Id.

[fn83] 42 Pa. Cons. Stat. Ann. § 7102(3) and (4).

[fn84] 42 Pa. Cons. Stat. Ann. § 7102(b.2).

[J][2] Effect of Settlement

Pennsylvania has adopted the Uniform Contribution Among Tortfeasors Act (UCATA).[fn85] UCATA applies only to joint tortfeasors; it allows for the following three types of releases:

A "general" release discharges the liability of the settling joint tortfeasor and all others even though the others have made no payment in settlement for the release; the release must, however, specifically state it is meant to release all tortfeasors.[fn86] In "subsequent medical malpractice" cases, a general release of the original tortfeasor can bar a claim against the subsequent health care provider even though the original tortfeasor and the health care provider are not considered joint tortfeasors.[fn87]

A "pro tanto" release, or "dollar-for-dollar" release, discharges only the settling joint tortfeasor; it does, however, reduce the liability of the non-settling joint tortfeasors by the amount the settling joint tortfeasor paid to be released.[fn88]

A "pro rata" release also discharges only the settling joint tortfeasor; it then reduces the liability of the non-settling tortfeasors by the settling joint tortfeasor's proportionate share of liability.[fn89] In cases based solely on strict liability, the joint tortfeasors' pro rata shares of liability are allocated on a per capita basis.[fn90] In cases involving negligent tortfeasors and strictly liable tortfeasors, the pro rata shares of liability of each tortfeasor, negligent and strictly liable alike, are exactly the same as their proportionate shares of liability.[fn91] But in cases involving both negligent tortfeasors and strictly liable tortfeasors in which the plaintiff is found comparatively negligent, the strictly liable tortfeasor is responsible for its own proportionate share of the liability as well as the liability share assigned to the comparatively negligent plaintiff.[fn92]

[fn85] 42 Pa. Cons. Stat. Ann. §§ 8321 et seq.

[fn86] Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989); Wolbach v. Fay, 488 Pa. 239 412 A.2d 487 (1980); compare Vaughn v. Didizian, 436 Pa. Super. 436, 648 A.2d 38 (1994); Farrell v. Lechmanik, 417 Pa. Super. 172, 611 A.2d 1322 (1992); Sparler v. Fireman's Ins. Co., 360 Pa. Super. 597, 521 A.2d 433 (1987).

[fn87] Brown v. Herman, 445 Pa. Super. 305, 665 A.2d 504 (1995), aff’d per curiam 547 Pa. 352, 690 A.2d 232 (1997); Holmes v. Lankenau Hospital, 426 Pa. Super. 452, 627 A.2d 763 (1993).

[fn88] Wirth v. Miller, 398 Pa. Super. 244, 580 A.2d 1154 (1990); Capone v. Donovan, 332 Pa. Super. 185, 480 A.2d 1249 (1984).

[fn89] Walton v. Avco Corp., 530 Pa. 568, 610 A.2d 454 (1992); Baker v. AC&S, Inc. 729 A.2d 1140 (Pa. Super. 1999), aff'd, 562 Pa. 290, 755 A.2d 664 (2000).

[fn90] Id.

[fn91] Smith v. Weissenfels, Inc., 441 Pa. Super. 328, 657 A.2d 949 (1995); Ball v. Johns-Manville Corp., 425 Pa. Super. 369, 625 A.2d 650 (1993); McMeekin v. Harry M. Stevens, Inc., 365 Pa. Super. 580, 530 A.2d 462 (1987).

[fn92] Smith, 441 Pa. Super. 328.

[J][3] Contribution

A joint tortfeasor compelled to pay more than its percentage share of liability may seek contribution from the other joint tortfeasors.[fn93]

A settling joint tortfeasor who receives a "general" release specifically discharging its own liability and the liability of all others has a right of contribution against other joint tortfeasors.[fn94]

A settling joint tortfeasor who receives a pro tanto release has no right of contribution against others.[fn95] In the event the amount paid by the settling joint tortfeasor is less than its proportionate share of the liability, however, the non-settling joint tortfeasor has a claim for contribution against the settling joint tortfeasor for the difference between what the settling joint tortfeasor actually paid and what its proportionate liability would have required it to pay.[fn96]

Under a pro rata release, neither the settling joint tortfeasor nor the non-settling joint tortfeasors has a right of contribution against the other.[fn97]

Morton F. Daller
Marie H. Kramer

DALLER GREENBERG & DIETRICH, LLP
Eight Tower Bridge
161 Washington Street, Suite 900
Conshohocken, Pennsylvania 19428
(215) 836-1100
Fax: (215) 836-2845
E-mail: mdaller@dallergreenberg.com

[fn93] 42 Pa. Cons. Stat. Ann. § 7102.

[fn94] Buttermore, 522 Pa. 325.

[fn95] 42 Pa. Cons. Stat. Ann. § 8324.

[fn96] Wirth, 398 Pa. Super. 244, 580 A.2d 1154.

[fn97] Walton, 530 Pa. at 582; Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1 (1987).

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