Harn v. Milwaukee Tool & Machine Co.

33 Pa. D. & C.3d 632, 1984 Pa. Dist. & Cnty. Dec. LEXIS 288
CourtPennsylvania Court of Common Pleas, Beaver County
DecidedSeptember 27, 1984
Docketno. 131 of 1982
StatusPublished

This text of 33 Pa. D. & C.3d 632 (Harn v. Milwaukee Tool & Machine Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Beaver County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harn v. Milwaukee Tool & Machine Co., 33 Pa. D. & C.3d 632, 1984 Pa. Dist. & Cnty. Dec. LEXIS 288 (Pa. Super. Ct. 1984).

Opinion

WALKO, J.,

On January 31, 1980, plaintiff Harn was injured on his employer’s premises while operating a vertical band saw. Plaintiff brought this trespass action against defendants and alleged theories of strict products liability in tort, negligent design and breach of warrant. Defendant Milwaukee Tool and Machine Co. (Milwaukee) designed, manufactured and delivered the finished machine to plaintiffs employer. Defendant Tannewitz, Incorporated (Tannewitz) supplied the component saw and delivered it to Milwaukee’s plant.

Now before the court is Tannewitz’s timely motion for summary judgment. In support of the motion, Tannewitz submitted as exhibits, the report of plaintiffs engineering expert and an affidavit of Milwaukee’s president.

The engineering report, compiled by James P. Romualdi, P.E. of Forensic Consultants and Engineers, Inc., reviews the details of the injury, describes the operation and manufacture of the machine and sets out minimum safety standards as they are established by a national board. The report enumerates two design features as being defective and instrumental in causing plaintiffs injury: The lack of a cage or guard to protect the operator’s hands from the blade and the electric eye which in its current design “creates a false sense of security on the part of the operator”. Significantly, the report notes that Tannewitz’s band saw was assembled into the total unit by Milwaukee.

Tannewitz’s second exhibit is the affidavit of Milwaukee’s Corporate President, Richard G. Mumper. Its principal statements are as follows:

1. The entire equipment sold to plaintiffs employer was designed and manufactured totally by Mil[634]*634waukee, and all component parts were selected by Milwaukee.

2. At the time of delivery of the band saw by Tannewitz to Milwaukee, there was no defect in design or manufacture of the product.

3. Milwaukee did not advise Tannewitz as to the expected and anticipated use of the band saw.

4. The band saw as sold to Milwaukee was inoperable without addition of controls and components needed to activate the saw.

5. All operating controls, guards as well as any safety devices installed on the equipment were all designed by and made a part of the ultimate product by Milwaukee.

6. Tannewitz did not have any input into the design, construction, or production of any machine controls.

7. All protective devices on the equipment were designed, manufactured, and produced by Milwaukee.

8. The design, installation, and sale of the electric eye control for the machine was that of Milwaukee.

9. The pusher bars and their installation in the product were the design of Milwaukee.

In addition, Milwaukee’s admissions in response to Tannewitz’s request contain virtually identical statements. Although not submitted as exhibits, the admissions form a part of the record and may be considered for purposes of this motion. Ritmanich v. Jonnel Enterprises, 219 Pa. Super. 198, 280 A.2d 570 (1971).

Plaintiff has not submitted exhibits. In urging the court to deny summary judgment, plaintiff contends only that the issue is controlled by Pennsylvania’s Nanty-Glo rule. Known generally as the demeanor evidence doctrine, it forecloses entry of summary judgment when questions of credibility [635]*635leave a genuine issue of material fact. Where the movant can prevail only by use of testimonial affidavit, the credibility of the affiant creates a genuine issue of fact so that summary judgment is not appropriate. Borough of Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 Atl. 523 (1932); 2 Goodrich-Amram §1035(b):4 and cases cited therein.

In brief, plaintiff attacks only the engineering consultant’s report. This, plaintiff contends “in no way eliminates Tannewitz as the primary or contributory tortfeasor (sic), and to the contrary leaves open the question of what features could have been incorporated in this machinery, including the saw, that would have prevented this accident”.

If there is no genuine issue as to any material fact and if the moving party is entitled to a summary judgment as a matter of law, the court may enter summary judgment in his favor. Ritmanich v. Jonnel Enterprises Inc., supra. Under the standard as stated, we are constrained to agree with plaintiff as to the engineering report.

Questions raised by the other exhibit, Milwaukee’s affidavit, require more than a citation to the Nanty-Glo rule. The decisions of our courts have prescribed a two-part process for ruling on summary judgment motions. First, the court, after considering the movants’ exhibits must note whether or not the opposing party has submitted depositions, affidavits, admissions or other exhibits of its own. The rules do not permit the opposing party to stand on the contested averments of the pleadings in sufficient defense against summary judgment. Amabile v. Auto Kleen Car Wash, 247 Pa. Super. 240, 376 A.2d 247 (1977); Santoro v. City of Philadelphia, 59 Pa. Commw. 114, 429 A.2d 113 (1981). In explanation of this rule, our Supreme Court has reasoned that affidavits may serve as proof of facts [636]*636while pleadings do not. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). In addition, express language of Pa.R.C.P. 1035(d) clearly states the same procedural requirement:

“An adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided by the rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not respond, summary judgment, if appropriate, should be entered against him (Emphasis added.)

Plaintiff Harn offers no exhibits to oppose those of Tannewitz. As stated earlier, he elected to rest on the pleadings. Rather than foreclosing all further inquiry, absence of exhibits merely takes the analysis to a second stage, allocating the burden of proof. Even where, as here, the non-movant fails to file counter-exhibits, the court must determine whether the movant has satisfied the burden of showing that there remains no material issue of fact. Marchese v. Marchese, 475 Pa. 625, 326 A.2d 321 (1974); Santoro v. City of Philadelphia, supra. Where the proof supporting the motion is documentary and has a high degree of credibility the opponent must produce convincing proof attacking the documents in order to sustain his burden. See, Bauman, A Rationale for Summary Judgment, 33 Ind. L.J. 467 (1958).

Assessing Tannewitz’s affidavit against this standard, we are satisfied that Tannewitz has shouldered its share of the burden. The exhibit is obviously documentary. Moreover, we are impressed with its credibility. If the affiant, Mr. Mumpers, were to testify at trial to the particulars of his affidavit, a jury would be entitled to give that testimony great weight. Classic indicia of reliability would abound. The statement is the product of per[637]*637sonal knowledge and it is inconceivable that cross-examination would show that Mumpers was in no position to know design and manufacturing details about the machine.

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33 Pa. D. & C.3d 632, 1984 Pa. Dist. & Cnty. Dec. LEXIS 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harn-v-milwaukee-tool-machine-co-pactcomplbeaver-1984.