High, J. v. Pennsy Supply, Inc. v. High, C., II.

• Court: Superior Court of Pennsylvania
• Decided: January 13, 2017
• Docket: 411 MDA 2016
• Status: Published

Opinion

J-A25035-16

2017 PA Super 10

JEFFREY HIGH, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

PENNSY SUPPLY, INC.,

CHARLES W. HIGH, II, No. 411 MDA 2016

Appeal from the Order Entered February 18, 2016 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2013-CV-6181-CV, 2013-CV-6206-CV

CHARLES W. HIGH, II, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

JEFFREY HIGH, No. 416 MDA 2016

Appeal from the Order Entered February 18, 2016 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2013-CV-6181-CV, 2013-CV-6206-CV

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*

____________________________________________

* Former Justice specially assigned to the Superior Court. J-A25035-16

CONCURRING AND DISSENTING OPINION BY SHOGAN, J.:

FILED JANUARY 13, 2017

I am of the opinion that Tincher v. Omega Flex, Inc., 104 A.3d 328,

336 (Pa. 2014), a design defect case, did not preclude the trial court from

granting summary judgment in this “wet concrete” case. Indeed, our

Supreme Court explicitly limited its decision “to the context of a ‘design

defect’ claim.” Id. at 384 n.21. However, I agree with the learned Majority

that at least Jeffrey High arguably raises a strict liability claim “under the

theory that the concrete delivered was defective as Pennsy Supply failed to

adequately warn [the High brothers] of the inherent danger of concrete to

cause severe burns.”1 Majority Opinion at 20. Thus, if the underlying claim

is construed as a failure to warn, I agree that summary judgment should not

have been granted under the current state of the law. See Phillips v. A-

Best Products Co., 665 A.2d 1167, 1171 (Pa. 1995) (recognizing that a

deficient warning to the user regarding the dangers inherent in the product

can make a product defective).

1 A plaintiff is permitted to proceed under more than one defect theory. Barton v. Lowe's Home Centers, Inc., 124 A.3d 349, 355 (Pa. Super. 2015).

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