Lenkiewicz v. Lange

363 A.2d 1172, 242 Pa. Super. 87, 1976 Pa. Super. LEXIS 2813
CourtSuperior Court of Pennsylvania
DecidedSeptember 27, 1976
Docket748
StatusPublished
Cited by31 cases

This text of 363 A.2d 1172 (Lenkiewicz v. Lange) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lenkiewicz v. Lange, 363 A.2d 1172, 242 Pa. Super. 87, 1976 Pa. Super. LEXIS 2813 (Pa. Ct. App. 1976).

Opinions

PRICE, Judge.

The Pittsburgh Press Club operates a restaurant at 300 Sixth Avenue, Allegheny County, Pittsburgh, Penn[90]*90sylvania. On February 9,1971, plaintiff-appellant Loretta Lenkiewicz, employed by the Press Club as a waitress, was injured when a room divider collapsed upon her during the course of her employment. Appellant and her husband, plaintiff-appellant Leo Lenkiewicz, filed a complaint in trespass against defendant-appellee Albert L. Lange, the alleged seller and installer of the room divider, basing liability on theories of breach of warranty, negligence, and strict liability under Restatement (Second) of Torts § 402A (1965). Lange then joined Hupp Corporation and Richards-Wilcox Manufacturing Company, the designers and sellers of the room divider, Oliver Tyrone Corporation, the lessor of the room divider, William B, Simboli, t/a/d/b/a William B. Simboli and Associates, the installer of the room divider, Landau Brothers Building Company, the company that built the Press Club,1 and the Press Club as additional defendants.

On May 31, 1974, a jury awarded a verdict of $100,000 for appellants against the Press Club and did not mention Lange and the other additional defendants. The lower court molded the verdict in favor of Lange and the other additional defendants. Motions for a new trial and judgment N.O.V. were denied, and judgment was entered on the verdicts. We affirm,

First, appellants contend that the lower court erred in failing to permit the issues of strict liability and breach of- warranty to be considered by the jury. The lower court declined to instruct the jury on these theories because of appellants’ failure to introduce evidence of a defect in the room divider.

In 1966, the Press Club moved from- 206 Sixth Avenue to its present location. At that time, Mr. R. W. Duhon, general manager of the Press Club, decided that a port-ablé room divider was needed for one of the rooms. Pri- [91]*91or to this time, the Press Club had done all of its buying through Lange. Therefore, Duhon told Lange to determine the feasibility of obtaining Air Walls2 for the Press Club. From 1966 until the day of the accident, the panels were frequently erected and lowered, often as much as three or four times per week.

It is well settled that in order to establish a cause of action for breach of warranty or for strict liability under § 402A, the plaintiff must prove that the product was defective at the time that the seller delivered it to the buyer, and that the defect caused the plaintiff’s harm. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A. 2d 893 (1975); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974); Oehler v. Davis, 223 Pa.Super. 333, 298 A.2d 895 (1972). The plaintiff may prove the existence of a defect circumstantially, by showing that the product malfunctioned. D’Antona v. Hampton Grinding Wheel Co., 225 Pa.Super. 120, 310 A.2d 307 (1973); MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969).

In this case, however, appellants have not met their burden of proof. When specifically questioned about what possible malfunction could have occurred, appellants’ expert replied that the air valves should have been equipped with pressure gauges, thereby facilitating determination of insufficient pressure. Assuming, arguendo, that this would be a defect for purposes of § 402A,3 ap[92]*92pellants have failed to prove that the defect was a proximate cause of the injuries.

The evidence at trial indicated two other possible explanations for the collapse of the wall, both of which are incousistent with the theory of a defect, William P. Hankes, district manager for Richards-Wilcox Manufacturing Company, testified that his measurements revealed that the floor of the Press Club had fallen several inches toward the center of the room. This evidence was corroborated by testimony that gaps of light could be seen between the ceiling and the wall towards the center, but not at the epds. Thus, the sinking of the floor is one possible explanation for the wall’s collapse which has not been refuted by appellant.

In addition, appellants’ own expert testified that the two and one-half inch travel capability of the caps was not enough to insure the stability of the panels. Neither of these explanations indicates a defect in the panels.

We do riot hold that a plaintiff must refute all possible explanations offered by a defendant. But where an explanation consistent with the existence of a defect is as probable as an explanation inconsistent with the existence of a defect, the plaintiff cannot be held to have met his burden. A jury may not be permitted to speculate.

“[I]t is not necessary that plaintiff prove with mathematical exactness that the accident could only have been caused in one manner to the exclusion of all other possibilities . . . but he must eliminate those other causes, if any, as were fairly suggested by the evidence . . .. And it is the duty of the trial court to determine whether or not this requirement has been met in the first instance before the issue can be submitted to the jury . . ..” Cuthbert v. Philadelphia, 417 Pa. 610, 614-15, 209 A.2d 261, 263-64 (1965) (citations omitted).

[93]*93 Appellants’ second contention is that the lower court erred in permitting each additional defendant to exercise four peremptory challenges, instead of requiring the four peremptory challenges to be divided among them. The Act of March 29, 1860, P.L. 344, § 1 (17 P.S. § 1171), allots four peremptory challenges to the plaintiff and four challenges to the defendant. Pennsylvania appellate courts have consistently interpreted that statute as allowing four challenges to each class of litigants with an antagonistic interest. Additional defendants have interests antagonistic to each other. Moffatt v. Carbondale, 314 Pa. 31, 170 A. 269 (1934); Shaw v. Megargee, 307 Pa. 447, 161 A. 546 (1932); Timlin v. Scranton (No. 1), 139 Pa.Super. 503, 12 A.2d 502 (1940). See also Annot., 32 A.L.R.3d 747 (1970).

Third, appellants allege that the lower court erred in refusing to allow appellants to inquire into the education of prospective jurors on voir dire. The sole purpose of voir dire examinations is to obtain a competent, fair, and impartial jury. Within that guideline, the scope of voir dire rests within the sound discretion of the trial judge. Commonwealth v. Brown, 464 Pa. 625, 347 A.2d 716 (1975); Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972); Commonwealth v. Foster, 221 Pa. Super. 426, 293 A.2d 94 (1972).

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Bluebook (online)
363 A.2d 1172, 242 Pa. Super. 87, 1976 Pa. Super. LEXIS 2813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lenkiewicz-v-lange-pasuperct-1976.