Opinion
CIVIL ACTION: NO. 00-CV-5032
December 30, 2003
MEMORANDUM AND ORDER
Plaintiff Paul R. Forrest ("Forrest") brings this product liability diversity action against Defendant Beloit Corporation ("Beloit"). Now before the Court is Beloit's Motion for Summary Judgment. For the reasons stated below, the Court will deny the Motion.
I. Background
The facts of this case have been set forth in this Court's prior Memoranda and Orders of August 19, 2003, and October 8, 2003, and are incorporated herein by reference.
II. Legal Standard
In deciding a motion for summary judgment pursuant to Fed.R.Civ.P. 56, "[the] test is whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)). "[S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must examine the evidence in the light most favorable to the nonmoving party and resolve all reasonable inferences in that party's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, "there can be `no genuine issue as to any material fact' . . .[where the nonmoving party's] complete failure of proof concerning an essential element of [its] case necessarily renders all other facts immaterial."Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
III. Analysis
A. Statute of Repose
Beloit argues that it cannot be held liable for any injuries caused by the gloss calender machine because it is protected by the Pennsylvania Statute of Repose ("the Statute"). The Statute sets a twelve year limitation on personal injury claims brought against "any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property." 42 Pa. Cons. Stat. § 5536. The Statute begins to run at the completion of the construction. Id. To be protected by the Statute, the party moving for protection must show "(1) what is supplied is an improvement to real property; (2) more than twelve years have elapsed between the completion of the improvements to the real estate and the injury; and (3) the activity of the moving party [is] within the class which is protected by the statute." Noll v. Harrisburg Area YMCA, 537 Pa. 274, 281 (1994). Both parties agree that the second prong of the test has been met. The remaining issues are whether the gloss calender machine is an improvement to real property and whether Beloit's activities fall within the class of activities protected by the Statute.
The parties agree that the machine was installed in 1963.
Forrest argues that because the gloss calender machine was manufactured prior to the Statute's effective date of July 1, 1966, the Statute does not protect Beloit. Forrest Memo at p. 14; Misitis v. Steel City Piping Co., 441 Pa. 339, 341 (1971). However, the Pennsylvania courts have applied the Statute to manufacturers whose products were installed prior to the Statute's effective date when the injuries giving rise to the claims against those manufacturers occurred after the effective date. See McCormick v. Colombus Conveyer Co., 522 Pa. 520, 522 (1989) (product installed in 1948, accident occurred in 1982); Radvan v. General Electric Co., 394 Pa. Super. 501, 504 (Pa.Super. 1990) (product installed in 1951, accident occurred in 1983).
Because the Court finds that there is a genuine question of material fact as to whether the gloss calender machine is an improvement to real property, it need not reach the issue of whether Beloit's activities fall within the class protected by the Statute.
The definition of an improvement to real property "includes everything that permanently enhances the value of real property." Noll, 537 Pa. at 286. The parties' subjective intent at the time of installation is one factor considered by courts, but objective intent must be the primary consideration. Id. at 287. This Court must ask whether it was "the objective intent of the parties to permanently incorporate a chattel into real property." Id. at 288. Factors relevant to determining the parties' objective intent include the degree and manner in which the object is attached to real property; the ease of removing the object; whether removal would damage the real property; how long the object has been attached; whether the object is necessary or essential to the property; and whether the party's conduct evidences an intent to permanently attach the object. Id; Vargo v. Koppers Co. Inc., 552 Pa. 371, 377 (Pa. 1998). Courts also consider the size of the machinery, whether it is bolted to the floor, how long it has been in one place, and whether it has ever been moved. See Radvan v. General Electric Co., 394 Pa. Super. 501, 504 (Pa.Super. 1990).
Whether the gloss calender machine was an improvement to real property presents a genuine issue of material fact. It is indisputable that the machine is a large, heavy piece of industrial equipment that was first installed in 1963. Memorandum of Law in Support of Defendant Beloit Corporation's Motion for Summary Judgment ("Beloit Memo") at pp. 1-2, Exhibit D. The parties disagree, however, about other material facts that are relevant to determining whether the machine was an improvement to real property. Most significantly, Beloit states that the machine is bolted to the floor, but Forrest has produced a 1963 letter indicating that it is bolted to a concrete frame rather than to the floor itself. Beloit Memo at p. 8; Plaintiff's Memorandum of Law in Opposition to Motion for Summary Judgment ("Forrest Memo") at Exhibit E. Because of this factual dispute, the Court cannot determine as a matter of law the degree of attachment, the ease of removal, or the extent to which removal would damage the real property. Accordingly, the Court cannot determine as a matter of law whether the gloss calender machine is an improvement to real property, and it would be inappropriate to grant summary judgment on the grounds that the Statute bars Forrest's claims.
B. Substantial Change
Beloit also argues that summary judgment should be granted because substantial and unforeseeable changes were made to the gloss calender machine by Forrest's employer. Rest.2d. of Torts § 402A, which has been adopted by Pennsylvania, provides:
One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if . . . (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
Rest.2d Torts § 402A. See also Capasso v. Minster Machine Co., 532 F.2d 952, 954 (3d Cir. 1976).
Whether a product has been substantially changed is generally a question for the jury. Fisher v. Walsh Parts Service Co., 277 F. Supp.2d 496, 502 (E.D. Pa. 2003). Even if a product has been substantially altered, the manufacturer still may be held liable on a theory of strict liability if the change was foreseeable at the time of sale. Id. Foreseeability is also a jury question "unless the inferences are so clear that a court can say as a matter of law that a reasonable manufacturer could not have foreseen the change." D'Antona v. Hampton Grinding Wheel Co., 225 Pa. Super. 120, 125 (Pa.Super. 1973)).
Beloit states that it "manufactured, designed, sold and delivered the gloss calender machine at issue with a fixed 3 in. diameter pipe guard that extended across the pressure/dryer roll area," and claims that this guard was removed at some point after the machine was sold. Beloit Memo at pp. 14-15. The parties agree that the guard was not in place at the time of the accident. Beloit Memo at p. 15; Forrest Memo at p. 37.
Beloit also argues that the installation of a nearby air shower constituted a post-sale alteration because it enabled Forrest to climb above floor level and hand feed the paper into the calender, thus exposing him to the rollers. Beloit Memo at p. 15. Construing the facts in the light most favorable to the nonmoving party, however, this was not an alteration to the gloss calender machine itself, but rather an alteration to the production line that was placed next to the gloss calender machine. Beloit Memo at Exhibit D.
Whether the guard ever was installed on the machine, and if so, whether its removal was foreseeable, are genuine questions of material fact. Beloit has presented only indirect evidence that the guard was installed upon delivery of the gloss calender machine and acknowledges that there is no eyewitness testimony regarding the condition of the machine prior to 1968. An employee who worked at the machine in 1970, however, testified that he does not remember ever seeing a guard. Forrest Memo at p. 39 (quoting Marshall deposition at pp. 22-23). Even if the guard were installed, there is evidence that its removal would have been foreseeable because its presence could have interfered with the paper feeding process. Forrest Memo at pp. 39-41. A reasonable juror might determine that no guard ever had been installed, or that if one had been installed, that its subsequent removal was foreseeable. Accordingly, the Court cannot determine as a matter of law that Forrest's claims are barred by the doctrine of substantial change.
IV. Conclusion
For the foregoing reasons, the Court will deny Beloit's Motion for Summary Judgment. An appropriate Order follows.
ORDER
AND NOW, this ___ day of December, 2003, upon consideration of Defendant's Motion for Summary Judgment (docket no. 70), Plaintiff's Memorandum of Law in Opposition thereto (docket no. 73), Defendant's Sur Reply (docket no. 74), and Plaintiff's response thereto (docket no. 75), and for the reasons stated in the accompanying Memorandum, it is ORDERED that the Motion is DENIED.