J-A09040-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

* Retired Senior Judge assigned to the Superior Court.

DANIEL R. LIPINSKI,

 v.

B&G REBAR & WIRE, INC.; NUCOR 

CORPORATION; NUCOR BAR MILLDARLINGTON T/D/B/A NUCOR 

CORPORATION, A WHOLLY OWNED 

SUBSIDIARY OF NUCOR 

CORPORATION

APPEAL OF: NUCOR CORPORATION

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 1457 WDA 2019

Appeal from the Order Dated August 26, 2019 

in the Court of Common Pleas of Allegheny County 

Civil Division at No(s): GD 14-009079

BEFORE: SHOGAN, J., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 28, 2020

Nucor Corporation (Nucor) appeals the August 26, 2019 order which 

denied Nucor’s motion for summary judgment. Upon review, we quash this 

appeal.

Due to our disposition, a detailed recitation of the facts and procedural 

history of this case is unnecessary. Briefly, Daniel R. Lipinski filed suit on May 

28, 2014, followed by an amended complaint on August 8, 2014, claiming he 

suffered injuries on the job while attempting to bend a piece of steel 

reinforcement bar (rebar) during a construction project. Nucor manufactured 

the rebar at issue and B&G Rebar & Wire, Inc. (B&G) supplied the rebar for 

the project. Lipiniski’s product liability claims sound in negligence, strict 

liability, and breach of warranty.
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Nucor filed preliminary objections asserting a lack of personal 

jurisdiction, which were sustained by the trial court on May 19, 2015, and all 

counts against Nucor were dismissed for lack of personal jurisdiction.

1

In 

September 2016, B&G filed a second amended cross-claim against Nucor, 

which incorporated Lipinski’s claims against Nucor set forth in his amended 

complaint and sought contribution and/or indemnification from Nucor if it were 

found to be liable to Lipinski. In response, Nucor filed an answer, new matter, 

and cross-claim on December 9, 2016.

On May 3, 2019, Nucor filed a motion for summary judgment, seeking 

dismissal of the cross-claim against it and claiming that because B&G’s expert 

opined the rebar was not defective, B&G could not meet its burden of proof 

for its cross-claim against Nucor. B&G did not oppose the motion for summary 

judgment, but Lipinski filed a brief in opposition, arguing that there was a 

genuine issue of material fact under the malfunction theory2 as to whether the 

rebar was defective. After argument, the trial court denied the motion for 

summary judgment on August 26, 2019. On September 18, 2019, Nucor filed 

 

1 All claims against Nucor Bar Mill-Darlington t/d/b/a Nucor Corporation (Nucor 

Bar Mill-Darlington) were dismissed without prejudice on May 19, 2015. Nucor 

Bar Mill-Darlington is not involved in this appeal.

2 Our Supreme Court has explained that the malfunction theory “permits a 

plaintiff to prove a defect in a product with evidence of the occurrence of a 

malfunction and with evidence eliminating abnormal use or reasonable, 

secondary causes for the malfunction.” Rogers v. Johnson & Johnson

Products, Inc., 565 A.2d 751, 754 (Pa. 1989) (citations omitted).
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a motion for reconsideration, or in the alternative, permission to appeal the 

August 26, 2019 order as interlocutory pursuant to 42 Pa.C.S. § 702(b). The 

trial court denied the motion that same date.

This appeal followed.3 On October 16, 2019, this Court issued an order 

directing Appellant to show cause as to why the appeal should not be quashed.

Order, 10/16/2019. Citing Pa.R.A.P. 341 and interpretive case law, we noted 

that the appeal was filed from an order denying summary judgment and is

therefore interlocutory. Id. In its October 30, 2019 letter brief response,

Nucor argued that the court’s August 26, 2019 order was immediately 

appealable as a collateral order pursuant to Pa.R.A.P. 313. It requested this 

Court not quash the appeal or alternatively, defer determination to the merits

panel. Id. By order entered November 1, 2019, this Court discharged our 

show-cause order and deferred the issue of appealability to this panel for 

consideration. Order, 11/1/2019.

Nucor presents the following question for our review.

Whether the order erroneously denied Nucor’s motion requesting 

summary judgment on the cross-claim against it for 

contribution/indemnification in this products liability case, where 

the steel reinforcement bar involved in the accident was available 

for expert metallurgical examination and testing which found it 

not to be defective, but [Lipinski] -- whose direct claims against 

Nucor previously had been dismissed -- alone (and despite crossclaimant’s non-opposition) contested the motion and did so on the 

basis of the circumstantial evidence-based “malfunction theory,” 

which is inapplicable under the circumstances as a matter of 

Pennsylvania law. Barnish v. KWI Bldg. Co., 980 A.2d 535 (Pa. 

 

3 Both Nucor and the trial court complied with Pa.R.A.P. 1925.
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2008) (malfunction theory available only where the allegedly 

defective product has been destroyed or is otherwise unavailable).

Nucor’s Brief at 4 (unnecessary capitalization removed).

We must first determine whether the order from which Nucor appeals is 

appealable, because appealability implicates our jurisdiction. In the Interest 

of J.M., 219 A.3d 645, 650 (Pa. Super. 2019). “Jurisdiction is purely a 

question of law; the appellate standard of review is de novo and the scope of 

review plenary.” Id. (citation and internal quotation marks omitted). To be 

appealable, the order must be: (1) a final order, Pa.R.A.P. 341-42; (2) an 

interlocutory order appealable by right or permission, 42 Pa.C.S. § 702(a)-

(b); Pa.R.A.P. 311-12; or (3) a collateral order, Pa.R.A.P. 313.

Generally, a final order is any order that disposes of all claims and all 

parties. Pa.R.A.P. 341(b). The August 26, 2019 order does not qualify as a 

final order under Pa.R.A.P. 341 because “an order denying a motion for 

summary judgment does not terminate the litigation, and thus is not an 

appealable order.” Melvin v. Doe, 836 A.2d 42, 44 n.4 (Pa. 2003), citing

Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 394 A.2d 

491 (Pa. 1978) and Pa.R.A.P. 341. Nucor does not dispute that the order is 

not final or that it is not an order appealable as of right by law. Instead, Nucor 

maintains that the order is a collateral order pursuant to Rule 313. Nucor’s 

Brief at 1; Nucor’s Reply Brief at 1-10.

We have explained the collateral order doctrine as follows.
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The “collateral order doctrine” exists as an exception to the finality 

rule and permits immediate appeal as of right from an otherwise 

interlocutory order where an appellant demonstrates that the 

order appealed from meets the following elements: (1) it is 

separable from and collateral to the main cause of action; (2) the 

right involved is too important to be denied review; and (3) the 

question presented is such that if review is postponed until final 

judgment in the case, the claimed right will be irreparably lost. 

See Pa.R.A.P. 313.

Our Supreme Court has directed that Rule 313 be interpreted 

narrowly so as not to swallow the general rule that only final 

orders are appealable as of right. To invoke the collateral order 

doctrine, each of the three prongs identified in the rule’s definition 

must be clearly satisfied.

Interest of J.M., 219 A.3d at 655, quoting In re W.H., 25 A.3d 330, 335 

(Pa. Super. 2011) (some citations omitted).

Our Supreme Court has explained the following.

“We construe the collateral order doctrine narrowly so 

as to avoid ‘undue corrosion of the final order rule,’ ... 

and to prevent delay resulting from ‘piecemeal review 

of trial court decisions.’” K.C. v. L.A., [] 128 A.3d 774, 

778 ([Pa.] 2015) (quoting Pridgen v. Parker 

Hannifin Corp., [] 905 A.2d 422, 427 ([Pa.] 2006)). 

As colorfully explained by then-Justice, later Chief 

Justice, Henry X. O’Brien, “[i]t is more important to 

prevent the chaos inherent in bifurcated, trifurcated, 

and multifurcated appeals than it is to correct each 

mistake of a trial court the moment it occurs.” 

Calabrese v. Collier Township Municipal 

Authority, [] 248 A.2d 236, 238 ([Pa.] 1968) 

(O'Brien, J., dissenting). Moreover, as parties may 

seek allowance of appeal from an interlocutory order 

by permission, we have concluded that that 

discretionary process would be undermined by an 

overly permissive interpretation of Rule 313. 

Geniviva [v. Frisk], 725 A.2d [1209,] 1214 n.5 [(Pa. 

1999)].
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Shearer [v. Hafer, 177 A.3d 850, 858 (Pa. 2018)]. See also

Hession Condemnation Case, [] 242 A.2d 432, 437 ([Pa.] 

1968) (O’Brien, J., dissenting) (commenting regarding statute 

permitting immediate appeal of interlocutory order: “The 

bifurcated appeal foisted upon the courts can only be termed a

judicial Hydra. Would that a Hercules could appear ... to slay this 

monster.”).

Interest of J.M., 219 A.3d at 655.

Regarding the first prong, an order is separable from the main 

cause of action if it is entirely distinct from the underlying issue in 

the case and if it can be resolved without an analysis of the merits 

of the underlying dispute.10 Although appellate courts tolerate a 

degree of interrelatedness between merits issues and the question 

sought to be raised in the interlocutory appeal, the claim must 

nevertheless be conceptually distinct from the merits of plaintiff’s 

claim.

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10 Two classic examples of separable issues include standing 

and discovery. See, e.g., K.C.[, 128 A.3d at 778] (“As the 

issue of whether [the a]ppellants are among the individuals 

who have standing to seek custody ... is a conceptually 

distinct legal question which has no bearing on the central 

issue within the custody action - who is entitled to physical 

and legal custody of [the c]hild in light of her best interests 

- we find that the [a]ppellants have established that the trial 

court’s order is separable from the main cause of action.”); 

Shearer, 177 A.3d at 858 (“The discovery-based issue of 

whether a plaintiff in a civil personal injury action has the 

right to counsel or other representative during a 

neuropsychological examination is a distinct legal question 

which has no bearing on the underlying issues in this 

negligence action.”).

Id. at 655-56 (some quotation marks, citations, and original brackets

omitted).

In the statement of jurisdiction section of its brief, Nucor sets forth the 

three-prong test of Rule 313 and refers us to its October 30, 2019 letter brief

in response to our rule to show cause. See Nucor’s Brief at 1. In this response, 
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Nucor argued that the instant appeal is separate from the main cause of action 

because it is “limited to a focused legal challenge[,] based on uncontested 

facts, that necessarily disposes of any need to assess or consider merits 

issues.” Response to Rule to Show Cause, 10/30/2019, at 4. Specifically, 

Nucor contended that because Lipinski’s claims against Nucor had been 

dismissed, and Lipinski did not conduct his own metallurgical testing of the 

rebar or contest B&G’s expert, the malfunction theory was inapplicable as a 

matter of law where, as here, the product was available. Id. at 2-6. As to the 

second and third prongs, Nucor claimed that public policy considerations of 

controlling costs in products liability litigation and the lost cost it would incur 

in defending itself at an unnecessary trial warranted immediate review of the 

denial of its motion for summary judgment. Id. at 6-7.

Nucor further argues in its reply brief that its motion for summary 

judgment was “completely separable from the merits and did not require for 

its granting any consideration of the merits or of any proffered facts in support 

of the [c]ross-[c]laim (i.e., none were offered by [] B&G)” because B&G did 

not oppose Nucor’s motion. Nucor’s Reply Brief at 5.

For his part, Lipinski argues that this Court is without jurisdiction over 

this appeal. He first points out that the trial court refused to certify the appeal 

as immediately appealable, and then argues Nucor has not met the first prong 

of the collateral order test. Lipinski’s Brief at 14-18. Lipinski maintains that 

the appeal cannot be separated from the main cause of action because the
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“central issue in this case, the alleged defective rebar, is precisely what is at 

issue” where Nucor’s “primary contention on appeal is that the rebar is not 

defective, while [Lipinski] continues to maintain that the rebar is defective.”

Id. at 16-17.

Nucor responds by assailing Lipinski’s characterization of the central 

issue in its motion for summary judgment as whether the rebar is defective, 

and instead claims that its motion involves 

the very different threshold inquiry of whether the [r]ebar was 

available for examination and testing (which it indisputably was), 

rendering the circumstantial evidence-based malfunction theory 

inapplicable as a matter of law. The results of the examination or 

testing (e.g., whether they are available and/or support the 

presence of a defect or not) need not be considered or evaluated 

as part of that dispositive threshold determination. Thus, the 

merits [of] whether the [r]ebar is or is not defective simply [are] 

not implicated or involved in the separability analysis in the 

circumstances of this case.

Nucor’s Reply Brief at 7. Nucor contends that the “focused limited legal issue”

raised on appeal, i.e., whether the malfunction theory is inapplicable as a 

matter of law, “eliminates any need to assess any merits, i.e., the cause of 

[Lipinski’s] alleged accident and whether or not the [r]ebar was defective.” 

Id. at 7-9, citing Pridgen, 905 A.2d 422, and Barnish, 980 A.2d at 539-40.

The trial court agreed with our Rule to Show Cause Order that the appeal 

is interlocutory, stating as follows.

The denial of summary judgment[,] as [Nucor] admits[] in his 

appeal, is not immediately appealable. The issue remains for the 

jury to decide whether[,] as both parties acknowledge, Nucor’s 

rebar was defective. Therefore, Nucor’s appeal is premature and 
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improper and should be quashed, as the Superior Court originally 

communicated to Nucor.

Trial Court Memorandum in Lieu of Opinion, 12/5/2019, at 3.

Nucor and Lipinski focus their arguments on the first prong of the 

collateral order test. The trial court’s denial of Nucor’s motion for summary 

judgment is not clearly separable and collateral from the main action as it had 

the potential to decide one or more issues in the case. See Melvin, 836 A.2d 

at 44. Nucor’s argument, that the malfunction theory does not apply as a 

matter of law, is not entirely distinct from the underlying issue in the case, 

i.e., whether the rebar was defective. See Interest of J.M., 219 A.3d at 655.

Although, as Nucor argues, a degree of interrelatedness between merits issues 

and the question sought to be raised in the interlocutory appeal is tolerable, 

the claim must nevertheless be conceptually distinct from the merits of 

Lipiniski’s claim. See id. Unlike the classic examples of standing and 

discovery, we cannot say that is the case here. 

Further, it is clear that Nucor has not satisfied the latter two prongs

either: importance of the right and irreparable loss. Pa.R.A.P. 313(b) 

(providing that “the right involved is too important to be denied review and 

the question presented is such that if review is postponed until final judgment 

in the case, the claim will be irreparably lost”). We do not see any compelling 

public policy concerns that are too important to be denied review at this stage 

of the proceedings. “For purposes of defining an order as a collateral order 

under Rule 313, it is not sufficient that the issue be important to the particular 
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parties. Rather it must involve rights deeply rooted in public policy going 

beyond the particular litigation at hand.” Geniviva, 725 A.2d at 1213-14. Nor 

do we find that going to trial constitutes the type of irreparable loss 

contemplated by the third prong. To find otherwise would be an archetypal 

case of the exception swallowing the rule. See Interest of J.M., 219 A.3d at 

655; Rae v. Pennsylvania Funeral Directors Ass'n, 977 A.2d 1121, 1126 

(Pa. 2009) (stating “our precedent strongly cautions against permitting the

collateral order doctrine to become an exception which swallows, in whole or 

in any substantial part, the final order rule”). It is clear that the claims made 

by Nucor are not irreparably lost as there is a means by which to later argue 

Lipinski is not entitled to relief. As our Supreme Court noted, “[a]ny 

efficiencies gained in reduced trial litigation would be at the expense of 

increased appellate litigation.” Geniviva, 725 A.2d at 1214.

Thus, having concluded that we have no jurisdiction to review the trial 

court’s August 26, 2019 order, the appeal is quashed.

Appeal quashed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2020