J-A18023-17

2018 PA Super 231

RONALD M. DUNLAP

Appellant

v.

FEDERAL SIGNAL CORPORATION

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DINO ABBOT

Appellant

v.

FEDERAL SIGNAL CORPORATION

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KEITH BRADLEY

Appellant

v.

FEDERAL SIGNAL CORPORATION

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BRIAN CAVANAUGH

Appellant

v.

FEDERAL SIGNAL CORPORATION

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GLENN GASIOROWSKI

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA
J-A18023-17

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Appellant

v.

FEDERAL SIGNAL CORPORATION

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ROGER MAHER

Appellant

v.

FEDERAL SIGNAL CORPORATION

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CARL ROELL

Appellant

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FEDERAL SIGNAL CORPORATION

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No. 1747 WDA 2016

Appeal from the Order Entered October 21, 2016

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): GD-13-006083, 

GD-13-009820, GD-13-010550, 

GD-13-013251

BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

OPINION BY BOWES, J.: FILED AUGUST 20, 2018

Appellants Roger Maher and Carl Roell (“Maher and Roell”) appeal from 

the order granting summary judgment in favor of Federal Signal Corporation 

(“Federal Signal”), and dismissing all remaining claims. We affirm.
J-A18023-17

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Maher and Roell are members of the Pittsburgh Bureau of Fire. They 

are parties in a mass tort products liability action commenced by 

approximately 247 firefighters who allegedly suffered permanent hearing loss 

due to exposure to siren noise from the Q2B siren (“Q-siren”) manufactured 

by Federal Signal. Their cases were consolidated for trial with cases filed by 

six other firefighters (collectively “plaintiff firefighters”) under the Dunlap 

caption and designated as Trial Group 1A.1 

The underlying complaint of the plaintiff firefighters is that the Q-siren 

is unreasonably dangerous and defective and negligently designed because it 

emits omnidirectional, high-decibel sound that, over time, causes permanent 

hearing loss to firefighters occupying the firetruck. They offered the expert 

testimony of Christopher J. Struck, an acoustics expert, to the effect that a 

shroud, particularly the Bromley Shroud, could be applied to the Q-siren to 

divert the noise to the front of the vehicle while still meeting industry 

standards for warning sirens. Instead of emitting sound in all directions, the 

shroud would funnel the noise in a cone-shaped direction in front of the 

firetruck, thereby reducing the noise level in the cab of that vehicle. 

Federal Signal argued that attaching a shroud to reduce the angle at 

which the sound was emitted would render its product less safe for the 

pedestrians and motorists it was intended to warn. It pointed to the danger 

presented by the proposed design to motorists and pedestrians, especially at

____________________________________________

1 Originally, Trial Group 1A consisted of eight plaintiffs. The claims of 

Christopher Wilson were dismissed prior to the order at issue herein. 
J-A18023-17

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intersections, as the shroud would reduce the noise level of the siren to the 

rear and sides of the vehicle. The company contended that plaintiff firefighters 

had failed to offer prima facie evidence that the shrouded alternative was 

effective and safe for all users, including the pedestrians and motorists it was 

intended to warn. 

After the completion of discovery and the filing of all expert reports, 

Federal Signal filed a Frye2 motion to preclude the expert testimony of Mr. 

Struck, and a motion for summary judgment on the strict liability claim. The 

Group 1A plaintiff firefighters opposed both motions. Following argument on 

January 21, 2016, the trial court denied the Frye motion, but granted 

summary judgment on the strict products liability claim. In response to 

Federal Signal’s motion for clarification of the order, the trial court pointed out 

that the plaintiff firefighters’ negligence claim was still outstanding, and 

granted leave to Federal Signal to seek summary judgment on that claim as 

well. Federal Signal filed the motion, the firefighter plaintiffs opposed it, and 

on October 21, 2016, the trial court granted summary judgment in favor of 

Federal Signal on the remaining negligence claims.

Maher and Roell timely appealed and complied with the trial court’s 

order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal, and the trial court penned its Rule 1925(a) opinion. They raise one 

issue for our review:

____________________________________________

2 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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Whether the [t]rial [c]ourt made an error of law in granting 

[Federal Signal’s] [m]otion for [s]ummary [j]udgment and 

dismissing the action due to the lack of expert testimony on the 

issue of whether the proposed feasible alternative design “will 

provide as much protection to motorists, pedestrians, and 

firefighters occupying the fire truck as the design of the Federal 

Signal siren that provides unrestricted 360-degree noise 

projection.” Memorandum of the Hon. R. Stanton Wettick, Jr., 

[4/14/16, at 8.]

Appellants’ brief at 4.

It is well settled that “summary judgment is appropriate only in those 

cases where the record clearly demonstrates that there is no genuine issue of 

material fact and that the moving party is entitled to judgment as a matter of 

law.” Truax v. Roulhac, 126 A.3d 991, 996 (Pa.Super. 2015) (en banc) 

(quoting Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)). 

In ruling on such a motion, “the trial court must take all facts of record and 

reasonable inferences therefrom in a light most favorable to the non-moving 

party” and “resolve all doubts as to the existence of a genuine issue of material 

fact against the moving party.” Id. “Where the non-moving party bears the 

burden of proof on an issue, he may not merely rely on his pleadings or 

answers in order to survive summary judgment.” Babb v. Ctr. Cmty. Hosp., 

47 A.3d 1214, 1223 (Pa.Super. 2012) (citations omitted). “[F]ailure of a nonmoving party to adduce sufficient evidence on an issue essential to his case 

and on which he bears the burden of proof establishes the entitlement of the 
J-A18023-17

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moving party to judgment as a matter of law.” 3 Id. Thus, “a proper grant 

of summary judgment depends upon an evidentiary record that either (1) 

shows the material facts are undisputed or (2) contains insufficient facts to 

make out a prima facie cause of action or defense.” Basile v. H & R Block, 

Inc., 777 A.2d 95, 100 (Pa.Super. 2001) (quoting McCarthy v. Dan Lepore 

& Sons Co., Inc., 724 A.2d 938, 940 (Pa.Super. 1998)).

On appeal, this Court 

may reverse a grant of summary judgment if there has been an 

error of law or an abuse of discretion. But the issue as to whether 

there are no genuine issues as to any material fact presents a 

question of law, and therefore, on that question our standard of 

review is de novo. This means we need not defer to the 

determinations made by the lower tribunals. 

Truax, supra at 996 (quoting Weaver v. Lancaster Newspapers, Inc., 

926 A.2d 899, 902-03 (Pa. 2007)). “To the extent that this Court must resolve 

a question of law, we shall review the grant of summary judgment in the 

context of the entire record.” Id. at 903. 

Thus, our responsibility as an appellate court is to determine 

whether the record either establishes that the material facts are 

undisputed or contains insufficient evidence of facts to make out 

a prima facie cause of action, such that there is no issue to be 

decided by the fact-finder. If there is evidence that would allow a 

____________________________________________

3

In Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), our Supreme Court 

noted that, in California, when a plaintiff proceeds on a strict products liability 

theory based on the risk-utility standard, the burdens of production and 

persuasion shift to the defendant to prove that its product is not defective in 

design. See Barker v. Lull Eng'g Co., 573 P.2d 443, 445 (Cal. 1978). The 

Tincher Court declined to address, however, whether such a burden-shifting 

rule applied in Pennsylvania. 
J-A18023-17

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fact-finder to render a verdict in favor of the non-moving party, 

then summary judgment should be denied.

Id. (quoting Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898 (Pa.Super. 

2011)) (citations omitted).

Implicated herein is Pennsylvania’s strict products liability law governing 

design defects. The Restatement (Second) of Torts § 402A remains the law 

of Pennsylvania in such actions. In Tincher v. Omega Flex, 104 A.3d 328, 

399 (Pa. 2014), our Supreme Court declined to adopt the Restatement (Third) 

of Torts, but clarified that a plaintiff could prove defective design in two ways: 

1) by showing that the product’s danger is unknowable and unacceptable to 

the average consumer (the consumer expectations test); or 2) that a 

reasonable person would conclude that the probability and gravity of the harm 

caused by the product outweigh the burden or cost of taking precautions (the 

risk-utility standard). 

Plaintiff firefighters proceeded under the risk-utility test. The relevant 

factors for such an analysis were set forth in Tincher:

1. The usefulness and desirability of the product – its utility to the 

user and the public as a whole.

2. The safety aspects of the product – the likelihood that it will 

cause injury, and the probable seriousness of the injury.

3. The availability of a substitute product which would meet the 

same need and not be as unsafe.

4. The manufacturer’s ability to eliminate the unsafe character of 

the product without impairing its usefulness or making it too 

expensive to maintain its utility.
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5. The user’s ability to avoid danger by the exercise of care in the 

use of the product.

6. The user’s anticipated awareness of the dangers inherent in the 

product and their availability, because of general public 

knowledge of the obvious condition of the product, or the 

existence of suitable warnings or instructions.

7. The feasibility, on the part of the manufacturer, of spreading 

the loss by setting the price of the product or carrying liability 

insurance. 

Tincher, supra at 398-99 (quoting John W. Wade, On the Nature of Strict 

Tort Liability for Products, 44 Miss. L. J. 825, 837-38 (1973)). The Tincher

Court recognized that trial courts would not necessarily have the expertise to 

balance these factors, and thus, in the majority of cases, experts would be

required to analyze them. 

According to Maher and Roell, their design for the shrouded siren would 

eliminate the unsafe character of the siren without impairing its usefulness as 

a warning device. They claim that the trial court erred in requiring expert 

testimony to the effect that the proposed alternative design would provide as 

much protection to motorists, pedestrians, and firefighters occupying the fire 

truck as Federal Signal’s Q-siren. They contend first that the trial court looked 

at the risk-utility test, focused on the third factor, and incorrectly expanded it 

to include non-users of the product, namely pedestrians and motorists. In 

addition, Maher and Roell contend that such expert testimony is unnecessary 
J-A18023-17

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in light of evidence that the proposed alternative design, the shrouded siren, 

meets all industry requirements set forth in SAE J1849.4 

Federal Signal counters first that Maher and Roell’s argument based on 

the SAE standard is not properly before this Court, as the standard and 

testimony regarding its promulgation were only submitted to the trial court 

with the motion for reconsideration. They maintain that evidence that was 

not before the trial court in ruling on the motion for summary judgment is not 

part of the record on appeal. 

Second, Federal Signal argues that the trial court correctly granted 

summary judgment since Maher and Roell did not present expert testimony 

necessary for a prima facie case. Not only were the plaintiff firefighters 

required to demonstrate a feasible alternative design, but also that the 

alternative design was effective and did not introduce a new or greater hazard. 

Mr. Struck’s expert testimony did not address the general effectiveness of the 

shrouded siren versus the Q-siren vis-‘a-vis the public. 

Third, Federal Signal argues that even if the SAE standard is considered, 

compliance therewith is not de facto proof that a siren is safe and effective. 

It maintains that the standard only sets minimum noise outputs in the front 

____________________________________________

4 The Society of Automotive Engineers promulgates industry standards. SAE 

J1849 contains performance requirements, guidelines, and test methods for 

electronic siren systems and electromechanical sirens used on emergency 

vehicles with the right-of-way.
J-A18023-17

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of the vehicle and does not contemplate the general risk to pedestrians and 

motorists. 

Finally, Federal Signal maintains that the trial court properly considered 

the safety of the public, namely pedestrians and motorists, as well as 

firefighters in determining whether the product’s design was defective. It 

points to language in Tincher, supra at 399, advising courts to consider the 

“utility to the user and to the public as a whole.” Federal Signal observes that 

Maher and Roell cite no authority in support of their contention that 

pedestrians and motorists are not users of the warning device. 

As the trial court noted, sirens are dangerous products. They emit noise 

calculated to warn motorists and pedestrians of the presence of a speeding 

emergency vehicle. In order to prevail in the instant products liability action, 

plaintiff firefighters had to prove that Federal Signal’s Q-siren was 

unreasonably dangerous, and that exposure to the noise caused the 

firefighters’ hearing loss. The trial court found that the medical evidence in 

the record, if credited by the factfinder, established the requisite causation. 

Unreasonably dangerous design could be established with proof of an 

alternative feasible design that would reduce the decibel level of the noise
J-A18023-17

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experienced by the firefighters, but still provide effective warnings to the 

public.5 The court found that proof lacking. 

Plaintiff firefighters’ acoustics expert, Mr. Struck, presented an

alternative siren design that would afford greater protection for firefighters 

from hearing loss by adding a Bromley Shroud, which would direct the noise 

to the front of the fire truck and away from the cab. However, he focused 

solely on the benefits of the shrouded design to the firefighters occupying the 

cab of the firetruck; he did not opine whether that design would protect the 

public. The expert offered no opinion whether this alternative design was as 

effective in warning all users, including pedestrians and motorists, located to 

the side and rear of the vehicle. In addition, Mr. Struck expressly stated that 

he had no opinion as to what specific angle the siren needed to project in 

order to be effective as a warning device, and that he “would simply defer to 

the industry standard, the SAE J1849.” Struck Deposition, 4/19/13, at 150. 

The trial court concluded that, after Tincher, expert testimony was 

required regarding the alternative product’s effectiveness as a warning device

for all users. It rejected the notion that the SAE J1849 standard, or the 

proposed alternative’s compliance with the standard, was a substitute for such 

____________________________________________

5 The trial court noted evidence in the record from an expert in an Illinois case 

that, in forty to fifty-two percent of accidents involving emergency response 

vehicles, the initial point of collision was the side or back of the emergency 

vehicle. Trial Court Memorandum, 4/14/16, at 7 n.6 (citing Arndt Tr., 

11/17/11, at 1216:5-8).
J-A18023-17

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expert testimony, as it was only a minimum industry standard.6 We agree for 

the reasons that follow. 

For decades after Section 402A became the law of Pennsylvania,

defendants in strict products liability actions sought to introduce proof of their 

product’s compliance with minimum industry standards in order to negate the 

existence of a design defect. We held such evidence to be inadmissible under 

the then-prevailing law of Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 

1978) (overruled by Tincher, supra), reasoning that compliance with 

minimum standards is not proof of non-defective design and that negligence 

concepts have no place in strict liability. 

This Court recently noted in Webb v. Volvo Cars of America, LLC, 

148 A.3d 473 (Pa.Super. 2016), that the prohibition against evidence of 

government or industry standards had “its genesis in the now-defunct 

____________________________________________

6 We find no merit in Federal Signal’s position that the SAE standard is not 

before us on appeal because a copy of the standard was not initially provided 

to the court. The standard was identified in Mr. Struck’s report and discussed 

at his deposition. Plaintiff firefighters contended that a jury could find that 

the alternative design provided the same protection to the public based merely 

on its compliance with that industry standard. At oral argument on the motion 

for summary judgment, counsel for Federal Signal explained why the expert’s 

opinion that the proposed alternative design met the industry standard was 

insufficient to demonstrate that it was effective in protecting the public. See

N.T., 1/21/16, at 33. In granting summary judgment in favor of Federal 

Signal, the trial court did not need a copy of the standard in order to find that 

industry standards are minimum standards only, and that plaintiff firefighters 

could not prevail without expert testimony that the alternative design was 

effective in protecting motorists and pedestrians. 
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Azzarello regime.” Id. at 483. Nonetheless, we concluded therein that the 

overruling of Azzarello did not provide a sufficient basis to disregard the 

evidentiary rule espoused in Lewis v. Coffing Hoist Div., Duff Norton Co., 

Inc., 528 A.2d 590 (Pa. 1987), and Gaudio v. Ford Motor Co., 976 A.2d

524, 547 (Pa.Super. 2009), that a product’s compliance with government 

standards is irrelevant and inadmissible in a strict products liability action.

7

 

Id. at 483. In particular, we found that Tincher did not undermine the 

concern, identified in Lewis, that defective design could be widespread in the 

industry, and hence, evidence that a product comported with industry 

standards was not proof of non-defectiveness. See Lewis, supra at 594.8

____________________________________________

7 We do not disagree with the learned Dissent that this Court posited in Webb 

v. Volvo Cars of America, LLC, 148 A.3d 473 (Pa.Super. 2016), that the 

evidentiary rule prohibiting admission of industry standards might be reexamined post-Tincher. Nonetheless, in Webb, this Court reasoned that 

Tincher did not abrogate the accepted notion that defective design can be 

widespread in an industry, and that compliance with industry standards is not 

proof of non-defectiveness. 

8 The continued viability of the evidentiary rule espoused in Lewis and Gaudio

is not before us. However, that issue arose in Renninger v. A&R Mach. 

Shop, 163 A.3d 988 (Pa.Super. 2017), a post-Tincher design defect case. 

The plaintiff proceeded under a risk-utility analysis. Plaintiff worked in a plant 

that constructed modular homes. Casters were attached to the bottom of the 

frame of the homes to enable them to move along the assembly line. Plaintiff 

sustained a serious injury when a caster designed and manufactured by the 

defendant ran over his foot. Prior to trial, plaintiff filed a motion in limine to 

preclude evidence of industry standards applicable to casters, as well as OSHA 

standards. The trial court denied the motion, reasoning that, “industry 

standards may supply the jury with a useful starting point from which to 

evaluate the caster’s design.” Id. at 997. At trial, plaintiff’s expert opined 

that the casters were defective because they lacked a toe guard; the defense 
J-A18023-17

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The question herein is whether Maher and Roell adduced sufficient 

evidence on the effectiveness of their proposed alternative design to withstand 

summary judgment. They argue that proof that their design comported with 

industry standards is enough to prove its effectiveness for all users. 

The trial court concluded that expert opinion to that effect was 

necessary and that, although Mr. Struck opined that the proposed alternative 

design was safer for firefighters, he did not offer any expert opinion regarding 

the effectiveness of that design in warning motorists and pedestrians. In lieu 

of expert opinion on that subject, Mr. Struck merely deferred to the SAE 

standards, which are minimum requirements only. 

In ruling on the motion, the trial court considered evidence of the 

industry standards and the compliance of the firefighters’ proposed design

with those standards. The court determined that compliance with standards 

alone was not prima facie evidence that a product’s design was non-defective 

and effective, and held that expert opinion was necessary to establish that the 

____________________________________________

expert testified that the casters met the industry and ANSI standards, which 

did not require a guard. The jury returned a defense verdict. On appeal, 

plaintiffs-appellants purported to challenge the trial court’s admission of 

industry standards regarding casters, as well as the OSHA standards. 

Unfortunately, they limited their argument to the latter. Accordingly, we 

confined our analysis to the arguments actually presented and did not reach 

the question whether the court erred in permitting the defense expert to 

introduce and rely upon industry standards for casters after Tincher. 
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proposed alternative design was effective and met the need of all users, not 

just firefighters. 

At issue are technical matters that are beyond the ken of ordinary 

persons and within the knowledge of expert witnesses available to the parties. 

We agree with the trial court that expert opinion on the effectiveness of the 

alternative design as a warning for pedestrians and motorists was required, 

and that it was lacking herein.9 While Maher and Roell offered expert opinion 

that their proposed alternative design was safer for firefighters, they failed to 

adduce competent expert opinion that it also met the need for an effective 

warning for motorists and pedestrians. Maher and Roell’s proof that their 

proposed design met the industry standard was not enough to establish a 

prima facie case that it was more effective for all users than the Q-siren. 

Order affirmed. 

Judge Ott joins the opinion.

Judge Lazarus files a dissenting opinion.

____________________________________________

9 The Dissent expresses disagreement with the notion “that we must disregard 

the evidence in this case purporting to show Maher and Roell’s alternative 

design is effective for purposes of the risk-utility standard” and maintains that 

“[t]he evidence of record is sufficient to make a prima facie case that the Qsiren was defective and Maher and Roell’s proposed alternative design

provided as much protection to the public as the Q-siren.” Dissenting Opinion 

at 7-8. The record reflects, however, that the trial court did not disregard the 

standards in ruling on the motion for summary judgment. Rather, the court 

concluded that expert opinion was required on the efficacy of the alternative 

design with regard to pedestrians and motorists; evidence of compliance with 

the standards alone did not suffice for purposes of making out a prima facie 

case. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/20/2018