J

- A12014

- 19

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ERIC URBIETA AND KRI STI URBIETA , IN THE SUPERIOR COURT OF PENNSYLVANIA Appellants

v.
ALL

- AMERICAN HOSE, L LC; DAVIS STANDARD CORPORATION ; HAGERTY PRECISION TOOL, INC. ; FASTENAL COMPANY; ERIE COMMER CE, LLC; LEWCO, INC.; LEWCO I NTERNATIONAL, LLC; PERFORMANCE FIB ERS, INC.; T/D/B/A DURAFIBER TE CHNOLOGIES; PERFORMANCE FIBERS O PERATIONS, INC., T/ D/B/A DURAFIBER TECHNOLOGIES; DURAFI BER TECHNOLOGIES , Appellees No. 122 4 W DA 201 8

Appeal from the Order Entered July 31 , 201 8 In the Court of Common Pleas of Erie County Civil Division at No( s): 11413

- 2015
BEFORE: BENDER, P.J.E., DUBOW , J., and FORD ELLIOTT , P. J. E. MEMORANDUM BY BENDER, P.J.E.: FILED JULY 26, 2019 Appellants, Eric Urbieta and Kristi Urbieta, appeal from the trial court’s July 31, 2018 order, granting summary judgment in favor of Appellees, All

American Hose, LLC (“AAH”); Davis Standard Corporation (“Davis”) ; Hagerty Precision Tool, Inc. (“Hagerty”) ; Fastenal Company (“Fastenal”) ; ErieJ

- A12014

- 19

- 2

-

Commerce, LLC; 1 Lewco, Inc.; Lewco International, LLC; 2 Pe rformance Fibers, Inc., t/d/b/a Durafiber Technolo gies; Performance Fibers Operations, Inc., t/d/b/a Durafiber Technologies; and Durafiber Technologies

. 3 We affirm. The trial court aptly summarized the background of this case as follows: [Mr.] Urbieta ... suffered a traumatic brain and right shoulder in jury when he was struck by an industrial hose on May 3, 2013, while working at [AAH] as a temporary employee supplied by Remedy Intelligent Staffing, Inc. (“Remedy”). At the time of the accident, [Mr.] Urbieta was working as a hose “normalizer.” Normaliz ation is a quality control process in which high pressure steam is injected into the hose, made by [AAH], to test it for leaks. [Mr.] Urbieta was responsible for placing an adapt er inside one end of a hose. He then had to clamp the hose fabric between th e adapt [e] r and a “bell and cable system.” [Hagerty] manufactured the adapt [e] r using [AAH’s] specifications. The bell and cable system consisted of various parts, including nuts made by [Fastenal]. During testing, the hose was stretched out on a non

mo torized roller table made by [Lewco]. The table was equipped with a safety strap designed and installed by [AAH]. On the day of the accident, before steam was injected into the hose as part of the normalization process, [Mr.] Urbieta was tasked with ins erting the adapt [e] r into the hose and clamping the bell and cable system around [ the ] adapt [e] r and hose end. [Mr.] Urbieta found a stripped screw or bolt on the bell and cable system. Instead of obtaining a new screw or bolt, the maintenance man, Mike Sammons, drove to [AAH’s] Union City [p]lant and retrieved a new bell and cable system. This bell and

_________________ __________ ______ ____ _______
1 Based on our review of the docket, it appears that a stipulation of voluntary disconti nuance of Erie Commerce, LLC, with prejudice, was entered on December 5, 2016.

2 We refer to Lewco, Inc., and Lewco International, LLC, collectively as “Lewco.”

3 We refer to Performance Fibers, Inc., t/d/b/a Durafiber Technologies; Performance Fibers Operations, Inc., t/d/b/a Durafiber Technologies; and Durafiber Technologies collectively as “Durafiber.”J

- A12014

- 19

- 3

-

cable system was small er than the ones provided at the Erie plant because the hoses manufactured in Union City were smaller. It is unknown whether [Mr.] Urbieta was aware of the difference in sizes. [Mr.] Urbieta affixed the new bell and cable system. The hose was filled wit h pressurized steam and the[n , ] suddenly, the bell and cable system and the adapt [e] r blew off the end of the hose. The hose, powered by the steam coursing through it, whipped around striking [Mr.] Urbieta and violently throwing him across the room. [Mr. ] Urbieta sustained serious injuries. Prior to the accident, [Mr.] Urbieta had only been in the normalizing position for less than a week. He was a temporary employee hired out by Remedy on a “temp

- to

- hire” basis. Remedy reviewed [Mr.] Urbieta’s work h istory, training and educational background and classified him in order to place him with an appropriate employer. Remedy forwarded [Mr.] Urbieta’s r é sumé to its client, [AAH], for its consideration. [AAH] selected [Mr.] Urbieta, among others, to work in its Erie plant. [Mr.] Urbieta reported directly to [AAH] each work day. No one from Remedy accompanied new hires to [AAH]. No one from Remedy was present at the [AAH] job site. [Mr.] Urbieta received all work assigned for [AAH]. [Mr.] Urbieta began h is employment at [AAH] doing maintenance work. On approximately April 25, 2013, [AAH] assigned [Mr.] Urbieta to work as a hose normalizer. He was trained and directed on how to do the job solely by representatives of [AAH]. [AAH] provided [Mr.] Urbieta with all equipment necessary for the job including gloves, eye protection, hearing protection and tools. [AHH] had the power to promote or reject [Mr.] Urbieta as an employee. If unsatisfied with [Mr.] Urbieta’s work, [AAH] could return him to Remedy. [ AAH] also had the power to hire [Mr.] Urbi e ta to full[

- ]time status. Procedurally, [the Urbietas] initially brought suit against [AAH] only[] at Docket No. 10646

- 2015. They subsequently filed a second lawsuit against [AAH] and the other [Appellees] at t he above[

- ]noted Docket No. 11413

- 2015. Pursuant to a stipulation with [AAH] , [ the Urbietas] elected to abandon the action at Docket No. 10646

- 2015 in favor of pursuing this case. [The Urbietas’] claims sound in negligence, strict liability, breach of wa rranty, and loss of consortium. [The Urbietas] have filed two expert reports with their pretri al narratives. Discovery is now closed and each [ remaining Appellee ] has filed a Motion for Summary Judgment. []Hagerty joined in [the Urbietas’] Re s ponses in Opposition to [AAH] ’s Motion for Summary Judgment under the theory that theJ

- A12014

- 19

- 4

-

adapt [e] r Hagerty manufactured was designed by [AAH] and subsequently altered by [AAH]

.
*** [AAH] investigated the accident and did not find that any of the component parts of the normalization process had failed. The bell and cable system was still secured together and the nuts were still fastened to the bolts. Rather, [AAH] found that the adapt er and bell and cable system had slipped off the end of the hose. [AAH] concluded tha t the wrong sized bell and cable system was obtained by another [AAH] employee and erroneously provided to [Mr.] Urbieta. [AAH] also concluded that [Mr.] Urbieta did not affix the seat belt type strap used to secure the hose to the table and that [Mr.] Ur bieta failed to properly secure the bell and cable system around the hose and adapt [e] r assembly. [The Urbietas’] experts, James L. Glancey, Ph.D. [,] and Jack R. Vinson, Ph.D., submitted two expert reports: (1) Engineering Letter Report, June 20, 2017; a nd (2) Supplemental Engineering Report, August 10, 2017. [The Urbietas’] experts conclude that, “[b]y all accounts, the [b]ell and [c]able system that was used to secure the normalizing hardware to the hose failed.” In their June 20, 2017 report, [the Ur bietas’] experts identif y specific shortcomings of Lewco , the manufacturer of the non

- motorized table, and Fastenal, the maker of the nuts used to secure the bell and cable system together. In their August 10, 2017 report, [the Urbietas’] experts also cit e sp ecific shortcomings on the part of Hagerty, the manufacturer of the adapt [e] r. [The Urbietas’] experts do not mention [Davis], the manufacturer of the extruder machine that applied a coating to the hose, nor do [the Urbietas] mention

... Durafiber

... , manu facturers of the yarn/fibers used to construct the hose. Furthermore, [the Urbietas’] experts do not make any findings that implicate the hose, its fibers, or its coating as contributing factors or sources of the accident. Trial Court Opinion ( “ TCO ” ), 7/31/2018, at 2

- 5 (footnote and internal citations omitted).
As mentioned by the trial court, AAH, Davis, Hagerty, Fastenal, Lewco, and Durafiber each filed a motion for summary judgment. On July 31, 2018,J

- A12014

- 19

- 5

-

the trial court issued an opinion and order , grant ing summary judgment in favor of each of these Appellees . That same day, it entered judgment accordingly. On August 27, 2018, the Urbietas filed a timely notice of appeal. The trial court directed the Urbietas to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and they timely complied. In their Rule 1925(b) statement, the Urbietas asserted errors pertaining to only Hagerty and Lewco. Consequently, o n November 26, 2018, AAH, Davis, Fastenal, and Durafiber filed an ap plication for relief with this Court, requesting that we dismiss them from the appeal because there was no appeal or claimed error involving them before us. On December 10, 2018, this Court entered a per curiam order, dismissing the appeal as to those par ties. Presently, t he Urbietas raise the following issues for our review: 1. Did the trial court err in finding that [the Urbietas] failed to produce evidence that Hagerty’s adapter failed? 2. Did the trial court err by deciding issues of fact in holding that [Lewco was] not aware of the use of its table in the normalization process and therefore was not required to affix proper warnings? 3. Did the trial court err by deciding issues of fact in holding that [Lewco was] not required to supply proper guards for its tables? Urbietas’ Brief at 4. At the outset, we acknowledge our standard of review for orders granting summary judgment: 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. In ruling on such a motion, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorabl e to the non - movingJ

- A12014

- 19

- 6

-

party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. 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. [F]ailure of a non

- moving 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 moving party to jud gment as a matter of law. 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. 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 genuin e 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. To the extent that this Court must resolve a qu estion of law, we shall review the grant of summary judgment in the context of the entire record. Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insuff icient 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 fact

- finder to render a verdict in favor of the non

- moving party, then summary judgme nt should be denied. Dunlap v. Federal Signal Corp. , 194 A.3d 1067, 1069

- 70 (Pa. Super. 2018) ( footnote, internal quotation marks, and internal citations omitted). In their first issue, the Urbietas argue that the trial court erred by finding
as a matte r of law that they failed to produce evidence that Hagerty’s adapt er failed. See Urbietas’ Brief at 18. They explain that they produced expertJ

- A12014

- 19

- 7

-

reports wherein their experts identified multiple defects in the drawings used by Hagerty to machine the adapte r. Id. at 16. The Urbietas claim that, “[d]espite these deficiencies, Hagerty failed to contact [AAH] before machining a final product, and ultimately produced a defective product.” Id. According to the Urbietas, “[t]he defect in the final product mate rially contributed to the adapter failing and injuring Mr. Urbie ta.” Id. Thus, they assert that Hagerty defectively designed the adapter and should be liable under Section 402A of the Restatement (Second) of Torts

. Id. at 18

- 20. Our Supreme Court has stated that Pennsylvania “remains a Second Restatement jurisdiction....” Tincher v. Omega Flex, Inc. , 104 A.3d 328,
400 (Pa. 2014)

. 4 Section 402A of t he Second Restatement provides: (1) 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 (a) the seller is engaged in the business of selling such a product, and (b) it is expect ed to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

_________________ __________ ______ ____ _______
4 Our Supreme Court cautioned us, however, that “[t] he language of a restatement

... is not necessarily susceptible to ‘statutory’

- type construction or parsing .” Id. at 401.J

- A12014

- 19

- 8

-

Restateme nt (2D) of Torts § 402A (1965). This Court has explained that: To prevail in an action under [S] ection 402A, the plaintiff must prove that the product was defective, the defect exi sted when it left the defendant’ s hands, and the defect caused the harm. The threshold inquiry in all products liability cases is whether there is a defect. This threshold can be crossed ... either by pro ving a breakdown in the machine or a component thereof, traditionally known as a manufacturing defect; or in cases where there is no breakdown, by proving that the design of the machine results in an unreasonably dangerous product, traditionally known as a design defect. A th ird doctrine recognized under [S] ection 402A is the “failure

to

- warn” theory, under which the plaintiff may recover for the defendant’s failure to provide adequate instructions to the user on how to use the product as the product was de signed. To succeed on a claim of inadequate or lack of warning, a plaintiff must prove that the lack of warning rendered the product unreasonably dangerous and that it was the proximate cause of the injury. Barton v. Lowe’s Home Centers, Inc. , 124 A.3d 349, 354

- 55 (Pa. Super. 2015) (internal citations and some quotation marks omitted). With respect to Hagerty, the Urbietas only challenge the trial court’s granting of summary judgment in favor of Hagerty on their defective design claim against it. See U rbietas’ Brief at 18

- 20

. For design defects, [t] he plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the p robability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The burden of production and persuasion is by a preponderance of the evidence.

... Whether a product is in a defective condition is a question of fa ct ordinarily submitted for determination to the finder of fact;J

- A12014

- 19

- 9

-

the qu estion is removed from the jury’ s consideration only where it is clear that reasonable minds could not differ on the issue. Tincher , 104 A.3d at 335

. In granting summary judgment in f avor of Hagerty , the trial court explained: Hagerty is a tool and die busin ess that manufactured the adapt[e] r used to cap the end of the hose. Hagerty machined t he adapt[e] r to the precise specifications provided by [AAH]. In their August 10, 2017 report, [the U rbie tas’] experts note that they reviewed the mechanical drawings provided by [AAH] to Hagerty. Based on the ir review of the drawings, [ the U rbie tas’] experts opine that the drawings are defective in that: (1) there is a missing dimension in the drawing[;] (2) there is an improper call out for a [ threa d ed ] hole[;] (3) there is no specification for surface finish; and (4) Hagerty used a different steel alloy than spec ified by the drawings. However, [the U rbie tas’] experts do NOT say that any of the imperfections in the dra wings actually caused the adapt[e] r to fail. On the contrary, they specify that it was the “Bell and Cable System” used to secure the normalizing h ardware ( i.e. [,] the adapt[e] r) to the hose that failed. Consequently, [the U rbie tas’] claims against Hagerty, based on negligence, products liability, and warranty theories all fail for lack of any evidence evincing proximate cause. TCO at 14 (emphasis i n original)

. We agree with the trial court. While the Ur bietas do not contest that evidence of proximate cause is required, they fail to point to specific evidence establishing that any purported defect in the adapter caused Mr. Urbieta’s harm. Specif ically, with respect to causation, the Urbietas argue: The [June 20, 2017] Engineering Letter Report does note that the bell and cable system used to secure the normali zing hardware, including the at[

- ] issue adapter, failed. R.R. 1403. However, there is nothing in the June 20, 2017 Report that exculpates ... Hagerty from liability in this matter. Rather, a fair reading of the June 20, 2017 Report and August 10, 2017 Supplemental Report, reveals that the issues identified in the Supplemental ReportJ

- A12014

- 19

- 10

-

caused o r contributed to [the] overall failure of the bell and cable system and Mr. Urbieta’s injuries. Urbietas’ Brief at 22

- 23. Problematically, the Urbietas do not cite to where their experts opined that the purported defects in the adapter caused or contrib uted to the overall failure of the bell and cable system and Mr. Urbieta’s harm, nor do they develop an argument

— with citations to specific evidence

— to otherwise support this proposition. As Hagerty persuasively discerns, “[t]here exists no genuine is sue of material fact for a jury to decide. Nowhere
in either of [the] Urbietas’ expert reports does the expert say that Hagerty’s adapter caused [Mr.] Urbieta’s accident. Reasonable minds cannot differ. Summary judgment was appropriate.” Hagerty’s Brie f at 11. We concur. Accordingly , we conclude that the trial court did not err in entering summary judgment in favor of Hagerty on this basis

. In their second issue, the Urbietas advance that the trial court “e rred by deciding issues of fact in holding that [Lewco] was not aware of the use of its table in the normalization process and therefore was not required to affix proper warnings.” Urbietas’ Brief at 24 (unnecessary emphasis omitted). They contend that Lewco “had a legal duty to warn of dangerou s propensities of [its] products , a legal duty that [Lewco has] made impossible to fulfill based on their online order ing system, ” and aver that Lewco failed to provide warnings “regarding the amount of weight or force that could be exerted onJ

- A12014

- 19

- 11

-

the machine, despite sufficient knowledge to do so.” Id. at 28. 5 They argue that “[a] portion of the conveyor supplied by Lewco ... was functionally destroyed during the incident which injured [Mr. Ur bie ta],” and claim that “[t]he combined weight and force exerted by the hose exceeded the conveyor table’s physical capabilities and ultimately caused the conveyor table to fail. If that at[

- ]issue conveyor table did not totally break down during the at[

- ]issue incident, [Mr. Urbie ta] would not have been injur ed.” Id. at 27, 28. Thus, the Urbie tas advance that Lewco was negligent in failing to warn users of the recommended weight and force to be exerted on the table. See id. at 24, 26

- 27. It is well established that: Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances. To prove a negligence claim, the plaintiff must prove the following four elements: (1) a legally recognized duty

_________________ __________ ______ ____ _______ 5 By way of background, w ith respect to Lewco’s online ordering system, the Urbietas explain that Lewco’s online configurator “allowed customers to input necessary parameters for a required conveyo r, such as the length, width, roller diameters, roll centers, light support, elevations[,] and other pertinent information, and the configurator would generate a quote with options for the customer.” Urbietas’ Brief at 9. However, they say that “a custom er is unable to enter information about an end user’s application in which the conveyor would be used.” Id. Moreover, the Urbietas note that Lewco does not “sell [its] products directly to end users. Rather, [its] products are sold only to resellers....” Id. As a result, the Urbietas assert that Lewco purposely avoids learning of how the ir conveyor s will be used. See i d. at 24 (“It is clear [ that ] ... Lewco [is] attempting to escape liability for [its] products by[] 1) selling [its] products through a thi rd party, and 2) designing and running an online configurator that protects them from knowledge they would need to warn those who would come into contact with their products.”).J

- A12014

- 19

- 12

-

that the defendant conform to a standard of care; ( 2) the defendant breached that duty; (3) causation between the conduct and the resulting injury; and (4) actual dama ge to the plaintiff. Zimmerman v. Alexander Andrew, Inc. , 189 A.3d 447, 452

- 53 (Pa. Super. 2018) (internal citations and quotation marks omi tted). Initially , the Urbietas do not adequately develop an argument to demonstrate that Lewco had a duty to warn AAH of the table’s weight and force limitations

. 6 To support that Lewco had a duty , the Urbie tas cite to two

cases for seemingly general p ropositions , but fail to discuss those cases and analyze them in light of the circumstances in the case sub judice

. See

_________________ __________ ______ ____ _______ 6 We note that the trial court did not examine whether Lewco was negligent i n failing to warn AAH of the weight/force capacity of the conveyor table, but instead focused its analysis on whether Lewco was negligent for failing to warn AAH not to use the table without guarding. See TCO at 11, 13; see also Urbietas’ Brief in Opposit ion to Lewco’s Motion for Summary Judgment, dated 6/11/2017, at 9 (“There was no warning or instruction on the at[

- ]issue conveyor belt system which informed users of the recommended weight and force to be exerted on the machine, a warning that, if present , would have shifted liability to the user for using the conveyor belt against Lewco’s warnings and instructions.”). Nevertheless, that the trial court did not specifically address this argument does not preclude our review because “ we can look to the rec ord to ascertain the reasons for the order. ” Commonwealth v. Hood , 872 A.2d 175, 178 (Pa. Super. 2005) (citation omitted). We surmise that the trial court did not address it in light of the Urbietas’ expert report, which proffer s opinions on the conveyor table’s guards and safety features, but not its weight/force capabilities. See TCO at 8 (determining that expert testimony is required in this case because “the cause of this accident is not within the ability of the average pers on of ordinary intelligence to determine on their own”). Despite the content of their expert report, the Urbietas do not raise a negligent failure to warn argument pertaining to guarding on appeal, and therefore we do not address it. See Urbietas’ Brief at 24

- 28 (making argument that Lewco was negligent for failing to warn of the amount of weight or force that could be exerted on the conveyor table).J

- A12014

- 19

- 13

-

Urbietas’ Brief at 24. 7 We decline to perform that analysis for them. See Pa.R.A.P. 2119(a) (“ The argument shall be

... followed by such discussion and citation of authorities as are deemed pertinent. ”); Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa. Super. 2007) (“[I]t is an appellant’s duty to present arguments that are sufficiently developed for our review. The brief must support th e claims with pertinent discussion, with references to the record and with citations to legal authorities. Citations to authorities must articulate the principles for which they are cited.” ) (citations omitted). Furthermore , setting aside that the Urbi etas failed to establish that Lewco had a duty to warn , the Urbietas also failed to prove that the lack of warnings regarding the weight/force capacity of the table proximately caused Mr. Urbieta’s injuries. In their brief, the Urbietas state that if the table did not break down during the incident, Mr. Urbieta would not have been injured. Urbietas’ Brief at 28. However, they provide no citation to record evidence , particularly their expert reports , to support this proposition. See Pa.R.A.P. 2119(c) (“ I f reference is made to the

... evidence

... or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where

_________________ __________ ______ ____ _______
7 We note that one of these cases

— Harsh v. Petroll , 840 A.2d 404, 415 (Pa. Cmwlth. 2003)

— is a decisi on from the Commonwealth Court, which is not binding on this Court. See In re Barnes Found. , 74 A.3d 129, 134 n.2 (Pa. Super. 2013) (citation omitted). Additionally, the other citation provided by the Urbietas is to a portion of a dissenting opinion from a Supreme Court case. See Urbietas’ Brief at 24 (citing Sherk v. Daisy - Hedon, A. Div. of Victor Comptometer Corp. , 450 A.2d 615, 626 (Pa. 1982)).J

- A12014

- 19

- 14

-

the matter referred to appears ....”); see also TCO at 8 (noting that expert testimony is necessary in the case at bar because “the cause of this accident is not within the ability of the average person of ordinary intelligence to determine on their own”); Lewco’s Brief at 10 (“The facts of thi s case revealed that ... Lewco[’s] actions relative to the sale of the conveyor were not the proximate cause of [Mr. Urbieta’s] injuries. ... [The Urbietas have] not produced an expert report to support any other conclusion.”). Our own review of the Urbietas ’ expert report shows that the ir experts rendered opinions on
Lewco ’s failure to provide or recommend a guarding system , not its failure to warn AAH of the weight/force capacity of the table. Thus, we conclude that the Urbietas did not demonstrate that Le wco’s failure to warn AAH of the table’s weight/force capacity proximately caused Mr. Urbieta’s injuries. See Sh erk , 450 A.2d at 617 (determining that the evidence presented precluded a finding that the allegedly inadequate warnings caused the harm).
Acc ordingly , the trial court did not err in entering summary judgment in favor of Lewco on this basis.
In their final issue, the Urbietas claim that the trial court erred by deciding that Lewco was not required to supply proper guards for its tables. Urbietas’ Brief at 28. By not supplying guarding, the Urbietas argue that Lewco provided a defective conveyor table. See i d. at 33. In advancing this argument, the only case reference they provide is to Tincher , which they briefly point to for the princ iple that “a product is in a defective condition if ‘a reasonable person would conclude that the probability and seriousness ofJ

- A12014

- 19

- 15

-

harm caused by the product outweigh the burden or costs of taking precautions.’” Id. at 29 ( quoting Tincher , 104 A.3d at 335). Relying on this
tenet , they contend that “the probability and seriousness of harm caused by an unguarded conveyor plainly outweighs the burden or costs of taking precautions, such as providing or recommending guarding.” Id. at 31. In support, they explain that “it cannot be claimed that there is [an] unreasonable burden [on Lewco] in recommending guarding for its conveyors, especially when the same is recommended on a daily basis. Nor can Lewco ... claim the cost of recommending or supplying guarding would be prohibitive, especially where [it is] the seller[] of the product and could expect the customer to reasonably pay for the additional guarding to the conveyor table.” Id. at 32 (citing deposition testimony of Lewco’s corporate designee wherein he represented that he recommends guarding on a daily basis)

. We deem this argument waived. “[A]rguments not raised initially before the trial court in opposition to summary judgment cannot be raised for the first time on appeal.” Krentz v. Consolidated Rail Corp. , 910 A.2d 20, 37 (Pa. 2006) (citations omitted)

. This rule “ is co nsistent with our Supreme Court’ s efforts to promote finality, and effectuates the clear mandate of our appellate rules requiring presentation of all grounds for relief to the tri al court as a predicate for appellate review.” Id. (citation and quotation marks omitted). Here, i n their response to Lewco’s summary judgment motion, the Urbietas did not argue that the probability and seriousness of the harm caused by an unguarded conv eyor outweigh the burden or costs of taking precautions.J

- A12014

- 19

- 16

-

They also did not raise therein that , because Lewco recommends guarding on a daily basis , it would not be burdensome for it to do so . Likewise, they did
not aver in their response that it would not be cost

- prohibitive for Lewco to supply guarding , as users would bear the cost of buying the additional guarding from Lewco

. Rather , the Urbietas countered Lewco’s motion for summary judgment by arguing that Lewco was strictly liable because the
conveyor table purportedly lacked the strength to hold the weight and force of the hose. See Urbietas’ Brief in Opposition to Lewco’s Motion for Summary Judgment, dated 6/11/2017, at 10

- 14. 8 We will not permit the Urbietas to raise new arguments on appeal. Accordingly, b ased on the foregoing, we affirm the trial court’s granting summary judgment in favor of Lewco. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/26/2019

_________________ __________ ______ ____ _______ 8 The Urbietas also do not examine and discuss other design defect cases that have applied a risk

- utility analysis. See Hardy , supra. Given the r elatively r ecent changes to products liability law in Pennsylvania, as well as the complexity of this area of the law, more than a generic, meager cite to Tincher is warranted.