J-A08031-14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

GAIL R. CALLENDER, SR., AN 

INDIVIDUAL AND WENDY A. 

CALLENDER, HIS WIFE 

IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellants 

v. 

BRIGHTON MACHINE COMPANY, INC. A 

CORPORATION 

 v. 

DANIELI HOLDINGS, INC. A 

CORPORATION AND ITS SUCCESSOR 

CORPORATIONS AND/OR SUCCESSOR IN 

INTEREST, DANIELI CORPORATION A 

CORPORATION AND DINIELI 

CORPORATION, DANIELI WEAN UNITED 

AND DANIELI SERVICE, AND/OR 

DANIELI TECHNOLOGY, INC. A 

CORPORATION, AND/OR DANIELI WEAN 

INC., A CORPORATION, AND/OR 

DANIELI UNITED, INC., A 

CORPORATION, AND/OR WEAN UNITED 

FOUNDRY PRODUCTS, INC. A 

CORPORATION, AND/OR WEAN UNITED, 

INC. AND/OR UNITED ENGINEERING, 

INC., A CORPORATION, AND/OR UNITED 

ENGINEERING AND FOUNDRY CO., A 

CORPORATION 

 Appellee No. 755 WDA 2013 

Appeal from the Order Entered on April 8, 2013, 

In the Court of Common Pleas of Allegheny County 

Civil Division at No.: GD-07-026651 

BEFORE: ALLEN, J., OLSON, J., and WECHT, J. 

MEMORANDUM BY WECHT, J.: FILED SEPTEMBER 17, 2014 
J-A08031-14 

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 Appellants, Gail R. Callender, Sr. (“Callender”), and his wife, Wendy A. 

Callender (collectively, “the Callenders”), appeal from the order of April 8, 

2013, which granted the second motion for summary judgment of Appellee, 

Brighton Machine Company, Inc. (“Brighton”), and dismissed all of the 

Callenders’ and any other parties’ claims against Brighton with prejudice. 

We affirm. 

 The following facts are summarized from the trial court’s opinion of 

July 31, 2013. On December 18, 2005, Callender, an employee of Allegheny 

Ludlum Steel Corporation (“Allegheny Ludlum”), suffered a degloving injury 

to his left hand when it became trapped in the rollers of a leveller1

 on the 

No. 3 Blast & Pickle line at Allegheny Ludlum’s Brackenridge facility. Trial 

Court Opinion (“T.C.O.”), 7/31/2013, at 2. Callender had noticed that the 

leveller was not functioning properly and informed a co-worker that he was 

going into the repair pit beneath the machine to grease its gears. Id. For 

unknown reasons, the co-worker did not turn off the line. Id. Callender lost 

his balance while positioning himself to oil the swing gear on the leveller, 

and his left hand contacted the leveller rollers and was pulled into the 

machine. Id. at 3. 

____________________________________________ 

1

 The leveller and other components on the No. 3 Blast & Pickle line 

unwind and straighten coiled steel, crimp coils to each other, clean the 

resulting sheet of steel, and then recoil it. T.C.O. at 2. The leveller at issue 

was installed at Brackenridge on April 26, 1952, and has never been 

removed. Id. at 7. 
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 Since 1980, Brighton has serviced, built, and rebuilt component parts 

for the No. 3 Blast & Pickle line at the Brackenridge facility, including the 

leveller. Id. at 4. Brighton manufactures and supplies various parts based 

upon customers’ technical drawings and engineering specifications, but it is 

not the only parts supplier to the Blast & Pickle line. Id. at 7. Allegheny 

Ludlum performs the majority of work and maintenance in-house, and the 

line is laid out similarly to lines at other strip processing plants. Id. Joseph 

Downie, owner of Brighton, has visited the facility numerous times, but has 

never studied the line or needed to know how the Brighton-manufactured 

replacement components work in the overall machine, nor does Brighton do 

any work on the leveller’s electronics, wiring, safety devices, or emergency 

devices. Id. at 7-8. Any modifications in Allegheny Ludlum’s designs by 

Brighton are related to the maintenance, strength, or reliability of the 

component, not the overall functionality of the machines. Id. at 7. 

 On April 1, 2008, the Callenders filed a complaint against Brighton 

raising claims of, inter alia, negligence, strict liability, and breach of 

warranty.2

 Brighton answered with a new matter and cross-claim against 

____________________________________________ 

2

 The Callenders also filed complaints against United Foundries, Inc., 

f/k/a United Engineering Foundry Products, Inc., Wean United Foundry 

Products, Inc., UEI, Inc., f/k/a United Engineering, Inc., and UEFC, Inc. 

However, these defendants resolved the Callenders’ claims in “an amicable 

Joint Tortfeasor Release and Settlement Agreement” and are not parties to 

the instant appeal. Letter of James F. Marrion to Prothonotary, 10/18/2013, 

at 1. 
J-A08031-14 

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the other defendants on July 9, 2008. The parties undertook discovery in 

the form of interrogatories and depositions of Downie and James Kunst, a 

designated representative of Allegheny Technologies. 

 On May 4, 2010, Brighton filed a motion for summary judgment, 

which, after a hearing and supplemental briefing, the trial court denied. See

Order, 8/31/2010. After more discovery, and following settlement of the 

Callenders’ claims against all of the other defendants, Brighton Machine filed 

a second motion for summary judgment on July 5, 2012. The Callenders 

opposed the motion, and, after briefing and oral argument, the court 

ordered the parties to file position statements regarding Count XXX of the 

complaint for breach of warranty.3

 On April 5, 2013 (filed April 8, 2013), the 

trial court granted Brighton’s motion for summary judgment and dismissed 

____________________________________________ 

3

 As explained by the trial court: 

Both of Brighton’s motions for summary judgment and brief[s] in 

support thereof specifically referred to and requested dismissal 

of all counts against it. Brighton, however, did not make specific 

argument as to why Count XXX (relating to breach of warranty) 

should be dismissed. Conversely, [the Callenders] made no 

argument in support of Count XXX. On February 14, 2013, [the 

court] ordered the parties to address the issue of Brighton’s 

alleged breaches of warrant[y] under the Pennsylvania Uniform 

Commercial Code (UCC). [The Callenders] filed a Position 

Statement and Brighton filed a Reply Brief. 

T.C.O. at 24. 
J-A08031-14 

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all of the Callenders’ and any other parties’ claims against Brighton with 

prejudice. The Callenders timely appealed.4

 The Callenders present the following questions for our review: 

[1.] Does a party opposing summary judgment establish a 

genuine issue of material fact regarding the existence of a defect 

when the undisputed evidence of record establishes that the 

machine in question was not functioning as expected to the point 

where its user attempts to correct the issue and that it lacked 

adequate safeguards and warnings that would [have] rendered 

the machine less dangerous to its users? 

[2.] Is a party who seeks summary judgment in its favor on 

the basis that it played an insignificant role in the maintenance 

and repair of defective equipment entitled to judgment as a 

matter of law when the party opposing summary judgment 

presents evidence showing the movant provided engineering 

services as well as participated in the design and upkeep of the 

machinery? 

[3.] Does a party opposing summary judgment establish a 

genuine issue of material fact that component parts to a larger 

machine supplied by a party seeking summary judgment are 

unreasonably dangerous, i.e. defective, when the parts supplied 

are the ones that substantially contributed to a party’s loss and 

the supplier knew of or should have known of the danger [its] 

products posed to users of the integrated machine? 

[4.] Does an entity who repairs and rebuilds antiquated 

equipment for consideration, including taking steps to increase 

the longevity thereof, over the course of over two decades owe a 

duty to warn users of dangers associated with the repaired 

machine? 

[5.] If a party establishes genuine issues of material fact 

alleging failure to warn defects and defective design defects in 

____________________________________________ 

4

 The trial court did not order the Callenders to file a Rule 1925(b) 

statement, but entered an opinion on July 31, 2013. See Pa.R.A.P. 1925. 
J-A08031-14 

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regard to component parts, should that party’s claims for breach 

of implied warranty’s [sic] also survive summary judgment? 

Callenders’ Brief at 3-4. 

Our standard of review of a trial court’s order granting summary 

judgment is well-settled: 

A reviewing court may disturb the order of the trial court only 

where it is established that the court committed an error of law 

or abused its discretion. As with all questions of law, our review 

is plenary. 

In evaluating the trial court’s decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. Pa.R.C.P. 1035.2. The rule states that 

where there is no genuine issue of material fact and the moving 

party is entitled to relief as a matter of law, summary judgment 

may be entered. 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. Failure of a 

non-moving party to adduce sufficient evidence on an issue 

essential to his case and on which it bears the burden of proof 

. . . establishes the entitlement of the moving party to judgment 

as a matter of law. Lastly, we will view the record in the light 

most favorable to the non-moving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved 

against the moving party. 

Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa. 

2001) (case citations omitted). 

[T]he 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. 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. 

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

(citations omitted). 
J-A08031-14 

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 In their first issue, the Callenders assert that the court erred in 

dismissing their strict liability claim because “[t]he leveller and its 

components were defective and unreasonably dangerous to their users.” 

Callenders’ Brief at 19. Specifically, the Callenders argue that they 

established genuine issues of material fact as to whether the leveller was 

“not functioning properly,” thus “diminish[ing]” their “duty to establish a 

specific defect.” Id. at 20. They also maintain that their “experts 

established genuine issues of material fact that the equipment responsible 

for Mr. Callender’s injury contained design defects as well as failure to warn 

defects.” Id. at 21. We disagree. 

 We begin with the Callenders’ argument that their claims should have 

survived summary judgment because they had a “diminished” duty to 

establish a specific defect due to the leveller’s malfunction. Id. at 20. 

When advancing a theory of strict product liability, a plaintiff has 

the burden of showing that the product was defective, that the 

defect was the proximate cause of his or her injuries and that 

the defect existed at the time the product left the manufacturer. 

In certain cases of alleged manufacturing defects, however, the 

plaintiff need not present direct evidence of the defect. When 

proceeding on a malfunction theory, the plaintiff may “present a 

case-in-chief evidencing the occurrence of a malfunction and 

eliminating abnormal use or reasonable, secondary causes for 

the malfunction.” O’Neill v. Checker Motors Corp., 567 A.2d 

680, 682 (Pa. Super. 1989). . . . From this circumstantial 

evidence, a jury may be permitted to infer that the product was 

defective at the time of sale. 

Although proof of a specific defect is not essential to 

establish liability under this theory, the plaintiff cannot 

depend upon conjecture or guesswork. The mere fact that
J-A08031-14 

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an accident happens, even in this enlightened age, does 

not take the injured plaintiff to the jury. 

The malfunction theory, thus, does not relieve the burden of 

establishing a defect. However, the malfunction itself is 

circumstantial evidence of a defective condition. 

Dansak v. Cameron Coca-Cola Bottling Co., 703 A.2d 489, 495-96 (Pa. 

Super. 1997) (some citations and internal quotation marks omitted; citations 

modified). 

Accordingly, a plaintiff may often rely on circumstantial 

evidence, and the inferences that may reasonably be drawn 

therefrom, to prove his case. Although the mere happening of 

an accident does not establish liability, . . . the addition of other 

facts tending to show that the defect existed before the accident, 

such as its occurrence within a short time after sale, or proof of 

the malfunction of a part for which the manufacturer alone could 

be responsible, may make out a sufficient case . . . So likewise 

may proof that other similar products made by the defendant 

met with similar misfortunes, or the elimination of other likely 

causes by satisfactory evidence. In addition, there are some 

accidents, as where a beverage bottle explodes or even breaks 

under normal handling, as to which there is common experience 

that they do not ordinarily occur without a defect; and this 

permits the inference. This Court in MacDougall v. Ford Motor 

Co., [257 A.2d 676 (Pa. Super. 1969)], held that “the 

occurrence of a malfunction of machinery in the absence of 

abnormal use and reasonable secondary causes is evidence of a 

‘defective condition’ within the meaning of [the Restatement 

(Second) of Torts] § 402A . . . .” Id. . . . at 680. After 

MacDougall, Pennsylvania courts have been consistent in 

holding that the malfunctioning of a product is circumstantial 

evidence of a defective condition in spite of the lack of evidence 

of any specific defect in the product. 

Cornell Drilling Co. v. Ford Motor Co., 359 A.2d 822, 826 (Pa. Super. 

1976) (some citations omitted). 

Based upon this case law, if the leveller malfunctioned, the 

malfunction would constitute circumstantial evidence of the defect element 
J-A08031-14 

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of a strict liability claim. However, the Callenders have not adduced any 

additional evidence that the leveller malfunctioned. Their experts 

concededly did not inspect the machinery. Report, 2/23/2012, at 5 § 4. 

More importantly, the Callenders have failed to carry their burden of 

proof with regard to the remaining elements: that the “defect was the 

proximate cause of [Callender’s] injuries and that the defect existed at the 

time the product left the manufacturer.” Dansak, 703 A.2d at 495. 

“Liability in negligence or strict liability is not imposed upon a manufacturer 

simply for the manufacture of a defective product. Rather, the plaintiff must 

demonstrate that the injuries sustained were proximately caused by the 

product’s defect.” Sherk v. Daisy-Heddon, Div. of Victor Comptometer 

Corp., 450 A.2d 615, 617 (Pa. 1982). 

 Here, the Callenders’ experts opined: 

Based on our review of all documents and our experience with 

these types of machinery and safety related issues, we conclude 

that if additional safety features were implemented on the 

No.[]3 Blast & Pickle line in Allegheny Ludlum’s Brackenridge 

Plant, the accident involving Mr. Callender could have been 

prevented on December 18, 2005. This conclusion has been 

reached with a reasonable degree of engineering certainty. 

Report at 5 § 5.5

 Thus, the Callenders’ experts attribute the cause of 

Callender’s injuries to the lack of safety features on the line, not the 

____________________________________________ 

5

 The expert report “reserve[d] the right to revise this Report if 

additional information and facts become available.” Report at 5 § 5. 

However, as noted by the trial court, the Callenders did not file any 

additional or revised expert reports. T.C.O. at 3 n.1. 
J-A08031-14 

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allegedly malfunctioning leveller. The Callenders also have failed to adduce 

any evidence that any replacement parts manufactured by Brighton were 

installed in the leveller at the time of Callender’s injury. See T.C.O. at 11. 

Absent such evidence, the Callenders cannot establish that any defect 

existed when the components left Brighton. See Dansak, 703 A.2d at 495. 

Thus, the Callenders’ argument that the court erred in granting summary 

judgment simply because the leveller allegedly malfunctioned does not merit 

relief where they failed to support the remaining elements of their claim. 

 Second, the Callenders argue that they carried their burden of proof 

regarding their design defect and failure to warn claims. 

It is well established that there are circumstances where a 

manufacturer’s failure to warn of latent dangers in the use or 

operation of a product can render a properly designed product 

unreasonably dangerous and defective for purposes of strict 

product liability. It is also recognized that limits on a 

manufacturer’s duty to warn are placed at issue where, as in the 

present case, the manufacturer supplies a mere component of a 

product that is assembled by another party and dangers are 

associated with the use of the finished product. 

Jacobini v. V. & O. Press Co., 588 A.2d 476, 478-79 (Pa. 1991). 

A plurality decision by our Supreme Court in Wenrick v. 

Schloemann-Siemag Aktiengesellschaft, 564 A.2d 1244 (Pa. 1989), is 

particularly instructive.6

 In Wenrick, a mechanic working in the Cerro Metal 

____________________________________________ 

6

 While we recognize that a plurality opinion by the Supreme Court is 

not binding precedent on this Court, we may find it to be persuasive. See 

In re K.D., 744 A.2d 760, 761 (Pa. Super. 1999). 
J-A08031-14 

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Products plant was killed while repairing an extrusion press when a billet 

loader retracted and crushed him. Id. at 1245. Circumstantial evidence 

showed that an unguarded switch was accidentally triggered by a workman 

descending steps into the press’ repair pit, causing the billet loader to 

retract. Id. at 1246. The mechanic’s widow brought claims against, inter 

alia, Eaton Corporation, the successor-in-interest to Cutler-Hammer, the 

supplier and designer of the press’s electrical control system, alleging as 

follows: 

[T]he absence of a guard to cover the actuating part of the 

switch was a defect in design and manufacture as installed and 

as used. [The expert witness] also testified that, in his opinion, 

in accordance with accepted engineering practice Cutler-Hammer 

had a duty to warn SMS AG[, the manufacturer and designer of 

the press,] about the danger posed by the location of the 

unguarded switch above the steps. 

Id. at 1246. The jury found against Eaton for strict liability and negligence, 

and the trial court denied Eaton’s motion for judgment notwithstanding the 

verdict. This Court reversed, and remanded for entry of judgment in favor 

of Eaton. Ultimately, the Court affirmed the decision of the Superior Court 

for the following reason: 

Cutler-Hammer’s task in designing the electrical control system 

did not include the physical placement of any mechanisms on the 

manufactured product. All the decisions and actions whereby 

the danger was created—the type of switch (unguarded), its 

location, and the location of the service pit and its access steps—

were the responsibility of SMS AG. 

Id. at 1248. Accordingly, Cutler-Hammer, and its successor-in-interest, 

Eaton, had no duty to warn about the unguarded switch. 
J-A08031-14 

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 Similarly, Brighton manufactures and supplies spare parts according to 

Allegheny Ludlum’s specifications. Brighton modifies Allegheny Ludlum’s 

specifications to the extent that it seeks to improve the strength, durability, 

and reliability of the components it manufactures. Brighton does not dictate 

the layout of the leveller, its electronic systems, the configuration of its 

repair pit, or the layout of the No. 3 Blast & Pickle Line, all of which predate 

Brighton’s repair work and are “basically the same” and relatively standard 

across the steel industry as a whole. Callenders’ Brief, at 9, 12; see also

Deposition of Joseph Downie, 12/18/2009, at 53-54. Thus, like CutlerHammer in Wenrick, Brighton’s task in manufacturing replacement 

components for existing machinery did not include determining the physical 

placement or layout of the machines responsible for Callender’s injury. It is 

not enough that Brighton was knowledgeable about the line as a whole. See 

Wenrick, 564 A.2d 1248. The Callenders have failed to adduce any 

evidence that Brighton had any control over “the assembly of the final 

product” and, therefore, had a duty to act or warn Callender or Allegheny 

Ludlum that the leveller was dangerous. Jacobini, 588 A.2d at 478-79; see 

also Wenrick, 564 A.2d at 1248. Thus, the trial court did not abuse its 

discretion in dismissing the Callenders’ strict liability claim, and the 

Callenders’ first issue does not merit relief. 

 In their second issue, which to some extent responds to the above 

analysis, the Callenders assert that “genuine issues of material fact exist 

regarding Brighton Machine’s role with the equipment involved.” Callenders’ 
J-A08031-14 

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Brief at 22. Specifically, they claim that the trial court erred in its 

determination of the extent of Brighton’s role at Allegheny Ludlum and that 

the court was “obligated to place the burden of proving the nonexistence of 

material facts upon Brighton Machine.” Id. at 25. They also argue that the 

court violated the Nanty-Glo rule7

 by relying upon the depositions of Joseph 

Downie, James Kunst, and Amos Glen, and implicitly relied upon an improper 

credibility determination resolving apparent inconsistencies in the 

testimonies of those witnesses. Id. at 25-26. We disagree. 

[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 

judgment as a matter of law. 

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. 

Sokolsky v. Eidelman, 93 A.3d 858, 862 (Pa. Super. 2014) (citations and 

quotation marks omitted). 

 The Callenders contend that they established a genuine issue of 

material fact regarding Brighton’s role at Allegheny Ludlum because 

Allegheny Ludlum’s representative, James Kunst, testified that Brighton 

supplies spare parts, “engineering-type services,” and “works with 

____________________________________________ 

7

 See Nanty-Glo v. Am. Surety Co., 163 A. 523 (Pa. 1932). 
J-A08031-14 

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[Allegheny Ludlum] on upgrades to equipment design.” Callenders’ Brief at 

24. Callender’s supervisor, Mark Graham, stated that Joseph Downie is an 

engineer with “the capability of certifying things for ‘insurance purposes,’” 

and Allegheny Ludlum had been downsizing its own maintenance 

department. Id. 

Based upon our review of the depositions, we agree with the trial court 

that “[t]here is no evidence that Brighton was ever consulted with regard to 

safety issues.” T.C.O. at 21. Graham repeatedly stated that Brighton was 

only one of “several” manufacturers fabricating replacement parts for the 

line at Allegheny Ludlum. Deposition of Mark Graham, 9/13/2012, at 14, 

19, 38. Furthermore, while Graham stated that Allegheny Ludlum’s in-house 

maintenance department “seems to be . . . shrinking,” he also observed that 

“[Allegheny Ludlum] still do[es] a lot, but we always did send things out.” 

Id. at 37. Thus, the Callenders failed to adduce sufficient evidence to 

connect Brighton’s work with the safety engineering or placement of the 

leveller within the No. 3 Blast & Pickle line, or to establish that Brighton 

exclusively had taken over relevant maintenance work on the line. See 

Sokolsky, 93 A.3d at 862. Therefore, the Callenders failed to raise an issue 

of material fact regarding the scope of Brighton’s involvement with the 

leveller and the No. 3 line, and the trial court did not err in granting 

summary judgment. Id. 

Furthermore, the trial court did not violate the Nanty-Glo rule. 

Specifically, the Callenders contend that “the trial court adopted the oral 
J-A08031-14 

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testimony of Joseph Downie, James Kunst and Amos Glen where these 

gentlemen testified [that] Brighton Machine played no role in the design and 

maintenance of the machines at issue.” Callenders’ Brief at 25. 

The Nanty-Glo rule provides that “oral testimony alone is generally

insufficient to establish the absence of material fact necessary for the entry 

of summary judgment.” Checchio by and through Checchio v. 

Frankford Hosp.—Torresdale Div., 717 A.2d 1058, 1062 (Pa. Super. 

1998). 

Initially, it must be determined whether the plaintiff has alleged 

facts sufficient to establish a prima facie case. If so, the second 

step is to determine whether there is any discrepancy as to any 

facts material to the case. Finally, it must be determined 

whether, in granting summary judgment, the trial court has 

usurped improperly the role of the jury by resolving any material 

issues of fact. 

Dudley v. USX Corp., 606 A.2d 916, 920 (Pa. Super. 1992). “If credibility 

is in issue, oral proof requires the jury’s consideration and prevents the 

entering of a summary judgment. But if plaintiff fails to establish a prima 

facie case, the mere fact that his proof is oral does not provide a basis for 

placing the issue before a jury.” Thompson Coal Co. v. Pike Coal Co., 

412 A.2d 466, 474 (Pa. 1979). 

 Here, the trial court stated that it “reviewed and considered the 

pleadings, record, [the Callenders’] experts’ report, [and the] briefs and 

arguments of the parties.” T.C.O. at 6. The court noted that it “read the 

excerpts” from the depositions, but also “reviewed the multitude of exhibits 

filed by [the Callenders].” Id. The court referred to the Callenders’ “parts-
J-A08031-14 

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related exhibits,” comprised of, inter alia, invoices, packing lists, written 

work orders, and price quotes, and concluded that “[t]he record reflects that 

any changes made by Brighton were at [Allegheny Ludlum’s] request or per 

discussions with [Allegheny Ludlum], and subject to [Allegheny Ludlum’s] 

approval.” Id. at 11 (footnote omitted). The court explicitly relied upon 

these exhibits to determine that “[t]here is no evidence of record to 

establish that the parts in place on the date Mr. Callender was injured were 

manufactured by Brighton.” Id. at 11. Thus, the trial court did not rely 

exclusively upon depositions in determining that the Callenders failed to 

state prima facie claims for strict liability, negligence, or breach of warranty. 

Id. at 22, 23, and 27. Accordingly, there is no violation of the Nanty-Glo

rule. See Checchio, 717 A.2d at 1062; see also Thompson Coal Co., 412 

A.2d at 474. This issue does not merit relief. 

 In their third issue, the Callenders argue that “[i]ssues of material fact 

exist as to whether the component parts Brighton Machine designed, 

manufactured and supplied caused the Callenders’ loss and whether the 

same were foreseeable to Brighton Machine.” Callenders’ Brief at 26. 

Specifically, the Callenders contend Brighton is liable under section 402A of 

the Restatement (Second) of Torts because “Brighton Machine was aware or 

should have been aware of the danger its products [posed to] users of the 

leveller” and “yet failed to provide warnings [f]or Mr. Callender or his 

employer.” Id. at 28. We disagree. 
J-A08031-14 

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 “Since Webb v. Zern, 220 A.2d 853 (Pa. 1966), the Pennsylvania 

Supreme Court has recognized a plaintiff’s right to pursue an action in strict 

liability against the manufacturer of a product pursuant to section 402A of 

the Restatement (Second) of Torts.” Kiak v. Crown Equip. Corp., 989 

A.2d 385, 389 n.1 (Pa. Super. 2010).8

 Section 402A provides: 

§ 402A Special Liability of Seller of Product for Physical 

Harm to User or Consumer 

(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 expected 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. 

____________________________________________ 

8

 But see Tincher v. Omega Flex, Inc., 64 A.3d 626, 626 (Pa. 2013) 

(granting review on the question: “Whether this Court should replace the 

strict liability analysis of Section 402A of the Second Restatement with the 

analysis of the Third Restatement”). Nonetheless, our Supreme Court has 

not yet decided the case, and “we are bound to apply the law of 

Pennsylvania as it now exists.” Swanson v. Carlson, 527 A.2d 577, 578 

(Pa. Super. 1987). 
J-A08031-14 

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Restatement (Second) of Torts 402A. 

To state a claim under this section, the Callenders must establish: “1) 

a product; 2) the sale of that product; 3) a user or consumer; 4) the product 

defect which makes the product unreasonably dangerous; and 5) the 

product defect was the proximate cause of the harm.” Toth v. Economy 

Forms Corp., 571 A.2d 420, 422 (Pa. Super. 1990) (citations omitted). 

The imposition of liability in any products case, including one 

based on [s]ection 402A strict liability, requires a showing that 

the plaintiff’s injury was caused by some defect in the product. 

Thus, where a finding that the product is defective within the 

meaning of section 402A is predicated on the theory that the 

manufacturer failed to provide adequate warnings of the 

dangerous propensities of the product the plaintiff must prove 

the failure to warn caused plaintiff’s injury. 

Sherk, 450 A.2d at 620. 

[L]imits on a manufacturer’s duty to warn come into play where, 

as in the present case, the manufacturer supplies a mere 

component of a final product that is assembled by another party 

and dangers are associated with the use of the finished product. 

This is particularly true where the component itself is not 

dangerous, and where the danger arises from the manner in 

which the component is utilized by the assembler of the final 

product, this being a matter over which the component 

manufacturer has no control. 

Jacobini, 588 A.2d at 478-79. Furthermore, a company that neither 

manufactured nor supplied the defective product is not liable under a theory 

of strict liability or failure to warn. See Toth, 571 A.2d at 422-23. 

 Here, the trial court determined that “[t]here is no evidence of record 

to establish that the parts in place on the date Mr. Callender was injured 
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were manufactured by Brighton.” T.C.O. at 11. In response, the Callenders 

direct our attention to Graham’s deposition, which identified: 

1) A spindle that supplied the rotational force to leveller rollers, 

without which the levellers could not turn; 

2) Bearing caps, half-bearing retainers and a housing cap for 

consideration of [sic] that held the leveller rollers in which Mr. 

Callender’s left ha[n]d was caught[.] 

Callenders’ Brief at 27 (record citations omitted). The parts identified by the 

Callenders are documented, respectively, in a purchase order dated October 

10, 1995, and a job order for a bearing cap, a housing cap, and a halfbearing retainer. See Graham Deposition at 50, 53. Although Graham 

appears to establish that these are the components of a leveller, the 

Callenders identify no evidence showing that these particular parts were 

installed in the leveller at the time of Callender’s injury, who had installed 

them, or whether they were installed “without substantial change in the 

condition in which [they were] sold.” Restatement (Second) of Torts 

§ 402A. Furthermore, the Callenders’ experts concededly never inspected 

the leveller or the No. 3 line. Report at 5 § 4. Therefore, the Callenders 

have failed to establish that Brighton parts were, in fact, involved in 

Callender’s injury. 

Moreover, as previously discussed, the duty to warn Callender resided 

with Allegheny Ludlum, not Brighton, which supplied replacement 

components to a preexisting assembly line laid out in a manner over which 

Brighton exercised no control. See Wenrick, 564 A.2d 1248. Thus, the 
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Callenders failed to state a claim under section 402A for which they could 

recover from Brighton. See Toth, 571 A.2d at 422. This issue does not 

merit relief. 

 In their fourth issue, the Callenders contend that, under Section 404 of 

the Restatement (Second) of Torts, “[a] company that services equipment 

for over twenty-five years, [and] redesigns, manufactures[,] and supplies 

component parts with knowledge as to their use owes duties to users of the 

integrated machine.” Callenders’ Brief at 29. They argue that, under 

common law negligence principles, Brighton owed Callender a duty of care. 

Id. at 29-31. We disagree. 

 Section 404 provides: 

§ 404 Negligence in Making, Rebuilding, or Repairing 

Chattel 

One who as an independent contractor negligently makes, 

rebuilds, or repairs a chattel for another is subject to the same 

liability as that imposed upon negligent manufacturers of 

chattels. 

Restatement (Second) of Torts § 404. “It is axiomatic that in order to 

maintain a negligence action, the plaintiff must show that the defendant had 

a duty to conform to a certain standard of conduct; that the defendant 

breached that duty; that such breach caused the injury in question; and 

actual loss or damage.” Phillips v. Cricket Lighters, 841 A.2d 1000, 1008 

(Pa. 2003) (citation and quotation marks omitted). 

 The Callenders cite Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000), for 

the proposition that “actors have the general duty to refrain from causing 
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harm to others as a general principle under common law.” Callenders’ Brief 

at 30. They contend that “Mr. Downie himself has stated that he has rebuilt 

nearly every piece of equipment” on the line, and that the court erred in 

relying upon oral testimony in granting summary judgment. Id. at 31. 

However, as previously discussed, the Callenders failed to establish a 

genuine issue of material fact as to whether Brighton’s components were in 

the leveller at the time of Callender’s injury. See T.C.O. at 11. Moreover, 

“if plaintiff fails to establish a prima facie case, the mere fact that his proof is 

oral does not provide a basis for placing the issue before a jury.” 

Thompson Coal Co., 412 A.2d at 474. Thus, the Callenders cannot rely 

upon Downie’s testimony to establish the existence of a genuine issue of 

material fact. See Murphy, 777 A.2d at 429. The Callenders are not 

entitled to relief on this issue. 

 Finally, in their fifth issue, the Callenders assert that their “warranty 

claims should proceed to trial.” Callenders’ Brief at 31. They argue that 

they have “established genuine issues of material fact in regard to the 

§ 402A claims” because they have established: 

several malfunctions, the most important being that the leveller 

and its components lacked appropriate visual warning signs that 

it was operational, the leveller and its components lacked 

adequate guarding to prevent entry into the zone of danger 

while it was operational and the leveller and its components 

lacked appropriate kill switches. 

Id. at 31, 32. 
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 As previously discussed, the Callenders have failed to establish that 

Brighton, as a components manufacturer who did not control the final layout 

of the No. 3 line, owed Callender a duty to warn of latent dangers in the use 

or operation of Allegheny Ludlum’s leveller. See Jacobini, 588 A.2d at 478-

79; see also Wenrick, 564 A.2d at 1248. Thus, the Callenders have failed

to raise a genuine issue of material fact that would render their breach of 

warranty claim viable. Murphy, 777 A.2d at 429. The trial court did not 

abuse its discretion in granting Brighton’s motion for summary judgment on 

the breach of warranty claim. Accordingly, this issue lacks merit. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/17/2014