*1 ¶ Accordingly, we reverse the order
of the PCRA court which dismissed this
PCRA untimely action as filed. alsoWe
remand appointment for of new counsel filing of either an amended PCRA
petition letter, or a new Finley depending
upon new counsel’s evaluation of this mat-
ter.
¶ 17 Order reversed. Case remanded
for proceedings in accordance with this
decision. Jurisdiction relinquished.
Monali PHATAK and Mohan
Phatak, Appellants, COMPANY, Appellee.
UNITED CHAIR
Superior Pennsylvania. Court of
Argued Feb. July
Filed Drucker,
Paul J. Philadelphia, appel- lants.
draw, which caused appeal. dismissal of his first PCRA *2 ¶3 trial, their Bodell, support legal ap- for At Joseph Philadelphia, T. attempted to introduce Appellants pellee. theory, Appellee that evidence MUSMANNO, MELVIN Before: ORIE design exact which contained the chairs BROSKY, JJ. have ren- assert would they feature that “safe.” How- chair in dered the BROSKY, J. ever, from so. they prevented were ¶ judgment an appeal This is from a found, jury After the close of evidence the Appellee’s favor in a entered the chair was by special interrogatory, that liability Appellants action. raise four is- Thus, judgment was en- not defective. consideration, we re- sues for our which post- filed Appellants Appellee. tered for state follows: whether the court erred trial, for were denied trial motions new but preventing referencing, from Appellants appeal followed. relief. This reason, any for a chair manufactured ¶ possessed design feature assert that the Court Appellants first Appellant’s expert opined remedy would intro- to allow them to refusing erred question possessed; reason, defect chair duce, Appel- evidence that for refusing erred in to whether court and marketed currently designed lee mod- chair; preclude testimony of misuse of alleged design els of chairs that lacked of the whether actions court demon- the chair in defect that assert prejudice bias against Appel- strated agree. question possessed. We lants and charge court respect grant or refusal With respect was critical incorrect with to as- grant allegations to a new trial pects judg- of the We case? vacate admissibility evidence we error in the ment and for a new trial. remand have stated: Phatak, 2 Appellant, Monali avers that regarding admissibility Decisions personal injury she in August sustained of the are discretion evidence within work, a while when chair which ap- court and will be reversed trial sitting tipped causing she her was forward if abused its peal only the trial court chair, fall to chair. manufac- of law. discretion or an error committed Appellee, tured a was “standard' secre- a a for new grant request ... We will chair,” tarial legs/outriggers with four upon trial evidentia- trial court’s based from central emanating spindle. ry rulings only if those not rulings only occurred while Phatak accident Ms. erroneous, also are harmful to are but pick leaning attempting up forward party. ... Evidence is complaining pen dropped that she had on the floor. At if it to establish logically relevant tends trial, Appellants chair averred case, a material fact in tends legs/out- defectively designed that the issue or less the fact at more make riggers way all did extend out to or infer- probable, supports reasonable the end of seat of the chair. This presumption about the existence ence or design, according Appellants, made the of material fact. prone tipping chair unstable and over remedied easily but could been (Citations omitted). legs so
merely extending the
a few inches
Hospital,
University
Temple
Southard
past
edge of the
they
extended
(Pa.Super.1999).
seat.
introduced evidence that
essence, Appel-
its bare
sitting
legs
had
her
6 Reduced to
Appellant
with
chair
theory
the base or
lants’
wrapped around
on, and from which
the chair
was seated
that this “misuse” of
argued
fell,
a defective
tipped and she
she
featured
the reason the chair
“outrig-
legs
overhung
it.
fell from
gers”
an
creating
potential
attempted
increased
to cross-examine him utiliz-
tipping
Appel-
over. The chair in which
ing Appellee’s
catalog
which featured
lant
stopped
was seated featured legs that
Appellee’s
with the
perimeter
few
of the
inches short
provide
expert had indicated
“un-
chair. They alleged that
a chair
“unacceptable”
believable” and
hazard.
*3
longer
that featured
legs/outriggers would However, Appellants
were thwarted
have
stability
had more
been
and
less
attempts
their
at this cross-examination
prone
tipping
to
when
a weight
there was
Appel-
their attempts
question
and in
to
shift
away from center of
chair. In
corporate
on
representative
lee’s
rebuttal
fact, Appellee manufactured
chair
other
as to this matter.
models
the legs/outriggers
where
extended
¶
attempts
evidence
9
to introduce
perimeter
of
the chair.
with
manufactured chairs
contexts,
attempted,
in two specific
to in-
outriggers extending past
perimeter
troduce evidence that
manufac-
implicates
four
at least
admissi-
tured other chairs with the design feature
issues,
bility/evidentiary
by dem-
evidence
safer,
they argue made the chair
and were
onstration,
alternative de-
evidence
an
attempt.
foiled in each
sign,
subsequent design
evidence of a
¶
attempt
7 The
Ap-
first
occurred while
change/remedial measure
rebuttal/im-
pellants’ expert was describing
alleged
peachment.
Appellants’
Since
counsel was
“simple
defect and the
and direct” method
essentially prevented
arguing
ba-
for remedying
Appellants’
the defect.
sis for which
to introduce the
he wished
counsel
to
expert identify
desired
have the
evidence,1 we
all the bases
must consider
a chair in the courtroom
awith
similar
argued
appeal.2
admission
design
talking
to illustrate what he was
about.
happened
This chair
to be Model
¶ Citing
10
to Mendralla v. Weaver
S—11 chair
by Appellee.
manufactured
(Pa.Super.1997), Ap
Corp.,
A.2d 480
objection
The Court sustained a
to
defense
pellants
they
assert that
should
the identification.
to
allowed
refer to other chairs manufac
by Appellee
tured
to demonstrate the “fea
attempt
Ap-
8 The second
came after
pellee’s
sibility” of
with the de
expert
producing
witness
that ex-
chair
asserted
sign
they
tending
proffered.
agree.
would
created
We
an
clearly
Mendralla
evidence of a
“unacceptable”
“unbelievable”
safe-
states that
probative
to
ty/tripping
people walking by,
subsequent design change
hazard
around,
Id.,
Appellee’s expert
feasibility
design.
the chair. After
of an alternate
assertions,
such,
484,
made
Appellants’
these
counsel
at
2.3
based
703 A.2d
n. As
Appellants’
1.
began
design changes
prove
When
to ask
counsel
are not admissible to
expert
design
what is at issue is
witness
there were
defective
because
design
subject product
at
the time the
in the
courtroom
featured the
he
however,
Connelly,
manufactured.
discussing, Appellee’s
had been
counsel
seemingly
was,
allow
of other
al-
evidence
quickly objected
objection
and the
like-
subject
wise,
ternatives that
at
time the
existed
promptly
Appellants'
rather
sustained.
product was
as would
manufactured
requested
counsel then
discussion
sidebar
Gottfried
Co.,
Pa.Super.
v.
Can
American
request
but the
was denied.
(1985),
A.2d 222
concluded that
which also
Obviously,
implicated
subsequent
rebuttal was not
safety
were irrelevant to
features
Appellants’ attempt
safety
to
chair
previ-
refer to the
dur-
.a
ing
expert
ously.
direct examination of their
witness.
Langston Corp.,
Duchess v.
strict liability plaintiff allows to recov- public a whole. er product where “a defective condi- (2) aspects The safety of a tion unreasonably dangerous to the con- —the likelihood that it will injury, sumer cause or user” causes harm to the probable plaintiff.... injury. seriousness of the Pennsylvania law requires plaintiff that a prove (3) two elements availability prod- of a substitute products liability prod- action: that the uct which would meet the same need defective, uct was and that the defect unsafe; and not be as was a substantial factor in causing the (4) ability The manufacturer’s to elimi- injury- Specifically, in a design de- nate the unsafe character of the case, fect is whether the impairing without its mak- usefulness or product should been designed more ing it expensive too to maintain its utili- safely. ty- (5) (Citations omitted). ability user’s to avoid danger *5 the care in the exercise of use of Appellee defended the design of its chair product. by arguing only that not was it “safe” as (6) anticipated The of user’s awareness designed, but incorporating the design in dangers product inherent Appellants proffered would have created a avoidability, their general because of substantial hazard other workers. public of the condi- knowledge obvious There can question be no that terms such tion of of product, or of the existence as “safeness” and “defective” are terms of or warnings suitable instructions. subject art meaning. relative As our (7) feasibility part The on the of the Supreme Court in Spino, stated “the ques manufacturer, spreading the of of loss product tion is whether the could have carry- setting price product of the safely.” designed been more passage This ing liability insurance. suggests an analysis of relativity. A man These additional factors were derived ufacturer could build automobiles to more from an Dean of article John Wade closely might resemble tanks. This make University, Vanderbilt “On the Nature but, them safer from a societal standpoint, Products,” Liability Strict Tort for is unlikely it doing so would be viewed as a (1973). Miss.L.J. 837-38 trade-off, if, particularly valid pro (Citations omitted). cess, other danger is created. In Riley v. Inc., Manufacturing, Warren 455 Pa.Su in determining Thus whether the per. A.2d we discussed a product “unreasonably is “defective” or go some of the analy factors into this dangerous,” product or whether a could sis, which had been first introduced in the many have been designed safely,” “more case of Dambacher by Dambacher v. Mal seemingly weighed factors could be lis, 336 Pa.Super. jury in the ultimate reaching conclusion mentioned:
We
whether
product
was defective or not.
gravity
posed
us,
it,
The
danger
question
before
as we see
challenged
design;
likelihood that
is whether an assertion that a
occur;
such danger would
change
product
mechani-
would make a
“unbeliev-
feasibility
design;
cal
ably
persons
of a safer
and the
hazardous” to other
enters
consequences
product
adverse
to the
into the
is
equation
product
of whether the
and to the
consumer
would result
“defective”
purposes.
from a
design....
safer
The Court
We think
yes. Accordingly,
also
is
answer
the above-discussed
holding was
equation
ing
into
this factor
by interjecting
Corp.,
¶ than not that likely made it more 17 In a similar context we indicated Thus, impractical. not we expert’s testimony sug- a defendant’s interlock that that appellant’s contention specific design agree with gesting introducing expert questioned impractical appellee’s once feature would interlock, appellants practicality de- of opened door to evidence that the permitted show that in- should have been This included the sign practical. incorporated on had been man- the interlock of evidence that the same troduction Id., p. A.2d at machine.” incorporated exact ufacturer had later fact extended Similarly, the The case mak- requires certain of its other lieve this granting error certainly rebuts the assertion that grant new trial. we Consequently, shall doing so creates “unbelievable hazard” Appellants a new trial. Thus, Appellants to other workers. ¶ 23 Our decision to vacate and remand permitted should have been to introduce premised entirely upon the set analysis that evidence. forth above. Since none the issues ¶ amicus, Both Pennsyl- provide raised will greater (PDI),
vania Defense Institute address the than already granted relief we ex- Duchess, applicability of but neither ade- press opinion no as to the merits quately premise refutes the above. The by Appellants. other issues For raised entire discussion of Duchess in amicus’ above, reasons detailed we must vacate the brief relates to the issue a remedial judgment appealed from and remand for a measure/design change. While this dis- new trial. cussion had relevance to the matters dis- Judgment vacated. Remanded part opinion, cussed the first relinquished. new trial. Jurisdiction PDI’s brief opening does discuss the MELVIN, J., ORIE files a Concur- aspects the door and rebuttal of Duchess. ring Opinion. MUSMANNO, J., joins contrast, 21 In Appellee’s brief does BROSKY, Opinion by both this J. and the aspect address the rebuttal of Duchess MELVIN, Concurring Opinion by ORIE briefly, simply but argues Appellee’s J. expert here did not discuss practicality. true, opinion While this prem- our MELVIN, J., ORIE concurring. hinge solely ise of Duchess does not upon ¶ 1 I Majority’s While concur with the of praetieality/feasibility introduction resolution of first issue raised Any issue. matter relevant to the appeal, I write separately address the interjected by defect determination a de- issue regarding introduction of misuse also implicate holding fendant would evidence, invariably as it will arise Duchess. The essence of the Duchess retrial. holding as to the cross-examination/rebut-
tal matter the defendant made an ¶ 2 products liability plain In a action a *7 assertion that the related to defect (1) tiff prove: product must the defec was thereby allowing plain- determination the (2) a tive and the defect was substantial Moreover, tiff to rebut in the assertion. causing injury. factor in Charlton v. essence, assertion, Duchess the discred- Toyota A.2d Equipment, Industrial 714 proffered ited the design by 1043, (Pa.Super.1998). Supreme 1046 Our plaintiff, plaintiff which entitled the permit Court has refused to the introduc show that defendant had indeed incor- tion in a negligence concepts prod strict porated discredited the ex- liability Development ucts action. Kimco Here, pert. Appellee’s expert discredited 1, 7-9, v. Carpet, Michael D’s 536 Pa. 637 proposed design by suggesting it 603, (1993); A.2d 606-607 Jara v. Rex would create an “unbelievable hazard.” Inc., 788, (Pa.Su works 718 A.2d 793 Thus, Appellants were entitled show 620, denied, per.1998), appeal 558 Pa. 737 Appellee in incorporated fact this de- (1999). However, plaintiffs A.2d 743 a use sign feature in some of its chairs. product of a as it is relevant relates to
¶22 Equip causation. Childers v. Power Line For the various reasons dis Rentals, 94, above, Pa.Super. ment A.2d we 452 681 cussed conclude that the Court denied, 201, (1996), 735, appeal 207 547 Pa. preventing erred reference to other (1997). Specifically, a defen fea may plaintiff tured the Fur dant design feature introduce evidence court, thermore, voluntarily like Duchess we be- assumed the risk or misused
697 no two reasonable because Id.; v. dence of misuse B.F. Good product. Robinson Appel- that the agree Co., minds could fail 444 rich Tire product denied, lant’s use of the 543 Pa. 670 appeal 616 See addition, clearly proper and foreseeable. 142 In a defendant A.2d Raymond Corporation, v. en Kramer plaintiff evidence may introduce (E.D.Pa.1993) (holding evi- prod F.Supp. conduct to defeat gaged reckless fail- alleged misuse for Harley plaintiffs claim. v. dence of liability ucts Madonna (Pa.Su keep and Inc., of travel ing to look direction A.2d 507 Davidson compartment of fork- operating foot inside asserting In a misuse defense per.1998). could precluded when conduct properly lift the use of defendant must establish abnormal). be plaintiff was un not described product employed Childers, outrageous. or foreseeable believe, I where Accordingly, at A.2d here, clearly and “misuse” is alleged case, the trial In the instant court outrageous, and not reasonably foreseeable permitted to assert misuse precluded its the trial court should conduct Appellant’s defense to establish into as matter of law. admission evidence injury cause of her sole way defect. MUSMANNO, not related J., joins both ruling MELVIN, I trial resulted find the court’s Concurring Opinion by ORIE defense, of the misuse misapplication BROSKY, J. Opinion J. here, the did where evidence not establish Appellant in an un- used outrageous manner.
foreseeable
¶ 4 at trial The evidence adduced reveals Appellant por front sitting on the legs wrapped chair with her
tion her spindle
around the base a pen. down to retrieve when she reached GERROW, David and Kristi Although Appellant did not have her h/w, Appellants, floor in front of placed directly feet her, credulity it strains to conclude that SILICONES, INC., Appellee. time of the incident the was SHINCOR something than using the chair for other Pennsylvania. Superior Court of sitting. purpose, which is its intended Contributory negligence of consumer 22, 2000. Argued March a defense in a July Filed *8 fact interpreted can it be trial. The nor negligence compare finder cannot user strict with the thus, under the facts of
manufacturer and case, Appellant’s conduct was not I of the chair.
an unreasonable misuse
recognize the issue of whether conduct gener in misuse is foreseeable
involved jury. Dougherty
ally Inc., Meloney,
Edward J. appeal de
nied, 544 Pa.
However, herein I believe the trial court particular evi- precluded
should