Flawed Tort Claims Rejected by Pa. Superior Court

BY ruth bryna cohen of the Law Weekly


The Superior Court found fault with claims of strict liability, breach of warranty and negligence in a recent case, affirming a summary judgment decision for ARA Services.


According to the Superior Court, the plaintiff – who had been injured in an accident involving a van previously owned by ARA – mischaracterized ARA as a “seller” under Section 402A of the Restatement (Second) of Torts, wrongly called ARA a “merchant” under the Uniform Commercial Code and failed to establish duty in its negligence claim.

Judge Phyllis W. Beck wrote the unanimous opinion in Gavula v. ARA Services, Inc., PICS Case No. 00-1276 (Pa. Super. June 22, 2000) Beck, J. (13 pages).

“[Gavula] casts her argument as if [ARA] were in the business of selling vans, and as such, were subject to strict liability,” wrote Beck. “[Gavula] misperceives the posture of [ARA]. They were not in the business of selling vans either on their own, or through their subsidiary.”

Judge John T.J. Kelly Jr. and Judge James R. Cavanaugh concurred in the opinion, which affirmed the trial court’s summary judgment award to ARA. The trial court dismissed the case with prejudice.

ARA as ‘Seller’

In 1992, Marie Gavula was thrown from a van while on the job. The van was owned by her employer, Ogden Ground Services Inc., and operated by a coworker. Gavula alleged that modifications Ogden made to the van rendered it defective and that those defects caused her injuries.

But at the time of Gavula’s injury, ARA was no longer her employer. The company had sold off its Ogden Ground Services subsidiary through a stock transaction two years before Gavula’s accident.

Gavula – along with her husband Donald – alleged that since ARA sold Ogden and its equipment in a stock transaction, ARA was a “seller” within the meaning of Section 402A and was strictly liable for selling a defective product in an unreasonably dangerous condition.

The court didn’t buy that argument. Beck said ARA did not meet the definition of a “seller” within Section 402A, because the drafters’ intent was that that a seller be one who markets a product for use and consumption. Here, ARA was not a seller, but instead a purchaser of the vehicles used in its business, she said.

And the drafters of the Second Restatement made it clear that the term “seller” applied only to certain entities, Beck said. Comment c of Section 402A, she said, explains the rationale that “the burden of injuries should be treated as a cost of production against which liability insurance can be obtained,” and the one who markets a product is in the best position to bear that burden. ARA did not market the van involved in the Gavula’s accident.

Beck also noted the state Supreme Court previously delineated the meaning of “seller” for purposes of Section 402A in 1975′s Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975).

“Our Supreme Court has held that the term ‘seller,’ is used generically to include all suppliers of products who, because they are engaged in the business of selling or supplying a product, may be said to have ‘undertaken and assumed a special responsibility’ toward the consuming public and who are in a position to spread the risk of defective products,” Beck wrote (italics in original).

ARA as ‘Merchant’