Lipinski, D. v. B&G Rebar & Wire ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DANIEL R. LIPINSKI, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
B&G REBAR & WIRE, INC.; NUCOR :
CORPORATION; NUCOR BAR MILL- :
DARLINGTON T/D/B/A NUCOR :
CORPORATION, A WHOLLY OWNED :
SUBSIDIARY OF NUCOR :
CORPORATION :
:
APPEAL OF: NUCOR CORPORATION : No. 1457 WDA 2019
Appeal from the Order Dated August 26, 2019
in the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 14-009079
BEFORE: SHOGAN, J., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 28, 2020
Nucor Corporation (Nucor) appeals the August 26, 2019 order which
denied Nucor’s motion for summary judgment. Upon review, we quash this
appeal.
Due to our disposition, a detailed recitation of the facts and procedural
history of this case is unnecessary. Briefly, Daniel R. Lipinski filed suit on May
28, 2014, followed by an amended complaint on August 8, 2014, claiming he
suffered injuries on the job while attempting to bend a piece of steel
reinforcement bar (rebar) during a construction project. Nucor manufactured
the rebar at issue and B&G Rebar & Wire, Inc. (B&G) supplied the rebar for
the project. Lipiniski’s product liability claims sound in negligence, strict
liability, and breach of warranty.
* Retired Senior Judge assigned to the Superior Court.
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Nucor filed preliminary objections asserting a lack of personal
jurisdiction, which were sustained by the trial court on May 19, 2015, and all
counts against Nucor were dismissed for lack of personal jurisdiction.1 In
September 2016, B&G filed a second amended cross-claim against Nucor,
which incorporated Lipinski’s claims against Nucor set forth in his amended
complaint and sought contribution and/or indemnification from Nucor if it were
found to be liable to Lipinski. In response, Nucor filed an answer, new matter,
and cross-claim on December 9, 2016.
On May 3, 2019, Nucor filed a motion for summary judgment, seeking
dismissal of the cross-claim against it and claiming that because B&G’s expert
opined the rebar was not defective, B&G could not meet its burden of proof
for its cross-claim against Nucor. B&G did not oppose the motion for summary
judgment, but Lipinski filed a brief in opposition, arguing that there was a
genuine issue of material fact under the malfunction theory2 as to whether the
rebar was defective. After argument, the trial court denied the motion for
summary judgment on August 26, 2019. On September 18, 2019, Nucor filed
1All claims against Nucor Bar Mill-Darlington t/d/b/a Nucor Corporation (Nucor
Bar Mill-Darlington) were dismissed without prejudice on May 19, 2015. Nucor
Bar Mill-Darlington is not involved in this appeal.
2 Our Supreme Court has explained that the malfunction theory “permits a
plaintiff to prove a defect in a product with evidence of the occurrence of a
malfunction and with evidence eliminating abnormal use or reasonable,
secondary causes for the malfunction.” Rogers v. Johnson & Johnson
Products, Inc., 565 A.2d 751, 754 (Pa. 1989) (citations omitted).
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a motion for reconsideration, or in the alternative, permission to appeal the
August 26, 2019 order as interlocutory pursuant to 42 Pa.C.S. § 702(b). The
trial court denied the motion that same date.
This appeal followed.3 On October 16, 2019, this Court issued an order
directing Appellant to show cause as to why the appeal should not be quashed.
Order, 10/16/2019. Citing Pa.R.A.P. 341 and interpretive case law, we noted
that the appeal was filed from an order denying summary judgment and is
therefore interlocutory. Id. In its October 30, 2019 letter brief response,
Nucor argued that the court’s August 26, 2019 order was immediately
appealable as a collateral order pursuant to Pa.R.A.P. 313. It requested this
Court not quash the appeal or alternatively, defer determination to the merits
panel. Id. By order entered November 1, 2019, this Court discharged our
show-cause order and deferred the issue of appealability to this panel for
consideration. Order, 11/1/2019.
Nucor presents the following question for our review.
Whether the order erroneously denied Nucor’s motion requesting
summary judgment on the cross-claim against it for
contribution/indemnification in this products liability case, where
the steel reinforcement bar involved in the accident was available
for expert metallurgical examination and testing which found it
not to be defective, but [Lipinski] -- whose direct claims against
Nucor previously had been dismissed -- alone (and despite cross-
claimant’s non-opposition) contested the motion and did so on the
basis of the circumstantial evidence-based “malfunction theory,”
which is inapplicable under the circumstances as a matter of
Pennsylvania law. Barnish v. KWI Bldg. Co., 980 A.2d 535 (Pa.
3 Both Nucor and the trial court complied with Pa.R.A.P. 1925.
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2008) (malfunction theory available only where the allegedly
defective product has been destroyed or is otherwise unavailable).
Nucor’s Brief at 4 (unnecessary capitalization removed).
We must first determine whether the order from which Nucor appeals is
appealable, because appealability implicates our jurisdiction. In the Interest
of J.M., 219 A.3d 645, 650 (Pa. Super. 2019). “Jurisdiction is purely a
question of law; the appellate standard of review is de novo and the scope of
review plenary.” Id. (citation and internal quotation marks omitted). To be
appealable, the order must be: (1) a final order, Pa.R.A.P. 341-42; (2) an
interlocutory order appealable by right or permission, 42 Pa.C.S. § 702(a)-
(b); Pa.R.A.P. 311-12; or (3) a collateral order, Pa.R.A.P. 313.
Generally, a final order is any order that disposes of all claims and all
parties. Pa.R.A.P. 341(b). The August 26, 2019 order does not qualify as a
final order under Pa.R.A.P. 341 because “an order denying a motion for
summary judgment does not terminate the litigation, and thus is not an
appealable order.” Melvin v. Doe, 836 A.2d 42, 44 n.4 (Pa. 2003), citing
Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 394 A.2d
491 (Pa. 1978) and Pa.R.A.P. 341. Nucor does not dispute that the order is
not final or that it is not an order appealable as of right by law. Instead, Nucor
maintains that the order is a collateral order pursuant to Rule 313. Nucor’s
Brief at 1; Nucor’s Reply Brief at 1-10.
We have explained the collateral order doctrine as follows.
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The “collateral order doctrine” exists as an exception to the finality
rule and permits immediate appeal as of right from an otherwise
interlocutory order where an appellant demonstrates that the
order appealed from meets the following elements: (1) it is
separable from and collateral to the main cause of action; (2) the
right involved is too important to be denied review; and (3) the
question presented is such that if review is postponed until final
judgment in the case, the claimed right will be irreparably lost.
See Pa.R.A.P. 313.
Our Supreme Court has directed that Rule 313 be interpreted
narrowly so as not to swallow the general rule that only final
orders are appealable as of right. To invoke the collateral order
doctrine, each of the three prongs identified in the rule’s definition
must be clearly satisfied.
Interest of J.M., 219 A.3d at 655, quoting In re W.H., 25 A.3d 330, 335
(Pa. Super. 2011) (some citations omitted).
Our Supreme Court has explained the following.
“We construe the collateral order doctrine narrowly so
as to avoid ‘undue corrosion of the final order rule,’ ...
and to prevent delay resulting from ‘piecemeal review
of trial court decisions.’” K.C. v. L.A., [] 128 A.3d 774,
778 ([Pa.] 2015) (quoting Pridgen v. Parker
Hannifin Corp., [] 905 A.2d 422, 427 ([Pa.] 2006)).
As colorfully explained by then-Justice, later Chief
Justice, Henry X. O’Brien, “[i]t is more important to
prevent the chaos inherent in bifurcated, trifurcated,
and multifurcated appeals than it is to correct each
mistake of a trial court the moment it occurs.”
Calabrese v. Collier Township Municipal
Authority, [] 248 A.2d 236, 238 ([Pa.] 1968)
(O'Brien, J., dissenting). Moreover, as parties may
seek allowance of appeal from an interlocutory order
by permission, we have concluded that that
discretionary process would be undermined by an
overly permissive interpretation of Rule 313.
Geniviva [v. Frisk], 725 A.2d [1209,] 1214 n.5 [(Pa.
1999)].
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Shearer [v. Hafer, 177 A.3d 850, 858 (Pa. 2018)]. See also
Hession Condemnation Case, [] 242 A.2d 432, 437 ([Pa.]
1968) (O’Brien, J., dissenting) (commenting regarding statute
permitting immediate appeal of interlocutory order: “The
bifurcated appeal foisted upon the courts can only be termed a
judicial Hydra. Would that a Hercules could appear ... to slay this
monster.”).
Interest of J.M., 219 A.3d at 655.
Regarding the first prong, an order is separable from the main
cause of action if it is entirely distinct from the underlying issue in
the case and if it can be resolved without an analysis of the merits
of the underlying dispute.10 Although appellate courts tolerate a
degree of interrelatedness between merits issues and the question
sought to be raised in the interlocutory appeal, the claim must
nevertheless be conceptually distinct from the merits of plaintiff’s
claim.
______
10 Two classic examples of separable issues include standing
and discovery. See, e.g., K.C.[, 128 A.3d at 778] (“As the
issue of whether [the a]ppellants are among the individuals
who have standing to seek custody ... is a conceptually
distinct legal question which has no bearing on the central
issue within the custody action - who is entitled to physical
and legal custody of [the c]hild in light of her best interests
- we find that the [a]ppellants have established that the trial
court’s order is separable from the main cause of action.”);
Shearer, 177 A.3d at 858 (“The discovery-based issue of
whether a plaintiff in a civil personal injury action has the
right to counsel or other representative during a
neuropsychological examination is a distinct legal question
which has no bearing on the underlying issues in this
negligence action.”).
Id. at 655-56 (some quotation marks, citations, and original brackets
omitted).
In the statement of jurisdiction section of its brief, Nucor sets forth the
three-prong test of Rule 313 and refers us to its October 30, 2019 letter brief
in response to our rule to show cause. See Nucor’s Brief at 1. In this response,
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Nucor argued that the instant appeal is separate from the main cause of action
because it is “limited to a focused legal challenge[,] based on uncontested
facts, that necessarily disposes of any need to assess or consider merits
issues.” Response to Rule to Show Cause, 10/30/2019, at 4. Specifically,
Nucor contended that because Lipinski’s claims against Nucor had been
dismissed, and Lipinski did not conduct his own metallurgical testing of the
rebar or contest B&G’s expert, the malfunction theory was inapplicable as a
matter of law where, as here, the product was available. Id. at 2-6. As to the
second and third prongs, Nucor claimed that public policy considerations of
controlling costs in products liability litigation and the lost cost it would incur
in defending itself at an unnecessary trial warranted immediate review of the
denial of its motion for summary judgment. Id. at 6-7.
Nucor further argues in its reply brief that its motion for summary
judgment was “completely separable from the merits and did not require for
its granting any consideration of the merits or of any proffered facts in support
of the [c]ross-[c]laim (i.e., none were offered by [] B&G)” because B&G did
not oppose Nucor’s motion. Nucor’s Reply Brief at 5.
For his part, Lipinski argues that this Court is without jurisdiction over
this appeal. He first points out that the trial court refused to certify the appeal
as immediately appealable, and then argues Nucor has not met the first prong
of the collateral order test. Lipinski’s Brief at 14-18. Lipinski maintains that
the appeal cannot be separated from the main cause of action because the
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“central issue in this case, the alleged defective rebar, is precisely what is at
issue” where Nucor’s “primary contention on appeal is that the rebar is not
defective, while [Lipinski] continues to maintain that the rebar is defective.”
Id. at 16-17.
Nucor responds by assailing Lipinski’s characterization of the central
issue in its motion for summary judgment as whether the rebar is defective,
and instead claims that its motion involves
the very different threshold inquiry of whether the [r]ebar was
available for examination and testing (which it indisputably was),
rendering the circumstantial evidence-based malfunction theory
inapplicable as a matter of law. The results of the examination or
testing (e.g., whether they are available and/or support the
presence of a defect or not) need not be considered or evaluated
as part of that dispositive threshold determination. Thus, the
merits [of] whether the [r]ebar is or is not defective simply [are]
not implicated or involved in the separability analysis in the
circumstances of this case.
Nucor’s Reply Brief at 7. Nucor contends that the “focused limited legal issue”
raised on appeal, i.e., whether the malfunction theory is inapplicable as a
matter of law, “eliminates any need to assess any merits, i.e., the cause of
[Lipinski’s] alleged accident and whether or not the [r]ebar was defective.”
Id. at 7-9, citing Pridgen, 905 A.2d 422, and Barnish, 980 A.2d at 539-40.
The trial court agreed with our Rule to Show Cause Order that the appeal
is interlocutory, stating as follows.
The denial of summary judgment[,] as [Nucor] admits[] in his
appeal, is not immediately appealable. The issue remains for the
jury to decide whether[,] as both parties acknowledge, Nucor’s
rebar was defective. Therefore, Nucor’s appeal is premature and
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improper and should be quashed, as the Superior Court originally
communicated to Nucor.
Trial Court Memorandum in Lieu of Opinion, 12/5/2019, at 3.
Nucor and Lipinski focus their arguments on the first prong of the
collateral order test. The trial court’s denial of Nucor’s motion for summary
judgment is not clearly separable and collateral from the main action as it had
the potential to decide one or more issues in the case. See Melvin, 836 A.2d
at 44. Nucor’s argument, that the malfunction theory does not apply as a
matter of law, is not entirely distinct from the underlying issue in the case,
i.e., whether the rebar was defective. See Interest of J.M., 219 A.3d at 655.
Although, as Nucor argues, a degree of interrelatedness between merits issues
and the question sought to be raised in the interlocutory appeal is tolerable,
the claim must nevertheless be conceptually distinct from the merits of
Lipiniski’s claim. See id. Unlike the classic examples of standing and
discovery, we cannot say that is the case here.
Further, it is clear that Nucor has not satisfied the latter two prongs
either: importance of the right and irreparable loss. Pa.R.A.P. 313(b)
(providing that “the right involved is too important to be denied review and
the question presented is such that if review is postponed until final judgment
in the case, the claim will be irreparably lost”). We do not see any compelling
public policy concerns that are too important to be denied review at this stage
of the proceedings. “For purposes of defining an order as a collateral order
under Rule 313, it is not sufficient that the issue be important to the particular
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parties. Rather it must involve rights deeply rooted in public policy going
beyond the particular litigation at hand.” Geniviva, 725 A.2d at 1213-14. Nor
do we find that going to trial constitutes the type of irreparable loss
contemplated by the third prong. To find otherwise would be an archetypal
case of the exception swallowing the rule. See Interest of J.M., 219 A.3d at
655; Rae v. Pennsylvania Funeral Directors Ass'n, 977 A.2d 1121, 1126
(Pa. 2009) (stating “our precedent strongly cautions against permitting the
collateral order doctrine to become an exception which swallows, in whole or
in any substantial part, the final order rule”). It is clear that the claims made
by Nucor are not irreparably lost as there is a means by which to later argue
Lipinski is not entitled to relief. As our Supreme Court noted, “[a]ny
efficiencies gained in reduced trial litigation would be at the expense of
increased appellate litigation.” Geniviva, 725 A.2d at 1214.
Thus, having concluded that we have no jurisdiction to review the trial
court’s August 26, 2019 order, the appeal is quashed.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2020
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