decided as amended september 24 1982: September 21, 1982.
Aldisert and Weis, Circuit Judges and Re,*fn* Chief Judge.
In this products liability case, we must determine whether a pro rata release naming the manufacturer of a defective tire also discharges the retailer that sold the garden cart on which the tire was mounted. We conclude that, as to the tire manufacturer, the retailer is only secondarily liable. Therefore, unless another non-released primary tortfeasor is implicated, judgment should be entered for the retailer. The record, however, is unclear whether the wheel manufacturer also furnished a defective product and we remand for a determination of that factual issue.
Plaintiff Stanley Sochanski was severely injured when a pneumatic tire exploded while he was repairing it. He brought suit under section 402A of the Restatement (Second) of Torts against Sears, Roebuck & Co., the vendor of the assembled cart, and Goodyear Tire and Rubber Co., the manufacturer of the tire. Sears, in turn, filed a third-party complaint against Geneva Metal Wheels Company, the alleged manufacturer of the wheel on which the tire was mounted.*fn1 Jurisdiction is based on diversity of citizenship and the substantive law of Pennsylvania governs.
In the liability phase of a bifurcated trial the jury found, in answers to interrogatories, that the tire was defective and unreasonably dangerous when it left Goodyear's hands, and the defect was the proximate cause of the accident. Similar findings were made with respect to the "wheel unit," which was defined as the Goodyear tire mounted on the cart wheel.
Before the interrogatories were submitted to the jury, Sears moved to withdraw its third-party complaint against Geneva. Although the trial court did not enter an order on the motion, Geneva was not mentioned in the charge to the jury or in the special interrogatories. In addition, we find no record of any summation being delivered on behalf of Geneva. Nevertheless, after the jury's verdict, the court deputy clerk made the following entry on the court minutes:
"JURY VERDICT ON ISSUE OF LIABILITY: Favor of plff. & against defts, Sears, Roebuck & Co. and the Goodyear Tire & Rubber Co. & 3rd-pty deft. Geneva Wheel Co. Trial resumed on the issue of Damages."
No order of the district judge in conformance with this entry is in the record.
After the trial on damages, the jury awarded the plaintiff $395,000 and judgment was entered in that amount against Sears and Goodyear. On post-trial motions, the district court granted judgment n.o.v. in favor of the two defendants on the ground that the plaintiff had failed to negate reasonable secondary causes for the tire's explosion. 477 F. Supp. 316 (E.D. Pa. 1979).
Plaintiff then appealed to this court but, before argument, executed a pro rata release in favor of Goodyear and Geneva for a consideration of $100,000.*fn2 The appeal against Goodyear was then withdrawn. This court, concluding that the plaintiff had met his burden of proof, reversed and directed the jury's verdict to be reinstated. The court observed that Goodyear had reached a settlement with the plaintiff but stated: "We express no opinion about the effect of the settlement on Sears because neither Sears, Goodyear nor Sochanski has presented the issue to us." 621 F.2d at 69 n.1.
On remand, the district court reinstated the verdict in favor of plaintiff and against Sears and Goodyear. Sears then moved for judgment n.o.v. contending that it was only secondarily liable and was discharged from liability by the release given to Goodyear. The district court rejected this argument, reasoning that because the case was tried under a "malfunction" rather than a specific defect theory, no infirmity was shown and, therefore, primary liability could not be assigned to Goodyear alone. 504 F. Supp. 182 (E.D. Pa. 1980). Consequently, the court ruled that Sears was not secondarily but primarily liable with Goodyear as a joint tortfeasor.
In a subsequent opinion determining the appropriate amount of a supersedeas bond, the district court stated that the "jury returned a verdict finding Sears, Goodyear and Geneva liable." Sochanski v. Sears, Roebuck & Co., 504 F. Supp. 187, 188 (E.D. Pa. 1980). Accordingly, the court found all three defendants jointly liable and held Sears accountable for one-third of the total verdict. Goodyear and Geneva were absolved because the $100,000 settlement was made on behalf of both companies.*fn3
On appeal, the plaintiff contends that because he withdrew his appeal against Goodyear in the first appearance before this court, the judgment n.o.v. in its favor in the district court remained in effect. According to the plaintiff, that judgment established that he had failed to prove a case against Goodyear and, therefore, its payment of the agreed settlement was that of a mere volunteer. See Slaughter v. Pennsylvania X-Ray Corp., 638 F.2d 639, ...