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Aloe Coal Co. v. Clark Equipment Co.

filed: April 8, 1987.


Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh), D.C. Civil No. 83-1329.

Author: Aldisert

Before: GIBBONS, Chief Judge, SEITZ and ALDISERT, Circuit Judges.


ALDISERT, Circuit Judge.

This appeal requires us to decide if a sufficient quantum of admissible evidence was presented at trial to establish a prima facie case of negligence. We determine that plaintiff-appellee Aloe Coal Company did not present sufficient evidence of causation to submit its negligence claim to the jury.

We also visit again the issue that was before us in Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165 (3d Cir. 1981): whether Pennsylvania court would permit a purchaser of industrial equipment to bring a tort action against the manufacturer for damages to the product caused by a sudden fire.

When the damages issue was here before we recognized that Pennsylvania had not yet settled the question of whether injury to an allegedly defective product itself was compensable in tort. We identified the majority rule, set forth in Seely v. White Motor Co., 63 Cal. 2d 9, 403 P.2d 145, 45 Cal. Rptr. 17 (1965), which seeks to preserve a proper role for the law of warranty pre precluding tort liability if a defective product injures only itself, causing purely economic loss. The decision in Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965), embodies the minority approach. That case held that a manufacturer's duty to make nondefective products encompasses injury to the product itself, whether or not the defect creates an unreasonable risk of harm. In Pennsylvania Glass Sand, our court fashioned an intermediate position by declaring that whether product damages are classified as economic loss, and therefore not recoverable in tort but only under contract precepts, depends on the nature of the defect, the type of risk, and the manner in which the injury arose.

In the context of admiralty law, the Supreme Court in East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (54 U.S.L.W. 4649, 90 L. Ed. 2d 865, 106 S. Ct. 2295, June 16, 1986), specifically rejected our Pennsylvania Glass Sand position. We now predict that Pennsylvania courts, although not bound to do so, would nevertheless adopt as state law the Supreme Court's reasoning in East River. Accordingly, we hold that fire damage to the product here is not recoverable under Pennsylvania law on a theory of negligence; the buyer's remedies are limited to those available under the law of warranty. Therefore, we will reverse the district court's denial of defendant-appellant Clark Equipment Company's motion for judgment notwithstanding the verdict and remand these proceedings to the district court with a direction that it enter judgment in favor of Clark as a matter of law.


In 1977 Aloe Coal Company, a strip mine operator, purchased a tractor shovel manufactured by Clark Equipment Company. After Aloe extensively used the tractor shovel for approximately five years, it was destroyed by a fire of unknown origin. Commercial Union Insurance Company, Aloe's insurer, reimbursed Aloe for the full amount of the loss and subsequently filed suit against Clark in the district court based on three theories: negligence, strict liability, and breach of warranty. The district court exercised diversity jurisdiction over the subject matter of this action pursuant to 28 U.S.C. ยง 1332, and applied Pennsylvania substantive law to the controversy. The case went to the jury on the negligence theory only, and in response to special interrogatories, the jury found Clark sixty-five percent negligent and the plaintiffs thirty-five percent negligent. Judgment was entered accordingly.

On May 16, 1986, Aloe filed a motion to mold the jury verdict to include delay damages under Rule 238, Pa.R. Civ. P. Thereafter, Clark filed a motion for judgment n.o.v. or, in the alternative, for a new trial, which was denied by the district court on July 16, 1986. On August 12, 1986, Clark filed a notice of appeal from the July 16 order while Aloe's May 16 motion was still pending before the district court. On September 29, 1986, the district court granted Aloe's May 16 motion; Clark did not file a new notice of appeal.


As a preliminary matter, we address sua sponte the issue of our appellate jurisdiction. The matter that gives us reasons to pause is the pendency of Aloe's post-judgment motion in the district court at the time Clark filed its only notice of appeal. If that motion was a Rule 59(e), F.R. Civ. P., motion to alter or amend the district court's judgment, Clark's notice of appeal would have been a nullity and appellate jurisdiction over this case would be absent. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 74 L. Ed. 2d 225, 103 S. Ct. 400 (1982); Rule 4(a)(4), Fed. R. App. P. If, however, Aloe's motion was a Rule 60(a), F.R. Civ. P., motion to correct a clerical error, the time for appeal would not have been suspended and our appellant jurisdiction would be proper. See Barris v. Bob's Drag Chutes & Safety Equipment, Inc., 717 F.2d 52, 55 (3d Cir. 1983). We find Aloe's post-trial motion to have been in the nature of a Rule 60(a) motion and hence conclude that we have appellate jurisdiction over this case.


The caption to Aloe's motion described it as "PLAINTIFF'S MOTION TO MOLD JURY VERDICT TO INCLUDE DAMAGES FOR DELAY UNDER Pa.R.C.P. 238," and made no reference to the federal procedural rule under which it was submitted. In paragraph four, however, the motion recited that it was "being filed within the ten-day time period specified in F.R.C.P. 59(e) with respect to Motions to alter or amend judgments." Even were we to take this recital to evidence an intent on Aloe's part to submit the motion pursuant to Rule 59(e), it would not be controlling for the purposes of Rule 4(a), Fed. R. App. P. "The focus . . . is on the function of the motion, not its caption." Turner v. Evers, 726 F.2d 112, 114 (3d Cir. 1984); see also Glick v. White Motor Co., 458 F.2d 1287, 1293-94 (3d Cir. 1972) (district court did not err in entertaining, under Rule 60(a), a motion for prejudgment interest notwithstanding that it was filed under Rule 59(e)). Accordingly, we look to the intended function of Aloe's motion to determine its effect on the time for appeal under Rule 4(a).

Aloe's motion was for the purpose of adding delay damages to its jury verdict pursuant to a Pennsylvania procedural rule, Pa.R. Civ. P. 238. We previously have held that "a post-judgment motion for Rule 238 delay damages is in the nature of a motion for Rule 238 delay damages in the nature of a motion to correct clerical mistakes in judgment under Rule 60(a), F.R.Civ.P." Bob's Drag Chutes, 717 F.2d at 55. We explained the reason for this characterization in Hayden v. Scott Aviation, Inc., 684 F.2d 270, 272 (3d Cir. 1982), where we noted that Rule 238 leaves no room for judicial discretion, but involves "a simply clerical matter."*fn1 See also Glick, 458 F.2d at 1294 (omission of prejudgment interest under analogous Michigan law was a clerical error correctable by Rule 60(a) motion). Accordingly, Aloe's motion was governed by Rule 60(a). See Hayden, 684 F.2d at 271.


As a motion under the aegis of Rule 60(a), Aloe's post-judgment motion for delay damages had no effect on the time for appeal under Rule 4(a), Fed. R. App. P. See Bob's Drag Chutes, 717 F.2d at 55 (citing International Controls Corp. v. Vesco, 556 F.2d 665, 670 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 98 S. Ct. 730, 54 L. Ed. 2d 758 (1978)); Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668 (5th U.S.L.W. 3315, Nov. 3, 1986). Clark, therefore, was required to file an appeal within thirty days of July 16, 1986, the date on which Clark's motion for judgment n.o.v. or a new trial was denied. Because Clark filed it notice of appeal on August 12, 1986, within the thirty day period, appellate jurisdiction is properly vested in this court.


Moving to the merits of the present dispute, Clark first contends that the district court erred in denying its motion for judgment n.o.v. because Aloe did not carry its burden of proving that Clark's ...

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