Appeal from the United States District Court for the Middle District of Pennsylvania. (D.C. Civil Action No. 90-02140)
Present: Mansmann, Hutchinson and Rosenn, Circuit Judges
HUTCHINSON, Circuit Judge.
Bruce W. Buzzard (Buzzard) appeals from an interlocutory order of the United States District Court for the Middle District of Pennsylvania granting summary judgment to Fruehauf Trailer Operations, a division of Terex Trailer Corporation (Fruehauf), on Buzzard's negligence and product liability claims against it. The district court concluded that Buzzard's state common law tort claims were preempted by the National Traffic and Motor Vehicle Safety Act (Safety Act or Act), 15 U.S.C.A. §§ 1381-1431 (West 1982 & Supp. 1991) and Federal Motor Vehicle Safety Standard 108 (Standard 108) promulgated thereunder, see 49 C.F.R. § 571.108 (1989).*fn1
We will reverse and remand. Standard 108 relates to illumination, i.e., required lighting equipment. Unlike Federal Motor Vehicle Safety Standard 208 (Standard 208) which relates to passive restraints, see 49 C.F.R. § 571.208 (1991), the standard we considered in Pokorny v. Ford Motor Co., 902 F.2d1116 (3d Cir.), cert. denied, 112 L. Ed. 2d 113, 111 S. Ct. 147 (1990), Standard 108 does not give manufacturers seeking shelter from the storm of modern product liability lawsuits a choice among several safe harbors. Neither Buzzard's strict liability claim for defective design nor his alternate claim for negligent design make it impossible to comply with both state and federal law. His claims do not actually conflict with federal law nor do they frustrate the primary purpose or objective of the Safety Act, highway safety. Instead, Buzzard's action furthers that purpose. Therefore, Standard 108 does not pre-empt Buzzard's state common law tort action.
On December 14, 1990, Buzzard filed this survival and wrongful death action in the district court, on behalf of himself, his minor son, Lucas Buzzard, and his deceased wife's estate against Fruehauf, Roadrunner Trucking, Inc. (Roadrunner) and Roy L. Gerst (Gerst). The complaint alleged Fruehauf*fn2 was either strictly liable as the manufacturer of an unreasonably dangerous product expected to reach consumers, or alternately for negligently designing a flatbed trailer without lighting or reflective devices adequate to warn other motorists of the trailer's size, location and movement. Buzzard sought in excess of fifty thousand ($50,000) dollars in damages, plus interest and costs.
After all defendants had filed answers to the complaint and cross-claims, Fruehauf filed a motion for summary judgment. Fruehauf argued it was entitled to judgment as a matter of law because Buzzard's claims were pre-empted by federal law. The district court concluded that federal law did pre-empt Buzzard's claims against Fruehauf. Accordingly, it issued an order granting Fruehauf's motion for summary judgment and entered judgment for Fruehauf and against Buzzard. Buzzard timely appealed from that order. Thereafter, the district court certified the order for appeal pursuant to Federal Rule of Civil Procedure 54(b).
The facts material to Fruehauf's motion are not in dispute. Buzzard's action arose out of a fatal accident on the night of January 13, 1989 involving his wife, Deborah S. Buzzard, and a tractor pulling a flatbed trailer. Gerst was driving the tractor-trailer. It was owned by his employer, Roadrunner. Mrs. Buzzard had been driving her 1987 Mazda DX south on Pennsylvania Route 209, an unlit four lane highway running in a north-south direction, towards the intersection of Route 209 and Beaver Valley Road, in Hamilton Township, Monroe County, Pennsylvania. At the same time, Gerst was operating a 1987 PBT 400 highway tractor with an attached flatbed trailer. Fruehauf had designed and manufactured the flatbed trailer and sold it to Roadrunner. Buzzard does not contend that the lighting and reflective devices on the trailer failed to comply with the illumination standards set by the Safety Act and Standard 108. The accident occurred when Gerst, apparently attempting to make a "K" turn, backed the tractor-trailer out of Beaver Valley Road and onto Route 209, blocking the entire right southbound lane and part of the left southbound lane of Route 209. Mrs. Buzzard's vehicle collided violently with the right side of the flatbed trailer. She eventually died from the injuries she suffered.
The district court had subject matter jurisdiction over this diversity action pursuant to 28 U.S.C.A. § 1332(a) (West Supp. 1991). Generally, an order granting summary judgment as to one of several defendants is not appealable. See Jackson v. Hart, 435 F.2d 1293, 1294 (3d Cir. 1970). On January 16, 1992, however, the district court amended its order to certify it for immediate appeal under Rule 54(b). Although the appeal was prematurely taken from a non-appealable interlocutory order, we may consider it as if taken from the district court's subsequent Rule 54(b) certification provided such consideration does not prejudice Fruehauf. See Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977). No prejudice exists here and indeed Fruehauf does not oppose Buzzard's assertion of appellate jurisdiction. Therefore, we have decided to exercise the appellate jurisdiction 28 U.S.C.A. § 1291 (West Supp. 1991) gives us over Buzzard's appeal from the order the district court has certified pursuant to Rule 54(b).
We exercise plenary review since this appeal involves the resolution of a pure question of law which arose on a motion for summary judgment below. International Union, UMW v. Racho ...