Products Liability - Duquesne University

Juris
DUQUESNE UNIVERSITY, PITTSBURGH. PJI..
Duquesne l c1W
School
Newsmc1gc1 z;ne
MARCH, 1972- VOL. 50 NO.3
Products Liability
- page 8.
Page Two
Editorial:
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PRISONER'S right to decent medical care
is evolving slowly. But evolution is too slow
for the prisoner who is suffering from untreated or
mistreated ailments. The 8th Amendment has been useful
in cases where treatment or lack of it "shocks the
conscience" of the court. In malpractice cases where
the conduct of the medical personnel is less than that
which "shocks the conscience," the prisoner's complaints
are often ignored.
Under the Civil Rights Act (42 U,S,C. S 1983) the
prisoner's rights are vague. It is difficult for him to
charge the party liable. The causes of action allowed
under the Act have had to do only with the deprivation
treatment. There has not been a successful cause of
action dealing with poorly given treatment, or not enough
care. Also, there is the obstacle presented by Rule
17 (b) of the Federal Rules of Civil Procedure: the
capacity for a person to sue is determined by the law
of his domicile.
Approximately 20 states allow suits by prisoners under
the common law doctrine that a sheriff is liable for the
health and life of a prisoner in his keeping. New York.
one of these 20 states, has allowed suits against the
state for malpractice under state statute and suits against
the federal government in their Federal District Court
under the Federal Tort Claims Act. A suit against
the federal government, brought in New York alleging
medical malpractice under the Federal Tort Claims
Act. U.S. v. MUNIZ, was eventually heard in the United
States Supreme Court. The court held that prisoners
were meant to be included under the protection of
the Federal Tort Claims Act. One of the claimants
in that suit lost his sight as a result of a delay
in diagnosing and removing a brain tumor, This
too, may be considered conduct which "shocks the conscience." The question is whether the cause of action
for malpractice would have been allowed if the evidence
wasn't as clear and as tangible as a brain tumor.
Juris
';',
"
JURIS is a publication 01 the
Duquesne Universitll School oj LaUe
MAR eH, 1972 EDITION
EOTTOR-IN-CHIE F
PA TRICIA A. PARRELLA
MANAGING EDITOR
LAWRENCE ROSS WEIDER
ASSOCIATE EDITOR
JOHN J McGARRY
NEWS EDITOR
ALAN C. KLEIN
ARTICLE EDITOR
THEODORE TRBOVICH
FEATURE EDITOR
DONALD MORGAN
ALUMNI EDITOR
SANFORD P. GROSS
ADVERTISING MANAGER
DAVID A. BRAKONIECKI
LAYOUT EDITOR
JEFFREY L. WRIGHT
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STAFF MEMBERS -
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John P. Dohanich, Duane L. Ervin,
Claude V. Falkenhan. Jr ..
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The results of medical malpractice suits brought by
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prisoners often have not been successful. The prisoner-~:~
claimants have a difficult time proving their allegations.:!:
They complain many times when there is nothing wrong,
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with the result that they are often ignored when they
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do have a valid grievance. A lawsuit is not the speediest
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remedy... especially when health problems are urgent
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and painful. The time element, lack of evidence,
harassment,.and hopelessness are all obstacles that
the prisoner-plaintiff must overcome if he is to win his
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fight for decent medical care through the courts, Ideally
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though. change should be sought elsewhere.
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Changes should be brought about by Congress and the
various state legislatures.
have the opportunity
to investigate and develop the widespread reform that is
required. Lawsuits are limited in their effectiveness in
that they deal only with the merits of the complaint of
the party or parties before the court. Perhaps sound
legislative commitments are the answer to the violent
pleas of the inmates of our penal institutions. Prisoners
lawsuits have had little success •.• something else is
needed to prevent this inhumane denial of ricrhts.
Duquesne University
law School Newsmagazine
1111
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Robert M. Friedman, Joseph V, Buber,
Robert D, lachnig, Stephen Levin,
M. Richard Mellon, Janet Moschetta.
LaY>Tence E. Popp. C. Timothy Shaffer,
Richard R, Tomsho. and Ira V,ciss.
Ad.IsO'l:
JOHN J,SCI ULLO and NICHOLAS J. DEMAS
JURIS is publlshed quarterly
the school year. The views expressed herein are those of the individual writers and do not necessarily
reflect those of the Faculty or
Student Body unless otherwise
stated.
All correspondence should be
addressed to: Editor, JlJRIS, 600
Forbes Ave., Pittsburgh, Pa.15219.
Telephone {412 434-6,105
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JURIS - March, 1972
P.O.
Printed by NEWS COMP
411, MonroeVille, Pa, 15149
BOl!;
DANGEROUS "TOYS"
By JANET MOSCHETTA and CATHLEEN FEDER
I\RENTS, relatives, and friends
often buy toys for children for one or
more of the following reasons: for educational purposes, to further the development of the child's sense of movement
and coordination, to occupy the child's
leisure time, to satisfy the child's curiosity, and to provide the child with
hours of delightful fun. The one intention
an average toy buyer does not possess,
however, is that his gift will lead to
personal injury to the child or a playmate;
but this often is the case, The United
States Public Health Service has estimated
that toys injure about 700,000 children
in this country every year. Of these
injuries, many are not serious but far
too many are.
For example, at least 22 parents are
suing a company that manufactures a
particular toy, for lacerations suffered by
their children. This sketching toy has
been enormously successful, despite the
fact that the toy contains a window panel
which appears to be plastic but actually
made of glass. Many children, while
drawing with the toy, have leaned on the
glass panel. The glass has broken slashing
the childrens' arms. Despite the many
lawsuits, the design of the toy remained
the same from 1963 to 1971 when the
company finally changed the glass
to plastic. Today, there are approximately
20 million glass-topped editions of this
toy in children's possession.
Despite its hidden dangers, the magical
mystery world of toyland is an lucrative
and successful business with an annual
volume of three billion dollars.
Attorney Edward M. Swartz in TOYS THAT
DON'T CARE (Gambit Press, Boston.
1971) points out, the sales volume of
the toy industry ranks with new car purchases. But car manufacturers have to
comply with increasing federal safety
regulations while the toymakers have
nothing comparable with which to contend.
To compound the safety problem the
Toy Manufacturers of America (TMA)
report that children themselves buy onethird of all the toys sold in A merica,
while only three percent of the parents
reported that their children bought their
OWn playthings. Thus, many parents know
little or nothing about the toys their
children buy. Presently, the toymaker is l
free to sell directly to the child and sell
him almost anything. At the Sflme time,
the toy industry assumes that children's
toys are and should be used only under
parental supervision!
America's burgeoning toy industry is
vast and competitive. The industry relies
upon impulse buying based on hard-sell
advertising to children and sophisticated
packaging intended to capture the parents'
immediate interest. The industry's desire
for se1£- regulation has proved ineffective
and the products liability suit, for the
most part, has met with insufficient
success as an adequate
for the
toy industry's profit nlOtive callousness
and lack of safety standard regulations.
Attitudes of consumer advocates differ
as to the necessity and feasibility
further federal legislation for toy safety
standards. However, the National Commission on Product Safety, June, 197
concluded in its Final Heport that "children
will continue to be ~xposed to unreasonably
hazardous toys unless regulatory methods
are improved."
Naturally, Toy Manufacturers ofAmerica (the toy industry trade association)
has articulated and lobbied its consistent
position that strong legislative action
to impose precise and safe standards On
their products is both unnecessary and
undesirable, and that the industry's
imposed regulations are adequate. A
leisure visit through a toy department,
however, turns into an indictment of the
toy manufacturer's good faith and points
out the sham of the industry's so called
self- imposed regulations.
The toy shopper soon will discover
inadequate warnings, improper directions,
and irresponsible advertising on many
toys. A Toy Corporation in New Jersey
makes an oven heated by a 100-watt
bulb. Children have been burned and
electrically shocked by putting their hands
in the bulb socket while the oven was
plugged in.
Besides
irresponsible
advertising,
many toys are unsafe because of flaws
in their basic design. A group of foolishly
designed toys which an astute shopper
may find is the series of hypodermic
needles marketed as
I Hippy- Sippy."
'Hypo - Phony," and "Hypo- Squirt." Suc h
toys are capable of physically causing
puncture wC'Jnds and deep scratches; but
perhaps more importantly, these toys
inspire children to imitate their drugconscious elders or peers.
The shopper will undoubtedly find some
toys that are well-designed but are inherently dangerous. Unfortunately, these
dangerous toys seem to be children's
favorites and many legal authorities
believe that they should not be sold as
toys at all but classified as "inherently
dangerous instrumentalities." This category includes firecrackers, whips, metal-
JURIS
March, 1972
turned
darts I bow - and - arrow set s,
swords, sling- shots, BB
and so
forth.
The toy shopper
will discover
children not
can be
but also can be
germs
poorly
cently.
various liquid filled,
teething rings \I.'as found filled with
water from an Asiatic river!
the toy shopper will
many other
and
the methods of the toy industry but
been catalogued to
Nader's summation of the effect of
regulation
clear that selfIt is
regulation or self- policing
industry has not materialized. The
priority
toy exncutives is
sales. Being a style industry;
making puts greater emphasis on
what things look like or
to
do than the actual operation or quality
of the product. Price is pre- eminent.
The industry's mar k e t
showed long
that the lower the
selling price the higher the
of sales. These commercial stresses
lead to cutting corners on s
neglecting to round off sharp
or points, for example. or using
industrial waste materials doused
with dangerous chemicals, as stuffing
for dolls or play animals.
The federal government's role
toy
safety is reflected in two federal laws
and their amendments which empower a
governmental authority to oversee the
safety in the manufacture and sale of
children's products and playthings. The
two acts are the Flammable Fabrics Act
passed in 1953 and the Hazardous Substances Act of 1960.
The original Flammable Fabrics Act
covered few enumerated items and no
discretion was left to the FTC
was charged with the law's enforcement.
In 1967 the Act was amended to cover
a wider range of items and to give some
discretion in setting s
standards to
the Department of Commerce. Presently.
the standards are set by the Department
of Commerce and the act is administered
and enforced by the FTC.
The fundamental purpose of the Flammable Fabrics Act is to keep out of the
channels of interstate commerce those
articles . . . chiefly clothing . . . which
come under the Act s general classifications and are found to be extremely
j
- continued on Page 4
Duquesne Advocates Sum
It Up in Washington
-continued from. page 4
Again, both Bill and Larry consider
the experience to have
invaluable.
They feel the one big failure of the
program is that the school does not give
it the recognition and credit it deserves.
Mr. Bartley said. "1 put in more work
and time here than in any course, and
learned just as much as in any course."
It is more valuable than one pass or
fail credit would indicate.
Pelaez concurs here,
the
is now set up, only the
educational. From then on it is strictly
ronYn",HHm,
He feels to change the
to have more
proper utilization
the student
of the Moot Court Board could
the
z also suggested
on brief writing and
run
students with
could
continue
round.
his time, along with painting. He also
feels his debating experiences
helped
him a great deal, however in his case
it was high school. Larry believes
style is quite different than Bill's. "Bill
is very relaxed. where I am more forceful
and aggressive. The styles are quite
complimentary.H
to be made in the
in the future lie in the hands of next
s
Moot Court Board.
ever they might
the
continues, JlJRIS
s team for a
Both men remarked that their effort
was not a single one. There are many
other people who deserve to be thanked.
First there is Jack Robb, "He put in
so much time and research. It is a
shame he doesn't get more recognition
than he does." Professor Rothman also
contributed a great deal of his
knowledge, and encouragement. Most importantly. Larry and Bill thank their
wives for their understanding durin£! all
the work. There are two others to
they are Steve Kreglow and Eric
Pearson.
JURIS
March, 1972
Page
ON AMNESTY
By ROBERT M. FRIEDMAN
WHETHER or not to grant amnesty
to the men who fled the country. evaded
the draft. or deserted the military to
escape American participation in Vietnam,
is fast becoming one of the foremost
issues in America. Over 500 men are
presently serving sentences in federal
prisons for resisting the draft. 1 Approximately 5,500 men have been convicted, since July of 1964, of draft related
offenses such as failure to show up
for induction and failure to register for
the draft. Between 50,000 and 1
draft eligible young men have exiled themselves in Canada and other countries.
Well over 350,000 American soldiers have
deserted from the United States Armed
Forces since 1967. 2 Each week at least
a few American soldiers are killed in
Vietnam, many are wounded, and thousands
face that risk whenever the enemy decides to go on the offensive. Three million
American men have fought in the Vietnam
conflict and 55.000 of them have died. 3
Since early in this nation's history t
amnesty of some kind has followed the
hostilities. George 'Washington granted
amnesty to the dissidents who participated
in the Whiskey Rebellion in 1794. 4
Abraham Lincoln proclaimed a general
amnesty in December 1863, on condition
of an oath of allegience to the Union.
for all but those in limited classifications.
5 In March 1865 Lincoln offered amnesty
to Union deserters who rejoined their
regiments and served out the rest of
their enlistments. 6 Andrew Johnson, in
September 1867 and July 1868, declared
general amnesties requiring an oath of
allegience. 7 Calvin Coolidge, in 1924,
granted amnesty to men who had deserted
since the Armistice of World War I.
And Harry Truman, after World War II,
pardoned some of the men convicted of
violating the draft laws during the war.
Although the American role in the Vietnam conflict has been winding down, the
chances for a successful amnesty grant
are small until American participation
Is formally over. Even though amnesty
has traditionally been granted in America.
it has not been granted until the end
of each conflict. Amnesty is probably
the issue that will replace the war issue
in the 1972 Presidential Campaign. President Nixon stated, on January 2, 1972.
in aT. V. interview with Dan Rather
entitled, "A Conversation with the Presi1. Robert Taft, Jr., "On The Matter of
"
NEW YORK TIMES, Jan. 8, 1972.
2, "Amnesty For The War Exiles·)~ NEWSWEEK,
Jan. 17, 1972. pp. l!1-26.
3. "The Pros & Cons of Granting Amnesty,"
dent:' "As long as there are Americans
who chose to serve their country • . .
there will be no amnesty for those who
deserted their country. As long as there
are any POW's held by the North Vietnamese, there will be no amnesty ••.
After that we wiII consider it (amnesty),
but it would have to be on the basis of
their paying the price, of course, that
anyone should pay for violating the law."
Senator George McGovern has declared
unconditional amnesty to be part of his
program in seeking the Democartic Presidential nomination. Mayor John Lindsay,
of New York, has endorsed a conditional
version of amnesty. Senator Henry Jackson
has explicitly opposed amnesty for draft
resisters.
There are presently several bills in
the 92nd Congress which relate to amnesty
for draft evaders. Representative Edward
r. Koch has proposed a bill providing
for broadening of the provision for conscientious objectors retroactively, to
permit violators of the existing selective
Service Law to make use of the broader
exemption.
n.R. 832, 92nd Congress, 1st Session.
January 22, 1971. Honorable Edward
r. Koch (D. N. Y.).
To amend the Military Selective Service Act of 1967 clarifying the definition
conscientious objector so as to specifically include conscientious opposition to
military service in a particular war;
and providing certain individuals the opportunity to claim exemption from military
service as selective conscientious objectors irrespective of their existing selective service status. (Referred to Armed
Services).
Senator Edward Kennedy has proposed
a study commission on the subject and
the revision of the Selective Service
Law.
S 483, 92nd Congress, 1st Session,
January 29, 1971. Honorable Edward
M. Kennedy (D. Mass.).
SEC. 403. The PresIdent shall conduct
a study to determine the appropriateness of granting amnesty in the near
future to those registrants convicted
for refusing induction and those
presently outside the United States
who are liable for prosecution under
section 203 of this title. In conducting this study, the President shall
consider the number of such registrants. the implications for the
morale of the Armed Forces granting
such amnesty would raise, the historical precedent for granting amnesty, and such other factors as he
deems appropriate. The President
shall report the results of this
to the Congress. together with appropriate recommendations, within
six months of the enactment of this
section.
JURIS-March,1972
This section, however, did not appear
in the new Selective Service bill as enacted.
Senator Hobert Taft, Jr. has
a
bill providing
for draft evaders
on condition of an alternative
hut which intentionally excludes
S 3011, 92nd
December 14, 1
Taft, Jr.
,1st
. Honorable Robert
To offer amnesty to draft evaders
on the condition that they enlist
three years
the armed
perform three years
in VISTA, public hospitals, or other
approved
(Heferred to JudicRepresentative Edward Koch
companion to
s bill and
proposal to grant
ha ve committed
acts in
proval of the United States' role in
nam.
R. 12417,
sion, January 18,1972.
ward I. Koch. (D. N. ).
Companion to Taft's bill. but
a two-year service period.
to
.Judiciary).
12664,
• 2nd Session, Janurary 26,
Honorable
Edward I. Koch (D.
To approve and authorize
mitigation
punishment for
persons who have
their disapproval to lJnited States particiin the Southeast Asia
; and
to provide for restoration
civil and
political rights that have been lost or
impaired by reason of such illegal acts,
and for other purposes.
to
Judiciary).
Americans on both side of the amnesty
issue are bitter. Those who
sons,
fathers, or husbands presently in Vietnam,
or who were killed in Vietnam, or who
are Prisoners of War in North Vietnam
are vehemently against any kind of
amnesty, They regard those who deserted
or evaded military service, as traitors.
On the other
of the issue are the
men who went to jail and are now branded
with the stigma of criminals; the men
who fled the country and went to Canada.
Sweden, and other countries to avoid the
draft; and those who were in the service
and in Vietnam hut deserted rather than
fight. To these people the United States'
role in Vietnam is immoral and insist
that it isn't them who should be seeking
amnesty from the government, but the
government who should be seeking
continued on Page 7
Jan. 10,1972. pp. 16-17.
4. Thomas M. DeFrank, "Draft Amnesty Argued
for Evaders, Deserters," THE PITTSBURGH
Jan. 16,1972. p.l, Sec. B.
5. James Reston, .Ir' r "Vietnam Amnesty; A Proto the Presioent: NEW REPUBLIC, oct. :1,
1971. pp. 21-22.
Page Seven
-continued from page 6
Democratic nations are supposed to
represent the will and morality of its
people, but patriotism is compared all
too often with support of the American
role in Vietnam. In 1965 and 1966 thousands of young men became soldiers
for patriotic reasons, only to find out
that their President lied to them. 8
Now, in 1972, almost everyone agrees
that the United States should never have
hecome involved in the Vietnam Conflict. Many of the Americans now blemished with criminal records, faCing the
loss of rights such as eligibility for
puhlic employment and admission to the
bar; and those in self exile, reached
the same conclusion about Vietnam before
the majority of the A merican people did.
Should they be punished for this insight,
especially since it was they who played
a major part in bringing the people to
this realization?
Civil disobedience is often necessary
to help institute change. The men who
went to prison and exiled themselves
rather than fight 3n immoral war had
the courage of their convictions. They
disobeyed the laws 3nd they accepted the
punishment. These men, however, should
not have to pay the rest of their lives.
A mnesty is the logical means to hring
evaders back into society in the way
least painful to all of America.
The way amnesty is declared, however,
is as important as the proclamation itself. 9 There have heen many general,
conditional proposals regarding amnesty
for draft evaders who have gone to jail
or exiled themselves in support of their
beliefs. But none, except Universal (unconditional) amnesty has dealt with those
men who deserted from the armed forces
after they were in the service. To distinguish between evaders and deserters
is to discriminate between middle class
and lower class, between white and black.
Most draft resisters and would- be conscientious objectors are college educated
middle class youths. Deserters tend to
be less well educated and more apt to
act on their direct military experience
rather than on an understanding of their
abstract rights. 10 Therefore, any amnesty
proposal, in order to be fair, must deal
with both evaders and deserters.
Amnesty, however, should be the last
NOTE: Six classes of individuals excluded: civil
or diplomatic officers of the Confederate government;
judges who defected to the Confederacy; military
men above the rank of colonel in the Army or
captain in the Navy; legislators who left Congress
to aid the rebellion; commissioned officers in the
U.S. military who resigned to become Confederate
officers; and those who sold black escapees back
into slavery across battle lines.
6. Louis Lusky, "Amnesty: What Sort Will Bind
Our Wounds')W WASH. POST, Jan. 9, 1972. Pg. 3.
7. Reston, • Vietnam Amnesty: A Proposal to the
President," p. 21.
8. IBID.
9. IBID.
10. "Moral Aftermath," NEW YOIlK TIMES, Jan.
2, 1972. p. 10.
11. Louis Luskey, "Amnesty: V'hat Sort Will Bind
Our Wounds?"
step in making Vietnam past history in
A merica. What is first needed is complete withdr aw 1 of A meric rll1 troops, return of all Prisoners of War and abolition
of the draft. To proclaim amnesty before
these things have been accomplished would
only demoralize the troops noW in Vietnam, even more greatly embitter the
families of PO\\"s, and undermine enlistment in the military.
A rticle II Section 2 (1) of the lJnited
States Constitution gives the President
the " . . . Power to grant Heprieves
and Pardons for Offenses against the
United States . . ." But the President
has no power to grant amnesty to those,
\\'ho by illegal demonstrations, violated
state laws, and only Congress has the
power to naturalize citizens. Louis Lusky,
professor of Constitutional Law at Columbia t:nivcrsity Law School has suggested that Congress could declare hy
statute, that grants of annulment of convictions and other legal disadvantages
suffered because of specific acts of opposition to the war are a "privilege and
immunity" of United States citizens,
thereby affording them protection against
hostile state action.
Congress has before it now, proposals
by Senator Taft and Hepresentative Koch
calling for amnesty for draft evaders
on condition of alternative service in
VISTA, the Public Health Service hospitals, Veterans Administration hospitals
and such other service as might be
designated by the Attorne.}, General. By
broadening this proposal to include deserters as well as evaders and making
the Act conditional upon signing by the
President, the Act would be fair, reaching
all involved, and assuring the constitutionality of the Act. The men to ...vhom
this amnesty proposal applies, would be
dealt with in the following
. Those
who served prison sentences as a result
of draft related convictions would have
their criminal status eradicated and their
civil and legal rights returned to them.
The men now serving such sentences
would be released from prison and granted
such amnesty on condition of serving the
remainder of their sentence in alternative sendee as proposed by the TaftKoch bill. A mnesty and Ameriean citizenship would be availah"~ to all Americans
who exiled themselves in other countries
in order to evade the draft,
conditioned on two years alternative service.
Military deserters would be
amnesty upon the eondition of returning t.o
serviee at the lowest rank, but without
military criminal sanctions, for the remainder of their enlistrnent as calculated
from the time of their desertion. This
would allow these men the freedom and
enjoyment of American life they would
most probably have had, had it not been
for the intervention of the Vietnam eonflict into their lives.
-4t/~~
Because she is wearing a jeweler's loop doesn't mean she can assess a
diamond. Only her jeweler with his scientific knowledge of gems can
actually determine the gradations in color - the existence or nonexistence of various types of inclusions - the cut and polish of
the gem. It takes a Diamond Expert to assess its true worth.
Here our Experts will tell you all about the diamonds we sell: their
weight, color, cutting and clarity. We'll show you different shapes
and explain what faceting does. We'll let you see how certain settings,
too, affect a diamond's loveliness.
We shall be most happy to show you - honestly - how one diamond
differs from another. It will safeguard you against the common
mistake of judging by size or price. Only your jeweler knows.
~
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Stop in or write for our free booklet
"Buying Your Diomond-A Guide"
To'l
We Moved Down Wood St. From Oliver
Sixth. See Our New Store. It's Quite Unique.
~
.-------.~~~
FINE JEWELERS SINCE leel
Marquise
DIAL 281-4344
Downtown
JURIS - !\larch, 1972
Sha
Paae Eiaht
Products Liability: The Plair
By MURRAY S. lOVE, Esq. a
EDITOR'S NOTE:
This article was specially prepared for JUF!S
by Mr. Love and Mr. Messer. These gentleml"Jn are
associated with Sikov & Love, one of Pittsburgh,
Pennsylvania's leading products litigation firms.
INTRODUCTION
T HIS ARTICLE is intended as a
study of the use of trial strategy to
meet the plaintiff's burden of proof and
to provide some guidance for general
practitioners to answer the questions
that often confront them when a client
claims injury due to a defective product.
At the outset, the trial lawyer must
recognize the inherent difficulties in the
preparation and trial of a ~products"
case. Extensive time and expense are
involved in educating the lawyers in the
basic technological skills which are necessary to understand and sustain the plaintiff's burden of proof. In addition, the
lawyer should be cautioned, as he so
often cautions the jury, not to leave
his common sense at home when he
deliberates over the facts at hand. After
all, he is going to translate detailed
entific information to a jury of laymen.
It is imperative, therefore. that he approaches expert's findings and all other
information at his disposal with a good
deal of common sense. Many experts
will concede that lawyers often hit upon
the particular defect involved without the
benefit of a scientific background. It
should be kept in mind that those facts
which lead counsel to ferreting out the
defect are, very often, the same facts
which will ultimately convince the jury.
Thus, the lawyer serves not only as the
inquisitor. but also as a catalyst for the
formation of ideas upon which he will
build his evidence and present the case
to the jury.
A more important consideration should
be noted. Every'products" case must
be considered under three alternative
approaches. The first is obviously a
tort liability theory brought pursuant to
Section 402A of the Restatement of Torts
2nd. Secondly, every case should be con~
sidered, in light of the warranty provisions of the Uniform Commercial Code
as enacted in Pennsylvania in 1
Thirdly, a negligence theory must be
developed to encompass the particular
factual situation the client presents. This
approach usually demands a higher burden
of proof and, consequently. should be
used only when a warranty or strict
liability theory cannot be proved. Every
lawyer who has taken a good torts course
is well-rounded in the rudiments of a
negligence action, and since time and
space is of the essence only the 402A
theory of liability will be discussed in
detail.
Prior to 1971, complaints based on
assumpsit theories and trespass claims
had to be filed separately. They were
then joined upon petition of counsel and
proceeded toward trial as one. Plaintiff
in this situation was required prior to
the time of trial to elect which theory
he would seek to prove at trial and
would be limited solely to that cause of
action. With the amendment of Rule 1020
of the Pennsylvania Rules of Civil Procedure in 1971, the plaintiff may now file
his claim in the alternative, to wit, both
trespass and assumpsit claims may be
asserted in a single complaint. These
procedural refinements were intended to
further diminish the traditional distinction
of contract versus tort theory of liability.
Even though the courts have sought to
reconcile the traditional distinction between warranty and trespass claims, it
must be recognized that the cause of
action sounding in warranty springs from
a different legal foundation than a cause
of action brought under a negligence
theory or a strict liability theory.
The warranty cause of action is regulated by statute and, therefore, any trial
strategy or theories of liability must be
predicated upon the statute as enacted
as well as a decisional law interpreting
that particular statute under consideration. On the other hand, the 402A theory
and, of course, the negligence theory
are based strictly upon decisional law
of the jurisdiction in which the cause of
action is to be brought. In order to
provide some foundation for the study of
a particular factual situation, strict liability claims, which must be asserted
in a products liability case, will be
discussed below with some reference
to warranty claims.
THE BlJRDEN OF PROOF IN A STRICT
LIABILITY CASE UNDER SECTION 402A
OF THE RESTATEMENT OF TORTS 2nd.
In 1966. the Supreme Court of Pennsylvania in WEBB v. ZERN, 422 Pa.
424, 220 A.2d, 853 (1966)" adopted the
strict liability law for Pennsylvania. The
decision was a short and perfunctory
9doption of a rule of law which drastically changed the remedies of the userconsumer of a product. The court did
not provide anything more than an enunciation of Section 402A of the Restatement
of Torts 2nd. This section of the Restatement was carefully drafted and pro-
JURIS - March, 1972
pounds a rule of
which, if read
carefully, also fully defines the plaintiff's
burden of proof. The plaintiff has the
obligation to prove each of the following
elements in order for strict liability to
apply: (a) The defendant or defendants
must
sellers engaged in the business
of selling such a product: (b) the product
must be defective; (c) the defect was
present when it left the possession or
control of the seller; (d) the product
reaches the user without a substantial
change in condition; and (e) there must
be an injury to the user- consumer or
his property caused by the defect or
malfunction. At the time
the adoption
402A, many members
the bar felt
this new theory was a bonanza for the
plaintiff's trial counsel. Practical
ence has indicated, however, that
counsel have been quite successful in
defending products cases. A renowned
trial practitioner has recently stated that
the national statistics show that juries
return defense verdicts in twoof
all products liability cases. The
number of these cases are probably lost
in the preparation and negotiation of the
case prior to trial. Every la\vyer who
intends to try a products case, must
take each element individually and
it in
of the defenses 'which may
arise. In order to provide a broad overview of the burden of proof, we
look at the requirements listed above
and some
the court decisions interthese requirements.
In Pennsylvania, the charaderization
of a defendant as 11 seller under 402A
is relatively simple. The courts have
adhered to the intention of the drafters
of the Restatement as exemplified in
Comment f Section 402A. In BURBAGE
v. BOILER ENGINEERING A~'D SUPPLY
COMPANY, 433 Pa. 319, 249 A. 2d, 563
(1969), the court confronted the issue of
whether a component part manufacturer
could be held strictly liable for furnishing a defective valve for a boiler. The
origin;:..l defendant in the case, Boiler
Engineering and Supply Company, (Boiler)
was the manufacturer of a boiler which
was sold to the plaintiff's decedent's
employer. General Patrols, Inc. (General)
supplied a valve which was to regulate
the amount of fuel entering the ignition
chamber of the boiler. As a result of
the malfunctioning of this valve. an explosion occurred killing plaintiff's decedent. General, as the manufacturer of
the component valve, was joined as an
additional defendant. The case was submitted to the jury under 402A,
the
Pile Nine
•
iff's Case In Pen nsylva nia
HOWARD MESSER, Esq.
jury returned a verdict against Boiler and
in favor of Boiler against General for
the amount of the verdict.
On appeal. General argued that 402A
does not apply to component part manu~
facturers. The court following the intent
of Comment q to section 402A did not
accept the argument of General. Comment
q divides component part manufacturers
into two categories. The distinction is
a factual one which depends upon whether
the part is to be substantially altered
and then incorporated into a finished
product, or whether the component part
is to be used without any substantial
change. In BURB.f.GE, the court indicated
that since the jury found there was nO
substantial change in the valve once it
had left the hands of General, there was
no basis for an appeal on the grounds
that General was not a seller under
402A. In short, BURBAGE indicates that
the
court of Pennsylvania will follow
the definitional scope regarding component
part
manufacturers as exhibited in
Comment q. One might expect that on
the basis of this decision, any raw material supplier would be exonerated from
liability due to a defect in the final
product. On the other hand, as indicated
in BlJRBAGE, the manufacturer of a finished product, such as a valve or even
a brake system, would be held liable
under Section 402A, since they sold a
component part to be used in substantially
the same condition as it is furnished
to the manufacturer of the finished product.
facturer in thIs type of situation must
inform a retailer or the packager of the
quality control standards he used to
produce the product. The latter might
save the supplier from liability under
neg ligence theory.
Is the Product Defective?
The superstructure of 402A liability
rests upon the "defective condition" of
the particular product. The scope of the
phrase "defective condition" surrounds
numerous categories of product failure
which include design defects or actual
material defects. In each instance, the
product is unreasonably dangerous to the
user- consumer, in spite of all due care
by the manufacturer. This is the true
change in the law of products liability
as adopted in WEBB v. ZERN. Plaintiff's
counsel now no longer needs to go behind
the product and prove that the proximate
cause of the accident was a particular
act or ommission of the manufacturer.
This negligence requirement formerly
imposed the most onerous burden of
proof On the plaintiff, and therefore,
denied remedial Channels to many userconsumers prior to 1966.
If one thinks
402A as limiting the
proximate cause requirement of a tradi~
tional negligence theory, the basis of
this Restatement section becomes clear.
Under a negligence claim, the burden
was on the plaintiff to prove that the
ultimate manufacturer, by an act or omisplaced a product on the market
One might expect to encounter many
factual situations which are not covered
by Comment q. Quaere: Is a manufacturer
who supplies a component part to be
used in a product to be assembled
a user-consumer liable as a seller under
402A? The question obviously dovetails
into other standards of proof required
by a plaintiff's counsel. Obviously, the
manufacturer of the part who intended
it to be used in a user- consumer assembled product intended it to be used
without alterations; the question now
arises, however, as to whether he is
obligated to provide a component part
which will not fail if the product is
properly assembled. One can foresee,
however, the detailed factual nature of
this question. For instance, the instructions which come with the product to
be assembled by the user-consumer must
be studied carefully and any warnings
or guarantees placed upon the packaging
of the product. Further questions arise
as to whether the component part manu-
which was the proximate cause
injury
to the plaintiff. Under 402A the "proximate cause" (if one will permit the use
of this phrase here) requirement Is narrowed to provide that the plaintiff must
only show a defective condition
was the cause of plaintiff's injuries. In
essence, this shifts the explanation of
the defect or lack thereof to the defense
and the defense, therefore, must proceed
to explain away the defect. In short, the
risk of product faUure has been shifted
from the consumer~ user to the manu~
facturer. Such is the basic philosophy
of 402A.
One cannot express too strongly
factual nature of products Uability
gation. The interplay between
the product and the failure it
entails a careful degree of scrutiny.
Counsel for the plaintiff must recognize
that design failure will cause a product
to become unreasonably
to the
user- consumer, but proof of inadequate
design is not necessary to prove a 402A
case. In short. a visible and
defect can be proved by
testimony
without proving the defect
from
design negligence. In his desire to prove
a products case, counsel for the
might attempt to prove design
when, in fact, he needs only to assert
the defect which caused injury and \vhere
the defect occurred on the product. Cir~
cumstantially. the effort to overprove
his case might engender a feeling
security for plaintiff's counsel. but also
might backfire since the defense. once
a negligence theory
advanced, an
move the court to include a contributory
negligence charge in its instructions to
the jury, arguing INTER ALIA that the
plaintiff asserted a negligence theory.
not one based on 402A. The trade-off
in this situation results in a simple and
convenient presentation of a theory of
liability based upon 402A rather than a
complex and intricate trial presentation
necessary under a design negligence
theory.
Proper expert examination will often
reveal a basic flaw in the product which
has caused injury. A new tire which
has been maintained properly but explodes
when the weight of the car is placed
upon it, provides a demonstrative and
apparent defect capable of proof. The
same is true of a drain solvent which
contains acid in double the quantity of
the same solvent in different containers.
So, too, the bicycle \vhich breaks at the
- continued from Page 1 ()
JURIS - March, 1972
Page Ten
•
Products Liability: The Plaintiff's Case In Pennsylvania
- continued /rom page 9
handlebars because the steel has an ex-
case.
.
, the plaintiff
a heavy quantum of proof. particularly
when the product has been destroyed and
little, if any. value rests on a scientific
examination of the pieces. A good example
is thc exploding bottle cas(" where the
fragments are so small that the expert
must say he cannot pinpoint a
through analysis of the glass. \Vhat does
plnintiff s counsel do?
the Section
action.
the court
of the
defect in
causing a mechanic
an essential element in establishing breach
of warranty."
that
As a result of this holding, many
trial counsel felt that expert testimony
as regards the proof of mechanical mnlfunction, served little if any function
in circumstances similar to the 1\IACDOUGALL case. The rationale was that
circumstantial evidence presented by the
expert as to the cause of the accident
was not specific but in terms of
The delineation of a 402A theory of
liability must be
examination of court decisions
on the burden of proof in a
CDse. In the context of the
we are considering a "defective
within the meaning of 402A
and must. therefore, determine whether
the courts require proof of a particular
defect or only mandate that a mechanical
malfunction occurred. There are no finite
answers to these questions, since only
six years of developing case law serves
as a basis to discover a foundation upon
which to proceed. Any analysis among
trial counsel of products liability litigation is often an extemporaneous
to define methods of "getting to a
The speculation which ensues
ters on the
Let us now consider a case \vhlch carries i mplic ations regarding the plaintiff's
burden of proof and also gives some
insight into burdens under 402A and warranty claims.
Tho scope of expert
often
upon factual
hand.
Many decisions in
that an expert's
credible
One
in the sense that juries,
the authors of this article, are often
i mpressod by the stature of an individual
who Appears in court to explain a particular product frdlure. In addition, the
expert serves to indicate to the jury
precis
the line of facts and reasoning
which help the expert and plaintiff's
counsel to reach their conclusion
the failure of the product.
In MACDOUGALL v. FOHD MOTOR
COMPANY, 214 Pa Super 384, 257 A2d
676 (1969), the Superior Court of Pennsylvania reflected upon the burden of
proof the plaintiff must sustain in order
to prove a defective condition within the
meaning of Section 4 02A. In order to
accomplish the task of defining the burden
of proof, the court looked back upon
warranty theory cases to provide guidnnce as to the burden
_
,
to the facts in MACD
LL. The plaintiff Was driving her car at about sixty
miles per hour when she discovered
difficulty in controlling it. The vehicle
left the highway and overturned. At the
time of the trin!, she testified that the
steering wheel did not respond and seemed
to stick. Plaintiff's expert witness testified as to the alleged defects in the
steering mechanism but did not render
nn opinion as to which of the defects
caused the accident. The court held that
in this particular factual situation, the
burden of proof necessary under warranty theory, would be coextensive
The courts of Pennsy 1vflnia
, or at least the
decisions indicate, that a
burden will he placed on
counsel
to
the expert testimony of
s witness within bounds.
course,
the converse is also true. For instance,
hypothetical question situations, opcounsel can not object to the
phrasing of the question in the manner
in which it was posed until the question
has been presented to the expert.
the objection being stated, efforts should
be made by counsel to have the
properly phrased and posed to the expert
with concurrence of both sides. At
point, the hypothetical question has become
a method
the plaintiff or the
own expert
defense or
relies. As a result of this bargaining
at the
so to speak, the question
should fairly state the facts in evidence
and serve as a foundation for the jury
to study and examine the evidence presented.
condition.... which
would then establish liability in Pennsylvnnia on a breach of warranty or
402A case. After this decision speculation
wns centered upon \vhether expert testimony 'Nas necessary in a case such as
MACDOUGA LL.
JllRIS
'>1 arch , 1972
• the
the basis of
.
nnd tbe
inspection
photographs. In such
a situation, plaintiff's counsel is
\vith th.e obvious problem of
clefecti ve conditioll without a
inspection of the product involved.
may be
the product may have
been
destroyed or may
un
counsel for either
If such
courts in
the extent to
his ease are concerned over the
that the
product is
or the evidence to be presented
circumstantial. After all, an expert
based upon
testimony of the
tiff and
of certain
scientific RMl
therefore, upon the
of a
and necess
to reflect upon
in each case. In
whieh
the jury_
to
In addition to the foregoing discussion
regarding
1 questions, it is
interesting to note that another line of
Penns:vlvania cases
that there
might not he a
testifying as an
examination
the accident
as 1851, an
testify on the
at trial and without
or seeing
the object in
case was
the first in a
line of cases, involving both cirminal and civil matters,
allowing an expert to testify upon what
he had heard in the courtroom, In the
case of TOBASH v. J
41!=l Pa 205,
213 A 2d 588 (1965), the expert was
permitted to testify
solely upon
evidence he had heard
the courtroom.
From the examination of
cases,
it appears that an
s testimony
can he easily adapted to the
needs of counsel at
The basis for
these decisions might sound more in
expediency rather than a
of
presenting the case from a burden of
proof standpoint. Expert testimony, after
all, is not in and of itself an evidentiary
statement, but, rather, a necessary expedient at trial to allow both the
and opposing counsel to
and
attack the basis upon which the plaintiff's
- continued
on PUl]e 11
Page Eleven
continued /Tom page 10
c lai m is stated.
The defenses asserted in opposition to a
402A claim are often the subject of
speculation by plaintiff's counsel. The
recent trend, particularly in automobile
accidents involving defects, has been for
defense counsel to assert that the collision
actually produced the defect the plaintiff
is complaining of. This is particularly
true when one confronts a situation where
the automobile is very heavily damaged
and the particular defect complained of
is located in the damaged portion of the
automobile. Defense counsel obviously
contends that this defect stemmed from
the accident. In Ught of this defense,
it is absolutely necessary for plaintiff's
counsel to demand of his expert an adequate examination and opinion regarding
the question whether this defect existed
at the time of manufacture, as mandated
by Section 402A, or was in fact, a result
of the collision. In terms of proof. and
of course, in terms of persuasion, the
answer to that question is fundamental
to the successful litigation of the 402A
claim.
fy~ts
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lch
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It should be noted at this point in
our discussion that the only affirmative
defense available to the manufacturer.
distributor and wholesaler of a defective
product in the State of Pennsylvania,
under a 402A theory, is an assumption
of the risk defense. Comment (r) to Section
402A of the Restatement of Torts provides
the most important asset to plaintiff's
lawyer in studying and determining
whether his client assumed the risk of
injury created by the defective product.
Comment (r) generally provides that the
contributory negligence of the plaintiff
is not a defense when the plaintiff fails
to discover the defect in the product
or to guard against the possibility of
its existence. "'On the other hand, the
form of contributory negligence which
consists in voluntary and unreasonably
proceeding to encounter a known danger
and commonly passes under the name of
assumption of risk, is a defense under
this section as in other cases of strict
liability. If the user-consumer discovers
the defect and is aware of the danger,
but nevertheless proceeds unreasonably
to make use of the product and is injured
by it, he
barred from recovery."
The Supreme Court of Pennsylvania has
adopted this approach, and in FERRARO
v. FORD MOTOE{ COMPANY, 423 Pa.
324, 223 A. 2d 746 (1966), the court
held that after a studied consideration,
it appears to us that if the buyer knows
of the defect and voluntarily and unreasonably proceeds to use the product
or encounter a known danger, this should
preclude recovery and constitute a complete defense to the action."
The courts of Pennsylvania have also
chosen to follow the dictates of Section
496 (D) of the Restatement of Torts
2nd, which also speaks of knowledge and
appreciation of risk. Comment (d) to this
section of the Restatement sets forth that
the intent of the as sumption of the risk
concept is to place upon the plaintiff a
responsibility to look out for himself.
As Comment (d) explains. "Therefore he
will not be found, in the absence of an
express agreement which is clearly to
be so construed, to assume any risk
unless he has knowledge of its existence.
This means that he must not only
aware of the facts which create the
danger, but must also appreciate the
danger itself and the nature. character,
and extent which make it unreasonable."
In addition to the elements of proof
discussed above. it is also important
for the plaintiff to prove that the defect
in the product was present when left in
possession or control of the seller. This
requirement has been dealt with at length
in a case litigated in the Federal District
Court for the Western District of Pennsylvania. In GHECO vs. BUCCICONI ENGINEERING CO., INC.. it aI, 246 F.
Supp. 261 (1965). aff'd 407 F. 2d 87
(1969), a Federal judge used Pennsylvania
law to interpret a complex factual situation
involving a changing condition. In GRECO,
the defendant manufactured a steel sheet
piling machine which was purchased
J & L Steel Corporation for use in its
steel plant. Soon after the plyer went
into operation, its fingers began to retract
irradically. Once J & L received knowledge of this malfunction, J & L employees
inserted two pins in the fingers of the
plyer and attempted to prevent this retraction with a resultant spilling of the
steel sheets to the floor. On the day
of the accident. with one pin in and the
other out, the plaintiff was attempting
to use the machine and without any activation from the control panel, one of
the fingers retracted, causing the sheets
to tumble down on top of the plaintiff's
outstretched hand. It should also be noted
that the engineering company delivered
the machine in component parts to J & L.
These component parts were installed
J & L employees. On appeal, the defendant attempted to argue that these
facts illustrated that the machine was in
a substantially changed condition and,
therefore, Section 402A did not apply.
The court did not accept this argument.
The court stated that the evidence indicated that the pins inserted by J & L
employees did not affect the defective
portion of the product. As a result, the
court felt that Comment (p) to Section
402A mandated that strict liability attach
to the manufacturer of the machine. From
a reading of the opinion. it appears
the evidence supporting the allegation of
substantial change in condition was not
sufficient to overcome testimony of J & L
employees and the plaintiff. One must
believe from reading the District Court's
opinion that in order to establish a substantial change in condition, there must
be proof (a) that the product itself has
JURIS
March,1972
been altered. and (b) that the alteration
was the cause of a defective
which produced the plaintiff's injury. The
decision of the lower <.~ourt in this case
was appealed to the Third
Court
of Appeals. The court on
in order to establish that
in the plyer by J & L
stituted a
must establish that
intervening and
lieving the manufacturer
court felt that on the
of the
evidence
the
establish such
cause and, therefore,
spite of the changes
The two
in GRECO also presented another element in the
of proof which
The manufacturer
contended
that the plaintiff
to prove that
the defect
at the time
the consideration of how a
must go about proving that slich
existed at the time
the
stated 'The test \\'0 must
reasonable and wellminds
be satisfied, from the evidence
that the
condition existed '.'.
the machine was delivered,"
HY
vs. GPLF OIL CORPORATION, ci:38
334, 237 A. 2d 593 (196 ). Thus
Circuit Court felt that the test
only be satisfied when the record
that a reasonable man would not believe
that the defect existed at time
The lower court opinion
the extent to which the
must
prove that this defect
time of sale. The court
the proof could not
conjectural guesswork, but on
it was not
to exdudt:
every other possible cause which
ingenuity of counsel might
effect, the burden of
when the defect occurred
on the
fendant. If the defense seeks to assert
that a change in condition or
usage is a defense to a cause of action
in a particular case, it must do so
its own proof. The plaintiff's burden is
simply to establish that a reasonahlt
man would believe the defective conditior:
existed when the machine was delivered
to the plaintiff's employer.
From the foregoing discussion regarding
elements of the
burden of proof, it is apparent that tht,
courts, although talking in terms of strict
liabUity, often measure the burden of the
plaintiff's proof under each element in
terms of traditional negligence cone
For instance, the reasonable rnan test"
is used in determining whether the
was defective at the time of
addition, when one considers the
of the two courts in the GH ECO case,
it is obvious that the courts, when thev
are considering whether a substantial
- continued on pag"
Page Twelve
Prod ucts li(lbility:
The Plaintiff's Case
in Pennsylvania
contin:u.ed /rom page 11
change has been made in the product.
look to whether the
constituted a
superceding, intervening cause, thereby
relieving the manufacturer of responsibility under Section 402A.
The last element in a plaintiff's burden
proof is to show that the injury of the
plaintiff resulted from the defective condition. This element, of course, is a
standard concept in any personal injury
case. One must shm\' during the course
the trial that the injuries complained
stemmed from the actual defect involved. For instance, the failure of a
braking mechanism on an automobile would
cause certain injuries to the plaintiff
in almost every case. This last element
is usually taken for granted in almost
every case, since the quantum of proof
necessary here is minimal and easily
understandable.
CONCLUSION
1"\n attempt has been made in this
article to give the lawyer a basis for
analyzing the factual situation presented
to him by his client. As is noted above.
the extreme factual nature of any products
liability problem entails a careful di';;8sting of all of the relevant facts at
hancl. The concept and rules of law are
not always easily adaptable to a factual
situation. Ingenuity and careful study of
the cases outlined above, and, of course,
the numerous other cases which have
followed the above decisions, would lead
the plaintiff s lawyer to an adequate anof the case before him. An attempt
has also been made to foster the development of the case at the time the client
initially presents himself for an interview.
Once counsel has received the facts and,
if necessary, receives an expert's report,
he may then look upon the strategy which
he intends to use at trial. No strategy
can be complete without an examination
the case law on the subject. The
authors of this article hope that the
information furnished herein will serve
as a guide to the preparation of a products
liability case for trial. The serious products liability lawyer will, of course,
acquaint himself with major works in the
field, the landmark decisions as delineated
above and the prolific but qualitative
periodical writing which is ever present
and ever valuable in the products liahility area. This article is intended only
as a guide to a products liability attorney;
it is certainly not intended to be the
basis of an in-depth education in products
liability litigation, but it can be a valuable
heginning.
PHI ALPHA DELTA
RIGHTS
the Accused," a legal
film, will be shown by Phi Alpha Delta
Law Fraternity. It will show the handling
of interrogations before the MIRA~TIA
decision and how
they are handled
now. A member
the faculty will be
present to discuss
film. The time
and place of the
showing will be announced,
and a11
students and faculty
are invited.
This is the second in a series of
films, which show
the practical aS
of Constitutional and criminal law and procedure,
evidence
M
and trial
In December P.A.D.
presented a film dealing with the Constitutional and criminal law asnects of
robbery and the subsequent
seizure
arrest of
Friday
March a
reception was
in the faculty
of the Student Union follmving the
of four new brothers • . .
B. Ely II, James R. Irwin. Regis J.
McCoy, and John
McGarry. Jr. Last
term the follo\ving brothers were
David Abrams, Alfred B. Bell,
H. Hauser,
C. Higinbotham, James
C. Michel, Donald
\~lalter J.
Orze, Arthur J. Rinaldi, Glenn
Schillo,
Charles R. Witaconis, Jeffrey
\Vright
and John M. Zoscak, Jr.
On l\Iarch 11th Phi
have a beer and hoa~ic
a movie. The annual Spring
and
of new officers
take
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JURIS
March. 1972
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1033 Forbes Avenue, Pittsburgh, Pa. 15219
Pale T
~
I
The Good Remain Silent
By IRA WEISS
EDMUND BURKE once made the
observation: "A 11 that is necessary
for the forces of evil to win in the world
is for enough good men to remain silent."
The silence on the part of the good
men in the legal profession has been
deafening. The silence of which I speak
comes from the lack of political involvement by the legal profession. Undoubtedly
more attorneys hold public office than
any other occupational group. Yet, these
men seek political office as a personal
goal; their efforts and views are not
always representative of their profession.
The casual observer may wonder why
the profession needs political activity
through bar associations. Nearly forty
men died at A ttica State Prison in New
York. Their deaths brought into sharp
public focus the tragic inadequacy of
the goals and operations of our prison
system. The attorneys who represented
the inma tes at A ttica a ttempted to see
their clients and investigate the situation
but were treated like itinerant quacks
and charlatans instead of members of a
respected profession and officers of the
court. The A BA has yet to utter one
public word of protest concerning this
treatment. Partly in response to these
conditions in prisons the Pennsylvania
Legislature recently passed a ~good-time"
prison reform measure. The Bar A ssocia·
tion, which has a vested interest in such
legislation, did not exert one iota of
pressure (at public view) to help insure
passage of such a key measure.
The Pennsylvania Legislature recently
defeated a consensual divorce bill which
would ha ve ended the bitter proceedings
that now accompany divorce in this state.
Neither theA llegheny County Bar A ssociation nor the Pennsylvania Bar offered
one public word of support or opposition
to this Bill. Why?
The national attention is fixed primarily
today on the drug problem. With the
voluminous proposals for reform legislation that have been advanced, it will
be interesting to note the legal profession's
response, if any. when these reach the
floors of the various legislatures and
Congress. It is not enough to represent
indigent junkies and then wash ones hands
and say: "rve done my share. I've done
enough." The rea I cure lies with prudent
legisla tion providing enough funds for
adequate treatment and counseling. A bill
is presently before the Pennsylvania Legislature which would make possession of
marijuana a summary offense and would
not damage one's chance at professional
schooling. etc. This affords the Bar
A ssociation a perfect opportunity to flex
the political muscle of its influential
numbers in support of this bill. We
hope public activity will take place.
The American Bar Association IiA,S
taken an active role in influencing the
selection of judges to the Ji'ederal Bench.
It witholds approval of a candidate who
lacks sufficient trial experience or has
not practiced actively for a given number
of years. Lee Donaldson, former Republican Leader of the Pennsylvania House,
was prominently mentioned as a candidate
for the vacant seat on the Third Circuit
Court of Appeals. His lack of recent
trial experience cost him the appointment.
The ABA's recent disapproval of Judge
Carswell and of the preliminary list of
Nixon appointees to the Supreme Court
showed some political awakening. Attorney
General Mitchell now says he will discontinue the courtesy of submitting
prospective nominees to the A BA for
approval. It will be tragic indeed if the
ABA ceases to make its feelings known
on prospective nominees because of John
Mitchell's lastest action.
The only other area in which the pro-
JURIS - March, 1972
fession has become involved is the area
of No- r'ault insurance. It is incredible
in light of the usual political
described, that so much lobbying has
taken place and so many by bar as·
s ociations. the Academy of Trial Lawyers.
and
innumerable other groups. Unquestionably, the profession knows the
political pressure game quite well and
can play it if the mood
view of past non-involvement its actions
on 'no fault' have made the
accusations of"
interest"
ranted.
Members of the legal education community speak often in moral
about the need for change in social
ties. Yet when the chips are down
the vital legislation is on the
the
profession talks a better
than it
plays. The support which can
the
difference simply
not there.
Heel
neutrality in the face of dereliction
public officials when those
stand
for re- election,
nothing
hypocrisy when. six months before the
election, there were plaintive cries frOln
the ivory tower about a need for
in this or that office. The attitude to\\ard
those attorneys who hold
curious. Some of their colleagues, who are
professors and practitioners,
one's legal skills diminish while on
hustings.
The legislation mentioned shows that
the changes desired by many in the
profession are indeed attainable. However.
good men can be elected who will follow
responsible policies only when the
necessary support is channelled through
the current partisan process. Until
profession makes its political presence
felt, its desires, unbacked by support
and lobbying will remain thoughts in the
minds of well-intentioned men. Desired
legislation can be enacted; good men
can be elected; and broader goals can
be attained through political involvement.
Politics» after all, to use Bismarck's
phrase, "is the art of the attainable."
Page Fourteen
The Clairton Coke Works: A Beginning
By JOSEPH V. HUBER
T'HE operation of the Clairton Coke
Works of United States Steel has been
one source of the pollution problem in
Allegheny County since it
operation
in 191
The dimensions of the problem
and potential hazard to the public health
however, have come to light only recently.
Technological developments capable of
coping with some df the pollution associated with coke making, increased
public response to environmental problems, and stronger legislation have stimulated governmental action against the
polluters.
The processing of coke creates three
pollution problems: (1) particulate matter
emissions
(2) high concentrations of
sulfur dioxide. and (3) vapor emissions
of phenols, sulfates chlorides, ammonias,
and cyanide8. Particulate matter emission
occurs during "charging" t'leveling," and
"pushing" of coke. Sulfur dioxide is emitted
from the burning of coke oven gas, a byproduct of the destructive distillation of
coke. Vapors of hydrogen sulfide, hydrogen
cynaide, ammonia cynaide and phenols
fire emitted during the "quenching" of
incandescent coke.
The Clairton Coke Works was originally
constructed from 1919 to 1928, and rebuilt
between 1948- 58. It is the largest coke
processing plant in the world. The plant
consists of twenty (20) batteries of 1375
product coke ovens, each battery Containing from sixty- one (61) to eightyseven (87) ovens. The ovens manufacture
coke . . . a necessary ingredient in steel
making . . . by destructive distillation
of metallurgical coal in a closed environment. Clairton uses approximately
33,000 tons of coal per day to produce
21,500 tons of coke. It is the only source
of coke for the steel making facilities
of United States Steel in the ar~a. The
works employs 4,500 people. An additional 29,000 steelworkers are dependent
on the coke produced by the plant. The
variance board estimated that approximately 300,000 people are economically
dependent On Clairton. This figure includes
all secondary employment. (e.g. doctors,
retail merchants, teachers etc.)
At Clairton, coke is manufactured continuously. Five steps are involved in the
process. First, coal is dropped through
openings in the top of the coke ovens
by means of a larry car. This is known
as "charging." The second step in the
process is leveling. Here coal is evenly
* For an interesting article concerning such choices
and the necessity of making them. See. Peter F.
"Saving the Crusade,· Harpers, Vol. 244
No. 1460 (1972) p. 66.
distributed throughout the oven. Thirdly,
the coal is
heated in a low oxygen
environment of the closed oven at approximately 2000 degree F for 17 to
20 hours; thereby driving
volatile
carbon materials from the coal. Coke is
the end product. Following the distillation
"pushing" occurs. The coke is removed
from the oven by means of a plunger
which pushes the hot coke into an open
railroad car (quench car). The quench
car, loaded with incandescent coke, is
then taken to quench towers where large
amounts of water cool the coke to prevent
further oxidation. From 2.5 to 3.5 million
gallons of water are used daily in
ing.
Total pollution emitted during the entire
process approximates 250 tons per
A significant portion of this total occurs
during quenching. Some of the water used
in quenching is a by- product of the coke
making process itself. This process water
is known as '"flushing liquor." It contains
high amounts of phenols, ammonias, cyanides, sulfates and other contaminants.
Upon touching the incandescent coke the
quench water vaporizes,
and the contaminants are released onto the air as
gases. These gases include hydrogen
cyanide (2,100 Ibs. per day), ammonia
cyanide (2,800 lbs. per day), hydrogen
sulfide (10,000 Ibs. per day), and phenols
(10 tons per day). All these substances
are toxic. The Clean Streams Act 1
forbids the disposal of this uncleaned
liquor into the waterways; therefore,
vaporization of the water and the contaminants remains an easy method of
disposal.
The release of these toxic substances
into the air violates Article XVII Section
1708.1B of the Allegheny County Health
Department Rules and Regulations. This
regulation states:
"The water utilized for the
lng of the coke, prior to use as a
quenching agent, shall be of a quality
as may be discharged into the
nearest stream or river, in accordance with the Acts of the Commonwealth of Pennsylvania."
There exist only two exceptions to this
standard:
) Removal
phenols from
waste water used for quenching must be
a minimum of 99.0% removal, and (2)
river water may be used in quenching.
1. Act of June 22, 1937 P.L 1987, as amended
May 8, 1945, P.L. 435, August 23, 1965, P.L. 372
and July 31, 1970 P.L. 222 8.: 7, & 9,35 P.S. 691.
35 P .S. 691.307.
Article XVII, Section 1726.1, 1726.2 of Allegheny
County Health Department Rules and Regulations.
See also Act of August 24 P. L. 1304 & 27, as amended
11, 1967 P.L. 202 & 1, July 22, 197fH.L.
& 1, 16 P.S. 12027.
3. Article xvn, Section 1704.2A, B of Allegheny
County Health Department Rules and Regulations.
JURIS - March,
1~72
Violation of this section carries a
maximum
of $300 for the first
and a $1,000 for subsequent offenses. 2
Each day is considered a
offense.
The appeals board may grant a
to these regulations only if (1) the emission
does not constitute a hazard to public
health or safety, and (2) to require compliance with the regulation as written
not be in the public interest. 3
tests allow the board to balance the
various interests involved; thereby adding
a measure of flexibility to the variance
hearing. Difficult choices are involved
in considering a petition for a variance'
oftentimes the choice being the lesser of
two evils. *
United States Steel sought a variance
from Section 1708.1 B of the regulations.
They
that there was no
the contaminents released bv the
process
a
the public health or
for a variance). The board concluded,
that the burden of
such
did not exist, was on the petitioner.
regulation states: "The
Board
may grant such a variance
it finds:
A. The emission . . . does not constitute
a hazard to public heal
1':~L_" ,.
4 The moving party here
lack
potential harm.
United
Steel also contended that
enforcement of Section 170S.1B
the Clairton
\Vorks
not be
in the .
variance).
extent of economic dependence
works, and lack of
to bring the operation of the
compliance of Section 1708.1B, a variance
should be granted. Furthermore,
contended that the expenditure of corporate
money for pollution equipment which would
not bring them into compliance with Section
170S.1B \\'ould be ultra vires.
The Appeals Board in
the
general public interest test in Article
XVII, Section 1704.2B considers a number
of factors:
of these factors
the
amount of time necessary to
a
particular pollution problem. This may
include two types of cases: (1) Cases
where the technology to solve a problem
exists, but time is needed to install
the equipment, and (2) Cases where the
requisite technology does not exist.
Another factor taken into consideration
by the board is economics.
mentioned earlier, some 300,000
people are economically dependent on the
continued operation of the Clairton Coke
The ramifications that might
ensue, should the variance be denied. had
to be considered by the board. Would
result in a cut back or even a
stoppage of production? Although the board
itself possessed no power to enjoin further
pollution and thereby production, might
the fines, up to $1,000 per day, impede
production? The questions raised, however, were more theoretical than practiL1
-
-
- continued on Palle 15
,
Page
-continued from page 14
caL It was unlikely that the fines would
deter production; for when compared with
the cost of pollution control equipment
($10 to $15 million) the fines were a
mere pittance. Moreover, United States
Steel was not likely to close down the
Clairton Works since it was the only
source of coke available for its steel
making facilities.
The other arguments made were not
so easily answered. Although technology
exists capable of removing 90- 99% of
the phenols and 90% of the ammonias
present in the quench water, this would
still fall short of the requirements of
Article XVII, Section 170S.1B. Emissions
of large amounts of hydrogen sulfide and
hydrogen cynaide would continue. It is for
this reason that United States Steel
contended a variance should be granted.
A closer look at this argument revelas
that it is skewed. Had Clairton installed
pollution control eqUipment capable of
removing the phenols and ammonias from
the quench water when it became available, they would certainly have been able
to obtain a variance on the theory that
they were doing all that was technologically possible to control pollution. In
fact, it is arguable that petitioner may
have had a right to a variance under
such circumstances. Petitioner's position
amounts to saying; "We will not spend
money to clean the environment, we will
only spend money to bring ourselves into
compliance with the law." 5
The other question posed to the borad
was whether "a corporate entity can
legally approve expenditures responsive
to rules of regulatory agencies where
such expenditures will not result in compliance with the rules in question and
still leave the corporation vulnerable to
civil and criminal penalties '7" G The
petitioner contended that the installation
of the pollution control equipment would
violate the corporation's legal responsibility to its shareholders.
costs or sacrifice in profit, if decision
makers could claim a business benefit
from it. 8 Courts have held corporate
donations to charities as beneficial to the
corporation. 9 Certainly, similar benefits.
even if only in the form of decreased
disapprobation of polluters, can be reaped
from the installation of pollution control
equipment. The corporation can no longer
be isolated from the community.
The arguments made in the variance
hearing are significant for other than
legal reasons. They are indicative of
United States Steel1s stand on the corporations role in solving social problems.
Here, the largest steel producer in the
world disavows responsibility for the
pollution it creates other than that imposed
by law. Instead of setting an example
in pollution control for the industry,
United States Steel chooses to do the
minimum legally required. The corporation is part of the community too. The
traditional theory of the corporation as
merely pursuing maximum profits for the
benefit of the shareholders is no longer
tenable. Conducting corporate business
carries with it the responsibility of acting
in full recognition of all of society. 10
The gains and losses in modern business
must reflect more than dollars and cents.
They must also include social costs and
social benefits. As Dan W. Lufkin stated:
"The aphorism of President Coolidge that
8. The Public Interest Proxy Contest: Reflections
on Campaign G.M., Donald E. Schwartz 69 Mich.
L. R. 477.
9. For collection of cases on corporate expenditures for the public good. See. 39 ALR2d 11921201.
Economic self-interest is not the ans\\er
to pollution problems. Nor is increased
punitive legislation. The answer lies in
the developing of an ethical
by all of us, including business, to
cleaner environment. Apparently.
States Steel
made no such commitment.
Note: United States Steel has
the decision of the Appeals Board to the
Court of Common Pleas of
County (Docket
SA-880 for 1971).
Also a petition for
been
filed pending the
criminal sanctions
C
Coke Works.
The Commonwealth
the County of Allegheny have
suit in equity to permanently
Clairton Coke Works
environment and violating air
laws including Article XVII,
1708.1B. The complaint attacks
forms of pollution associated
processing. Such an
recommended by the Appeals
was the board's
that
court could more
the factors involved.
could also formulate
decree and deal
problems associated
10. See 8. p 465.
11. Remarks of Dan W. Lufkin at Harvard
nu""wr.,,,
School, April
1970. See Cohn, Wall Stred Bank .. r
Scolds Firms on "Quality of Life," m~~h;n"',
April 23, 1
& A, at 15, coIL
A Complf>/t' LiTle oj Lf>J!1I1 BluuJ.. ,.
A COmplelf> Li1le oj .fo.lupplies f41r ,/'1' Ltlu' ."i/rlllt'",
There seems little legal justification for
this position. When corporations were
originally created, the law required that
they serve the public as well as private
interests. Modern conditions require that
corporations acknowledge and discharge
social as well as private responsibilities
of the communities within which they
operate. 7 The "business judgment" rule,
the classic way of expressing managerial
latitude, would permit the corporation
to engage in socially useful work, entailing
4. Ibid.
5. Allegheny County Air Pollution Board of Appeals
and Variance Review hearing August 5, 1970, Docket
No. 143,144. P 5.
6. Ibid. p 4.
7. A. P. Smith Manfacturing Co. v. Barlow 13
N.J. 145, 98 A2d 581 (1935). See also. Kelley v.
Bell, Del Ch. 254 A2d 62 (1969), aff'd 266 A2d
B7B (1970).
business of America is
is no longer true. Instead the
of business is America.o; 11
P. O. NALY COMPANY
ROSS M. BLAIR, OU'11er
PRINTING • ENGRAVING • STATIONERY
Law & Finance BuNding
425 Fourth A venue
JURIS
March, 1972
Pittsburgh, Pa. 15219
Phones: 261·0366 261·58'1
Pale Sixteen
WILLIAM FRANCIS MANIFESTO L '63 -Originally
from the North Hills area, Bill and his wife She Ivy
now reside in the Highl~lld Park area with their
three year old daughter
Beth Ann. At this writing
Mr. and Mrs. Manifesto
were expecting another
addition to the family.
Bill received his undergraduate degree atthe University of Pittsburgh in
1960 and then continued
his education at our law
school where he graduated
in 19133. While attending
Duquesne he was the Book
Review Editor for the Law
Review, then in its first
year of publication.
Following graduation Bill took a position with the
firm of Wirtzman, Sikov and Love where he remained
until .June, 1968, at which time he joined with two
of his friends to form the firm of DeCello, Bua
& Manifesto, now located in new offiees in the
Lawyers Bldg.
From August, 1968 until November, 1970, Bill
served as an Assistant District Attorney for Allegheny County.
His special area of interest is trial work, both
criminal and civil, but stated that he would like to
do more "commercial" work. He finds it challenging
and interesting.
Bill is a member of the County Bar Association,
The Pennsylvania and American Trial Lawyers Association and the National District Attorneys Association.
He is past Chairman of the Criminal Law Section
for a continuing legal education.
Bill feels that he would "like to establish a medium
sized firm and achieve a certain level of competency.·
He would like very much to be in a position to represent
the less fortunate or indigent client.
He concluded, "The law is there to maintain an
orderly society, everything that one does in the
practice of law should be to r0inlorce and further
that orderly process."
LOtTIS J. GRIPPO L '65 - At forty, • Lou" as
he is known to his friends, is one of Pittsburgh's
most • . . Most what" Most energetic, most enterprising, most promising practitioners. Yes, all of that and more.
Mr, Grippo graduated from the
Dav Division in 1965 after receiving
his undergraduated degree here at
Duquesne in 1962.
While his studies were a full
time pursuit, he was also employed
full time; first, with a newspaper
in the Mt. Lebanon area, and later
with a law firm.
Lou and his Wife Joann were
married in 1955. By the time he commEnced his
legal education they were the proud parents of
three children: Janice, now age fourteen, ,Tames,
now age ten, and Louis Jr., nine. Cynthia, who is
eight, came along during the school years, and
just two years ago the family was joined by Jody.
Following graduation, Lou became associated in a
partnership with Louis C. Glasso. On March 1,
1965 Lou opened his own offices and now, looking
hack upon his years of practice, refers to them
as "rewarding. e
When asked what type of practice he prefers, he
replied, "My practice is general, but I knew right
from the beginning that I wanted to do trial WOrK.e
Mr. GrIppo was a member of the Law Review
while attending school and is now an active member
of the Bar Association.
Lou's interests extend beyond the law to various
business enterprises and investments. On October 12,
1970 (which Lou noted is Columbus Day) he realized
a life long dream, he purcha.':>ed the 100 year old
Original Oyster House located in Market Square.
When questioned as to his leisure time activities,
Lou said, "I used to play golf once in a While, but
now between work and my family all of my time
is taken."
Mr. Grippo's attractive offices are located in the
Carlton House, where he is presently expanding
to accommodate newly appointed associates.
Alumni Record
by Sanford P. Gross
LOUIS P. VITTI L '68 - If you pick this paper
up and suddenly it occurs to you that you have seen
this picture on this page before, you're right. In
fact you may recall having
.
seen Lou's picture a number of times. No, it is not
the policy of JURIS to interview alumni for this
column more than once;
and no, we have not run
out of alumni to interview
(after all, you haven't been
interviewed yet). Another
hint? You probably graduated circa 1968. If you
didn't then you wouldn't
remember Lou Vitti as a
former
editor of this
column.
In addition to his work on JURIS, Lou also wrote
a case not0 on Conflicts for the Law Review and
was a semi-finalist in the Appellate Moot Court
competition.
Following graduation Lou served a clerkship with
Charles N. Caputo, L'46 becoming his campaign manager in Representative caputo's successful bid for the
state legislature in 1968. Lou then served a rlerkship
with the Honorable David B. Fawcett, Jr. in 1969
and in May of that year he associated with stone
and Raynovich.
We asked Lou for his favorite course or professor
while he was a student. "Torts with Lou Manderino."
He liked the professor so much that he still maintains
his close personal relationship with the former
Dean, now a State Supreme Court Justice.
With his wife Joan and their two daughters Lois
Marie, age three, and IVIonica, two, Lou now resides
in the Morningside section of Pittsburgh. His active
work in the community has
for him respected
admiration from all. He is currently Chairman of
the School Board of Our Ladv Help of ChristiansCorpus Chnsti Joint Schools, in adrlition to being the
president of L.I.B.R.A.
Lou manages to find time from his busy 10gal
career to teach a course in Business Law at the
Bradford School of Business in downtown Pittsburgh.
While engaged in general practice, Lou's avid
interest is in the criminal field. «Anybody who
knows where it's at enjoys criminal law ... You're
in the forge there." Lou derives his "greatest satisfaction in helping someone." Considering that he
spends time doing work for B.U.D., Lou must lead
a satisfying life knowing that his efforts help many.
JURIS acknowledges a special thanks to Louis
P. Vitti for the time and energy he contributed
while a stud€lnt in the writing and publishing of
this paper.
Juris
Duquesne University School of Law
600 Forbes Avenue
Pittsburgh, Pennsylvania 15219
LOUIS C. LaLUMERE L '69- Originally from the
Philadelphia area, "Chuck" now makes his home in
the Pitt,>burgh area. In fact, he and his wUe Anita,
whom he married in 1966,
recently moved into their
new home in Crafton. Anita
is presently the Director
of Psychiatry at Woodville
state Hospital.
Chuck received an Associate Degree at Millersville state Teachers College in Lancaster. Pa., in
1961 and then went on to
take his B.A. atSt.Joseph's
in Philadelphia in 1963. He
then received a Masters in
Philosophy at RutgersCamden in 1965. While attending st. Joseph's he
made the Dean's List on a regular basis and still
found time to play football and letter in rowing and
track.
While attending Duquesne Law School 11(' was
employed as a Coordinator for
a
high school substitute teacher and,
two
argued nominal bond petitions for the Public
Office.
His favorite
is
and a commercial license.
a round of
and as a
acterizes himself as a
Following graduation from
eighteen months with one of UUteh"1"",h'"
trial firms, specializing in
generally sharpening his
In October of 1970 he joined Ronald Watzman i!l
the general practice of law. The firm is
and on August 1st was renamed watzman, LE'venson
& Snyder, with newly decorated offices in the Union
Bank
Although their practice may he labeled
"general, there is an
on trial work,
labor relations and personal iniurv Htit:'aUon. Chuck's
favorite area is trial work.
He is a member of t.he County Bar Association
and the Young Lawyers. For the
two years
he has been the host of a radio sh;:>w on station
WAMO which is known as "
Line." The show
is aired from 11:00 a.m. until Noon on
and
gives listeners an opportunity to call in and discuss
legal problems with
members of the Bar.
!!is ultimate
is "to be independent
to be able to Sl" leet the type of cases I fel? 1
make law, without worrying about m~'-'~- - H ••' __ •
He offered this advice, "Have as
background as possible. You have to be able
relate to the client and uncJerstand his
The age of specialization Is not a
call lawyers whom they trust and can
for help. ~
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