Juris Duquesne l c1W

School Newsmc1gc1 z;ne

DUQUESNE UNIVERSITY, PITTSBURGH. PJI.. MARCH, 1972- VOL. 50 NO.3

Products Liability - page 8.

Page Two

Editorial: T HE 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. ';', r " .. 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 con- :::: :~:~ science." The question is whether the cause of action :i:~ r~ for malpractice would have been allowed if the evidence ~i~; ~:~: wasn't as clear and as tangible as a brain tumor. i:~: « ~

t The results of medical malpractice suits brought by :~~~ f prisoners often have not been successful. The prisoner-~:~ :~:~ claimants have a difficult time proving their allegations.:!: i~i~ They complain many times when there is nothing wrong, ~~~: ~:~: with the result that they are often ignored when they ~:~: :~:~ do have a valid grievance. A lawsuit is not the speediest { i~~~ remedy... especially when health problems are urgent !:j: ~:i: and painful. The time element, lack of evidence, ?! i~~l harassment,.and hopelessness are all obstacles that t :!:l the prisoner-plaintiff must overcome if he is to win his :~:! ~:~: fight for decent medical care through the courts, Ideally l:!: :;:; though. change should be sought elsewhere. :!:~

t~t Changes should be brought about by Congress and the 1111

~~ various state legislatures. have the opportunity l;~: !~: to investigate and develop the widespread reform that is :::: ~l: required. Lawsuits are limited in their effectiveness in :~:! 1~11 that they deal only with the merits of the complaint of lli! ~:1 the party or parties before the court. Perhaps sound !:l: :~1 legislative commitments are the answer to the violent :l:! 1~~; pleas of the inmates of our penal institutions. Prisoners ;t ::l:: lawsuits have had little success •.• something else is ~~~~ :i:i needed to prevent this inhumane denial of ricrhts. ::::

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JURIS - March, 1972

Juris Duquesne University

law School Newsmagazine 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

STAFF MEMBERS -

John P. Dohanich, Duane L. Ervin,

Claude V. Falkenhan. Jr ..

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

Printed by NEWS COMP

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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.

A ttitudes 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 swords, forth.

darts I bow - and - arrow sling- shots, BB

set s, and so

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

It is clear that self-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 j s general classifica­tions and are found to be extremely

- continued on Page 4

Duquesne Advocates Sum It Up in Washington

-continued from. page 4

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

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

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.

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

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 Presi-

1. 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,"

Page

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 Viet-namese, 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 Ser­

vice Act of 1967 clarifying the definition conscientious objector so as to specifi­

cally 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 ,1st December 14, 1 . Honorable Robert Taft, Jr.

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 Judic-

Representative 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 Ses-sion, Janurary 26, Honorable Edward I. Koch (D. To approve and authorize

mitigation punishment for persons who have their disapproval to lJnited States partici-

in 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.

-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?"

Page Seven

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.

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JURIS - !\larch, 1972

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

Paae Eiaht

Products Liability: The Plair

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

By MURRAY S. lOVE, Esq. a

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 two- of 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 inter­

these 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 n ia •

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.

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-

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 omis-

placed a product on the market

JURIS - March, 1972

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 ()

Page Ten

Products Liability: The Plaintiff's Case - 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 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.

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 gui-dnnce as to the burden _ , to the facts in MACD LL. The plain-tiff 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

that the Section the court defect in

causing a mechanic

action. of the

an essential element in establishing breach of warranty."

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

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.

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.

The courts of Pennsy 1 vflnia , 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, op-counsel 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.

JllRIS '>1 arch , 1972

• In Pennsylvania

• 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

therefore, upon the of a and necess to reflect upon in each case. In

whieh the jury_

scientific RMl

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, in-volving 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

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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.

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

Page Eleven

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 pre-sented 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 well- minds 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 re-garding 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"

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 in­

volved. 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 an­

of 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.

Page Twelve

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 M

of Constitu­tional and crim-inal law and pro-cedure, evidence

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 place in early April.

JEFFREY

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Cocktails • w w. /J4~. J! Ultch • ~imte4 kitchen oppn

'lake-f}ui $~ce 7 a.m. to

midniuht ......

['bon e 261-3457' 1033 Forbes Avenue, Pittsburgh, Pa. 15219

JURIS March. 1972

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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 ac-cusations 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 healL1

- - 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 practi-

- continued on Palle 15

, -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.

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).

Page

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 1192-1201.

business of America is is no longer true. Instead the of business is America.o; 11

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 commit-ment.

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

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JURIS March, 1972

Pittsburgh, Pa. 15219

Phones: 261·0366 261·58'1

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 enter-

prising, 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.

Pale Sixteen

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

JURIS - March, 1972

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 W AMO 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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