upholding trial court's finding that "[t]he doctrine of increased risk of harm is inapplicable absent the undertaking of a service either gratuitously or for consideration”
How later courts described this case
- upholding trial court's finding that "[t]he doctrine of increased risk of harm is inapplicable absent the undertaking of a service either gratuitously or for consideration”
- stating the elements of a section 402A strict liability claim
- “To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or [unduly] prejudicial to the complaining party.”
Written by the judges who cited it.
The opinion
McEWEN, P.J.E.,
Concurring.
¶ 1 The author of the majority expression has undertaken a careful .analysis and provided an insightful presentation of view, and while I join that expression in major measure, I am able to but concur in the result, since I rely upon a differing factual predicate to conclude that the requested points for charge on the issue of agency were properly rejected.
*112 ¶ 2 The complaint in this case identified Ken Pinkerton in the caption as follows: “Joe Green Associates, and Joe Green and Ken Pinkerton as agents, servants and/or employees of Joe Green Associates, and individually”.
¶ 3 Nowhere in the complaint was the Defendant Joe Green Associates alleged to be an agent of any other defendant, and no specific acts or omissions of any kind by Defendant Pinkerton were described in the complaint filed by appellants.
¶ 4 The only mention of Ken Pinkerton by name in the body of the complaint appears at paragraph 8:
8. The Defendant Ken Pinkerton is an individual and/or corporation or other entity who conducted business in Thompsontown, Pennsylvania, under and subject to the laws of Pennsylvania by providing goods and services at the Thompsontown plant of Triangle-Pacific.
¶ 5 The Answer filed by Defendant Product Systems, Inc. at paragraph 8 recited:
8. Denied as stated. Upon information and belief, Mr. Pinkerton was an employee of Joe Green Associates.
¶ 6 Appellants who caused a voluntary discontinuance to be entered as to Defendant Pinkerton, Defendant Joe Green, and Defendant Joe Green Associates, concede that “Mr. Pinkerton [was] not specifically identified as a PSI agent or employee in the pleadings” but contend “that identification was unnecessary.” I disagree.
¶7 The record conclusively establishes that there were no allegations in the complaint which could possibly be read to suggest that Defendant Pinkerton was the agent or employee of Defendant Production Systems, Inc. Moreover, appellants have failed to identify any evidence produced at trial which would establish that Defendant Pinkerton was the agent of Defendant Production Systems, Inc. Under these circumstances, the trial court was required to, and did properly, refuse the requested points for charge on the agency of Ken Pinkerton.