MORELLO v. KENCO TOYOTA LIFT et al

Filing 152

ORDER THAT KENCO'S MOTION (ECF DOC. NO. 135 ) IS GRANTED IN PART AND DENIED IN PART: KENCO' S MOTION AS TO PLAINTIFFS CLAIMS FOR NEGLIGENCE, STRICT LIABILITY UNDER §402B, LIABILITY UNDER RESTATEMENT (TORTS) § 3 92, BREACH OF THE EXPRESS WARRANTY, AND BREACH OF THE IMPLIED WARRANTY AND FITNESS FOR A PARTICULAR PURPOSE IS GRANTED AND THESE CLAIMS (COUNTS I, III, IV, V, AND VII) ARE DISMISSED; AND, KENCO'S MOTION AS TO PLAINTIFFS CLAIMS FOR STRICT LIABILITY UNDER §4 02A AND FOR BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY IS DENIED AND, SUBJECT TO THIS COURT'S RULING ON KENCO'S AND THIRD-PARTY DEFENDANT'S TOYOTA INDUSTRIAL EQUIPMENT MANUFACTURING ("TIEM") PENDING MOTIONS IN LIMINE TO PRECLUDE EXPERTS (ECF DOC. NOS. 148 , 149 , 150 ), THESE CLAIMS (COUNTS II AND VI) SHALL PROCEED TO TRIAL. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/8/15. 10/8/15 ENTERED AND COPIES E-MAILED. (va, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSEPH A. MORELLO

CIVIL ACTION

v.
NO. 09-4412
KENCO TOYOTA LIFT, et al.

ORDER
AND NOW, this gth day of October 2015, upon consideration of Defendants Kenco Toyota

Lift's, Kenco Group's, and Kenco Material Handling Solutions, LLC's (collectively "Kenco")
Motion for Summary Judgment (ECF Doc. No. 135), Plaintiffs Opposition (ECF Doc. No. 142),
Kenco's Reply (ECF Doc. No. 146), following oral argument and for the reasons in the
accompanying Memorandum, it is ORDERED Kenco's Motion (ECF Doc. No. 135) is
GRANTED in part and DENIED in part:

1.

Kenco' s Motion as to Plaintiffs claims for negligence, strict liability under §402B,

liability under Restatement (Torts) §392, breach of the express warranty, and breach of the implied
warranty and fitness for a particular purpose is GRANTED and these claims (Counts I, III, IV, V,
and VII) are DISMISSED; and,
2.

Kenco's Motion as to Plaintiffs claims for strict liability under §402A and for

breach of the implied warranty of merchantability is DENIED and, subject to this Court's ruling on
Kenco's and Third-Party Defendant's Toyota Industrial Equipment Manufacturing ("TIEM")
pending motions in limine to Preclude Experts (ECF Doc. Nos. 148, 149, 150), these claims (Counts
II and VI) shall proceed to trial.