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WARZYNSKI v. EMPIRE COMFORT SYSTEMS, INC.

No. 904SC260.

401 S.E.2d 801 (1991)

Timothy Glenn WARZYNSKI and wife, Nannette Harper Warzynski, Plaintiffs, v. EMPIRE COMFORT SYSTEMS, INC. Safel-Inelsa Orbaiceta, S.A. and Jenkins Gas Company of Pollocksville, North Carolina, Defendants.

Court of Appeals of North Carolina.

March 19, 1991.

Attorney(s) appearing for the Case

Blanchard, Tucker, Twiggs & Abrams, P.A. by Charles F. Blanchard and Jerome P. Trehy, Jr., Raleigh, for plaintiff-appellant/appellee.

White & Allen, P.A. by John R. Hooten and John C. Archie, Kinston, for defendant-appellant/appellee Jenkins Gas Co. of Pollocksville, N.C.

Maupin Taylor Ellis & Adams, P.A. by Mark S. Thomas and M. Keith Kapp, Raleigh, for defendant-appellant Safel-Inelsa, S.A.

Harris and Associates by Thomas E. Harris and C. David Creech, New Bern, for the defendant-appellee Empire Comfort Systems, Inc.

EAGLES, Judge.

We first address the plaintiffs' and defendant Safel's appeal of the entry of summary judgment in favor of Empire Comfort Systems. Here, summary judgment was based on the sealed container defense of G.S. 99B-2(a). We hold that the trial court erred in granting summary judgment for Empire because a genuine issue of material fact existed as to whether Empire was the apparent manufacturer of the heaters. By so holding, we adopt § 400 of the Restatement...

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