dissenting:
I dissent from the Majority’s determination that an award of Summary Judgment was appropriate in this case because I find that there exists certain factual disputes which should cause Appellants’ case to be presented to a jury.
The decision to affirm the award of Summary Judgment is based upon the fact that the key piece of evidence in this case was inadvertently destroyed. This is not, nor should it be the law in this Commonwealth. Many times products are destroyed before suit is filed, yet this is not sufficient reason to bar plaintiffs from pursuing their rights. Plaintiffs continue to have the burden of proof in such matters, which burden acts as protection to defendants.
In a case such as this where the product no longer exists and cannot be examined by either party, the plaintiff may recover under the “malfunction” theory of product liability, which concerns circumstantial evidence of a product malfunction. This theory “permits a plaintiff to prove defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable secondary causes for the malfunction.” Troy v. Kampgrounds of America, Inc., 399 Pa.Super. 41, 581 A.2d 665 (1990). It was appropriate for Appellants to seek recovery under this theory, as did the plaintiffs in Troy where the evidence was also destroyed and neither investigators for the plaintiffs or the defendants had an opportunity to examine the evidence before its destruction. Further, as in Troy, it was not the trial court’s function, nor this court’s function, to assess or weigh the testimony to be offered by either party in the action. The Majority does, however, despite its pronouncement otherwise, engage in such an assessment.
The Majority states that the trial court “did not rely on the conflicting testimony as to amount of use of the machine” in granting the motion for summary judgment. Majority Opinion at 227. It also remarks that the issue of “whether appellants used the coffee maker five times or fifty times is irrelevant to the undisputed fact, relied upon *232by the trial court, that important evidence was lost or destroyed ...” Majority Opinion at 228. Yet, on page 230 of the Majority Opinion it is stated: “Because they cannot account for the product for several years ... combined with appellee’s expert’s testimony following inspection of the coffee maker that it was scorched, charred and used frequently, appellants failed to eliminate the realistic possibility the glass carafe broke because of its use and handling prior to the date of the incident.” This proof is proof that Appellants have the burden of establishing at trial, not at this stage of the proceedings. The fact that there is a material factual dispute as to the amount of use of the product demonstrates that Summary Judgment should not have been entered in this case.
As stated in Troy, “on a motion for summary judgment, the trial court’s task is to determine whether there are controverted issues of fact, not whether the evidence is sufficient to prove the particular facts.” Id., 399 Pa.Superi- or Ct. at 49, 581 A.2d at 669. Because it appears clear to me that there are controverted issues of fact in this case, I must dissent from the decision to affirm the entry of Summary Judgment in favor of the defendant.