Tincher, T. v. Omega Flex Inc.

J-A29004-17
2018 Pa. Super. 33
TERENCE D. TINCHER AND JUDITH : IN THE SUPERIOR COURT OF
R. TINCHER : PENNSYLVANIA
:
:
v. :
:
:
OMEGA FLEX, INC. :
: No. 1285 EDA 2016
Appellant :
Appeal from the Judgment Entered May 3, 2016
In the Court of Common Pleas of Chester County Civil Division at No(s):
June Term, 2008 No. 08-00974
BEFORE: LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.
OPINION BY LAZARUS, J.: FILED FEBRUARY 16, 2018
Omega Flex, Inc., appeals from the judgment entered in favor of
Terence D. and Judith R. Tincher following a jury trial and the denial of its
post-trial motions. Omega Flex contends that it is entitled to a new trial
because the Pennsylvania Supreme Court has determined that the trial court’s
jury instruction contained a fundamental misstatement of the governing law.
We agree and vacate the judgment, reverse the order denying post-trial relief,
and remand for a new trial.
We draw our summary of the facts and much of the procedural history
of the case from the Supreme Court’s decision, Tincher v. Omega Flex, Inc.,
104 A.3d 328, 335–36 (Pa. 2014). The Tinchers lived in the central unit of a
two-story triplex in Downingtown, Chester County, which they purchased in
2005. Early in the morning of June 20, 2007, a fire erupted in their home.
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* Retired Senior Judge assigned to the Superior Court.
J-A29004-17
Investigators later determined that a nearby lightning strike caused a small
puncture in corrugated stainless steel tubing (“CSST”) that transported
natural gas to a fireplace located on the first floor of the residence. Heat
attending the melting of the CSST caused by the lightning strike ignited the
natural gas and fueled a fire estimated to have burned for over an hour before
it was discovered. No one was injured in the fire, but the fire caused
significant damage to the Tinchers’ home and belongings.
The CSST installed in the Tinchers’ home was manufactured and sold by
Omega Flex as part of a gas transportation system marketed as the “TracPipe
System.” In January 2008, the Tinchers sued Omega Flex, asserting claims
premised on theories of strict liability, negligence, and breach of warranty. 1
The strict liability claim was based on section 402A of the American Law
Institute’s Restatement (Second) of Torts (1965), as adopted, followed, and
construed in Pennsylvania. Section 402A of the Restatement (Second) of
Torts provides:
One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to
liability for physical harm thereby caused to the ultimate user or
consumer, or to his property, if
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1 The Tinchers also made a fire claim to their home insurer, United Services
Automobile Association (“USAA”). USAA compensated the Tinchers for their
loss up to the limit of their policy and received an assignment of liability
claims. USAA prosecuted the claims against Omega Flex in the name of the
Tinchers to obtain reimbursement of the insurance proceeds payout, but the
Tinchers retained an interest in the litigation to recover the amount of their
losses that exceeded their insurance coverage.
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(a) the seller is engaged in the business of selling such a
product, and
(b) it is expected to and does reach the user or consumer
without substantial change in the condition in which it is sold.
Restatement (Second) of Torts § 402A(1).2 The Tinchers alleged that “the
CSST incorporated into the TracPipe System is defective, and unreasonably
dangerous to intended users, because its walls are too thin to withstand the
effects of lightning.” Tincher, 104 A.3d at 336.
Prior to trial, Omega Flex moved to have the trial court apply Sections
1 and 2 of the Third Restatement of Torts: Products Liability (1998) and to
deliver jury instructions based on the Third Restatement, rather than the
Restatement (Second) of Torts.3 The Tinchers responded that the Second
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2 Section 402A(2) provides:
The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and
sale of his product, and
(b) the user or consumer has not bought the product from or
entered into any contractual relation with the seller.
3 Sections 1 and 2 of the Third Restatement provide:
§ 1 Liability of Commercial Seller or Distributor for Harm
Caused by Defective Products
One engaged in the business of selling or otherwise distributing
products who sells or distributes a defective product is subject to
liability for harm to persons or property caused by the defect.
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Restatement remained the law of Pennsylvania and the court, therefore,
should base its jury instructions on the Second Restatement and the Supreme
Court’s decisions under that Restatement, including Azzarello v. Black Bros.
Co., 391 A.2d 1020 (Pa. 1978). In Azzarello, the Court had held that: it
was improper to introduce negligence concepts into a strict liability case; it
was for the court, not a jury, to determine whether a product was
“unreasonably dangerous” under the Second Restatement; the dispositive
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§ 2 Categories of Product Defect
A product is defective when, at the time of sale or distribution, it
contains a manufacturing defect, is defective in design, or is
defective because of inadequate instructions or warnings. A
product:
(a) contains a manufacturing defect when the product departs
from its intended design even though all possible care was
exercised in the preparation and marketing of the product;
(b) is defective in design when the foreseeable risks of harm posed
by the product could have been reduced or avoided by the
adoption of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of
distribution, and the omission of the alternative design renders
the product not reasonably safe;
(c) is defective because of inadequate instructions or warnings
when the foreseeable risks of harm posed by the product could
have been reduced or avoided by the provision of reasonable
instructions or warnings by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the
omission of the instructions or warnings renders the product not
reasonably safe.
Restatement (Third) of Torts: Products Liability §§ 1-2.
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question in a case alleging that there was a defective design was whether the
product is safe for its intended use; and in such a case, “the seller is the
‘guarantor’ of the product, and a jury could find a defect ‘where the product
left the supplier’s control lacking any element necessary to make it safe for its
intended use or possessing any feature that renders it unsafe for its intended
use.’” Tincher, 104 A.3d at 367, quoting Azzarello, 391 A.2d at 1025-27.
The trial court did not immediately rule on Omega Flex’s motion.
During their case in chief, the Tinchers introduced evidence that, on the
night of the fire, lightning transferred an electrical charge to the TracPipe
System and that heat from the lightning punctured the CSST and ignited the
natural gas. Their experts testified that the CSST was susceptible to
perforation because it is very thin (1/100 of an inch in thickness) and it
withstands the transfer of much less electrical energy than would an
alternative material, such as cast iron pipe.
After the Tinchers rested, Omega Flex moved for a nonsuit under the
Restatement (Second) and Azzarello, assuming the court had denied its
request to apply the Restatement (Third). The trial court denied the nonsuit,
and Omega Flex then introduced its own evidence that the TracPipe System
was not defective or unreasonably dangerous. Among other things, Omega
Flex offered evidence of the utility of CSST as compared to cast iron pipe,
noting such things as its resistance to corrosion and ruptures, ease of
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installation and relocation, and decreased susceptibility to gas leaks because
it required fewer joints. Tincher, 104 A.3d at 337-38.
After resting its case, Omega Flex sought a directed verdict, contending
that TracPipe was not unreasonably dangerous under the Second Restatement
and Azzarello. The trial court denied Omega Flex’s motion and then
instructed the jury on the Tinchers’ strict liability claim, as follows:
The contention of the [Tinchers] in this case is that there is a
defect in this product, this TracPipe. To state a products liability
claim, essentially it’s strict liability, a plaintiff must prove, first,
that the product was defective. Second, that if [sic] a defect
existed when it left the hands of the defendant, that is, left the
process by which it was produced at the defendant[’s] plant. And
three, that the defect caused the harm.
A product is defective when it is not safe for its intended purpose.
That is, it leaves the suppliers’ control lacking any element
necessary to make it safe for its intended use. The inquiry is
whether or not there is a defect, not whether the defendant[’s]
conduct was negligent. In strict liability there is no consideration
of negligence. It is simply, was the product defective or wasn’t it
defective.
* * *
Defective design. The manufactur[er] of a product is really a
guarantor of its safety. When we talk about strict liability, the
product must be provided with every element necessary to make
it safe for its intended use [a]. And without any conditions that
make [] it unsafe for its intended use. If you find that the product
in this case, the TracPipe, at the time it left the defendant[’]s
control, lacked any elements necessary to make it safe for its
intended use, or contained any condition that made it unsafe for
its intended use, and there was an alternative more practical
design, more safer [sic] design, then the product is considered
defective and the defendant is liable for the harm, if you find that
defect caused the harm[, and] was the proximate cause of the
harm to the plaintiffs.
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Now, ladies and gentlemen, a product is not defective merely
because it is possible to be injured while using the product. The
imposition of strict liability is not meant to transform
manufacturers into insurers of all injuries that are potentially
possible and [sic] at the hands of a product. A manufacturer of a
product may be a guarantor of the product[’]s safety, but under
no circumstances is the manufacturer an insurer of the safety of
the product. The law does not force the manufacturer to become
the insurer of the product under all conditions and uses. A
manufacturer is not required to make an already safe product
safer, or to utilize the safest of all designs. The manufacturer is
not required to produce or design a product incorporating only
features representing the ultimate in safety design. To prevail on
a design defect theory, plaintiffs must prove that the product is
defective and that at the time it left the control of the
manufacturer it lacked the feature necessary to make it safe for
its intended use, or contained a feature that made it unsafe for its
intended use.
In other words, you may not find that the TracPipe product is
defective merely because it could have been made safer. Instead,
you may only render a verdict for the plaintiff if you conclude and
are convinced that the TracPipe is in fact defective and was so
when it left the hands of the manufacturer and that defect was
the proximate cause of the [Tinchers’] loss.
As I said before, and I instruct you that in order to establish strict
liability for putting a defective product in the stream of commerce,
the plaintiffs are not required to prove that the defendant was
negligent. Negligence and strict liability are two separate
concepts. I’ll get to negligence in a second. And no consideration
should be given to negligence when considering strict liability for
a defective product. It’s two different concepts. I understand it’s
not the easiest thing to keep in mind. I’m trying to point out there
is a difference between strict liability for putting a defective
product that was defective when it was designed and made in this
stream of commerce that causes harm to someone else, an
intend[ed] user, not just any user, but an intended user of that
product.
Obviously, ladies and gentlemen, if this product was
manufactured and, obviously, the—with all of the testimony in this
case and the steps that were taken during the design and
manufacturing process, Omega Flex knew it was going to be used
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for its intended purposes, to carry gas[,] natural gas, the
manufacturer supplying the pipe guaranteed it would be safe for
its intended use. That is what strict liability means. So if
something that is intended to be safe for the use intend[ed] to be
made of it is not, and it’s proven that it’s not, and that proof has
to come from the plaintiff, and that defect is the proximate cause
of what happens, there is a lot of testimony in this case about
that, then that is what strict liability means. It does not have
anything to do with negligence in that aspect of the case. That is
why the risk of loss, or if there is, or if you find there is a defect
in strict liability, the risk of loss is placed upon the supplier or
manufacturer that put that product in this stream of commerce.
The risk of loss for injuries resulting from the defective product is
best warned [sic] by the person who manufactured it, principally
because they are the ones that put it in the stream of commerce
and said it would work for its intended purpose.
Tincher, 104 A.3d at 339-40.
During its deliberations, the jury, conscious of the charge, twice (on
separate days) asked the court to define “defective.” In response, the court
re-read the relevant portions of its charge on that issue.4 The jury also had
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4 In response to the first request, the court stated:
I can tell you the definition of defect.
The manufacturer of a product is a guarantor of its safety in the
strict liability sense, all right, the product must be provided with
every element necessary to make it safe for its intended use. And
without any condition that makes it unsafe for its intended use.
If you find that the product at the time it left the defendants’
control lacked any element necessary to make it safe for its
intended use, or contained any condition that made it unsafe for
its intend use, then the product was defective and the defendant
is liable for harm caused by the defect.
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the court re-read the definition of “negligence” three times and of “proximate
cause” twice. The jury asked whether it had been directed to “take the role
of lightning . . . out of consideration from either charge,” to which the court
responded, “no.” When a juror followed up by asking, “then lightning is to be
considered?,” the court responded, “Yes.” N.T., 10/19/10, at 819-24.
The jury returned a verdict in favor of the Tinchers on the products
liability claim and in favor of Omega Flex on the negligence claim. The jury
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N.T., 10/19/10, at 822. Its response to the second request was similar:
[Y]ou’ve requested me to define the word defective. Actually the
instruction relates to defect and we talk about design defect here.
Here it is.
The manufacturer of a product in terms, I will say this, in terms
of the strict liability portion of the claim, and whether there is a
negligence claim and in a separate strict liability claim, this relates
to the strict liability defect.
The manufacturer of a product is a guarantor of its safety. The
product must be provided with every element necessary to make
it safe for its intended use, and without any condition that makes
it unsafe for its intended use. If you find that the product, at the
time it left the defendants’ control, lacked any element necessary
to make it safe for its intended use, or contained any condition
that made it unsafe for its intended use, then the product was
defective and the defendant is liable for all harm caused by the
defect.
That is the definition of defect, design defect. Please remember,
however, that I gave you other instructions relating to strict
liability and I think asking for piece meal portions -- I just want to
remind you there are other things that play in the definitions and
in the instructions.
N.T., 10/20/10, at 825-26.
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awarded the Tinchers more than $950,000 in damages. After adding delay
damages, the court entered judgment for almost $1.03 million. Omega Flex
filed post-trial motions, which the trial court denied.
Omega Flex appealed the trial court’s judgment to this Court, which
affirmed. Tincher v. Omega Flex, Inc., No. 1472 EDA 2011 (Pa. Super.,
Sept. 25, 2012) (unpublished memorandum). Omega Flex petitioned for
allowance of appeal to the Supreme Court, which granted review on the
question of “[w]hether this Court should replace the strict liability analysis of
Section 402A of the Second Restatement with the analysis of the Third
Restatement.” Tincher, 104 A.3d at 343.
In an opinion dated November 19, 2014, the Supreme Court declined to
adopt the Third Restatement, overruled Azzarello, and crafted a new test for
proving whether a product is in a defective condition under Section 402A of
the Second Restatement of Torts:
The plaintiff may prove defective condition by showing either that
(1) the danger is unknowable and unacceptable to the average or
ordinary consumer, or that (2) a reasonable person would
conclude that the probability and seriousness of harm caused by
the product outweigh the burden or costs of taking precautions.
Id. at 335. The Court added:
Whether a product is in a defective condition is a question of fact
ordinarily submitted for determination to the finder of fact; the
question is removed from the jury’s consideration only where it is
clear that reasonable minds could not differ on the issue. Thus,
the trial court is relegated to its traditional role of determining
issues of law, e.g., on dispositive motions, and articulating the law
for the jury, premised upon the governing legal theory, the facts
adduced at trial and relevant advocacy by the parties.
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Id.
The Court devoted considerable attention to the changes to
Pennsylvania law that would result from its formulation of a “Post-Azzarello
Strict Liability Construct.” See Tincher, 104 A.3d at 394. First, however, the
Court reviewed the elements of Azzarello that needed to be jettisoned
because they “fail to reflect the realities of strict liability practice and to serve
the interests of justice.” Id. at 375-76.5 The Court explained that Azzarello’s
insistence on purging “negligence-related rhetoric” from strict liability cases
was applied in an overly broad manner that ultimately “perpetuated jury
confusion.” Id. at 377, 381. To achieve its goal, Azzarello prohibited a jury
from considering whether a product is defective because it is unreasonably
dangerous or not duly safe, reserving that critical issue to the trial court itself,
even though “trial courts simply do not necessarily have the expertise” to
decide such issues. Id. at 377, 380. For the jury charge, it created a
requirement that a product have “every element necessary to make it safe for
use,” a standard that was “impracticable” in application. Id. at 379.
Azzarello coupled that new standard with a confusing statement that a
product supplier “is not an insurer of a product, although it is a guarantor” —
terms of art that were given “no further explanation of their practical import.”
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5Notably, in the Supreme Court, the Tinchers agreed with Omega Flex “that
Azzarello was wrongly decided.” Tincher, 104 A.3d at 344.
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Id. The Court in Tincher overruled Azzarello to the extent these various
pronouncements were in tension with the new principles it articulated. Id. at
376.
Looking forward, the Court constructed its new two-part defect test. Id.
at 384-94, 399-406. It then restored the question of a product’s
defectiveness, including any balancing of risks and utilities, to the jury, id. at
406, and returned the trial court to its “ordinary gate-keeper role”
(“monitoring litigation, mediating or adjudicating any subsidiary differences,
and pending objections and motions”), id. at 407. The Court then pronounced
the following regarding jury instructions:
One crucial aspect of the trial court’s role is, of course, the task of
defining the strict liability legal universe within which a particular
jury operates for purposes of discharging its function. To
reiterate, a jury charge is adequate “unless the issues are not
made clear, the jury was misled by the instructions, or there was
an omission from the charge amounting to a fundamental error.”
In this case, in critical part, the trial court instructed the jury in
accordance with the law as articulated in Azzarello and its
progeny. See N.T., 10/19/10, at 794-98. We have now overruled
Azzarello and we have additionally explained foundational issues
related to the strict liability cause of action in Pennsylvania . . .
Going forward, consistent with this decision, when a plaintiff
proceeds on a theory that implicates a risk-utility calculus, proof
of risks and utilities are part of the burden to prove that the harm
suffered was due to the defective condition of the product. The
credibility of witnesses and testimony offered, the weight of
evidence relevant to the risk-utility calculus, and whether a party
has met the burden to prove the elements of the strict liability
cause of action are issues for the finder of fact, whether that finder
of fact is judge or jury. A question of whether the party has met
its burden of proof is properly “removed” — for example, via
adjudication of a dispositive motion — “from the jury’s
consideration only where it is clear that reasonable minds [cannot]
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differ on the issue.” Thus, the strict liability construct we
articulate today comfortably accommodates the gate-keeping role
ordinarily relegated to the trial court in tort actions.
[] In charging the jury, the trial court’s objective is “to explain to
the jury how it should approach its task and the factors it should
consider in reaching its verdict.” . . . “[T]he trial court has broad
discretion in phrasing its instructions, and may choose its own
wording so long as the law is clearly, adequately, and accurately
presented to the jury for its consideration.”
[] The crucial role of the trial court is to prepare a jury charge that
explicates the meaning of “defective condition” within the
boundaries of the law, i.e., the alternative test standard, and the
facts that pertain.
Id. at 427-28 (citations omitted).
With respect to the effect of its decision on this case, the Court stated:
[I]n light of the decision to overrule Azzarello, questions remain
regarding whether Omega Flex should benefit from the application
of our Opinion upon remand and, moreover, whether Omega Flex
is entitled to a new trial. Here, Omega Flex preserved and
presented its claim that Azzarello should be overruled to the trial
court and on appeal; as a result, we hold that Omega Flex is
entitled to the benefit of our decision in this regard. Whether
Omega Flex is entitled to additional relief, including a new trial or
judgment notwithstanding the verdict is not apparent upon the
record before us. See Price [v. Guy, 735 A.2d 668, 672 (Pa.
1999)] (new trial appropriate if erroneous jury instruction
amounts to fundamental error or the record is insufficient to
determine whether error affected verdict); Degenhardt [v.
Dillon Co. 669 A.2d 946, 950 (Pa. 1996)] (judgment
notwithstanding verdict is appropriate only if no two reasonable
minds could disagree that verdict should be in favor of movant).
Tincher, 104 A.3d at 432-33. Thus, the Supreme Court remanded this case
to the trial court for “further action upon post-trial motions” and permitted the
trial court to order the filing of supplemental post-verdict motions or briefs on
the issue. Id.
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On remand to the trial court, Omega Flex filed a renewed motion for
post-trial relief in which it abandoned its request for entry of judgment
notwithstanding the verdict and sought only a new trial. The parties submitted
additional briefs, and the trial court held oral argument. On March 22, 2016,
the trial court denied Omega Flex’s motion, and it entered judgment against
Omega Flex on May 3, 2016.
In denying Omega Flex’s motion, the trial court recognized that “[t]he
predominant factual issue in the case was whether the corrugated stainless
steel tubing was defective because of its inferior thickness (equal to the
thickness of four sheets of paper), rendering it incapable of withstanding
perforation by an electrical arc produced by lightning.” Trial Court Opinion,
3/22/16, at 2-3. The court gave the following explanation of why it was
denying a new trial:
[T]he trial judge is no longer the “gatekeeper,” whose function it
previously was to initially consider the risk associated with the
product weighed against its utility before sending the case to the
jury on the plaintiff’s strict liability claim. The question whether a
product is in a defective condition is removed “from the jury’s
consideration only where it is clear that reasonable minds cannot
differ on the issue.” Instantly, the case was submitted to the jury
to decide whether TracPipe is defective. The Tincher Court
plainly held that Omega Flex “is entitled to the benefit of our
decision” overruling Azzarello.
Omega Flex consequently argues that it is entitled to a new
trial because the jury, as the finder of fact, now must be permitted
to balance the evidence and determine whether the risk of using
TracPipe is outweighed by its utility, and whether the product is
unreasonably dangerous. It also argues that, had the parties
known they would be trying the case on the basis of the risk of
TracPipe versus its utility, Omega Flex would have presented a
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different evidentiary case. That simply is not supported by the
trial record. In fact, the case was tried by the parties on
competing evidence implicating the relative merits of the use of
TracPipe versus black iron pipe in home construction, all with an
eye toward convincing the jury whether the risks associated with
the use of TracPipe greatly outweighed, or not, the use of black
iron pipe. Both parties, through their witnesses, and through
cross-examination, hammered those points home to the jury
throughout the trial. In opposition to [Omega Flex’s] renewed
motion for post-trial relief, [the Tinchers’] brief details the
evidence in this regard proffered to the jury by both parties, and
that evidence need not be repeated here by this court.
With that evidence before the trial court, we denied [Omega
Flex’s] motion for a directed verdict, and submitted the case to
the jury with the instruction to decide whether TracPipe was
defective, that is, contained any condition that made it unsafe for
its intended purpose. Speaking plainly, a product used to convey
natural gas in a residential dwelling that is determined by the jury
to be defective for the obvious reason that its component parts
are inadequate to preclude the unanticipated escape of gas must
also be considered unreasonably dangerous. This is the
conclusion the jury reached in this case, and in this court’s view,
reasonable minds could not differ on the point. With the jury fully
cognizant of the evidence [ad]duced by the parties over 7 days of
trial premised upon the risk versus the utility of the two means of
conveying natural gas in a home, to conclude now that the jury
would have reached a different result had it been directed, as the
finder of fact, to conclude that TracPipe’s utility outweighed its
risks, in the context of the facts of this case, would require one to
ignore the voluminous evidence the jury heard on those very
issues.
. . . [Our Supreme Court] noted that a new trial is appropriate if
an erroneous jury instruction amounts to fundamental error or the
record is insufficient to determine whether such error affected the
verdict. It is this court’s opinion that based on the evidence the
jury heard, the instruction we gave was not prejudicial to Omega
Flex for the reasons noted above, and did not affect the jury’s
verdict. Indeed, in the instant case, it was proven by a
preponderance of the evidence that TracPipe’s danger was
unknowable and certainly unacceptable to the Tinchers, the very
standard required by the Tincher Court.
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Id. at 5-8 (citations omitted). The court added that “[i]f the jury instruction
we gave in this case required a new trial . . . , it is evident that our Supreme
Court would have simply remanded this case for a new trial.” Id. at 7.6
Omega Flex filed this appeal on April 22, 2016.7 In it, Omega Flex
raises the following issue: “Whether the trial court erred by denying
Defendant Omega Flex’s motion for a new trial.” Brief of Appellant, at 7. We
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6 Curiously, the court closed its opinion with a statement of why Omega Flex
was not entitled to judgment notwithstanding the verdict, even though Omega
Flex no longer sought that relief. The court stated:
Judgment notwithstanding the verdict may be entered only if
movant is entitled to judgment as a matter of law and if evidence
presented at trial was such that no two reasonable minds could
disagree that the verdict would be in favor of movant. In
determining whether judgment notwithstanding the verdict is
required, only evidence which supports the verdict may be
considered, giving verdict winner the benefit of any doubt. Giving
the [Tinchers] the benefit of any doubt, we conclude that
reasonable minds would agree that [Omega Flex] is not entitled
to judgment on the facts educed in this case.
Trial Court Opinion, 3/22/16, at 8-9 (citation omitted).
7 Omega Flex’s notice of appeal was filed from the March 22, 2016, order
denying post-trial motions, which was an unappealable order. See Becker v.
M.S. Reilly, Inc., 123 A.3d 776, 777 n.1 (Pa. Super. 2015) (“Orders denying
post-trial motions are interlocutory and not ordinarily appealable”); U.S.
Bank, N.A. v. Pautenis, 118 A.3d 386, 388 n.2 (Pa. Super. 2015) (“an
appeal to this Court can only lie from judgments entered subsequent to the
trial court’s disposition of post-verdict motions, not from the order denying
post-trial motions” (brackets omitted)). However, the trial court’s entry of
judgment on May 3, 2016, perfected the appeal. See Pa.R.A.P. 905(a)(5) (“A
notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry and
on the day thereof.”). Therefore, on July 11, 2016, we denied a motion by
the Tinchers to quash the appeal. We similarly reject a suggestion in the trial
court’s Pa.R.A.P. 1925(a) opinion that we quash the appeal.
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hold that the trial court erred and that Omega Flex is entitled to a new trial as
a result of the Supreme Court’s decision.
In Harman ex rel. Harman v. Borah, 756 A.2d 1116 (Pa. 2000), our
Supreme Court set forth the two-stage standard of review applicable to an
order addressing a request for a new trial:
Trial courts have broad discretion to grant or deny a new trial.
The grant of a new trial is an effective instrumentality for seeking
and achieving justice in those instances where the original trial,
because of taint, unfairness or error, produces something other
than a just and fair result, which, after all, is the primary goal of
all legal proceedings.
* * *
There is a two-step process that a trial court must follow when
responding to a request for new trial. First, the trial court must
decide whether one or more mistakes occurred at trial. These
mistakes might involve factual, legal, or discretionary matters.
Second, if the trial court concludes that a mistake (or mistakes)
occurred, it must determine whether the mistake was a sufficient
basis for granting a new trial. . . .
To review the two-step process of the trial court for granting or
denying a new trial, the appellate court must also undertake a
dual-pronged analysis. . . . First, the appellate court must
examine the decision of the trial court that a mistake occurred.
. . . If the mistake concerned an error of law, the court will
scrutinize for legal error[.]
* * *
If the appellate court agrees with the determination of the trial
court that a mistake occurred, it proceeds to the second level of
analysis. The appellate court must then determine whether the
trial court abused its discretion in ruling on the request for a new
trial.
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Id. at 1121-23 (quotation marks and citations omitted; some formatting
altered).
With respect to the first part of this analysis, there is no question that
the trial court’s jury charge was incorrect. As the Supreme Court noted, “in
critical part, the trial court instructed the jury in accordance with the law as
articulated in Azzarello and its progeny.” Tincher, 104 A.3d at 407; see
also Trial Court Opinion, 3/22/16, at 3 (“we charged as required by
Azzarello”). The charge thus contained all of the product liability law under
Azzarello that the Supreme Court has now disapproved, including a definition
equating a defective product with one that “leaves the suppliers’ control
lacking any element necessary to make it safe for its intended use,” and a
declaration that a manufacturer “is really a guarantor of [a product’s] safety”
but not “an insurer of [that] safety.” Tincher, 104 A.3d at 339 (quoting
charge). The Supreme Court has now overruled Azzarello and determined
that this statement of product liability law was incorrect. The trial court’s jury
charge, therefore, was erroneous. Thus, the controlling question here is
whether the trial court abused its discretion when it declined to order a new
trial despite that error.
Omega Flex argues that because the jury was instructed only on
whether TracPipe was defective under Azzarello’s now-overruled design
defect test, and not on the new definition of “defect” under Tincher, a new
trial is required. Brief of Appellant, at 26-28. Omega Flex argues that an
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Azzarello instruction on whether TracPipe lacked any element necessary to
make it safe for its intended use is distinct from whether TracPipe was
unreasonably dangerous under Tincher’s new, decidedly different formulation
of what makes a product defective — that it poses a danger that is unknowable
and unacceptable to the average or ordinary consumer, or that a reasonable
person would conclude that the probability and seriousness of harm caused
by the product outweigh the burden or costs of taking precautions. Id. at 26.
That the court did not instruct the jury under the Tincher standard was an
error so prejudicial, Omega Flex asserts, that a new trial is necessary. Id. at
28.
The Tinchers counter that our Supreme Court could have remanded the
case for a new trial, but instead opted to have the trial court evaluate whether
a new trial was justified. Brief of Appellees, at 9. In the Tinchers’ view,
notwithstanding the overruled jury instruction, a new trial would not have
resulted in a different verdict under the new test for design defects. Id. The
Tinchers agree with the trial court that, under either standard propounded by
the new test, no prejudice inured to Omega Flex. Id. at 10. The Tinchers
approvingly quote the trial court’s reasoning: “to conclude now that the jury
would have reached a different result had it been directed [under the risk-
utility standard], in the context of the facts of this case would require one to
ignore the voluminous evidence the jury heard on those very issues.” Id. at
11, quoting Trial Court Opinion, 3/22/16, at 7.
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The Supreme Court has instructed:
Error in a charge is sufficient ground for a new trial if the charge
as a whole is inadequate or not clear or has a tendency to mislead
or confuse rather than clarify a material issue. Error will be found
where the jury was probably [misled] by what the trial judge
charged or where there was an omission in the charge. A charge
will be found adequate unless the issues are not made clear to the
jury or the jury was palpably misled by what the trial judge said
or unless there is an omission in the charge which amounts to a
fundamental error. In reviewing a trial court’s charge to the
jury[,] we must look to the charge in its entirety.
Passarello v. Grumbine, 87 A.3d 285, 296-97 (Pa. 2014), quoting Quinby
v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1069-70 (Pa.
2006); see Tincher, 104 A.3d at 351. Here, the trial court gave a charge on
a determinative issue that failed to conform to the applicable law, as stated in
Tincher. We conclude, therefore, that the charge amounted to fundamental
error. The Supreme Court in Tincher made clear that Omega Flex would be
entitled to a new trial if the charge amounted to fundamental error. See
Tincher, 104 A.3d at 410, citing Price v. Guy, 735 A.2d 668, 672 (Pa. 1998)
(new trial appropriate if erroneous jury instruction amounts to fundamental
error).
The objective of a jury charge “is to explain to the jury how it should
approach its task and the factors it should consider in reaching its verdict.”
Tincher, 104 A.3d at 351. The charge “defines the legal universe in which a
jury operates for the purposes of the verdict.” Id. at 347 n.5. As the trial
court observed, the “predominant factual issue” in this case was whether the
steel tubing in the TracPipe system was defective. Trial Court Opinion,
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3/22/16, at 2. The charge instructing the jury on how to determine whether
the product was defective therefore was critical to this case.8 As noted, all
parties agree that this charge was wrong in that, among other things, it
employed an incorrect definition of a product “defect” in light of the Supreme
Court’s decision in Tincher.
We have held that a charge containing an incorrect definition of a term
critical to a disputed factual issue is fundamentally erroneous and entitles the
affected party to a new trial because “[j]ury instructions must contain correct
definitions of legal terms.” Gorman v. Costello, 929 A.2d 1208, 1213 (Pa.
Super. 2007). Thus, for example, we ordered a new trial in Jeter v. Owens-
Corning Fiberglass Corp., 716 A.2d 633 (Pa. Super. 1998), where the trial
court gave a dictionary definition of the word “substantial” in connection with
its instruction on the “substantial factor” test for proving causation in a tort
case. Use of the dictionary definition was “impermissible [because] the word
____________________________________________
8 For this reason, our decision in Amato v. Bell & Gossett, 116 A.3d 607
(Pa. Super. 2015), appeal dismissed as improvidently granted sub nom.
Vinciguerra v. Bayer CropScience Inc., 150 A.3d 956 (Pa. 2016), which
affirmed the trial court’s decision not to order a new trial in a product liability
case following the Tincher decision, is distinguishable. Id. at 621-23. The
appellant in Amato complained that the trial court failed to instruct the jury
on whether its product was unreasonably dangerous under Tincher due to a
lack of warnings and in light of the state of the art at the time. We held,
however, that the omitted charge was not required because the appellant
defended the case on the theory that its product “was not dangerous at all,”
making a charge on warnings and state of the art unnecessary under its theory
of the case. Id. at 622-23 (emphasis in original). Here, the challenged
charge went to the principal issue in the case, whether Omega Flex’s product
was defective.
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or phrase in question, . . . ‘substantial factor,’ has a particular technical or
legal meaning as established by statute or case law,” and that meaning
differed from the dictionary definition used by the trial court. Id. at 636-38
& n.4. In Fleishman v. General Am. Life Ins. Co., 839 A.2d 1085, 1087-
89 (Pa. Super. 2003), appeal denied, 858 A.2d 110 (Pa. 2004), we ordered
a new trial because the trial court gave a definition that was incomplete. The
plaintiff had sued for breach of a disability insurance contract, but the trial
court failed to give a full definition of “total disability” under the policy. We
held that a new trial was required because the charge had a “prejudicial
omission of basic or fundamental information.” Id. (quoting trial court); see
also Gorman, 929 A.2d at 1211-13 (new trial required because of failure to
give complete instruction on factual cause).
Significantly, we have ordered a new trial in a pre-Tincher product
liability action where the trial court failed to give a jury a definition of “defect”
that was consistent with Azzarello and its progeny. See Marshall v.
Philadelphia Tramrail Co., 626 A.2d 620, 626 (Pa. Super. 1993). Azzarello
instructed that a product is defective if it lacks any element needed to make
it safe for its “intended use,” but the trial court omitted the word “intended”
from the charge. Marshall, 626 A.2d at 621-24. In that case, we held that
this error was “surely prejudicial,” and that a new trial therefore was needed.
Id. at 626; see also Pa. Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co.,
898 A.2d 590, 600-04 (Pa. 2006). If an incorrect definition of “defect” under
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Azzarello calls for a new trial, an incorrect definition of “defect” under
Tincher should call for the same result.
We conclude that fundamental error analysis is particularly applicable
here because the trial court gave a charge under law that the Supreme Court
has explicitly overruled in this very case. Such a charge would appear to be
a paradigm example of fundamental error.
In Kuchinic v. McCrory, 222 A.2d 897, 901 (Pa. 1966), a case arising
from an air crash in Georgia, the trial court instructed the jury under Georgia
law because Pennsylvania conflict-of-law principles at the time made the law
of the place of the tort controlling. The Supreme Court then abandoned those
conflicts principles and adopted a new conflicts scheme that made
Pennsylvania law applicable to the accident. The Supreme Court held that the
change in the applicable law required a new trial. Id. at 900-01. Similarly,
in Leland v. J. T. Baker Chem. Co., 423 A.2d 393 (Pa. Super. 1980), another
product liability case, the jury was charged under pre-Azzarello law to
ascertain whether “the defect [in the product] was the legal cause of an
unreasonable danger.” Id. at 395. After the jury rendered a defense verdict
and the plaintiffs filed a motion for a new trial, the Supreme Court decided
Azzarello and disapproved use of the term “unreasonably dangerous” in the
jury charge. Because of that change in the law, we affirmed the trial court’s
grant of a new trial in Leland, agreeing that the plaintiff was entitled to a
charge based on the change in the law. Id. at 396-97. In rejecting an
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argument that a new trial was not warranted, we stated, “it is not inequitable
to deprive appellant of a unanimous verdict which follows from a misleading
instruction.” Id. at 398.
Most recently, in Passarello v. Grumbine, 29 A.3d 1158 (Pa. Super.
2011), aff’d, 87 A.3d 285 (Pa. 2012), a medical malpractice case, both this
Court and the Supreme Court held that a plaintiff was entitled to a new trial
where the trial court gave a jury instruction that was at odds with a change in
the law resulting from a decision of this Court rendered after the jury trial.
The charge told the jury that “physicians are not liable for errors of judgment
unless it’s proven that an error of judgment was the result of negligence.”
Passarello, 29 A.3d at 1161. After the jury’s verdict and while post-trial
motions were pending, this Court decided Pringle v. Rapaport, 980 A.2d 159
(Pa. Super. 2009) (en banc), which held that an error-of-judgment charge is
impermissible. When the trial court denied the plaintiff’s motion for a new
trial in Passarello, we reversed. We held that, under Pringle, the trial court
in Passarello had given “an erroneous instruction,” and that an award of a
new trial was “imperative.” Passarello, 29 A.3d at 1166, 1168. Noting that
“[o]ur holding in Pringle, which should have been applied in this case,
disavowed the very argument that counsel made,” we found “the prejudice
inherent in the court’s error to be clear.” Id. at 1169. In affirming, the
Supreme Court held that this Court had properly “view[ed] the charge in its
entirety in order to determine whether the erroneous instruction constituted
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a fundamental error in the context of the whole,” and that the order of a new
trial therefore was appropriate. Passarello, 87 A.3d at 305.
Under these decisions, the trial court’s erroneous jury instruction
requires a new trial in the instant case. There is no question that the error
was fundamental to the case. It dealt with the principal issue disputed by the
parties — whether there was a defect. The record indicates that the jury asked
for the charge defining a “defect” to be repeated twice, during two of its days
of deliberations. We assume that a jury follows the charge that it is given,
Knowles v. Levan, 15 A.3d 504, 508 (Pa. Super. 2011), and here the charge
clearly affected the result. The Supreme Court commented that the Tinchers’
case bore “the indicia of negligence.” Tincher, 104 A.3d at 405. But after
hearing the trial court’s repeated instructions about the meaning of
“negligence” and “defect,” the jury imposed no liability on the Tinchers’
negligence claims and awarded them substantial damages for the product
defect. This result speaks volumes about the importance of the jury
instruction on “defect” in this case. We, therefore, conclude that the charge
was fundamentally erroneous and entitles Omega Flex to a new trial.
In denying Omega Flex’s motion for a new trial, the trial court noted
that one of the alternative definitions of a “defect” under the new Tincher
standard is that a reasonable person would conclude that the probability and
seriousness of harm caused by the product outweigh the burden or costs of
taking precautions. Trial Court Opinion, 3/22/16, at 4-5; see Tincher, 104
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A.3d at 335. The trial court observed further that the parties presented
competing evidence on the relative merits of using TracPipe instead of cast
iron and on whether those merits were outweighed by the resulting risk.
Therefore, in the court’s view, there was no reason to try the case again
because the jury already heard this type of evidence. See Trial Court Opinion,
3/22/16, at 5-7. We disagree.
First of all, that the jury may have heard evidence about risk and utility
during the trial does not mean that it rendered a verdict based on the
risk/utility standard adopted by the Supreme Court as one way to find a
product defective. In fact, the verdict could not mean that, because the jury
was never instructed to make findings under such a standard. Rather than
being asked to balance risks and utilities, the jury was told only to find whether
TracPipe “lacked any element necessary to make it safe” — regardless of
whatever reasonable risk/utility considerations might have gone into the
decision to market TracPipe without such an element.
As set forth above, the trial court said:
Speaking plainly, a product used to convey natural gas in a
residential dwelling that is determined by the jury to be defective
for the obvious reason that its component parts are inadequate to
preclude the unanticipated escape of gas must also be considered
unreasonably dangerous. This is the conclusion the jury reached
in this case, and in this court’s view, reasonable minds could not
differ on the point. With the jury fully cognizant of the evidence
[ad]duced by the parties over 7 days of trial premised upon the
risk versus the utility of the two means of conveying natural gas
in a home, to conclude now that the jury would have reached a
different result had it been directed, as the finder of fact, to
conclude that TracPipe’s utility outweighed its risks, in the context
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of the facts of this case, would require one to ignore the
voluminous evidence the jury heard on those very issues.
Id. at 6-7. The trial court thus concluded that the Supreme Court’s change
in the definition of a product defect makes no difference in this case because
the trial court is convinced that the jury would render the same verdict under
whichever charge it was given. But the trial court had no authority to deny a
new trial on the basis of its own speculation about what the jury would do
under the Supreme Court’s new formulation of the law. The trial court’s
declaration that the new legal reformulation resulting from the Supreme
Court’s thorough and extensive decision — which, it must be remembered,
was rendered in response to Omega Flex’s claim that it was entitled to post-
trial relief, Tincher, 104 A.3d at 351, and that, in the end, reversed our
affirmance of the trial court’s judgment, id. at 410 — can cause no change to
the verdict undervalues the importance of the Supreme Court’s decision. 9
____________________________________________
9 Contrary to the trial court, we draw no insight from the Supreme Court’s
failure to decide for itself whether Omega Flex was entitled to a new trial under
its decision and from its referral of that question to the trial court for
consideration on remand. At the time of the Supreme Court’s decision, Omega
Flex was seeking either judgment notwithstanding the verdict (JNOV) or a new
trial, and the Supreme Court found that proper resolution of those alternate
requests was “not apparent on the record before us.” Tincher, 104 A.3d at
410. Omega Flex had framed its argument for JNOV and a new trial on its
contention that the case should have been tried under the principles of the
Third Restatement of Torts, see id. at 341, and, obviously, had not briefed its
right to post-trial relief under the new product defect standard fashioned by
the Supreme Court’s Tincher decision. Whether Omega Flex would be
entitled to JNOV under those new standards would require new briefing and a
careful and complex analysis of the record, and the new trial issue normally
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By basing its decision on its own view of how a jury would rule in any
retrial, the trial court arrogated to itself a fact-finding role that it does not
have. Under Azzarello, the trial court could determine whether a product is
unreasonably dangerous. But if anything in the Supreme Court’s Tincher
decision is clear, it is that now only the fact-finder – in this case, the jury –
may determine whether a product is defective. See Tincher, 104 A.3d at
335, 380-81, 407-08; see also High v. Pennsy Supply, Inc., 154 A.3d 341,
347 (Pa. Super. 2017) (“the Tincher Court concluded that the question of
whether a product is in a defective condition unreasonably dangerous to the
consumer is a question of fact that should generally be reserved for the
factfinder”), petition for allowance of appeal denied, No. 211 MAL 2017
(Pa., Sept. 26, 2017). The trial court’s pronouncement that a jury on any
retrial would reach the same verdict, thus disregards the requirement of
factual proof and the value of jury instructions under the Supreme Court’s
decision. The Supreme Court said nothing in Tincher to suggest that mere
proof of a “defect” under post-Azzarello strict liability law would be sufficient
to prove an “unreasonably dangerous defective condition” under Tincher’s
new formulation, and, if such proof under the old standard were all that is now
____________________________________________
would not be reached unless it was determined that JNOV was inappropriate.
In this situation, it was only natural for the Supreme Court to refer these
questions to the trial court.
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required to prove a defect, then one must wonder what all of the fuss
regarding the Supreme Court’s decision is about.10
The trial court appeared to rely on the Supreme Court’s statement that
the “question of whether a party has met its burden of proof” may properly
be removed from a jury’s consideration “where it is clear that reasonable
minds cannot differ on the issue,” Tincher, 104 A.3d at 407 (quoted citation
and brackets omitted), but that statement was not an invitation for trial courts
to re-assume a fact-finding role. The Court made clear it was referring only
to a trial court’s ability to decide “a dispositive motion.” See id. at 335, 407.
Here, the trial court was not deciding a motion for summary judgment or
directed verdict, and there is no contention that it could do so on this record,
which, according to the trial court, contains “competing evidence” on the
relevant issues. See Trial Court Opinion, 3/22/16, at 6. To hold otherwise
would deprive Omega Flex of its right to a jury trial to resolve such conflicting
facts.
In effect, the trial court seemed to conclude that because it believes
there is sufficient evidence in the record to support a verdict for plaintiffs
____________________________________________
10If the trial court was opining that, even though this case was tried under a
theory that focused on risks and utilities, see Tincher, 104 A.3d at 337-39,
the record nonetheless supports a finding of a defective condition under the
Supreme Court’s alternative consumer expectations definition of a defect, we
nonetheless remain bound by the holding that liability under that test must be
established by a jury and may not be removed from its province. See id. at
407; High, 154 A.3d at 349-51.
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under the new Tincher standards, a new trial is not required. But, as the
Supreme Court specifically instructed in Tincher itself, that is not a proper
basis for decision. The Tinchers asked the Supreme Court to forego resolving
the issues presented to it because, they said, there was so much evidence
supporting liability that any change in the law would not change the outcome.
The Supreme Court rejected that suggestion, explaining that a verdict has
meaning only in light of the charge under which it was delivered: “a trial
court’s charge defines the legal universe in which a jury operates for the
purposes of the verdict.” Tincher, 104 A.3d at 347 n.5. “The bare litmus of
sufficiency review cannot correct a fundamental error in the instructions to lay
jurors concerning just what it is that they are deciding.” Id., quoting Schmidt
v. Boardman Co., 11 A.3d 924, 944 (Pa. 2009).
The trial court’s charge based on law overruled in this case was
fundamental error. Omega Flex therefore is entitled to a new trial.
Judgment vacated. Order denying post-trial relief reversed. Case
remanded for a new trial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/18
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