J-A29004-17
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`2018 PA Super 33
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`TERENCE D. TINCHER AND JUDITH
`R. TINCHER
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`OMEGA FLEX, INC.
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`v.
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`Appellant
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` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
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` No. 1285 EDA 2016
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`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
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`BEFORE: LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.
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`OPINION BY LAZARUS, J.:
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`FILED FEBRUARY 16, 2018
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`Omega Flex, Inc., appeals from the judgment entered in favor of
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`Terence D. and Judith R. Tincher following a jury trial and the denial of its
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`post-trial motions. Omega Flex contends that it is entitled to a new trial
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`because the Pennsylvania Supreme Court has determined that the trial court’s
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`jury instruction contained a fundamental misstatement of the governing law.
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`We agree and vacate the judgment, reverse the order denying post-trial relief,
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`and remand for a new trial.
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`We draw our summary of the facts and much of the procedural history
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`of the case from the Supreme Court’s decision, Tincher v. Omega Flex, Inc.,
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`104 A.3d 328, 335–36 (Pa. 2014). The Tinchers lived in the central unit of a
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`two-story triplex in Downingtown, Chester County, which they purchased in
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`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.
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`J-A29004-17
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`Investigators later determined that a nearby lightning strike caused a small
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`puncture in corrugated stainless steel tubing (“CSST”) that transported
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`natural gas to a fireplace located on the first floor of the residence. Heat
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`attending the melting of the CSST caused by the lightning strike ignited the
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`natural gas and fueled a fire estimated to have burned for over an hour before
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`it was discovered. No one was injured in the fire, but the fire caused
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`significant damage to the Tinchers’ home and belongings.
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`The CSST installed in the Tinchers’ home was manufactured and sold by
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`Omega Flex as part of a gas transportation system marketed as the “TracPipe
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`System.” In January 2008, the Tinchers sued Omega Flex, asserting claims
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`premised on theories of strict liability, negligence, and breach of warranty.1
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`The strict liability claim was based on section 402A of the American Law
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`Institute’s Restatement (Second) of Torts (1965), as adopted, followed, and
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`construed in Pennsylvania. Section 402A of the Restatement (Second) of
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`Torts provides:
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`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
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`(b) it is expected to and does reach the user or consumer
`without substantial change in the condition in which it is sold.
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`Restatement (Second) of Torts § 402A(1).2 The Tinchers alleged that “the
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`CSST incorporated into the TracPipe System is defective, and unreasonably
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`dangerous to intended users, because its walls are too thin to withstand the
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`effects of lightning.” Tincher, 104 A.3d at 336.
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`Prior to trial, Omega Flex moved to have the trial court apply Sections
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`1 and 2 of the Third Restatement of Torts: Products Liability (1998) and to
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`deliver jury instructions based on the Third Restatement, rather than the
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`Restatement (Second) of Torts.3 The Tinchers responded that the Second
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`____________________________________________
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`2 Section 402A(2) provides:
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`The rule stated in Subsection (1) applies although
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`(a) the seller has exercised all possible care in the preparation and
`sale of his product, and
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`(b) the user or consumer has not bought the product from or
`entered into any contractual relation with the seller.
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`3 Sections 1 and 2 of the Third Restatement provide:
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`§ 1 Liability of Commercial Seller or Distributor for Harm
`Caused by Defective Products
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`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,
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`should base its jury instructions on the Second Restatement and the Supreme
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`Court’s decisions under that Restatement, including Azzarello v. Black Bros.
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`Co., 391 A.2d 1020 (Pa. 1978). In Azzarello, the Court had held that: it
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`was improper to introduce negligence concepts into a strict liability case; it
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`was for the court, not a jury, to determine whether a product was
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`“unreasonably dangerous” under the Second Restatement; the dispositive
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`____________________________________________
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` §
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` 2 Categories of Product Defect
`
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`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:
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`(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;
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`(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;
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`(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.
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`
`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
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`product is safe for its intended use; and in such a case, “the seller is the
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`‘guarantor’ of the product, and a jury could find a defect ‘where the product
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`left the supplier’s control lacking any element necessary to make it safe for its
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`intended use or possessing any feature that renders it unsafe for its intended
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`use.’” Tincher, 104 A.3d at 367, quoting Azzarello, 391 A.2d at 1025-27.
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`The trial court did not immediately rule on Omega Flex’s motion.
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`During their case in chief, the Tinchers introduced evidence that, on the
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`night of the fire, lightning transferred an electrical charge to the TracPipe
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`System and that heat from the lightning punctured the CSST and ignited the
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`natural gas. Their experts testified that the CSST was susceptible to
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`perforation because it is very thin (1/100 of an inch in thickness) and it
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`withstands the transfer of much less electrical energy than would an
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`alternative material, such as cast iron pipe.
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`After the Tinchers rested, Omega Flex moved for a nonsuit under the
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`Restatement (Second) and Azzarello, assuming the court had denied its
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`request to apply the Restatement (Third). The trial court denied the nonsuit,
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`and Omega Flex then introduced its own evidence that the TracPipe System
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`was not defective or unreasonably dangerous. Among other things, Omega
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`Flex offered evidence of the utility of CSST as compared to cast iron pipe,
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`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
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`it required fewer joints. Tincher, 104 A.3d at 337-38.
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`After resting its case, Omega Flex sought a directed verdict, contending
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`that TracPipe was not unreasonably dangerous under the Second Restatement
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`and Azzarello. The trial court denied Omega Flex’s motion and then
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`instructed the jury on the Tinchers’ strict liability claim, as follows:
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`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.
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` A
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` 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.
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`* * *
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`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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`J-A29004-17
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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.
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`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.
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`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.
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`this product was
`if
`ladies and gentlemen,
`Obviously,
`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.
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`Tincher, 104 A.3d at 339-40.
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`During its deliberations, the jury, conscious of the charge, twice (on
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`separate days) asked the court to define “defective.” In response, the court
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`re-read the relevant portions of its charge on that issue.4 The jury also had
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`____________________________________________
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`4 In response to the first request, the court stated:
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`I can tell you the definition of defect.
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`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.
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`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
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`cause” twice. The jury asked whether it had been directed to “take the role
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`of lightning . . . out of consideration from either charge,” to which the court
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`responded, “no.” When a juror followed up by asking, “then lightning is to be
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`considered?,” the court responded, “Yes.” N.T., 10/19/10, at 819-24.
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`The jury returned a verdict in favor of the Tinchers on the products
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`liability claim and in favor of Omega Flex on the negligence claim. The jury
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`____________________________________________
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`N.T., 10/19/10, at 822. Its response to the second request was similar:
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`[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.
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`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.
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`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.
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`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.
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`N.T., 10/20/10, at 825-26.
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`awarded the Tinchers more than $950,000 in damages. After adding delay
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`damages, the court entered judgment for almost $1.03 million. Omega Flex
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`filed post-trial motions, which the trial court denied.
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`Omega Flex appealed the trial court’s judgment to this Court, which
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`affirmed. Tincher v. Omega Flex, Inc., No. 1472 EDA 2011 (Pa. Super.,
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`Sept. 25, 2012) (unpublished memorandum). Omega Flex petitioned for
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`allowance of appeal to the Supreme Court, which granted review on the
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`question of “[w]hether this Court should replace the strict liability analysis of
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`Section 402A of the Second Restatement with the analysis of the Third
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`Restatement.” Tincher, 104 A.3d at 343.
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`In an opinion dated November 19, 2014, the Supreme Court declined to
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`adopt the Third Restatement, overruled Azzarello, and crafted a new test for
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`proving whether a product is in a defective condition under Section 402A of
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`the Second Restatement of Torts:
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`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.
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`Id. at 335. The Court added:
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`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.
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`The Court devoted considerable attention to the changes to
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`Pennsylvania law that would result from its formulation of a “Post-Azzarello
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`Strict Liability Construct.” See Tincher, 104 A.3d at 394. First, however, the
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`Court reviewed the elements of Azzarello that needed to be jettisoned
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`because they “fail to reflect the realities of strict liability practice and to serve
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`the interests of justice.” Id. at 375-76.5 The Court explained that Azzarello’s
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`insistence on purging “negligence-related rhetoric” from strict liability cases
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`was applied in an overly broad manner that ultimately “perpetuated jury
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`confusion.” Id. at 377, 381. To achieve its goal, Azzarello prohibited a jury
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`from considering whether a product is defective because it is unreasonably
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`dangerous or not duly safe, reserving that critical issue to the trial court itself,
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`even though “trial courts simply do not necessarily have the expertise” to
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`decide such issues. Id. at 377, 380. For the jury charge, it created a
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`requirement that a product have “every element necessary to make it safe for
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`use,” a standard that was “impracticable” in application. Id. at 379.
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`Azzarello coupled that new standard with a confusing statement that a
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`product supplier “is not an insurer of a product, although it is a guarantor” —
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`terms of art that were given “no further explanation of their practical import.”
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`____________________________________________
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`5 Notably, 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
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`pronouncements were in tension with the new principles it articulated. Id. at
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`376.
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`Looking forward, the Court constructed its new two-part defect test. Id.
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`at 384-94, 399-406. It then restored the question of a product’s
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`defectiveness, including any balancing of risks and utilities, to the jury, id. at
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`406, and returned the trial court to its “ordinary gate-keeper role”
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`(“monitoring litigation, mediating or adjudicating any subsidiary differences,
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`and pending objections and motions”), id. at 407. The Court then pronounced
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`the following regarding jury instructions:
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`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.”
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`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.
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`[] 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.
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`Id. at 427-28 (citations omitted).
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`
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`With respect to the effect of its decision on this case, the Court stated:
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`[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).
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`Tincher, 104 A.3d at 432-33. Thus, the Supreme Court remanded this case
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`to the trial court for “further action upon post-trial motions” and permitted the
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`trial court to order the filing of supplemental post-verdict motions or briefs on
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`the issue. Id.
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`On remand to the trial court, Omega Flex filed a renewed motion for
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`post-trial relief in which it abandoned its request for entry of judgment
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`notwithstanding the verdict and sought only a new trial. The parties submitted
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`additional briefs, and the trial court held oral argument. On March 22, 2016,
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`the trial court denied Omega Flex’s motion, and it entered judgment against
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`Omega Flex on May 3, 2016.
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`In denying Omega Flex’s motion, the trial court recognized that “[t]he
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`predominant factual issue in the case was whether the corrugated stainless
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`steel tubing was defective because of its inferior thickness (equal to the
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`thickness of four sheets of paper), rendering it incapable of withstanding
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`perforation by an electrical arc produced by lightning.” Trial Court Opinion,
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`3/22/16, at 2-3. The court gave the following explanation of why it was
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`denying a new trial:
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`[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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`
`

`

`J-A29004-17
`
`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
`
`____________________________________________
`
`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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`
`

`

`J-A29004-17
`
`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 f