throbber
J-A29004-17
`
`2018 PA Super 33
`
`
`TERENCE D. TINCHER AND JUDITH
`R. TINCHER
`
`
`
`
`
`OMEGA FLEX, INC.
`
`
`
`v.
`
`
`
`Appellant
`
` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
`
`
`
`
`
`
` No. 1285 EDA 2016
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`
`
`
`
`
`
`
`
`
`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.
`
`____________________________________
`* 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
`____________________________________________
`
`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.
`
`- 2 -
`
`

`

`J-A29004-17
`
`
`(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
`
`____________________________________________
`
`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.
`
`- 3 -
`
`

`

`J-A29004-17
`
`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
`
`____________________________________________
`
` §
`
` 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.
`
`- 4 -
`
`

`

`J-A29004-17
`
`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
`
`- 5 -
`
`

`

`J-A29004-17
`
`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.
`
`
`- 6 -
`
`

`

`J-A29004-17
`
`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.
`
`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
`
`- 7 -
`
`

`

`J-A29004-17
`
`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
`
`____________________________________________
`
`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.
`
`
`
`- 8 -
`
`

`

`J-A29004-17
`
`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
`
`____________________________________________
`
`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.
`
`- 9 -
`
`

`

`J-A29004-17
`
`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.
`
`- 10 -
`
`

`

`J-A29004-17
`
`
`
`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.”
`
`____________________________________________
`
`5 Notably, in the Supreme Court, the Tinchers agreed with Omega Flex “that
`Azzarello was wrongly decided.” Tincher, 104 A.3d at 344.
`
`- 11 -
`
`

`

`J-A29004-17
`
`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]
`
`- 12 -
`
`

`

`J-A29004-17
`
`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.
`
`- 13 -
`
`

`

`J-A29004-17
`
`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
`
`- 14 -
`
`

`

`J-A29004-17
`
`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.
`
`
`- 15 -
`
`

`

`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.
`
`- 16 -
`
`

`

`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

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket