The Pennsylvania Superior Court revisits Tincher and its definition of product defect.

In 2014, the Pennsylvania Supreme Court issued its long-awaited decision in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014) (“Tincher I”). In Tincher I, the Supreme Court overruled its prior problematic decision in Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978). Tincher I criticized Azzarello for “approv[ing], and thereby essentially requir[ing], instructions which informed the jury that, for the purposes of a supplier’s strict liability in tort, ‘the product must . . . be provided with every element necessary to make it safe for its intended use.’” Tincher I, 104 A.3d at 376. The Supreme Court remanded the case to the Trial Court stating, in relevant part, “in light of the decision to overrule Azzarello, questions remain regarding whether Omega Flex should benefit from the application of our Opinion upon remand . . . .” Tincher I, 104 A.3d at 432.

On remand to the Trial Court, Omega Flex filed a renewed motion for post-trial relief, wherein it requested a new trial based, among other things, on the Court erroneously charging the jury as per Azzarello’s language that a product supplier is a guarantor of its product and that the product must be provided with every element to make it safe for its intended use. The Trial Court denied the motion. Omega Flex then appealed the Trial Court’s decision to the Pennsylvania Superior Court.

In “Tincher II,” ___ A.3d ___, No. 1285 EDA 2016 (Pa. Super. Ct. Feb. 16, 2018), the Superior Court ruled that the Trial Court committed error in using the Azzarello jury charge. The Superior Court stated:

The charge [that was given] 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 II, at p. 18. The Superior Court thus granted Omega Flex’s request for a new trial. Significantly, Tincher II seems to invalidate at least one of the revised Pennsylvania Suggested Standard Jury Instructions, which were issued in 2016. Specifically, Pa. S.S.J.I. (Civ.) § 16.20 retained the Azzarello “any element/guarantor” test, while omitting the Tincher I requirement that, to incur liability, a product defect must be “unreasonably dangerous.” Tincher II makes clear that a jury being so charged amounts to a “paradigm example of fundamental error.” Tincher II, at p. 23.

Questions about this case may be directed to Kenneth Newman, at (412) 926-1425 or knewman@tthlaw.com.