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.

____________________________________
* 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

____________________________________________


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


____________________________________________




       § 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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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.


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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

                                     -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.




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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.

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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.”



____________________________________________


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

____________________________________________


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 -
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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.




                                      - 17 -
J-A29004-17


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


                                      - 18 -
J-A29004-17


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.


                                     - 19 -
J-A29004-17


      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,

                                     - 20 -
J-A29004-17


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.

                                          - 21 -
J-A29004-17


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


                                       - 22 -
J-A29004-17


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


                                    - 23 -
J-A29004-17


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


                                    - 24 -
J-A29004-17


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


                                    - 25 -
J-A29004-17


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

                                     - 26 -
J-A29004-17


       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



                                          - 27 -
J-A29004-17


       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.



                                          - 28 -
J-A29004-17


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.

                                          - 29 -
J-A29004-17


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

                                     - 30 -
