In a case pending before the Pennsylvania Supreme Court, amicus curiae Pennsylvania Association for Justice (PAJ) has requested that the court allow additional argument “regarding whether this Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restarement.” Tincher v. Omega Flex, Inc., No. 17 MAP 2013 (Pa., application filed November 25, 2013). Additional details about the case, involving a house fire allegedly caused by a defective gas pipe, appear in the April 11, 2013, Issue of this Report.
According to amicus PAJ’s application, the plaintiffs’ counsel organization decided not to seek a separate right to argue before the court, relying on conversations with the home owners’ counsel that “he would assert the continuing validity of Azzarello [v. Black Brothers 480 Pa. 547, 391 A.2d 1020 (1978)], as well as the continued application of Section 402A of the Restatement Second of Torts.” PAJ suggests that this position was actually adverse to the interests of some of counsel’s clients and positions taken in other cases, but that it was nonetheless reassured that the argument would proceed as briefed. The organization subsequently learned that “[t]he position urged at argument by counsel for the [home owners] represents a dramatic shift in the position of any plaintiff suing for damages in a products liability case and is certainly inconsistent with the position taken by Amicus Curiae PAJ.”
Noting that the interest of injured consumers in product liability cases “deserves vigorous representation before this Court,” PAJ requests the opportunity to schedule additional argument. According to PAJ, “The impact of a court decision reversing Azzarello or abandoning the Restatement (Second) Section 402A is so significant that it should not be determined based upon a subrogation case essentially ‘owned’ by [an] insurance company and argued by one who is not committed to consumer protection policies.”