# Tincher, T. v. Omega Flex, Inc., Aplt.

> Supreme Court of Pennsylvania · November 19, 2014 · 628 Pa. 296

URL: https://www.frixlaw.com/law-library/cases/9804843

## Case

- **Full name:** Terrence D. TINCHER and Judith R. Tincher, Appellees v. OMEGA FLEX, INC., Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** November 19, 2014
- **Citations:** 628 Pa. 296; 104 A.3d 328; 2014 Pa. LEXIS 3031
- **Precedential status:** Published
- **Opinion:** Concurring in part by Saylor
- **Judges:** Castille, Saylor, Eakin, Baer, Todd, McCaffery, Stevens, Former
- **Cited by:** 246 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9804843

## How later opinions describe it (automated extraction)

- holding that to establish “breach of duty in a strict liability matter,” a consumer need only “prove that a seller (manufacturer or distributor) placed on the market a product in a ‘defective condition,’” regardless of whether the seller “exercise[d] reasonable care”
- holding that an appellate court will only order “a new trial if an erroneous jury instruction amounted to a fundamental error or the record is insufficient to determine whether the error affected the verdict”
- observing that “[a]n effective and valuable restatement of the law offers instead a pithy articulation of' a principle of law which, in many cases, including novel or difficult ones, represents a starting template for members of the judiciary, whose duly is then to employ an e…
- explaining that the standard for manufacturing defect cases is that “something went wrong in the manufacturing process,” and “the resulting product was not as safe as intended”

## Opinion text

Justice SAYLOR,
concurring and dissenting.
I join the majority in the long overdue overruling of Azzarello v. Black Brothers Co., 480 Pa. 547 , 391 A.2d 1020 (1978). Left to my own devices, however, I would direct Pennsylvania substantive common law products liability theory into the framework delineated in the Products Liability segment of the Third Restatement of Torts. As reflected in the majority opinion, this is the approach which I advocated twelve years ago in my concurrence in Phillips v. Cricket Lighters, 576 Pa. 644, 664-82 , 841 A.2d 1000, 1012-23 (2003) (Saylor, J., concurring), and reaffirmed five years ago in my dissenting statement in Bugosh v. I.U. North America, Inc., 601 Pa. 277, 279-304 , 971 A.2d 1228, 1229-44 (2009) (Saylor, J., dissenting). If this Court’s protracted experience with Azzarello , its progeny, and the associated no-negligence-in-strict-liability rubric demonstrates anything, it is that the adjudicative process is very poorly suited to unstructured substantive lawmaking ventures *434 such as ensued in Azzarello’s wake, and as are now heralded by the present majority opinion. 1
Any adoption of the Third Restatement approach, of course, would be subject to the prerogatives of the General Assembly, which, in my view, bears the primary responsibility — and is in a far superior position — to make the social policy judgments essential to substantive lawmaking. See, e.g., Seebold v. Prison Health Servs., Inc., 618 Pa. 632, 653 , 57 A.3d 1232, 1245 (2012).
Justice EAKIN joins this concurring and dissenting opinion.
. I am particularly uncomfortable with the integration into Pennsylvania product liability jurisprudence of an alternative, freestanding, skeletal consumer-expectations test, particularly in the absence of essential advocacy to support a decision of this magnitude. Indeed, given the more limited manner in which the present appeal has been framed, I imagine this development will be met with substantial surprise in many quarters, to say the least.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9804843. Public record. Not legal advice.