By way of update to my previous blog, “The Restatement (Second) of Torts Continues to Apply in Pennsylvania”, for the moment that statement remains true. As predicted in my previous blog, on March 26, 2013, the Pennsylvania Supreme Court granted a Petition for Allowance of Appeal to determine the issue of whether the Pennsylvania Supreme Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement. See Terrence D. Tincher and Judith R. Tichner v. Omega Flex, Inc., 619 Pa. 395 (2013). The appeal was argued in October 2013, and we await the Pennsylvania Supreme Court’s decision.
Importantly, the parties in that case were directed to brief the question of whether if adopted, the Third Restatement should be applied prospectively or retroactively. Id. The Pennsylvania Supreme Court typically applies its decisions retroactively to pending cases. See McHugh v. Litvin, Blumberg, Matusow & Young, 574 A.2d 1040, 1044 (Pa. 1990).
As it stands now, Pennsylvania’s current approach is an apparent departure from Section 402A of the Restatement (Second) of Torts: factual inquiries are removed from the issue of whether a product was defective, and whether a product was unreasonably dangerous is strictly an issue for the trial court.