TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, August 17, 2012

PA: Is R3:PL the Law or Not?

This week, Amaris Elliott-Engel, of PA Law Weekly, wrote the first of a series of articles on tort law.  Her first piece is on the uncertainty in Pennsylvania products law.  Twice in the last 3 years, the U.S. Court of Appeals for the Third Circuit has opined that the Pennsylvania Supreme Court would adopt the Restatement Third (Products Liability).  However, the state Supreme Court has not directly addressed the issue, although there has been some provocative dicta and one instance in which the justices announced they had improvidently granted allocatur to consider whether section 2 of R3 should replace 402A of R2.  Thus, in general, state courts are applying 402A and federal courts are applying R3, though even among federal courts, some apply 402A.  As elsewhere, most plaintiffs' lawyers tend to prefer 402A and most defense lawyers tend to prefer R3.

Thanks to Scott Cooper for the tip.


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Posted by: Amaris Elliott-Engel | Aug 17, 2012 7:10:03 AM

The Pennsylvania Supreme Court has repeatedly addressed the issue, holding, every single time, that the Second Restatement is the law. See, e.g., Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978); Schmidt v. Boardman Co., 11 A. 3d 924 (Pa. 2011)(“the present status quo in Pennsylvania entails the continued application of Section 402A of the Restatement Second”).

The 3rd circuit once mistakenly predicted the PA Supremes would hold otherwise due to the grant of an appeal in a particular case. The PA Supremes then dismissed that particular case. Another 3rd Circuit panel came along and held that, well, gosh, even though every single PA Supreme court says Second Restatement and there's not a single case pending to hold otherwise, we'll just call the first erroneous prediction stare decisis.

See the post linked via my name for more.

Posted by: Max Kennerly | Aug 19, 2012 3:53:53 PM

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