The state Supreme Court is set to hear whether the Restatement (Second) of Torts or the Restatement (Third) of Torts should govern Pennsylvania products liability at oral arguments today in Pittsburgh.

Opposing parties in Tincher v. Omega Flex are scheduled to argue whether the “strict liability analysis of Section 402A of the Second Restatement” should be replaced by the Restatement (Third) of Torts analysis, and whether the court’s holding should be applied prospectively or retroactively.

The Supreme Court nearly took up the matter in 2010 when it granted allocatur in Bugosh v. I.U. North America; however, the court later decided that allocatur was “improvidently granted” and dropped the case.

Tincher involves a couple that sued the flexible natural-gas piping company, Omega Flex, because electricity from a lightning strike burned a hole in the Omega Flex gas pipe installed at their home and then allegedly caused the house to burn down. According to court papers, the jury found in favor of the couple on a strict liability claim, not a negligence claim.

The Restatement (Third) of Torts allows arguments on the foreseeability of a product’s risk and requires a plaintiff to establish that an alternative, safer design was viable when the product was manufactured, effectively opening the door for defendants to insert issues of negligence into products liability litigation. The Restatement (Second) of Torts focuses litigation on the characteristics of the products, and does not allow a fact-finder to consider the manufacturer’s conduct, or the feasibility and practicality of an alternative design.

In the 2011 ruling in Covell v. Bell Sports and the 2009 ruling in Berrier v. Simplicity Manufacturing, the U.S. Court of Appeals for the Third Circuit predicted that the state Supreme Court would adopt the Third Restatement. While most district court judges have followed the Third Circuit’s lead, some have applied the Second Restatement.

In the 2012 ruling in Reott v. Asia Trend, the Supreme Court arguably favored the Second Restatement when it voted 5-1 that “highly reckless” conduct is an affirmative defense in products cases; however, the justices are expected to more directly address the issue in Tincher.

Defense attorney James M. Beck of Reed Smith said that the ruling will clarify certain evidentiary standards, including issues of compliance and plaintiff’s conduct, and whether the judge or the jury will have the power to determine if a product is unreasonably dangerous.

“You have a peculiar situation right now where, whether your case is in state or federal court, you have completely different standards,” he said. “This is a significant issue that needs to be put to rest.”

Attorney Daniel J. Mann of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig said he is also glad to see that the court will face the issue.

“Recent decisions show continued application of the Second Restatement, but products defendants keep raising issues under the Third Restatement, so hopefully this will bring closure to this issue,” he said.

Mann added that, even with a decision, it could be difficult to predict exactly how the ruling will be applied. “Even if they apply the Third Restatement, it would be surprising if they adopt it wholesale. That’s not generally what happens. They could adopt certain sections and then the courts will continue to work it out.”

The court is set to hear arguments on a total of seven cases during the one-day oral arguments session, touching on a number of issues, including environmental, mental health records and child abuse.

Coal Mine Safety

In DEP v. Cumberland Coal Resources and DEP v. Emerald Coal Resources, the Supreme Court is expected to consider the limits of environmental regulators’ powers under the Bituminous Coal Mine Safety Act.

The dispute stems from citations handed by the Department of Environmental Protection to two coal mine operators for alleged safety violations, including failing to report accidents and failing to have a fire extinguisher. The citations were issued in incidents that were not among those specifically enumerated as “accidents” in the mine safety law.

But the DEP said that, under its enforcement powers, it could interpret the act and expand the list of incidents that could be considered accidents. The agency also said its rule-making authority was co-extensive with the enforcement authority of the Board of Coal Mine Safety.

However, the Commonwealth Court disagreed and ruled that the safety board, not the DEP, has the power to bring enforcement actions for the failure of any mine operator to report accidents, and further determined that the act also says that the list specifying which accidents must be reported may only be expanded through the normal regulatory process.

Mental Health Records

In Octave v. Walker, the Supreme Court has an opportunity to determine whether the mental health records of a man, who police said tried to commit suicide by throwing himself in front of a moving tractor-trailer, are discoverable, after he brought suit, through his wife, initially seeking recovery for physical and mental injuries.

The Commonwealth Court had ruled that the mental health records were admissible, even though the plaintiffs amended the lawsuit to only include claims for physical injuries. The defendants in the case contended that the mental records were key for establishing their defense that James Octave caused his own injuries, and filed a motion for leave to access and copy sealed files on the involuntary commitments of Octave under the Mental Health Procedures Act. The Commonwealth Court determined that it would be “grossly prejudicial” to block discovery.

The court will examine whether the plaintiffs waived the protections of the Mental Health Procedures Act, given that the plaintiffs have not explicitly waived the protections, that the amended complaint only alleged physical injuries, that the defendants are seeking the man’s pre-collision mental health records and that the defendants were relying on the conclusion of a third party — the police — in putting Octave’s mental status at issue.

Utility Duty

The justices’ issue statement in granting allocatur in Alderwoods v. Duquesne Light focused on whether a power company has a duty to enter homes and inspect the electrical facilities before restoring power.

According to the court record, Duquesne Light Co. did not inspect the electrical equipment of a facility owned by the Burton L. Hirsch Funeral Home before restoring power following an outage. When the defendant turned the lights back on, a fire erupted, according to the court record.

The property owners claimed that a surge of electricity from the initial outage damaged its electrical equipment, thereby leaving it vulnerable to fires upon restoration. The trial court granted summary judgment in favor of the utility at the close of discovery; however, the Superior Court, which used the five-factor test for determining whether a defendant owes a plaintiff a duty that the Supreme Court outlined in its Althaus v. Cohen decision, unanimously ruled that Duquesne owed a duty to the plaintiff.

The court said it would consider whether the Superior Court imposed “a burdensome and unprecedented duty to enter customers’ premises and inspect customers’ electrical facilities before restoring power after an outage.” The court will also review whether the intermediate court “overlooked the deleterious effect” of its decision on public health and safety in regards to whether it will cause delays in restoring power.

The defendant electric utility claimed that the case could have broad implications on power companies’ ability to restore Pennsylvanians’ power.

Child Abuse

The justices said in their order granting allocatur in G.V. v. Department of Public Welfare that they would look at whether the Department of Public Welfare is bound by the “clear and convincing” evidentiary standard when it decides on expunging reports of child abuse.

Under the state’s Child Protective Services Law, a person seeking employment in which there is a significant likelihood of direct contact with children or residing in a family day-care home must provide certification that he or she is not on the ChildLine and Abuse Registry, which is the DPW’s toll-free system for disclosing reports of child abuse.

In July, a split en banc panel of the Commonwealth Court ruled that, when deciding whether to maintain a summary of a report on the registry, the DPW must adhere to the “clear and convincing” standard, as opposed to the “substantial evidence” standard, which is used when the reports are issued.

The Commonwealth Court determined that cases in which a party faces “a significant loss of freedom or livelihood require clear and convincing evidence.”

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI. •