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Tincher v. Omega Flex, Inc., 2018 Pa. Super. LEXIS 117 (February 16, 2018) Lazarus, J.  Omega Flex, Inc. appeals from the judgment entered in favor of Terence D. and Judith R. Tincher following a jury trial and the denial of its post-trial motions.  Omega Flex contends that it is entitled to a new trial because the Pennsylvania Supreme Court has determined that the trial court’s jury instruction contained a fundamental misstatement of the governing law.  We agree and vacate the judgment, reverse the order denying post-trial relief, and remand for a new trial.

This case involved a fire where investigators determined that a nearby lightning strike caused a small puncture in corrugated stainless steel tubing that transported natural gas to a fireplace located on the first place of the residence.  Heat caused by lightning strike ignited natural gas and caused a fire.  No one was injured, but the fire caused significant property damage.  The stainless steel tubing installed in the home which melted because of the lightning was sold by Omega Flex as part of a gas transportation system.  The Tinchers sued Omega Flex based on strict liability.

Tincher I, by rejecting the Restatement (Third) but saying that the jury should be told more than the Azzarello standard that a product was defective if it lacked any element necessary to make it safe.  The jury charge given in Tincher I was based upon Azzarello as that case interpreted the Restatement of Torts (Second) 402A.

The Supreme Court remanded the case to the trial court for further action based upon post-trial motions.  On remand, Omega Flex filed a renewed motion for post-trial relief in which it abandoned its request for entry of judgment notwithstanding the verdict and sought a new trial.  The trial court denied Omega Flex’s motion and entered judgment against Omega Flex.

The Superior Court held that the trial court erred and Omega Flex is entitled to a new trial as a result of the Supreme Court decision.

There is no question that the jury charge was incorrect.  It was based upon Azzarello and equated a defective product with one that leaves the supplier’s control lacking any element necessary to make it safe for its intended use.  The jury was told that the manufacturer is really a guarantor of a product’s safety but not an insurer of its safety.  The Supreme Court overruled Azzarello.

The fact that the jury may have heard evidence about the risk and utility during the trial does not mean that it rendered a verdict based on the risk/utility standard adopted by the Supreme Court as one way to find a product defective.  The trial court could not know that the jury would have reached the same verdict regardless.

It is important to note that this opinion did not expound upon Tincher at all.  It merely noted in very summary form that a product lacking a safety element was not the standard alone, but rather there had to be a risk utility balancing or whatever new test the Supreme Court had devised (which now includes consumer expectation).  The court did not say that the new standard jury instruction post-Tincher was wrong anyway either.

In footnote 2, the court relies upon the fact that in Tincher, the Tinchers agreed with Omega Flex that Azzarello was wrongly decided.  The court did not note that Tincher was actually a subrogation case brought by the insurance company after they paid out the claim and that the plaintiff’s case was therefore handled by a defense firm.