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ATTORNEY BLOG: The Third Circuit weighs in on the battle of the Restatements

By: Stephanie Solomon, Esq.

The U.S. Court of Appeals for the Third Circuit recently declined a request to accept an interlocutory appeal on a question of law “specifically limited to the issue of whether the Pennsylvania Supreme Court would adopt the Restatements (Third) of Torts or continue its application of the Restatement (Second) of Torts.” The court’s Order in Sikkelee v. Precision Airmotive, 12-8081, 2012 WL 5077571 (3d Cir. Oct. 17, 2012) unmistakably moves towards resolving the conflict, at least among Pennsylvania district courts, regarding whether the Restatement (Second) or Restatement (Third) governs Pennsylvania products liability cases.

In Sikkelee v. Precision Airmotive, U.S. District Judge John E. Jones III of the Middle District of Pennsylvania issued a July 3, 2012 Order concluding that the Restatement (Second) of Torts would be the governing law with respect to Plaintiff Sikkelle’s strict liability claims against Textron Lycoming Reciprocating Engine Division (“Lycoming”). Sikkelee, 4:07-CV-00886, 2012 WL 2552243, at *9 (M.D. Pa. July 3, 2012). Judge Jones acknowledged that the Third Circuit “has twice predicted that the Pennsylvania Supreme Court, when presented with the opportunity to do so, will adopt the Restatement (Third) of Torts … to supplant the Restatement Second of Torts.” Id.at *8 (citing Covell v. Bell Sports, 651 F.3d 357, 360 (3d Cir. 2011); Berrier v. Simplicity Mfg., Inc.,563 F.3d 38, 46 (2009)). The District Court nevertheless concluded that when the Pennsylvania Supreme Court declined to replace the Restatement (Second) with the Restatement (Third) in Beard v. Johnson and Johnson, 41 A.3d 823 (Pa. 2012), its action was an “affirmative indication” of the Pennsylvania Supreme Court’s intent to retain the Restatement (Second) as the law in Pennsylvania. Id. at *9.

Thereafter, in response to Lycoming’s Motion for Reconsideration of the Court’s Order denying summary judgment, the District Court issued an Order amending the July 3, 2012 Order to include the language required by 28 U.S.C. §1292(b) for immediate appeal, thereby certifying the question of the governing Restatement for immediate appeal. Sikkelee, 4:07-CV-00886 (M.D. Pa. July 26, 2012). Lycoming filed its Petition for Permission to Appeal with the Third Circuit and the Motion Panel entered a Denial Order. Sikkelee, 12-8081, 2012 WL 4953074 (3d Cir. Sept. 14, 2012). The Denial Order cited to both the Covell and Berrier decisions, as well as to the Beard decision, without further explanation. Id. Lycoming argued that the citation to Beard could indicate a willingness to continue to apply the Restatement (Second) at the state level, or could also be interpreted to indicate a willingness to supplant the Restatement (Second) with the Restatement (Third), based upon Justice Saylor’s acknowledgement of the “continuing state of disrepair in Pennsylvania strict-liability design defect law.” Petition for Panel Clarification or Rehearing En Banc of Denial of Petition for Permission to Appeal, October 3, 2012, ECF No. 321 (citing Beard, 41 A.3d at 836). This time, the Third Circuit Court of Appeals succinctly explained:

As stated in Covell, a federal court applying Pennsylvania substantive law must predict how the Commonwealth’s highest court would decide the case. We concluded in Berrier that “[if] the Pennsylvania Supreme Court were confronted with [the] issue, it would adopt the Restatement (Third) of Torts.” Id. at 40. Thus, we held that federal courts sitting in diversity and applying Pennsylvania law to products liability cases should look to sections 1 and 2 of the Restatement (Third) of Torts.

Sikkelee, 12-8081, 2012 WL 5077571, at *1 (3d Cir. Oct. 17, 2012). Because the Pennsylvania Supreme Court has not yet definitively held which Restatement applies to strict liability and product defect cases, the Third Circuit Court of Appeals concluded that it would adhere to its Covell and Berrier precedent and apply the Restatement (Third). Id.

The Third Circuit Court of Appeals’ October 17, 2012 Order in Sikkelee should do away with the conflict among the district courts as to which Restatement is applicable to products liability cases – not only moving toward resolving the “continuing state of disrepair in Pennsylvania strict-liability design defect law,” but also toward saving a party’s expense of time and money spent filing motions and briefs arguing over what the law is and should be. Finally, the Third Circuit Court of Appeals’ Order can also be viewed as the court’s attempt to finally force the hand of the Pennsylvania Supreme Court into deciding “the Battle of the Restatements” once and for all.