The opinion of the court was delivered by: SNYDER, JR.
Presently before the Court is Plaintiff's Motion for New Trial for alleged errors which occurred during the Trial and in the Court's Charge. The Motion will be denied.
Ruth H. Bunn, wife of the deceased, brought this action alleging that the 988 was defectively designed at the time it was sold by Caterpillar since it was not equipped with adequate safety devices (specifically, rear view mirrors and a backup alarm) and the exhaust pipe and air precleaner mounted behind the driver's seat obstructed the view of the driver to the rear.
The case was tried before a jury which answered the first special interrogatory
"1. Was the Caterpillar 988 Wheel Loader in a defective condition at the time it was sold by Caterpillar Tractor Company to Cecil I. Walker Company, West Virginia, on January 28, 1969?
ANSWER 'YES' OR 'NO': NO"
A. THE "BERKEBILE" CONTENTION.
Plaintiff contends that this Court erred in not using the language of the Pennsylvania Supreme Court in Berkebile v. Brantly Helicopter Corp., Pa., 462 Pa. 83, 337 A.2d 893 (1975), deleting "unreasonably dangerous" from Section 402A.
Plaintiff contends that decision, written by two Justices and in which three other Justices concurred with the result only, and two other Justices filed separate concurring opinions, changed the Pennsylvania law on 402A so that a plaintiff need not prove a defective product was unreasonably dangerous.
This Court charged the jury as follows:
"Now, the whole matter of defective condition arises when you can find either by design or manufacture -- and there is no evidence about manufacturing defects in this case -- that the product itself was designed in a way to make it unreasonably dangerous to the user or consumer." (T. 82)
"Again, to summarize, by defective condition we mean a condition not contemplated by the ultimate user and which condition is unreasonably dangerous to him and which presents a hazard. . . ." (T. 82)
"Now, the Plaintiff has the burden of establishing that the defective condition existed and that that defective condition was unreasonably dangerous. . . ." (T. 84)
At the hearing on this Motion, Plaintiff's counsel strenuously argued that this Court deliberately ignored Pennsylvania law as expressed in Berkebile by holding the Plaintiff to the burden of proving that this 988 Wheel Loader was unreasonably dangerous to the user or consumer.
This Court followed the lead of Judge Daniel H. Huyett, III in Beron v. Kramer-Trenton Co., 402 F. Supp. 1268 (E.D. Pa. 1975), in which he stated (at p. 1277):
". . . the views expressed in Chief Justice Jones' opinion in Berkebile are not the law of Pennsylvania, and that it is proper to instruct a jury that it must find a defective condition be unreasonably dangerous to the user or consumer."
The Third Circuit approved that decision in Bair v. American Motors Corporation 535 F.2d 249 (1976) (Slip Opinion, p. 2), stating:
" Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968), declined to follow a prior opinion representing the views of only two justices; the Supreme Court of Pennsylvania there reasoned that an opinion 'joined by only one other member of this Court has no binding precedential value.' Ibid. at 260, 248 A.2d at 35. Applying the rationale of Little to the Berkebile ...