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ARLENE B. LELAND AND DONALD C. LELAND v. J. T. BAKER CHEMICAL CO. (12/05/80)

filed: December 5, 1980.

ARLENE B. LELAND AND DONALD C. LELAND
v.
J. T. BAKER CHEMICAL CO., APPELLANT



No. 506-507 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, at No. 447 December Term, 1966 & No. 448 December Term, 1966.

COUNSEL

George J. Lavin, Jr., Philadelphia, for appellant.

Keith S. Erbstein, Philadelphia, for appellees.

Brosky, Hoffman and Cirillo, JJ.*fn*

Author: Hoffman

[ 282 Pa. Super. Page 575]

Appellant contends that Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978), which barred the use of the words "unreasonably dangerous" in jury instructions in cases involving strict products liability, should not have been applied retroactively. We disagree and, accordingly, affirm the order of the lower court granting a new trial.

[ 282 Pa. Super. Page 576]

Appellee Arlene B. Leland was employed as a laboratory technician at a Philadelphia hospital. Her duties included cleaning utensils in reagent grade sulfuric acid manufactured by appellant. On December 11, 1964, appellee obtained two glass bottles of this acid from a store-room. When she returned to her station, Mrs. Leland placed one of the one-gallon bottles onto the counter. While lifting the other, she heard the sound of breaking glass. The next thing she remembered was lying on the floor in a pool of sulfuric acid. Mrs. Leland testified that she did not strike the bottle against the counter top, that she did not see the bottle break, and that she believed that it had broken spontaneously in mid-air.

In December, 1966, appellees instituted this action, asserting, inter alia, that appellant was strictly liable under the Restatement (Second) of Torts ยง 402A (1965).*fn1 At the trial, which commenced on January 22, 1975,*fn2 appellees' expert witness opined that the glass bottle was defective and could have broken spontaneously because of internal stresses, improper annealing, or minute scratches on the surface of the glass, each of which might have weakened the bottle. The expert testified also that the product was not packaged safely because there was technology available in 1964 to provide secure packaging for such a potentially lethal product. Thus, appellees asserted alternative theories of defectiveness. After the jury returned a unanimous verdict for appellant, appellees filed a motion for a new trial or judgment n. o. v. The lower court granted the motion for a new trial. This appeal followed.

At the time of trial, Pennsylvania law required that a plaintiff in a products liability case based upon strict liability prove that the "product [was] in a defective condition

[ 282 Pa. Super. Page 577]

While there are no cases in Pennsylvania dealing with the effect of a change in decisional law pending appeal, there is authority in a closely related field. Unless vested rights are affected, a court's interpretation of a statute is considered to have been the law from its enactment date, despite contrary intervening holdings. Buradus v. General Cement Prods. Co., 159 Pa. Super. 501, 48 A.2d 883 (1946), aff'd 356 Pa. 349, 52 A.2d 205 (1947). In such circumstances, the latest interpretation is applicable to a case whose appeal has not yet been decided.

Moreover, there are occasions when a party is given the benefit of a change in the law in order to prevent an injustice, especially when, as here, the other party could not have changed his position in reliance on the initial decision. Thus in Reamer's Estate, 331 Pa. 117, 200 A. 35 (1938), we were willing to correct a decision in a previous appeal of the same case which had been made palpably erroneous by an intervening decision despite the law of the case doctrine. Recently in Brubaker v. Reading Eagle Co., 422 Pa. 63, 221 A.2d 190 (1966), we ordered a new trial to permit the plaintiff to bring his allegations within the actual malice requirement of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 [, 11 L.Ed.2d 686] (1964). Although in Brubaker, the plaintiff was ...


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