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filed: December 5, 1980.


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.


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 deprived of his original verdict by the change in law, and it thus is the converse of the present problem, it is illustrative of our goal of assuring each litigant a fair adjudication on the merits.

422 Pa. at 625-26, 222 A.2d at 900-901 (footnotes omitted). Thus, the Court held that it was not unfair to grant a new trial based upon the intervening decision even though the plaintiffs had failed to object at the time of trial.*fn5 Similarly, in In re Estate of Riley, 459 Pa. 428, 430, 329 A.2d 511, 512-513 (1974), the Court affirmed an order which granted reconsideration and reargument of an auditor's proposed distribution because another jurisdiction had construed a statute similar to that of Pennsylvania in the interim. In

[ 282 Pa. Super. Page 580]

Appellant also argues, citing Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), that because substantial inequitable results would obtain, retroactive application should be denied.*fn8 We disagree. The inordinate and unexplained delay of the trial court in disposing of appellees' motion was equally prejudicial to both parties. Moreover, appellant, as a supplier of products, cannot seriously contend that it detrimentally relied upon the prior rule because: (1) parties do not alter their tortious conduct to conform to the most recent judicial pronouncements; (2) strict liability per the Restatement is not dependent upon the conduct of the defendant, but rather the condition of the product; and (3) under the facts of this case, the accident occurred before the adoption of section 402A in Pennsylvania.*fn9 Finally, it is not inequitable to deprive appellant of a unanimous verdict which follows from a misleading instruction. Our Supreme Court has cogently stated that the supplier's duty to provide safe products is not determined by any standard of reasonableness. Were we to deny retroactive application, we would be ignoring the very policies that underlie the doctrine of strict liability, and creating one more arbitrary limitation upon a plaintiff's right of recovery. Thus, we hold that Chevron Oil has not been satisfied, see Schreiber v. Republic Intermodal Corp., Page 582} supra 473 Pa. at 622, 375 A.2d at 1289, and that Azzarello should be retroactively applied.*fn10

*fn* Judge VINCENT A. CIRILLO, of the Court of Common Pleas of Montgomery County, Pennsylvania is sitting by designation.

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