Before Aldisert, Rosenn and Weis, Circuit Judges.
The major question presented by appellant's petition for rehearing in this diversity case is whether the Pennsylvania Supreme Court's decision in Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981), effected a substantial change in Pennsylvania's law of assumption of risk. If so, we must decide whether the panel should vacate the district court's judgment, 510 F. Supp. 116, and remand for reconsideration in light of this change. Acting on evidence overwhelmingly in support of its verdict, the jury in this case found that the appellant's decedent had assumed the risk of the accident that caused his death, and the district court entered judgment for the defendant manufacturer. We affirmed by judgment order approximately two weeks before Rutter was decided. The appellant now argues that the Rutter decision abolished the defense of assumption of risk in Pennsylvania. We disagree. Because the opinion announcing the judgment in Rutter was not joined by a majority of the Court, and therefore is not binding precedent, we will deny the petition for panel rehearing.
Under Pennsylvania law, an opinion joined by fewer than a majority of the justices on the Commonwealth's Supreme Court is not binding or controlling precedent. Mt. Lebanon v. County Board of Elections, 470 Pa. 317, 368 A.2d 648 (1977); Bata v. Central-Penn Bank, 448 Pa. 355, 373, 293 A.2d 343, 353 (1972), cert. denied, 410 U.S. 960, 93 S. Ct. 1417, 35 L. Ed. 2d 695 (1973); Commonwealth v. Silverman, 442 Pa. 211, 218 n.8, 275 A.2d 308, 312 n.8 (1971), cert. denied, 405 U.S. 1064, 92 S. Ct. 1490, 31 L. Ed. 2d 794 (1972); Commonwealth v. Little, 432 Pa. 256, 260-61, 248 A.2d 32, 35 (1968). Applying that principle to a products liability case, this court has held that an opinion of "less than a majority of the (Pennsylvania Supreme) Court ... must be treated only as an expression of the views of a minority of the court." Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85, 91 (3d Cir. 1976); see also Bair v. American Motors Corp., 535 F.2d 249, 250 (3d Cir. 1976) (per curiam).
It is against these precepts that we analyze the Rutter decision. Rutter reversed the Superior Court's affirmance of a compulsory nonsuit entered by the trial court. The appellant presented three contentions: 1) that it was error for the court to enter a compulsory nonsuit; 2) that the trial court erred in refusing to admit certain expert testimony; and 3) that the trial court erred in holding, as a matter of law, that appellant voluntarily assumed the risk of all injuries incurred in playing "jungle football." Justice Flaherty wrote the opinion announcing the judgment which was joined by Justices Larsen and Kauffman. Justice Flaherty considered in detail all three contentions presented by the appellant and expressed the view that the trial court erred in the following respects:
in denying appellant's expert an opportunity to testify; in deciding that appellant had not made out a sufficient case of negligence to go to the jury; and in granting a compulsory nonsuit against appellant because he had not made out a sufficient case of negligence to go to the jury and because he was barred from recovery by application of the assumption of risk doctrine.
-- - Pa. at -- -, 437 A.2d at 1205. At this point, the opinion writer deemed it "appropriate to explore further" the origin and validity of the doctrine of assumption of the risk. The product of that exploration was a conclusion that the "difficulties of using the term "assumption of risk' outweigh its benefits" and that therefore, with certain exceptions, it should no longer be applied in Pennsylvania tort cases. Id. at -- -, 437 A.2d at 1209. The opinion concluded:
The order of the Superior Court is reversed, the motion to remove the compulsory nonsuit is granted, and the case is remanded to the Court of Common Pleas of Beaver County for proceedings not inconsistent with this Opinion.
Id. at -- -, 437 A.2d at 1209-10 (footnote omitted). Chief Justice O'Brien filed no opinion but was noted as concurring "in the result." Id. at -- -, 437 A.2d at 1211. Justices Roberts and Nix, both of whom were joined by Justice Wilkinson, filed dissenting opinions.
Standing alone, Chief Justice O'Brien's concurrence is ambiguous. On the one hand, part of the "result" was a remand "for proceedings not inconsistent with this opinion," which would imply that assumption of risk would not bar plaintiff's recovery on retrial. The Pennsylvania Supreme Court, however, has consistently held that a concurrence in the result only cannot confer precedential value to an opinion. See Mt. Lebanon v. County Board of Elections, 470 Pa. at 322-23, 368 A.2d at 651; Commonwealth v. Silverman, 442 Pa. at 218 n.8, 275 A.2d at 312 n.8; and Commonwealth v. Little, 432 Pa. at 260-61, 248 A.2d at 35. See also Commonwealth v. Davenport, 462 Pa. 543, 551, 342 A.2d 67, 71 (1975). Nevertheless we might conclude that Chief Justice O'Brien concurred with the view that assumption of the risk doctrine was abolished, at least in that case, were it not for one conspicuous statement in Justice Roberts' brief dissent:
Because only three of the seven members of this Court participating in this decision would abrogate assumption of risk, assumption of risk remains the law in this Commonwealth, see Mt. Lebanon v. County Board of Elections, 470 Pa. 317, 322-323, 368 A.2d 648, 650-651 (1977), and thus is available to the defendants on remand.
-- - Pa. at -- - n.2, 437 A.2d at 1213 n.2. Neither Justice Flaherty, the author of the lead opinion, nor Chief Justice O'Brien, nor any other justice challenged this characterization of the decision. Because of their silence, we can only surmise that Chief Justice O'Brien's concurrence was limited to removal of the nonsuit and remand to the trial court for a new trial. We find it jurisprudentially inconceivable that Justice Roberts' direct assertion would go unanswered if it were ...