Defendant relies exclusively on Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 437 A.2d 417 (1981) which was decided subsequent to the circuit court's decision in Glass Sand. The essence of the Lobianco decision is, defendant suggests, that the theory of strict tort liability does not apply in cases where the harm is merely physical property damage because the allocation of the risk of loss is better borne by the consumer. Whatever merit inheres in this position, fundamental flaws exist in the framework of its application to this diversity case.
First and foremost, it is axiomatic that this court is bound by a decision of the Third Circuit predicating Pennsylvania law unless the state supreme court issues a contrary decision or it appears from a subsequent decision of the appellate courts that the court of appeals erred. Doane v. Travelers Ins. Co., 266 F. Supp. 504, 505 (E.D.Pa. 1966). See also DeMartino v. Zurich Ins. Co., 307 F. Supp. 571, 574 (W.D.Pa.1969), aff'd sub nom.; Aceto v. Zurich Ins. Co., 440 F.2d 1320 (3rd Cir. 1971); Wise v. George C. Rothwell, Inc., 382 F. Supp. 563, 565 n.4 (D.Del.1974), aff'd, 513 F.2d 627 (3rd Cir. 1975). Without citation to the circuit court's decision in Glass Sand, the defendant apparently proceeds on the theory that Lobianco decided the precise question presented herein, thus rendering the circuit court's interpretation of Pennsylvania law in Glass Sand unsound. Even if I accept this proposition
, I am not at liberty to treat the decision in Lobianco as binding precedent because the opinion was not joined by a majority of the court.
In absence of an authoritative pronouncement from the state's highest tribunal, decisions of the lower state appellate courts should be accorded "'proper regard,' but not conclusive effect." McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 662 (3rd Cir. 1980), cert. denied, 449 U.S. 976, 101 S. Ct. 387, 66 L. Ed. 2d 237 (1980). See also, Hamme v. Dreis & Krump Mfg. Co., 716 F.2d 152 (3rd Cir., 1982) (Rosenn, J., dissenting). In determining the "proper regard" to ascribe to decisions of intermediate state courts, "a federal tribunal should be careful to avoid the 'danger' of giving 'a state court decision a more binding effect than would a court of that state under similar circumstances.'" McKenna v. Ortho Pharmaceutical Corp., supra, 622 F.2d at 662 (quoting 1A Moore's Federal Practice, par. 0.307, at 3077 (2 ed. 1979).
This follows from the elemental tenet that a federal court adjudicating matters of state law in a diversity suit is regarded as only another court of that state. Thus, in the words of the Court, "it would be incongruous indeed to hold the federal court bound by a decision which would not be binding on any state court." King v. United Commercial Travelers of America, 333 U.S. 153, 161, 68 S. Ct. 488, 492, 92 L. Ed. 608 (1948). My initial task, therefore, is to determine the precedential value of the Lobianco case under state law.
In Lobianco, the superior court sitting en banc affirmed the trial court's dismissal of the products liability count of the complaint in a case involving a defective burglar alarm.
Lobianco, supra, 437 A.2d at 426. Of the three contentions pressed by the plaintiff on appeal, only this ruling is of relevance. Judge Spaeth wrote the opinion announcing the judgment which was joined by Judge Price. In expressing his view that the theory of strict liability was inapplicable to the facts of this case, Judge Spaeth rejected the distinction between physical injury to the property and its theft as artificial. Both he perceived as equivalent to property loss for the purpose of applying § 402A. He then suggested that the inherent nature of a defective product's potentiality to cause harm should not control the scope of the theory of strict liability. Rather, the jurist returned to the purpose of the rule of strict tort liability to define the limits of its application.
Reasoning that the more equitable allocation of the risk of loss falls on the homeowner who knows the value of his property and may insure against its loss, instead of the manufacturer who cannot effectively distribute the risks among the consuming public, the court concluded that the purposes of strict liability would not be served by applying it to this case. As a matter of social adjustment, Judge Spaeth viewed the imposition of strict liability for physical harm to property occasioned by a malfunctioning burglar alarm as unjust.
Judge Cercone, concurring, agreed with the plurality's analysis of the strict liability issue
while Judge Brosky and Judge Cavanaugh concurred in result only, expressly disagreeing with the rationale of the plurality regarding the strict liability claim.
Judge Montgomery, joined by Judge Hester, dissented from the majority's ruling on the contractual issue.
Yet, the dissenters agreed with the plurality's conclusion dismissing the products liability claim, "but not necessarily on the same rationale."
Under Pennsylvania law, an opinion joined by fewer than a majority of judges is not binding or controlling precedent. Vargus v. Pitman Mfg. Co., 675 F.2d 73 (3rd Cir. 1982) at 74. Applying this simple rule to the case at bar, it cannot be disputed that Judge Spaeth's opinion did not command a majority of the court en banc. Only two judges accepted his reasoning while the remaining four judges, writing separately, found its rationale unpersuasive. Their concurrence in the result only on this issue cannot confer precedential value to the opinion. Id.; Beron v. Kramer-Trenton Co., 402 F. Supp. 1268, 1276 (E.D.Pa.1975), aff'd, 538 F.2d 318 (3rd Cir. 1976). The plurality opinion of Judge Spaeth can only be treated as an expression of the personal views of the minority of the court. Vargus v. Pitman Mfg. Co., supra, at 74 (citing Greiner v. Volkswagenwerk Aktiengeselleshaft, 540 F.2d 85, 91 (3rd Cir. 1976)). I conclude, therefore, that this opinion is not controlling precedent for the proposition advanced by the defendant in this case.
Moreover, assuming arguendo that Lobianco is binding legal precedent, the defendant's reading of the courts holding is strained.
It must be remembered that:
a judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy.