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August 25, 1992

CONNIE L. HABECKER, Individually and as Personal Representative of the Estate of JOHN R. HABECKER, Deceased; and JOHN MICHAEL HABECKER, Minor, by CONNIE L. HABECKER, his Parent, Natural Guardian and Next Friend, Plaintiffs

The opinion of the court was delivered by: SYLVIA H. RAMBO

 Before the court is Plaintiffs' Motion for Reconsideration of the portion of this court's Memorandum and Order of March 31, 1992 relating to the existence of a post-sale duty to warn in Pennsylvania. The motion has been fully briefed and is ripe for consideration.

 The facts of this case have been recited at length in several opinions by both this court and the Third Circuit Court of Appeals, and the court sees no need to recount them again except to provide context to the present motion.

 Following two trials in this court and two remands of this matter from the Third Circuit Court of Appeals, *fn1" Plaintiffs requested that this court permit them to pursue a new claim based on a "post-sale duty to warn" at the pending third trial. Such a claim had not been previously pled or tried in either of the previous trials. Plaintiffs bottomed this new claim on a case, Walton v. Avco Corp., 383 Pa. Super. 518, 557 A.2d 372 (1989), which had been announced by the Pennsylvania Superior Court approximately one month after the defense verdict in the first trial. In Walton, the Superior Court ruled that the manufacturer of a helicopter had a duty to warn end users about a defective component in the engines of a line of helicopters after it learned of the defect from the maker of the engine. *fn2"

 Upon motion by Plaintiffs, this court in its discretion declined to permit Plaintiff to pursue a post-sale duty to warn theory at the upcoming third trial. It did so for four reasons: 1) the Walton Superior Court opinion appeared to conflict with Lynch v. McStome & Lincoln Plaza Associates, 378 Pa. Super. 430, 548 A.2d 1276 (1988), an earlier Superior Court case addressing the post-sale duty to warn; 2) the court found substantial differences between the nature of the claims of the Walton plaintiffs and Plaintiffs here; 3) the Walton case was the only federal or state court case in Pennsylvania recognizing the duty; and 4) the Superior Court itself in Walton issued a caveat as to breadth of the duty -- it was to apply to "unique and costly products" and not "household" goods,"; in this court's opinion, forklifts, unlike helicopters, tend toward the common product side of the spectrum.

 On May 22, 1992, some two years after the defendants' appeal was initially granted, the Pennsylvania Supreme court handed down a decision affirming the decision of the Superior Court on the issue of post-sale duty to warn. Walton v. Avco Corp., A.2d , Nos. 138, 139, 140 E.D. Appeal Docket 1989, slip op. (Pa. May 22, 1992). A month later, Plaintiffs here filed the Motion to Reconsider now before the court, arguing that the Pennsylvania Supreme Court's opinion, which binds this court, sitting in diversity, as precedent, necessitates the vacation of this court's prior decision not to permit plaintiff to pursue the post-sale failure to warn issue on retrial.


 As an initial matter, the court wishes to underline the procedural footing of this motion. The court is not in a position where it is deciding a motion to dismiss prior to trial; instead, the court is merely weighing whether or not, in its discretion, it believes that Plaintiffs should, going into a retrial, be permitted to pursue a cause of action which had been neither pled nor pursued at the prior trial. See Habecker II, 942 F.2d at 218; Habecker III, slip op. at 5-6.

 As pointed out by defendant Clark, the Supreme Court decision in Walton arguably renders invalid two of the court's four justifications -- numbers one and three -- for denying Plaintiffs permission to proceed with a post-sale failure to warn claim. The highest court in Pennsylvania has spoken on the issue: there is no doubt that a post-sale failure to warn claim exists in some capacity in Pennsylvania. *fn3" Accordingly, to the extent that the Lynch decision is at odds with the supreme court's Walton opinion, it is trumped.

 Factors two and four cited by the court in the March 31, 1992 opinion still apply, however, and militate against permitting Plaintiffs to move forward with a post-sale failure to warn claim here. First, as noted in the March 31 opinion, the court sees a qualitative difference between an open and obvious "defect" such as the lack of restraints involved here, and a latent defect like the engine component in Walton. See Habecker, slip op. at 13-15. Second, echoing the Superior Court, the Pennsylvania Supreme Court noted that

 The peculiarities of the [helicopter] industry also go far to support this imposition of responsibility. Helicopters are not "ordinary goods." By their nature they are not the types of objects that could get swept away in the currents of commerce, becoming impossible to track or difficult to locate. Helicopters are not mass-produced or mass-marketed products; to the contrary, they are sold in a small and distinct market. Additionally, establishments that service helicopters are convenient and logical points of contact. Even more important, in this case, the manufacturer of the crucial component part remained in contact with Hughes for the very purpose of keeping Hughes current on all pertinent information.

 Walton, slip op. at 11-12 (Pa. May 22, 1992). Clearly, the supreme court was, in acknowledging a post-sale duty to warn, cognizant of the dangers of opening the floodgates of litigation with regard to common products which are purchased, transferred and traded with some frequency and thus nearly impossible to monitor. In its previous commentary on this point, this court stated that it was inclined to place forklifts on the "common" end of the spectrum, and therefore the Walton holding did not apply to this matter. Habecker III, at 15-16. In its brief, Plaintiffs do not even address this point.

 Accordingly, the court, exercising its sound discretion, is of the opinion that its decision not to permit Plaintiffs to pursue a post-sale failure to warn claim in the third trial was not in error despite the recent pronouncement ...

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