The opinion of the court was delivered by: Timothy R. Rice U.S. Magistrate Judge
The role of negligence concepts in strict liability doctrine in Pennsylvania features "numerous unsettled issues of law." Bugosh v. I.U. N. Am., Inc., 971 A.2d 1228, 1234 (Pa. 2009) (Saylor, J., dissenting, joined by Chief Justice Castille). Although courts note "negligence concepts should not be imported into strict liability law," Phillips v. Cricket Lighters, 841 A.2d 1000, 1006 (Pa. 2003); Pa. Dept. of Gen. Servs. v. U.S. Mineral Prods. Co., 898 A.2d 590, 600-01 (Pa. 2006), exceptions to this rule remain, U.S. Mineral Prods. Co., 898 A.2d at 601 n.10, and negligence concepts continue to pervade some aspects of strict liability law, see Bugosh, 971 A.2d at 1230 (citing Phillips v. Cricket Lighters, 841 A.2d 1000, 1012 (Pa. 2003) (Saylor, J., concurring, joined by Justices Castille and Eakin)); Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 56-57 (3d Cir. 2009); see also Phillips, 841 A.2d at 1006-07 (although negligence concepts do not have a place in strict liability doctrine, the Court has "muddied the waters").
Plaintiff Michael McGonigal claims Defendant Sears, Roebuck and Co. ("Sears") sold him a defective lawn tractor. See Plaintiff's Pretrial Memorandum at 3, McGonigal v. Sears, Roebuck and Co., No. 07-4115 (E.D. Pa. filed Feb. 9, 2009). Sears alleges the lawn tractor was not defective when sold, rather, McGonigal substantially altered the product by allowing the tractor to become clogged with debris and improperly joining the upper and lower baggage chutes, causing it to malfunction. See Defendant's Pre-Trial Memorandum at 3-4, McGonigal v. Sears, Roebuck and Co., No. 07-4115 (E.D. Pa. filed Feb. 16, 2009). McGonigal alleges substantial change or alteration is not a valid defense if the change was foreseeable to Sears. See Plaintiff's Pretrial Memorandum at 8.
Sears seeks reconsideration of the following proposed jury instruction: A seller is responsible only for defects that exist at the time the product leaves his or her control. The seller is not liable for defective conditions created by substantial changes in the product occurring after the product has been sold. There is, however, an important qualification to this rule. If you do find defective conditions were created by substantial changes in the product occurring after it was sold, that finding would not, in itself, relieve the seller of liability. Rather, the seller would still be liable, in that circumstance, unless you also find the changes were ones that could not reasonably have been foreseen or expected by the seller.
That is because a seller's responsibility, under our law, extends to all dangers that result from foreseeable changes to the product.
See Motion for Reconsideration of Ruling on Defendant's Proposed Amendments to June 23, 2009 Draft Jury Instructions at ¶¶ 6-9, McGonigal v. Sears, Roebuck and Co., No. 07-4115 (E.D. Pa. filed July 9, 2009) [hereinafter Reconsideration Motion]; Pa. Mod. Civ. Jury Instr. 8.08 (2003) (contested provision in italics). For the following reasons, this motion is denied.
The jury instruction is based on Davis v. Berwind Corp., 690 A.2d 186, 190 (Pa. 1997), which reasoned if the product "reached the consumer with a substantial change, the question becomes whether the manufacturer could have reasonably expected or foreseen such an alteration of its product." Id. (quoting Eck v. Powermatic Houdaille, 527 A.2d 1012 (Pa. 1987)); see Pa. Model Civ. Jury Instr. 8.08, subcommittee note.
Sears argues the Pennsylvania Supreme Court in Phillips*fn1 subsequently rejected the language from Davis. It claims:
While [the Pennsylvania Supreme Court has] remained steadfast in [their] proclamations that negligence concepts should not be imported into strict liability law, [it has] muddied the waters at times with the careless use of negligence terms in the strict liability arena. One example of this mixing of negligence terms into a strict liability analysis occurs in Davis v. Berwind Corp., 547 Pa. 260, 690 A.2d 186 (1997). In that matter, one of the questions presented to [the Court] was whether the manufacturer could be held strictly liable where it had manufactured a safe product, but the product was rendered unsafe by subsequent changes. [It] reasoned that the manufacturer may be held liable, even though it did not make the subsequent change, if the "manufacturer could have reasonably expected or foreseen such an alteration of its product." Id. at 190. Clearly, such a negligence-based test, which focuses on the due care exercised by the manufacturer, is in tension with [the Court's] firm and repeated pronouncements that negligence concepts have no place in strict liability law.
See Reconsideration Motion at ¶ 7 (quoting Phillips, 841 A.2d at 1006-07). Sears also relies on U.S. Mineral Prods. Co., 898 A.2d at 600-01, which reasoned:
[A] manufacturer can be deemed liable only for harm that occurs in connection with a product's intended use by an intended user; the general rule is that there is no strict liability in Pennsylvania relative to non-intended uses even where foreseeable by a manufacturer. The Court has also construed the intended use criterion strictly, holding that foreseeable misuse of a product will not support a strict liability claim.
U.S. Mineral Prods. Co., 898 A.2d at 600-01 (internal citations omitted).
Phillips and U.S. Mineral Products Co., however, are internally inconsistent. Although the Phillips court stated Davis was "in tension with [the Supreme Court's] firm and repeated pronouncements that negligence concepts have no place in strict liability law," it nevertheless cautioned "it would be imprudent . . . to wholesale reverse all strict liability decisions which utilize negligence terms." Phillips, 841 A.2d at 1007; see Phillips, 841 A.2d at 1012 (Saylor, J., concurring, joined by Justices Castille and Eakin) (the majority "decline[d] to disavow" that "foreseeability, a conception firmly rooted in negligence theory, is assessed in strict liability cases involving certain types of product alterations"). Similarly, in U.S. Minerals Prods. Co., the court stated "the general rule is that there is no strict liability in Pennsylvania relative to non-intended uses even where foreseeable by a manufacturer," but noted "[t]he [Pennsylvania Supreme Court] has recognized that there are limited, targeted exceptions to this approach," including Davis. See U.S. Minerals Prods. Co., 898 A.2d at 600, 601 n.10. The court in U.S. Minerals Prods. Co. explained "the prevailing consensus in Phillips was that there would be no further expansions under existing strict liability doctrine." Id.
Bugosh, 971 A.2d at 1229, recently afforded the Supreme Court the opportunity to clarify strict liability law, but the appeal was dismissed "as having been improvidently granted."*fn2 In a dissent in Bugosh, Justice Saylor noted there exists "a serious misalignment between the description of [the Supreme Court's] strict liability doctrine and its actual operation." Bugosh, 971 A.2d at 1234. As Justice Saylor explained, "the core problem in the application of prevailing Pennsylvania law lies in the insistence on maintaining a doctrinal assertion that there is ...