IN THE SUPREME COURT OF PENNSYLVANIA APPLICATION FOR RELIEF PURSUANT TOP. R. A. P. 123 ON BEHALF OF AMICUS

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1 IN THE SUPREME COURT OF PENNSYLVANIA TERENCE D. TINCHER and JUDITH R. TINCHER, Plaintiffs-Appellees No. 17 MAP 2013 v. -, ~.. OMEGA FLEX, INC., Defendant-Appellant APPLICATION FOR RELIEF PURSUANT TOP. R. A. P. 123 ON BEHALF OF AMICUS CURIAE PENNSYLVANIA ASSOCIATION FOR JUSTICE AND NOW comes Amicus Curiae Pennsylvania Association for Justice, pursuant to P.R. A. P. 123, and requests this Honorable Court to allow Amicus Curiae to participate in additional argument regarding whether this Court should

2 replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement, at issue in the above-captioned appeal, and in support thereof, avers as follows: 1. When counsel for Amicus Curiae Pennsylvania Association for Justice 11 { PAJ") first became aware of this matter, an attempt was made to ascertain the facts and procedural posture of the case. 2. It was determined that the underlying claim resulting in a plaintiff's verdict ~nvolved subrogation by plaintiffs' insurer. See Petition for Allowance of Appeal of Defendant Omega Flex, Inc., at 5 ( 11 This is a product liability case brought by an insurance company, USAA, on behalf of respondents Terance and Judith Tincher regarding a 2007 fire at their house.") 3. USAA Insurance Company compensated the Tinchers for their losses from a fire that destroyed their home pursuant to their insurance policy and brought suit in their name to seek reimbursement from Omega Flex. See Brief of Defendant Petitioner [Appellant] Omega Flex, Inc., at 7, citing RR. 262 {USAA paid claim of approximately $770,000). The Tinchers had a minority interest in the case because a portion of their losses exceeded the limits of their policy with

3 USAA. Jd. (approximately $106,000 not recovered from USAA). See also Supplemental Reproduced Record at 19b-20b. 4. The suit relied upon the Restatement (Second) of Torts, 402A. 5. The interests of Plaintiffs in the trial court were represented by Gary Owens, Esquire of Swartz Campbell, and by a lawyer in the Cozen O'Conner Firm in Philadelphia, Mark Utke, Esquire. The case was tried by Attorney Utke. 6. When the undersigned counsel for Amicus Curiae learned of these facts, he made contact with Attorney Utke, who was preparing the appellate brief for filing in the Supreme Court. 7. The undersigned pointed out to counsel for the Tlnchers that the Cozen O'Conner Firm had cases where they were arguing for the application of the Restatement Third, in direct opposition to this matter where they relied upon Restatement Second and contested the use of Restatement Third; in fact the undersigned has participated in another case against parties represented by the Cozen O'Conner Firm in federal court where the Restatement Third was relied upon. 8. The undersigned offered to undertake representation of the Tinchers in the Supreme Court appeal, as had been done in the case of Bugosh v. I. U North American, Inc., 601 Pa. 277, 977 A. 2d 1228 {2009). This offer was declined.

4 9. Tinchers' counsel, Attorney Mark Utke, explained that it was a delicate issue in his firm (Cozen O'Connor) but that he would be asserting the viability of 402A and Azzarello vs. Black Brothers, 480 Pa. 547, 391 A.2d 1020 (1978) in the instant appeal. 10. Based on these conversations with Attorney Utke, in which he represented that he would assert the continuing validity of Azzarello, as well as the continued application of Section 402A of the Restatement Second of Torts, counsel for Amicus Curiae did not ask for a separate right to argue in front of the court with respect to the maintenance of 402A. See Pa. R. A. P. 531(b). 11. The brief filed by Appellees was consistent with the discussions held with counsel for Amicus Curiae; it never advocates overruling Azzarello or changing the function of the judge and jury. The brief merely mentions in passing, in a footnote to the section arguing for prospective application of any change to the law of strict liability, that the court has the option of overruling Azzarello but rejecting the Restatement Third analysis. See Brief for Appellees at 41 n It is the understanding of counsel for the Amicus Curiae that, contrary to the assurances provided to the undersigned, at oral argument counsel for the Tinchers agreed that Azzarello should be overruled.

5 13. This has been confirmed by direct conversation with counsel for the Tinchers. After the argument that occurred on October 15, 2013, Attorney Utke explained that he believed the so-called "Wade factors" considered by the court under current law should instead be considered by the jury and that the Azzarello formulation as to the role of the jury was incorrect. 14. The position urged at argument by counsel for the Tinchers represents a dramatic shift in the position of any plaintiff suing for damages in a products liability case and is certainly inconsistent with the position taken by Amicus Curiae PAJ. 15. Attorney Utke apparently believed that it was necessary to argue for the overturning of Azzarello prospectively while retaining the framework of the Restatement (Second ) of Torts Section 402A in order to protect his clients' interest in preserving the jury verdict in the instant case. A broader interest exists, however, on behalf of injured consumers in product liability cases, which deserves vigorous representation before this Court. 16. Given the extraordinary importance of the court's decision in this matter, Amicus Curiae PAJ respectfully requests additional oral argument at which Amicus can present legal and policy rationales on behalf of retaining Azzarello and Section 402A.

6 17. Counsel recognizes that there exists no precedent for re-argument by amicus curiae after the original oral argument but the situation itself is unprecedented. Counsel further recognizes that the right of amicus to argue is essentially a matter of grace. See Pa. R. C. P. 531(b)( 11 Requests for leave to present oral argument... will be granted only for extraordinary reasons.") 18. Had the undersigned been aware that Attorney Utke would take a position at oral argument inconsistent with that of Amicus Curiae PAJ, he would have requested to participate at argument. Amicus asserts that the existence of this conflict constitutes an extraordinary circumstance justifying the grant of this application for relief. 19. The impact of a court decision reversing Azzarello or abandoning the Restatement (Second) Section 402A is so significant that it should not be determined based upon a subrogation case essentially "owned" by on insurance company and argued by one who is not committed to consumer protection policies. WHEREFORE, Amicus Curiae PAJ respectfully requests that this Honorable Court schedule additional argument in this matter on the issue of whether this Court should replace the strict liability analysis of Section 402A of the Second

7 Restatement with the analysis of the Third Restatement and allow Amicus to argue its position on that issue in support of the Appellees Terrence and Judith Tincher. Respectfully submitted, Clifford A. Rieders, Esquire PA. ID# W. Third Street Williamsport, PA (570) Attorney for Pennsylvania Association for Justice

8 IN THE SUPREME COURT OF PENNSYLVANIA TERENCE D. TINCHER and JUDITH R. TINCHER, Plaintiffs-Appellees No. 17 MAP 2013 v. OMEGA FLEX, INC., Defendant-Appellant VERIFICATION I, Clifford A. Rieders, Esquire, hereby verify and state that I am attorney of record for Amicus Curiae Pennsylvania Association for Justice in this matter; that the facts set forth in the foregoing APPLICATION FOR RELIEF are known to me and not to my client in that they are based upon my personal knowledge; and that the facts set forth therein are true and correct, to the best of my knowledge, information and belief.. I understand that false statements herein are subject to the penalties of 18 Pa. C. S. Section 4904 related to unsworn falsification to authorities.

9 CERTIFICATE OF SERVICE I, Clifford A. Rieders, Esquire hereby certify that I am this 25th day of November, 2013 serving by First Class Prepaid Mail a copy of APPLICATION FOR RELIEF PURSUANT TO P. R. A. P. 123 ON BEHALF OF AMICUS CURIAE PENNSYLVANIA ASSOCIATION FOR JUSTICE upon the following: William J. Conroy, Esquire Campbell, Campbell, Edwards & Conroy 1205 Westlakes Drive Suite 330 Berwyn, PA Counsel for Omega Flex, Inc. Christopher Landau, Esquire Kirkland & Ellis, LLP 655 Fifteenth St., N.W. Suite 1200 Washington, D.C Counsel for Omega Flex, Inc. Katherine Anne Wang, Esquire Campbell, Campbell, Edwards & Conroy 1205 Westlakes Drive Suite 330 Berwyn, PA Counsel for Omega Flex, Inc. James Michael Beck, Esquire Reed Smith, LLP Reed Smith 1650 Market Street Philadelphia, PA Mark Edward Jakubik, Esquire Jakubik Law Firm 7715 Crittendan St Suite 350 Philadelphia, PA Martin Kaufman, Esquire Atlantic Legal Foundation 2309 Palmer Avenue Suite 104 Larchmont, NY Joseph Edward O'Neil, Esquire Lavin, O'Neil, Ricci, Cedrone & DiSipio 6th & ace Streets Ste 500 Philadelphia, PA Michael James Ross, Esquire K&L Gates, LLP 210 Sixth Ave Pittsburgh, PA

10 Sean Peter Wajert, Esquire Shook Hardy & Bacon, LLP 1650 Market Street Fl 30 Philadelphia, PA Leon F. DeJulius, Esquire Jones Day 500 Grant St Ste 4500 Pittsburgh, PA Amicus Curiae Mark Elliot Utke, Esquire Cozen O'Connor 1900 Market Street Philadelphia, PA Counsel for Appellee Laura E. Ellsworth, Esquire Jones Day 500 Grant St Ste 4500 Pittsburgh, PA Amicus Curiae Margaret Caitlin Gleason, Esquire 500 Grant St Ste 4500 Pittsburgh, PA Amicus Curiae Charles Moellenberg, Jr., Esquire 500 Grant St Ste 4500 Pittsburgh, PA Amicus Curiae RIEDERS, TRAVIS, HUMPHREY, HARRIS, WATERS, WAFFENS HMIDT & DOHRMANN v Clifford A. Rieders, Esquire PA West Third Street Williamsport, PA (570)