Pennsylvania Courts Further Divided on Restatement.

As previously reported, a growing rift has emerged between Pennsylvania’s state and federal courts regarding the applicability of the Restatement (Third) of Torts to product liability actions.  True to form, a recent decision from the Western District of Pennsylvania further complicated matters when Judge Arthur J. Schwab declined to follow the Third Circuit’s ruling in Covell v. Bell Sports, Inc. and instead adopted the State Supreme Court’s adherence to the Second Restatement.

In Gilmore v. Ford Motor Company, Judge Schwab previously ruled that the Restatement (Second) of Torts governed plaintiff’s claim of strict liability against Ford where the decedents were ejected from their 2000 Ranger pick-up.Ford took exception and moved for reconsideration, arguing that the Third Circuit’s decisions in Covell and Sikkelee v. Precision Airmotive Corp. compelled the court to apply the Restatement (Third) of Torts. Despite Ford’s lofty citations, Judge Schwab remained unconvinced and held that because the Third Circuit’s ruling in Sikkelee was non-precedential, it was free to stand by the position that recent state decisions contradict the federal courts’ predisposition to the Third Restatement.  Specifically, Judge Schwab implied that the relevant Third Circuit opinions were obsolete in light of two state Supreme Court decisions issued after Covell and Sikkeleewhere the court continued to apply the Second Restatement.  As a result, Judge Schwab concluded that there was no change in Pennsylvania’s controlling law and endorsed the Second Restatement’s application by federal courts sitting in diversity. 

Although Judge Schwab’s district-level opinion is non-binding, it serves as a succinct, yet persuasive analysis of the tension between state and federal courts regarding the Restatement’s future in Pennsylvania.  The opinion’s latent advocacy for comity between the courts should catalyze further consideration of the issue and, at a minimum, indicates that the debate is all but over.

Special thanks to Adam Gomez for his contributions to this post. For more information, please contact Paul Clark at