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HOCHGERTEL v. CANADA DRY (01/21/63)

January 21, 1963

HOCHGERTEL, APPELLANT,
v.
CANADA DRY



Appeal, No. 53, March T., 1962, from order of Court of Common Pleas of Allegheny County, Oct. T., 1961, No. 289, in case of George F. Hochgertel v. Canada Dry Corporation. Order affirmed.

COUNSEL

Norman Paul Wolken, with him Norman Landy, and Wolken & Landy, for appellant.

Norman J. Cowie, with him Pringle, Bredin & Martin, for appellee.

Before Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'brien and Keim,

Author: Eagen

[ 409 Pa. Page 611]

OPINION BY MR. JUSTICE EAGEN

The plaintiff, a bartender on duty in the clubhouse quarters of a fraternal organization, was injured by flying glass fragments, when an unopened bottle of carbonated soda water exploded as it was standing on the counter behind the bar. The soda water was previously bottled, sold and delivered by the defendant to plaintiff's employer. The plaintiff sued the defendant bottler manufacturer in assumpsit, charging a breach of implied warranties, namely: (1) That the

[ 409 Pa. Page 612]

    soda water was of merchantable quality; (2) That it was fit and safe for the purposes for which it was sold.*fn1 The court below sustained preliminary objections to the complaint in the nature of a demurrer. This appeal followed, challenging the legal correctness of this order.

There is no doubt that when the defendant manufacturer sold the bottle of soda water to the fraternal lodge involved. It impliedly warranted to the purchaser that the contents of the bottle were fit for the purposes intended. See, Bonenberger v. Pittsburgh Mer. Co., 345 Pa. 559, 28 A.2d 913 (1942); Loch v. Confair, 361 Pa. 158, 63 A.2d 24 (1949).

Two interesting questions are posed by this appeal: (1) Did this implied warranty extend to the plaintiff, an employee of the purchaser? (2) Did the warranty cover the container as well as the contents of the bottle? Our answer to the first question is determinative of the case.

Pennsylvania was the first state to adopt the Uniform Commercial Code (Code). See, Act of April 6, 1953, P.L. 3, as amended, 12A P.S. ยงยง 1-101 et seq. Clearly the Code gives no basis for the extension of the existing warranty to an employee of the purchaser. The pertinent provision, Section 2-318, is as follows: "A seller's warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be ...


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