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April 16, 1963

Timothy WILSON, a minor by Robert Wilson, his natural parent and natural guardian, and Robert Wilson, in his own right
AMERICAN CHAIN & CABLE COMPANY, Inc. and Robert Wilson and Hugh Lavery

The opinion of the court was delivered by: WOOD

The minor plaintiff and his father bring this action to recover damages for injuries sustained by the minor plaintiff when he was injured by a riding rotary power lawn mower manufactured by the defendant American Chain & Cable Company, Inc.

Separate theories of liability are pleaded and bottomed on the negligence and breach of warranties of the manufacturer. The Complaint does not specify whether the warranties allegedly breached were express or implied.

 At the argument on these motions the defendant conceded that the plaintiffs may amend their Complaint to allege gross and wanton negligence and claim punitive damages.

 We have recently ruled on this problem. *fn1" Amendment is freely allowed under Fed.R.Civ.P. 15 where no prejudice will result to the defendant. *fn2" Plaintiffs' proposed amendment alleging wanton negligence will not introduce a new cause of action and it is hereby allowed. *fn3"

 The Uniform Commercial Code provides for express warranties under § 2-313 and implied warranties of merchantability and fitness for a particular purpose under §§ 2-314 and 2-315, 12A P.S. §§ 2-313 to 2-315. A sale of goods in Pennsylvania extends these warranties to the buyer, members of the buyer's family or household, or to any natural person who is a guest in the buyer's home. *fn4"

 Turning now to the plaintiffs' motion to strike. They contend that a lack of privity is not a defense to a suit by a subpurchaser (or members of his family) against a manufacturer on breach of warranty principles. As authority for this proposition, we are addressed to the following cases: Thompson v. Reedman Motors, et al., 199 F.Supp. 120 (E.D.Pa.1961); Mannsz v. Macwhyte Co., 155 F.2d 445 (3 Cir. 1946); Jarnot v. Ford Motor Company, 191 Pa.Super. 422, 156 A.2d 568 (1959), and others.

 In the Thompson case a guest in an automobile attemped to recover damages for injuries he sustained due to a defective accelerator pedal. The defendant moved to dismiss on the ground that there was no privity of contract. Plaintiff claimed that he had a right to recover under 2-318 (see note 4) and under Pennsylvania decisional law. Our learned colleague, Judge John W. Lord, Jr., ruled that 2-318 of the Uniform Commercial Code did not extend to a guest in an automobile under the plain words of the statute. However, he did hold that privity of contract was not necessary before a guest passenger in an automobile could sue an automobile dealer and the manufacturer on the theory of breach of implied warranties of fitness for use and merchantability.

 The decision in Thompson v. Reedman was based on the law as found by Chief Judge Biggs in Mannsz v. Macwhyte, supra, where the sale was of wire rope. There were representations in the defendant manufacturer's manual which was widely disseminated to buyers and prospective buyers. The representations in the manual dealt with the tensile strength of the wire rope and the purposes for which it was manufactured. The plaintiff in that case was injured when a scaffold fell after the rope broke and he was thrown to the ground. Chief Judge Biggs reasoned that the defense of lack of privity had been abolished in Pennsylvania in all breach of warranty actions.

 '* * * One may infer from the result -- no warranty since title had not passed -- that if the pleadings had demonstrated that the ginger ale had been purchased, the result would have been different.'

 At the time of the incident in Loch v. Confair, supra, the Uniform Sales Act was the law of Pennsylvania. That Act did not extend a seller's warranty obligations to persons other than the immediate buyer. The Code at § 2-318 extended warranties to the buyer's family and others. (See note 4, supra.)

 Another Pennsylvania decision, Silverman v. Samuel Mallinger Co., 375 Pa. 422, 100 A.2d 715 (1953), construed the warranty problem. In that case, the plaintiff, who was in the pickle business, ordered some glass jars from Mallinger. Mallinger upon receiving the plaintiff's order, purchased the jars from an exclusive agent of the manufacturer. The manufacturer shipped the jars directly to the plaintiff, and the sales agent invoiced Mallinger who in turn invoiced the plaintiff. After the jars were used in the plaintiff's business, damage resulted from leakage. The plaintiff sought to recover upon an express warranty running from the exclusive sales agent to Mallinger and thence to the plaintiff. The plaintiff recovered against Mallinger, and the Supreme Court affirmed a judgment n.o.v. for the sales agent of the manufacturer.

 The Court rejected the plaintiff's argument that a purchaser from a dealer could recover for a commercial loss from the manufacturer based on a breach of an express warranty. In his opinion, Mr. Justice Chidsey distinguished Mannsz v. Macwhyte, supra, on the ground that the manufacturer in that case intended his representations as to the quality or fitness of the rope for its particular use were to be conveyed by the manufacturer to the dealer's customer (subpurchaser) by its manual. However, he reasoned in Silverman that the manufacturer never made any representations that his ...

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