The Court cited Loch v. Confair, Silverman v. Samuel Mallinger Co., and Mannsz v. Macwhyte Co. in support of this proposition.
From the tenor of these cases it appears that the plaintiffs' position is correct. However, privity is not dead in Pennsylvania though the defense has been whittled away in certain situations. In cases involving food, beverages and like goods for human consumption, Pennsylvania has permitted a subpurchaser to sue the manufacturer directly in assumpsit for breach of an implied warranty that the food was wholesome and fit to eat. Nock v. Coca Cola Bottling Works of Pittsburgh, 102 Pa.Super. 515, 156 A. 537 (1931); and Catani v. Swift & Co., 251 Pa. 52, 95 A. 931, L.R.A.1917B, 1272 (1915).
The recent case of Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A.2d 575 (1963), injected new life into the privity defense. In that assumpsit action for breach of an implied warranty, an employee of the purchaser of an exploding bottle of carbonated soda water sought to recover damages from the defendant bottler for his injuries. He sought to recover under 2-318 of the Code (supra, note 4). The Supreme Court Affirmed a judgment for the defendant and stated at p. 615, 187 A.2d at p. 578:
'In no case in Pennsylvania has recovery against the manufacturer for breach of an implied warranty been extended beyond a purchaser in the distributive chain. In fact, the inescapable conclusion from Loch v. Confair, 361 Pa. 158, 63 A.2d 24 (1949), is that no warranty will be implied in favor of one who is not in the category of a purchaser.'
The Court further concluded that an 'employee' did not fit into the category of a beneficiary under § 2-318. Also, the Court distinguished between implied and express warranties as follows, 409 Pa. at p. 616, 187 A.2d at p. 578:
'Further, in express warranties the purchaser or subpurchaser can rely thereon, for they are considered a part of the consideration for the purchase and are meant to be relied upon by the purchaser. See, Silverman v. Samuel Mallinger Co., 375 Pa. 422, 100 A.2d 715 (1953). So also, the basis for recovery upon an implied warranty, absent a specific statutory exception such as contained in the Uniform Commercial Code, must be that the implied warranty forms a part of the consideration for the contract, and flows from manufacturer to subpurchaser through the conduit of a contractual chain.'
In the instant case, the plaintiffs at this stage of the action have not shown whether the warranty is implied or express. At the trial, they may well be able to prove that the manufacturer either by means of national advertising,
or legend upon the container
intended either an express or implied warranty to flow through the 'conduit of the contractual chain'
to the sub-purchaser and his family under § 2-318.
We cannot say in the present posture of the case that lack of privity is not a valid defense under Pennsylvania law. The defendant does not interpose the lack of privity defense to the negligence claim of the plaintiffs, because the law of Pennsylvania is otherwise. Foley v. Pittsburgh Des Moines Co., 363 Pa. 1, 68 A.2d 517 (1949).
And now, this 16th day of April, 1963, the plaintiffs' motion to amend is granted, but the plaintiffs' motion to strike the defense of no privity is denied.