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BARNARD v. PENNSYLVANIA RANGE BOILER CO.

April 30, 1963

John W. BARNARD, Executor of the Estate of Susan P. Barnard, Deceased
v.
PENNSYLVANIA RANGE BOILER COMPANY, Inc., Pennsylvania-Bradford Appliance Corp., and Robertshaw-Fulton Controls Company



The opinion of the court was delivered by: WOOD

Once again, *fn1" we are asked to rule upon the defendants' motion to dismiss the plaintiff's amended complaint on the ground that it does not state a claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 12(b)(6).

 At the time of this purchase in 1957, the sales act *fn2" was in effect in Massachusetts and want of privity was an absolute defense to an action for breach of an express or an implied warranty. Carter v. Yardley & Co., 319 Mass. 92-96, 64 N.E.2d 693, 164 A.L.R. 559 (1946); Sullivan v. H. P. Hood & Sons, Inc., 341 Mass. 216, 223, 168 N.E.2d 80 (1960).

 Since this cause of action and the alleged 'sale' took place in Massachusetts, we must apply Massachusetts' law. Plaintiff's decedent, being a sub-subpurchaser, could never have been in privity with any of the defendant manufacturers.

 Therefore, insofar as the plaintiff's complaint alleges a breach of warranty as giving rise to his cause of action for damages, we grant the defendants' motion to dismiss. The plaintiff still has a complete remedy under his theory of the alleged negligence of the defendants. In all other respects we hold that the plaintiff's amended complaint is sufficient to state a cause of action.

 ORDER

 And now, this 30th day of April, 1963, the defendants' motion to dismiss is granted in regard to the plaintiff's ...


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