manual, tags affixed to shipment, legend upon container, or by negotiation with the subpurchaser.'
While in Mannsz v. MacWhyte, 155 F.2d 445 (3rd Cir. 1946), there was general language noting that the requirement of privity had been obliterated from Pennsylvania law, the Supreme Court of Pennsylvania, in a subsequent case involving commercial loss, distinguished or limited the Mannsz case on the ground that 'there were representations in the defendant wire rope manufacturers' manual which was widely disseminated to buyers. and prospective buyers. The words and figures in the manual were representations as to the tensile strength of the wire rope and the purposes for which it was manufactured.' Silverman v. Samuel Mallinger, 375 Pa. 422, 428, 100 A.2d 715, 718 (1953). Mannsz is further distinguishable by the fact that the Court was referring to personal injuries and death claims rather than commercial loss or property damage.
Plaintiff's view that reason and logic preclude a distinction in the treatment of personal injury and property damage claims has ample professional support.
However, my role as a District Court Judge sitting in a case of diversity of citizenship is to anticipate what the highest state court decision would be under similar facts.
Although the winds of the future indicate that the Pennsylvania Supreme Court will someday alter its course on privity in favor of the view now urged by plaintiff, I must nevertheless conclude from the analysis of the foregoing cases that the highest Court of Pennsylvania would not at this time modify the privity doctrine to permit a cause of action on the implied warranty theory. The words of Judge Learned Hand are particularly apt when he stated: 'Nor is it desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.'
THE NEGLIGENCE CLAIM
Plaintiff's cause of action is also based on a claim of negligence. In Foley v. Pittsburgh DeMoines Co., 363 Pa. 1, 68 A.2d 517, 531 (1949), the Pennsylvania Supreme Court noted its prior adoption of MacPherson v. Buick, supra, which dispensed with the necessity of privity in certain types of negligence cases. Unlike defendant's citation of controlling authorities on the implied warranty issue, see Silverman v. Samuel Mallinger, 375 Pa. 422, 428, 100 A.2d 715, 718 (1953), there was no citation of any case involving property damage where a Pennsylvania court has held that in negligence cases the MacPherson doctrine would be limited to personal injury matters. Accordingly, in the absence of contrary authority, I will not hold at this stage of the proceedings that there could not be a cause of action in negligence.
The authorities seem contrary to defendant's contention. As Dean Prosser has observed, the liability of suppliers to third persons under the MacPherson doctrine '* * * has been extended to damage to property, and it is now generally agreed that the manufacturer is responsible for negligence in the sale of goods * * * which involve no recognizable risk of personal injury and are foreseeably dangerous only to property.' Prosser, Torts § 84 at 501-02 (2nd ed. 1955). See also E.I. Du Pont De Nemours & Co. v. Baridon, 73 F.2d 26, 29 (8th Cir. 1934), for its citation of cases which '* * * support the view that substantially the same rule applies to sales of dangerous products whether intended to affect human life or to affect property.'
Thus as to the negligence claim, it appears that the appropriate way to handle a motion for summary judgment where the claims are based on both negligence and breach of warranty would be as Judge Freedman disposed of a related matter in Driver v. F. A. Mitchell Co. et al., D.C., 35 F.R.D. 226, Opinion, May 18, 1964. In that opinion, Judge Freedman, now of the Court of Appeals for the Third Circuit, noted:
'Defendant's motion, however, encounters a procedural barrier. The Federal Rules of Civil Procedure do not provide for a 'partial summary judgment' under Rule 56. Since the elimination of the warranty count will not completely dispose of the case, the appropriate remedy is provided by subsection (d) of Rule 56, which authorizes an order limiting the issues to be tried, by analogy to Rule 16 relating to pre-trial orders. Professor Moore recommends that this should be called an 'interlocutory summary adjudication'. 6 Moore, Federal Practice (1953), § 56.20(3). Such an adjudication preliminary to the trial is not a final judgment, and has the virtue that if subsequent developments in this changing area of Pennsylvania law make it appropriate, the conclusion here reached may be reconsidered at the pretrial conference or at the trial.'
And now, July 30, 1964, plaintiff's complaint is declared insufficient as a matter of law on the issue of liability for warranty and that issue is eliminated from the case, but defendant's motion for summary judgment is hereby denied.