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MILLER v. PREITZ (06/24/66)

decided: June 24, 1966.


Appeal from judgments of Court of Common Pleas of Bucks County, Jan. T., 1963, No. 578, in case of Charles R. Miller, administrator of estate of Earl Brian Coakley, deceased v. Wallace Theodore Edwin Preitz, trading as Hartsville Pharmacy, Rexall Drug Company and Northern Electric Company.


L. Francis Murphy, with him Peter A. Glascott, and C. Howard Harry, Jr., for appellant.

Arthur B. Walsh, Jr., with him Walsh and Durben, for appellee.

Arthur M. Eastburn, Jr., with him Eastburn and Gray, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Concurring Opinion by Mr. Chief Justice Bell. Concurring and Dissenting Opinion by Mr. Justice Jones. Concurring and Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno joins in this opinion.

Author: Cohen

[ 422 Pa. Page 385]

This is an appeal from judgments for defendants entered on their preliminary objections, in the nature of demurrers, to plaintiff-administrator's complaint.

The following, well pleaded, factual allegations must be taken as true for purposes of ruling on the

[ 422 Pa. Page 386]

    demurrers. On or about October 1, 1961, Gloria Sewell, an aunt and next door neighbor of the infant decedent, Earl Brian Coakley, purchased a vaporizer-humidifier from defendant Wallace Preitz, trading as Hartsville Pharmacy. The device had been manufactured by defendant Northern Electric Company and distributed by defendant Rexall Drug Company. On January 27, 1962, the device was being used at decedent's residence, in accordance with its ordinary purpose, to relieve congestion in decedent's nose. Suddenly it shot boiling water on decedent's body causing his death on January 30, 1962.

Decedent's administrator began an action of assumpsit, containing two counts, against all of the above named defendants for damages resulting from breaches of implied warranties of merchantability. The first count was brought under the "Wrongful Death" statute*fn1 and the second under the "Survival" statute.*fn2 All of the defendants filed preliminary objections, in the nature of demurrers, asserting that the implied warranties did not extend to decedent or, as often stated, that decedent was not in "privity of contract" with defendants as required to support an action of assumpsit based upon a breach of implied warranty. The lower court sustained the demurrers and entered judgments for the defendants.

Our determinations in this appeal are in the first instance restricted by the election of the administrator to frame this action in assumpsit.

[ 422 Pa. Page 387]

On the basis of our decision in DiBelardino v. Lemmon Pharmacal Co., 416 Pa. 580, 208 A.2d 283 (1965), the lower court properly sustained preliminary objections to plaintiff's "Wrongful Death" count. In Lemmon Page 387} Pharmacal we held that the right of action provided by the "Wrongful Death" statute could be brought only in trespass and that, therefore, an action of assumpsit for breach of warranty was inappropriate. The holding was based upon the language of the "Wrongful Death" statute which provides that the actionable wrong is "death . . . occasioned by unlawful violence or negligence. . . ." (Emphasis supplied).

The obstacle to bringing a breach of warranty action under the "Wrongful Death" statute is not present under the "Survival" statute. As we said in Pezzulli v. D'Ambrosia, 344 Pa. 643, 647, 26 A.2d 659, 661 (1942), the actions provided in these two statutes "are entirely dissimilar in nature. The [former] represents a cause of action unknown to the common law. . . . The [latter] is not a new cause of action at all, but merely continues in his personal representatives the right of action which accrued to the deceased. . . ."*fn3 If decedent would have been entitled to maintain an assumpsit action for what the Uniform Commercial Code calls "consequential damages" -- "injury to person or property proximately resulting from any breach of warranty"*fn4 -- then we see no reason why his personal representative could not do so on behalf of his estate under the "Survival" statute. Thus, while a breach of warranty action cannot be brought under the "Wrongful Death" statute it may be brought under the "Survival" statute. The issue remains, however,

[ 422 Pa. Page 388]

    whether decedent's lack of "privity" to the warranties precludes the action.

With respect to this issue there are two main inquiries. The first is whether § 2-318 of the Uniform Commercial Code obviates the requirement of "privity" with respect to the plaintiff.

Section 2-318 provides: "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 affected by the goods and who is injured in person by breach of the warranty. . . ." (Emphasis supplied). Act of April 6, 1953, P. L. 3, § 2-318, 12A P.S. § 2-318. The comments to this section elaborate on its purpose and scope: "2. The purpose of this section is to give the buyer's family, household and guests the benefit of the same warranty which the buyer received in the contract of sale, thereby freeing any such beneficiaries from any technical rules as to 'privity.' It seeks to accomplish this purpose without any derogation of any right or remedy resting on negligence. It rests primarily upon the merchant-seller's warranty under this Article that the goods sold are merchantable and fit for the ordinary purposes for which such goods are used rather than the warranty of fitness for a particular purpose. Implicit in the section is that any beneficiary of a warranty may bring a direct action for breach of warranty against the seller whose warranty extends to him.

"3. This section expressly includes as beneficiaries within its provisions the family, household, and guests of the purchaser. Beyond this, the section is neutral and is not intended to enlarge or restrict the developing case law on whether the seller's warranties, given to his buyer who resells, extend to other persons in the distributive chain." Thus, if the decedent, "a natural person," was connected with the "buyer", his aunt, in

[ 422 Pa. Page 389]

    one or more of the ways set forth in § 2-318 then his lack of "privity" is not a bar to a suit under the "Survival" statute by his representative against his aunt's immediate seller, Wallace Preitz, trading as Hartsville Pharmacy.

With respect to this inquiry appellant contends that the decedent, being a nephew of the "buyer," was in her "family," as that term is used in § 2-318, and, therefore, within the benefit of defendant Hartsville Pharmacy's implied warranty. The lower court held and appellees urge that the word "family" was meant by the Legislature to be used interchangeably with the word "household" and that since the decedent, who lived next door to his aunt, was not a member of her "household" he could not be in her "family." In our opinion such a construction is erroneous. The word "family" appears in the phrase "any natural person who is in the family or household of his buyer or who is a guest in his home." Obviously, the clause "guest in his home" has significance different from and independent of the clause "person . . . in the . . . household." It would seem also that the clause "person . . . in the family" has significance different from and independent of the clause "person . . . in the . . . household" rather than being mere surplusage. The use of the conjunction "or" strengthens the natural conclusion that "family" and "household" have different meanings in this statute.

Our interpretations of the word "family" in Shank Estate, 399 Pa. 656, 161 A.2d 47 (1960); Way Estate, 379 Pa. 421, 109 A.2d 164 (1954), and Beilstein v. Beilstein, 194 Pa. 152, 45 Atl. 73 (1899), do not support the lower court's construction. Not only were the contexts in which the word was used in those cases very different from the present context but also the meanings ascribed to the word "family" in those cases

[ 422 Pa. Page 390]

    were not limited to the meaning of the word "household."

The statute provides no clear indication of the meaning to be given to the word "family," and we have found no case on the matter. In our opinion, considering the remedial nature of the provision and the natural connotations of the word, its meaning was not intended to be unduly restrictive. Accordingly, we hold that the word "family" as used in this statute includes the nephew of the purchaser. This interpretation of the word "family" is not too burdensome on the seller who makes the warranty because not only must the beneficiary be in the buyer's family but also it must be "reasonable to expect that such person may use, consume or be affected by the goods. . . ." Whether this member of the family was also within the latter clause is a factual and objective question and depends upon all the relevant circumstances, which may include such factors as the remoteness of the family relation, the geographical connection between the buyer and the member of his family, and the nature of the product.

Because decedent was in the buyer's "family", § 2-318 supports his representative's action against defendant Preitz, notwithstanding decedent's lack of privity. Therefore, it was error to sustain said defendant's demurrer to plaintiff's second count. Of course, the pertinent factual matters must be proven before recovery may be had.

Section 2-318 designates those persons who may sue. The second inquiry, therefore, is whether there is any rule of case law permitting the persons designated in § 2-318 to maintain an action of assumpsit against remote sellers. With respect to this inquiry a consideration of the case law is pertinent and it is necessary to determine whether defendants' lack of "privity" is a bar thereunder. Much has been written regarding the demise of the requirement of "privity of contract"

[ 422 Pa. Page 391]

    in implied warranty actions,*fn5 and, indeed, its demise is plainly evident in some jurisdictions. See, e.g., Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960). Cf. Suvada v. White Motor Co., 32 Ill. 2d 612, 210 N.E. 2d 182 (1965). But it is plain from Hochgertel v. Canada Dry Corporation, 409 Pa. 610, 187 A.2d 575 (1963), that the requirement still has great vitality in Pennsylvania. The following excerpts from Hochgertel are pertinent:

"The general rule in the United States is that the mere resale of a warranted article does not give a subpurchaser the right to sue the manufacturer in assumpsit, on the basis of breach of warranty, for damages incurred by him due to a defect in the quality of the goods. Pennsylvania decisions are in accord with this general proposition. The warranty is personal to the immediate or original buyer, and he alone may avail himself of the benefit thereof. This limitation is based on the rule of privity of contract. . . .

"However, nearly a third of the American jurisdictions, including Pennsylvania, have broken away from the rule of 'privity of contract' in cases involving food, beverages and like goods for human consumption, and have for various stated reasons 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. . . .

"A close study of [the Pennsylvania food cases] will disclose that the courts did not therein outrightly reject the 'privity of contract' rule, but extended the obligation of the manufacturer to the subpurchaser in such instances upon the . . . demands of 'social justice'. . . .

[ 422 Pa. Page 392]

"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 [except in cases covered by § 2-318 of the Code]." We went on to hold in Hochgertel that a bartender-employee who was injured by an exploding bottle of soda water could not bring an implied warranty action against the defendant who had bottled and sold the soda water to plaintiff's employer.*fn6

In light of the discussion and holding of Hochgertel it seems plain that under the developing case law decedent was not within the benefits of any implied warranties made by the remote sellers.*fn7 This necessarily follows from the fact that he was not a "purchaser." Even if he were a "purchaser" the product involved would not bring him within the rule that a "purchaser" can sue a remote seller only in cases involving "food, beverages, and like goods for human consumption."

Yentzer v. Taylor Wine Company, 414 Pa. 272, 199 A.2d 463 (1964), another exploding bottle case, merely held that the plaintiff-employee was actually a "buyer" or "purchaser" and since the defective product was a food or beverage he could sue a remote seller on an implied warranty.

It must be emphasized that all we have said with regard to the requirement of "privity of contract" and

[ 422 Pa. Page 393]

    the requirement of a family relationship applies only to actions of assumpsit for breach of implied warranty under the Uniform Commercial Code. The "privity" requirement has long been abandoned in Pennsylvania in actions of trespass for negligently caused injuries. See Foley v. The Pittsburgh-Des Moines Co., 363 Pa. 1, 28-30, 68 A.2d 517, 530-532 (1949). Furthermore, we recognize the social policy considerations behind imposing strict liability in tort upon all those who make or market any kind of defective product, notwithstanding an absence of negligence on their part.*fn8 A similar result would follow from abandoning the requirement of "privity of contract" in warranty actions.

However, the latter course, the one decedent's administrator has directed this Court upon, is not freely open to us. We are circumscribed by the limitations on strict liability in assumpsit set forth in the Uniform Commercial Code. The comment to the Code, quoted above, which is the basis for the argument that the language of § 2-318 is precatory only was never enacted by the Pennsylvania Legislature. Such considerations, we believe, do not limit the development of the law in trespass. The concurring and dissenting opinion, which would remand or amend the pleadings in this action to trespass, fails to note that appellant has not sought such relief here. Indeed, the record discloses that an action of trespass has also been filed by the administrator. Therefore, an amendment by us would be improper. As a result, a determination of law as to strict liability for defective products in a trespass action must await an appropriate case.

Judgments for defendants Northern Electric and Rexall Drug affirmed and judgment for defendant

[ 422 Pa. Page 394]

Theodore Preitz, trading as Hartsville Pharmacy, reversed with a procedendo.


Judgments for defendants Northern Electric Company and Rexall Drug Company affirmed; judgment for defendant Prietz reversed.

Concurring Opinion by Mr. Chief Justice Bell:

It is conceded by everyone that under the well established existing law the plaintiff in this case cannot recover for breach of an implied warranty (1) unless he was a purchaser, or (2) the defective or damaging article was food or like goods for human consumption, or (3) he came within the provisions of § 2-318 of the Uniform Commercial Code. It is crystal clear ...

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