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WEBB v. ZERN (06/24/66)

decided: June 24, 1966.

WEBB, APPELLANT,
v.
ZERN



Appeal from judgment of Court of Common Pleas of Lancaster County, Dec. T., 1964, No. 28, in case of Nelson R. Webb v. John A. Zern, D. G. Yuengling & Son, Inc. and The Benson Manufacturing Co., Inc.

COUNSEL

Harris C. Arnold, Jr., with him Arnold, Bricker, Beyer & Barnes, for appellant.

John I. Hartman, Jr., with him W. Hensel Brown, John J. Stork, and Windolph, Burkholder & Hartman, and Brown & Zimmerman, and May, Grove & Stork, for appellees.

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

Author: Cohen

[ 422 Pa. Page 426]

This appeal is from the dismissal of a suit in trespass seeking damages for injuries resulting from the explosion of a beer keg purchased by the plaintiff's father.

Charles Webb purchased a quarter-keg of beer from a distributor, John Zern. That same day, plaintiff's brother tapped the keg and about a gallon of beer was drawn from it. Later that evening, when plaintiff entered the room in which the keg had been placed, the keg exploded, severely injuring plaintiff.

Suit was brought against the distributor, the brewer who had filled the keg, and the manufacturer of the keg. Plaintiff, although there were three parties as defendants, relied on the theory of exclusive control, because he averred in his complaint that he had no knowledge of the cause of the explosion, or of which party defendant was responsible for the explosion. The trial court, pursuant to defendants' demurrers and motions for a more specific complaint, sustained the demurrers and dismissed the complaint on the theory that the doctrine was inapplicable since plaintiff had failed to join as defendants his father who had purchased and his brother who had tapped the keg and who might have engaged in activities that caused the explosion. The trial court stated that, for the doctrine of exclusive control to apply, all parties against whom an inference of negligence may be drawn must be joined. Since the statute of limitations had run so that no further defendants could be added, the lower court entered its judgment.

We need not, however, determine whether or not the lower court erred with regard to the law of exclusive control, for there is another and clearer issue which is determinative of this appeal. That issue is the nature and scope of the liability in trespass of one who produces or markets a defective product for use

[ 422 Pa. Page 427]

    or consumption. The development of the law in that area is chronicled in the concurring and dissenting opinions of Justices Jones and Roberts to the decision of this Court in Miller v. Preitz, 422 Pa. 383, 221 A.2d 320 (1966). One will also find there citations to modern case law and commentaries which extend and recommend the extension of the law of strict liability in tort for defective products. The new Restatement of Torts reflects this modern attitude. Section 402A thereof states:

"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

"(2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual ...


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