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HOFFMAN v. A.B. CHANCE CO.

August 17, 1972

Alvin H. HOFFMAN and Fay Hoffman, Plaintiffs,
v.
A.B. CHANCE CO., Third-Party Plaintiff and Defendant. MINNESOTA AUTOMOTIVE, INC., Defendant, v. BOROUGH OF MIFFLINBURG and Mifflinburg Power and Light Company, Third-Party Defendants


Muir, District Judge.


The opinion of the court was delivered by: MUIR

Before the Court is a motion filed by Defendant A.B. Chance Co. ("Chance") to dismiss the fifth and sixth counts of Plaintiffs' second amended complaint. This motion will be denied.

 I. The Fifth Counts

 The background of Plaintiffs' action has been stated in a previous opinion of this Court:

 
"[This] action stems from extremely serious personal injuries [allegedly] suffered by Plaintiff Alvin Hoffman, an employee of the Borough of Mifflinburg, Pennsylvania, when he was thrown from an hydraulic aerial platform installed on a 1965 Ford truck purchased by the Borough to facilitate work on overhead electrical lines. The complaint alleges that on October 18, 1969, while Hoffman was standing on the aerial platform, the truck's Mico Brake Lock device, manufactured by Defendant Minnesota Automotive, Inc. and installed by Defendant A.B. Chance Co., malfunctioned, permitting the truck to roll forward. The truck struck a tree, and the force of the impact catapulted Plaintiff to the ground." Hoffman v. A.B. Chance, 339 F. Supp. 1385, 1386 (M.D. Pa. 1972).

 In the opinion just referred to, the Court held that the predecessor counts to Plaintiffs' present fifth counts would be dismissed for failure to plead the requisite elements of a claim under § 402B, Restatement of Torts, 2d. That deficiency has now been rectified. Plaintiffs' most significant amendment to their former pleading is an allegation that prior to the sale in question, Chance represented that "it was unnecessary to have another person in the cab of the vehicle while the equipment was being operated." Contrary to Chance's contention, a jury could reasonably find that the alleged statement was a misrepresentation of material fact, not mere puffing.

 Since Plaintiffs have pleaded successfully a § 402B claim it is necessary to reach the question previously reserved: is § 402B Pennsylvania law? Because the Pennsylvania Supreme Court has neither adopted nor rejected § 402B, it is my duty to decide whether reasonable, intelligent lawyers on that court, fully conversant with Pennsylvania jurisprudence, would adopt § 402B if the issue were before them today. Cooper v. American Airlines, 149 F.2d 355, 359 (2d Cir. 1945). See Wooddell v. Washington Steel Corporation, 269 F. Supp. 958, 960 (W.D. Pa. 1967). The proper guidance must come from the existing Pennsylvania law of products liability.

 Chance's central objection to § 402B is that it grants to an employee injured while using a particular product a right of action against the manufacturer or seller of that product.

 § 402B and an implied warranty of merchantability express very similar theories of liability. See, e.g., Act of 1953, P.L. 3, § 2-314, 12A P.S. § 2-314(2)(f); Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292 (3d Cir. 1961). The Pennsylvania Supreme Court has held that an injured employee does not have a right of action on a warranty to the purchaser of the product he was handling when injured. Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A. 2d 575 (1963). In my view, however, this holding would be reversed by a reasonable, intelligent lawyer sitting on that Court today. My reasons in brief are these:

 (1) The requirement of "privity" in warranty actions no longer enjoys the sanctity once accorded it. For example, in Kassab v. Central Soya, 432 Pa. 217, 246 A. 2d 848 (1968), the Court overturned its prior position, expressed as recently as 1966, *fn1" that an injured purchaser of a product could not sue the remote manufacturer thereof on a warranty theory.

 (2) Pennsylvania law does not view a manufacturer or seller as completely free of any responsibility toward an employee of a purchaser of their product. An injured employee has a cause of action against a manufacturer or seller on a § 402A Restatement of Torts, 2d, theory of liability for defective products unreasonably dangerous to consumers and users thereof even if he did not purchase the product. Webb v. Zern, 422 Pa. 424, 220 A. 2d 853 (1966).

 (3) Hochgertel has led to what is in my opinion an absurd distinction in the class of persons who may sue on a warranty theory between employees who have purchased the item on their employer's behalf and those who have not. See Yentzer v. Taylor Wine Co., 414 Pa. 272, 199 A. 2d 463 (1964).

 (4) § 2-318 of the Uniform Commercial Code, which has been adopted by Pennsylvania, *fn2" provides that a seller's warranty "extends to any natural person who is in the family or household of the 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." Comment 3 to this section states that aside from expressly including as beneficiaries the family, household and guests of the purchaser, the section is meant to be neutral. Therefore a reasonable, intelligent lawyer on the Supreme Court of Pennsylvania would not feel restricted by § 2-318 in extending the benefits of a seller's warranty to an injured employee if it was reasonable to expect that such person might "use, consume or be affected by the goods."

 Having concluded that Hochgertel would be reversed, I find that § 402B would be adopted as Pennsylvania law. Its imposition of strict liability on manufacturers and sellers is amply supported by the same policies which resulted in the adoption of § 402A as law in Pennsylvania. See Miller v. Preitz, 422 Pa. ...


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