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decided: June 14, 1973.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1971, No. 5175, in case of Ahmed Salvador v. Atlantic Steel Boiler Co., I. H. English of Philadelphia, Inc., Irwin H. English Co., Walter K. Mueller and Juliet M. Mueller, his wife.


Carl M. Mazzocone, with him Sheer, Mazzocone & Quinn, for appellant.

Thomas H. Goldsmith, with him Goushian, Mooradian, Goldsmith & Keller, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Cercone, J. Spaulding, J., concurs in the result. Watkins and Jacobs, JJ., dissent.

Author: Cercone

[ 224 Pa. Super. Page 378]

This is an action in assumpsit, based, inter alia, on a breach of implied warranty of fitness, to recover for serious personal injuries sustained by the plaintiff-employee when a steam boiler purchased from the defendant by plaintiff's employer exploded. The court below upheld defendant's preliminary objections that the plaintiff had no standing to institute an action in assumpsit for breach of warranty against the seller and plaintiff has appealed.

The Supreme Court had ruled in Hochgertel v. Canada Dry Corp., 409 Pa. 610 (1963), that the Uniform Commercial Code, Act of April 6, 1953, P. L. 3, as amended, 12A P.S. ยง 2-318, did not call for an extension of warranty to an employee of the purchaser. The appellant argues, however, that this decision was impliedly, though not expressly, overruled by the Supreme Court's later decision in Kassab v. Central Soya, 432 Pa. 217 (1968), in which the Supreme Court held that purchasers could sue remote manufacturers for breach of implied warranty. That decision was based on reasoning

[ 224 Pa. Super. Page 379]

    that (1) suits against remote manufacturers discouraged multiplicity of suits; and (2) the adoption by the Pennsylvania Supreme Court in Webb v. Zern, 422 Pa. 424 (1966), of the doctrine of strict liability of Section 402A of the Restatement of the Law of Torts allowed an action of trespass against a remote manufacturer and that the validity of plaintiff's action should not therefore be made to depend solely upon the style of the action.

Concededly, the Kassab case dealt with vertical privity, that is, it dealt with the question: from whom does the warranty run? It did not deal with, as does the instant case, the issue of horizontal privity, that is, to whom does the warranty run? In fact, the court in Kassab clearly stated in footnotes at pages 228 and 232: "'Consumer' as here used is not restricted only to the 'Purchaser' of the defective product, but also extends under section 2-318 of the U.C.C. to others who in fact use the defective goods and whose person or property is injured thereby. The exact limits of the class of such other persons (not the purchaser) who may sue a remote manufacturer in assumpsit, or for that matter anyone in the distributive chain, without a showing of privity involves the question of so-called 'horizontal' privity, an issue not before us in the present case. See Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A.2d 575 (1963). The requirements of section 2-318 of the Uniform Commercial Code dealing with 'horizontal privity' are discussed more fully at note 8, infra, and accompanying text." . . . " Our decision today has no impact on 'horizontal privity' our holding being confined solely to the issue of whether a purchaser, a member of his family or household, or a guest in his house, may sue the remote manufacturer of a defective product for breach of warranty. Our decision therefore leaves undisturbed Hochgertel or any

[ 224 Pa. Super. Page 380]

    other Pennsylvania decision involving the extent of the class of product users entitled to the protection of a seller's or manufactured warranty." Appellant argues, however, that the effect of these footnotes is merely to leave open the question of any change in the law of horizontal privity until a future case, such as the present one, directly involving that issue, called for a reconsideration of the Hochgertel case of 1963 in light of the subsequent adoption of Section 402A and its underlying broad social concepts which the court found in Kassab to be of material and governing effect in eliminating the need for vertical privity.

A reading of the Hochgertel decision compels us to agree with this contention of the appellant. The rationale of that 1963 decision was that "to grant such an extension of the warranty, as urged herein, would in effect render the manufacturer a guarantor of his product and impose liability in all such accident cases even if the utmost degree of care were exercised". That rationale no longer finds support in the law because the Pennsylvania courts have since adopted and have consistently followed the broad social concepts of Section 402A, which section does indeed render the manufacturer liable for a defective product ...

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