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SALVADOR v. ATLANTIC STEEL BOILER CO. ET AL. (05/22/74)

decided: May 22, 1974.

SALVADOR
v.
ATLANTIC STEEL BOILER CO. ET AL., APPELLANTS



Appeal from order of Superior Court, Oct. T., 1972, No. 1723, reversing 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 Phila., Inc., Irwin H. English Co., Walter K. Mueller and Juliet M. Mueller, his wife.

COUNSEL

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

Carl M. Mazzocone, with him Glenn A. Troutman, and Mazzocone & Quinn, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones took no part in the consideration or decision of this case.

Author: Roberts

[ 457 Pa. Page 25]

In Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968), this Court abolished the requirement of vertical privity in actions for breach of warranty. Today the question is whether the doctrine of horizontal privity should likewise be abandoned.*fn1 We conclude that the

[ 457 Pa. Page 26]

    theoretical foundation which once supported horizontal privity has been undermined; we hold that lack of horizontal privity itself may no longer bar an injured party's suit for breach of warranty.

Allegedly as a result of the explosion of a steam boiler on May 22, 1967, at his place of work, Ahmed Salvador suffered the loss of approximately 77 per cent of his ability to hear. On March 29, 1971, Salvador filed a summons in assumpsit naming as defendants his employer, the retail seller of the boiler, and appellants, the manufacturers of the exploding steam boiler. A complaint was filed on February 3, 1972, and the manufacturers filed preliminary objections in the nature of a demurrer. The trial court sustained the preliminary objections and dismissed the complaint in assumpsit because plaintiff-appellee did not allege a contractual relationship with appellants and thus horizontal privity was lacking.*fn2

In an opinion by Judge Cercone, the Superior Court reversed. Salvador v. Atlantic Steel Boiler Co., 224 Pa. Superior Ct. 377, 307 A.2d 398 (1973).*fn3 That court reasoned that the thrust of Kassab was the desire to reach the same result in a lawsuit arising from particular facts whether the action is brought in trespass or assumpsit. Id. at 383-84, 307 A.2d at 402. Concluding

[ 457 Pa. Page 27]

    that the adoption of section 402A of the Restatement (Second) of Torts (1965),*fn4 eliminates the logical basis for both vertical and horizontal privity, the Superior Court held that the Kassab rationale dictated abolition of the horizontal privity requirement in breach of warranty actions. The order sustaining preliminary objections was reversed and the complaint reinstated. We granted the manufacturers' petition for allowance of appeal;*fn5 we affirm.

In Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A.2d 575 (1963), plaintiff, engaged in his duties as a bartender, was injured by flying glass when a bottle of carbonated soda exploded. He sued Canada Dry, the manufacturer, alleging breach of implied warranties. Because Hochgertel was neither the purchaser, a member of the purchaser's family, nor a guest in purchaser's home, this Court held that he ...


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