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KELLY v. HANSCOM BROTHERS (12/11/74)

decided: December 11, 1974.

KELLY
v.
HANSCOM BROTHERS, INC., APPELLANT, ET AL.



Appeals from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1967, Nos. 661 and 662, in case of John Patrick Kelly, Administrator of the Estate of Patrick James Kelly v. Hanscom Brothers, Inc., and Leon Ponnock, Samuel Ponnock and Joseph Stein, t/a A. Ponnock & Sons, et al.

COUNSEL

Daniel T. McWilliams, for appellant.

John J. O'Brien, Jr., for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Watkins, P. J., and Van der Voort, J., dissent.

Author: Cercone

[ 231 Pa. Super. Page 359]

This appeal arises from the lower court's granting of a motion for a directed verdict in favor of third party defendant, Ponnock & Sons, on the claim raised in the third party complaint of Hanscom Bros., Inc. Hanscom Bros. asserts that the directed verdict was erroneously granted and that it, therefore, is entitled to a new trial. We agree and will reverse and remand for a new trial.

The facts giving rise to the claim set forth in Hanscom's third party complaint are not in dispute. Hanscom Bros. is a Philadelphia retail variety store which did business with Ponnock & Sons, a wholesaler. Among the items which it purchased from Ponnock's was a line of vinyl squeeze toys of the type frequently seen in the playpens of infants. In the ordinary course of Hanscom's business, those toys would be resold to

[ 231 Pa. Super. Page 360]

Hanscom's patrons. Shortly before Easter in 1967, Georgetta Kelly purchased two such toys as Easter basket decorations for her twin infants, Patrick James and Lorrie Ann. The toys were individually wrapped in cellophane and, at the time of purchase, Mrs. Kelly noted nothing unusual about them. When Mrs. Kelly brought them home, her children saw them and grew excited about having them. Mrs. Kelly acceded to their clamoring, unwrapped the toys and placed them in the playpen with the children. When she returned later to look in on the children she noticed that her son was choking. Tragically, efforts to revive him were unavailing.

All parties conceded that the whistle in the base of the toy, which caused the toy to squeak when it was squeezed, fell into the boy's throat and lodged in his windpipe causing his death.

Mr. Kelly, acting as administrator for his son's estate, perfected a claim against Hanscom Bros. for wrongful death based upon both Section 402A of the Restatement of Torts, Second, and U.C.C. ยง 2-314. Hanscom Bros. brought in Ponnock & Sons, charging breach of the implied warranty of merchantability under Section 2-314 of the Uniform Commercial Code. Since the firm which sold the toy to Ponnock's was a Japanese concern, and presumably not amenable to process in Pennsylvania, no further parties were joined.

Shortly before trial the original plaintiff, Kelly, entered a settlement agreement whereby both Hanscom Bros. and Ponnock & Sons agreed to pay $10,000 each to the estate of his son. The agreement also provided that it did not affect the rights of Hanscom and Ponnock, inter se. Trial was held on the third party complaint, and the contested motion for a directed verdict was entered in favor of Ponnock on the theory that, ...


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