Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1973, No. 3479, in case of Errol Fredley v. Crandall Filling Machinery, Inc.
George I. Buckler, with him Meyer, Darragh, Buckler, Bebenek & Eck, for appellant.
William A. Weiler, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P.j.
[ 234 Pa. Super. Page 532]
This is an appeal from an order of the Court of Common Pleas, Civil Division, of Allegheny County, vacating a judgment entered on the pleadings on a rule to show cause why the judgment should not be opened.
The appellant-defendant, Crandall Filling Machinery, Inc., was sued by the appellee-plaintiff, Errol Fredley, for injuries sustained by him while working on a can filling machine manufactured by Crandall. The complaint had three prongs -- one was for breach of warranty, one in strict liability and one in negligence. The appellant averred that the strict liability and negligence contentions were barred by the statute of limitations and that the averment of breach of warranty was barred because there was a lack of privity between the appellee, an employee of the purchaser, and the appellant, a manufacturer.
Appellant moved for judgment on the pleadings. The motion was argued before the court en banc below on June 11, 1973. The court entered judgment on the pleadings on July 6, 1973, holding that the statute of limitations barred the negligence and strict liability averments and the breach of warranty complaint was barred because of lack of privity, under Hochgertel v. Canada Dry Corporation, 409 Pa. 610, 187 A.2d 575 (1963).
On June 14, 1973, this Court filed its opinion in Salvador v. Atlantic Steel Boiler Co., 224 Pa. Superior Ct. 377, 307 A.2d 398 (1973), which abolished the requirement of privity. On Allocatur, the Supreme Court of Pennsylvania affirmed this Court in Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903 (1974), which was filed May 22, 1974, and which clearly overruled Hochgertel, supra. The Supreme Court held that vertical privity in an action for breach of warranty was abolished by Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848
[ 234 Pa. Super. Page 533]
(1968) and that the "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." The Supreme Court clearly put Hochgertel, supra, to rest in Salvador, supra, by holding at page 33:
"Though we must overrule Hochgertel, this is not an occasion when a court reexamines its precedents and finding them in error returns to a 'correct' view. On the contrary, as we have said, when Hochgertel was decided it was clearly the appropriate accommodation between the law of torts and the law of contracts. Since then Pennsylvania products liability law has progressed, and demands of public policy as well as legal symmetry compel today's decision."
There is no question that judgment on the pleadings was entered by the court below without knowledge of the change in the law occasioned by Salvador, supra. This was also true of counsel which explains why no appeal was taken from entry of judgment on the pleadings. In fact, no action was taken until October, 1973, when appellee filed his rule to show cause why the judgment should not be opened. A few days later on October 16, 1973, before the respondent had answered and without hearing, the court below, sua sponte, entered its order vacating the judgment on the pleadings as to the breach ...