Appeals from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1970, Nos. 2861 and 2862, and Jan. T., 1971, Nos. 337 and 338, in cases of John R. Klages v. General Ordnance Equipment Corporation; John R. Klages v. Markl Supply Company v. General Ordnance Equipment Corporation; John R. Klages v. Markl Supply Company v. General Ordnance Equipment Corporation; and John R. Klages v. General Ordnance Equipment Corporation.
Charles J. Duffy, Jr., with him Lancaster, Mentzer, Coyne and Duffy, for appellant.
Peter J. Mansmann, with him Allan E. MacLeod, Thomas F. Weis, and Mansmann, Beggy & Campbell, and Weis & Weis, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.
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The instant case presents a question of first impression in Pennsylvania: Is the Restatement (Second) of Torts, § 402B the law of this Commonwealth?
The facts are not in dispute. The appellee, John R. Klages, was employed as a night auditor*fn1 at Conley's Motel on Route 8, Hampton Township. He worked from eleven o'clock at night until seven o'clock in the morning, five days a week. On March 30, 1968, at approximately one-thirty in the morning, two individuals entered the motel and announced "This is a stickup. Open the safe." The appellee indicated that he was unable to open the safe because he did not know the combination. One of the individuals then pointed a gun at the appellee's head and pulled the trigger. Fortunately for the appellee, the gun was a starter pistol and he was not seriously injured.
The next day Klages and a fellow employee, Bob McVay, decided that they needed something to protect themselves against the possibility of future holdups. After reading an article concerning the effects of mace, McVay suggested that they investigate the possibility of using mace for their protection. McVay secured four leaflets describing certain mace weapons from the Markl Supply Company. The leaflets were distributed to retail outlets by the appellant manufacturer, General Ordnance Equipment Corporation. The literature indicated that three different types of mace weapons were available. Two of the weapons were too large for Klages' and McVay's purposes, but the third, the MK-II, was easily concealable and otherwise appeared to meet their requirements.*fn2 The literature contained, in pertinent part, the following description of the mace's effectiveness: "Rapidly vaporizes on face of assailant effecting
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trespass and assumpsit against the Markl Supply Company and the General Ordnance Equipment Corporation. The Markl Supply Company also joined the General Ordnance Corporation as an additional defendant in each of its cases. On October 26, 1973, the cases were consolidated for trial. A jury trial commenced on March 4, 1974, and the jury returned a verdict in the amount of $42,000.00, in favor of Klages against the appellant, General Ordnance Equipment Corporation, and a verdict in favor of the Markl Supply Company. This appeal followed.
The appellant raises five grounds for reversal: (1) the lower court erred in charging the jury on misrepresentation of a material fact under § 402B of the Restatement (Second) of Torts; (2) the lower court erred in charging the jury on breach of express warranty under § 2-313 of the Uniform Commercial Code, 12A P.S. § 1 et seq.;*fn4 (3) the lower court erred in refusing to charge the jury on the defense of assumption of the risk; (4) the lower court erred in charging the jury on proximate and legal cause; (5) the lower court erred in charging the jury that if they found the retailer, Markl Supply Company, liable, they must also find the manufacturer, General Ordnance Equipment Corporation, liable to the seller.
I. SECTION 402B OF THE RESTATEMENT (SECOND) OF TORTS*fn4a
Section 402B of the Restatement (Second) of Torts
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provides as follows: "One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though (a) it is not made fraudulently or negligently, and (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller."
The courts of this Commonwealth have dealt sparingly with § 402B. In Berkebile v. Brantley Helicopter Corporation, 462 Pa. 95, 337 A.2d 893 (1975),*fn5 our Supreme Court did not decide whether § 402B is the law of Pennsylvania, because the advertisements amounted only to "puffing" and, therefore, were not within the proscription of § 402B. We must determine, therefore, if § 402B represents the law of this Commonwealth.
The concept that manufacturers should be held liable to consumers who purchase their products for express misrepresentations made about the products' safety or quality was originated by the Supreme Court of Washington in Baxter v. Ford Motor Co., 168 Wash. 456, 12 P.2d 409, 88 A.L.R. 521 (1932), on second appeal, 179 Wash. 123, 35 P.2d 1090 (1934). In Baxter, the plaintiff, relying on representations in the manufacturer's sales literature that all new Fords had "shatter-proof glass windshields," purchased a new Ford from a retail dealer. While the plaintiff was driving, a pebble struck the windshield and shattered the glass, causing blindness to one of the plaintiff's eyes. Initially, the Supreme Court of Washington held that the plaintiff had a right to rely on the manufacturer's representations on the theory of
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breach of express warranty. On second appeal, however, the court relied on the concept of misrepresentation, holding that if the plaintiff relied on the misrepresentation, the fact that the manufacturer did ...