The opinion of the court was delivered by: WEBER
(MOTION OF DEFENDANT J & B TIRE COMPANY)
J & B Tire Company has also moved for partial summary judgment of dismissal of the strict liability claims and the warranty claims against it.
The controlling legal question for the application of strict liability is the defendant's position in the transaction. Did he manufacture or supply a mass product to the general public so as to justify elimination of proof of negligence in imposing liability? If so, we are not concerned with the question of privity. Our reading of Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848  and Salvador v. Atlantic Steel Boiler, 457 Pa. 24, 319 A.2d 903  indicates that the protection of the warranty will extend as far and as broad as the strict liability of § 402A.
With respect to 402A liability, the Court concludes that J & B Tire Company, like the Morrisons, cannot be held liable under those theories. Section 402A, by its own terms, applies only to sellers. While "sellers" has been interpreted by courts to include retailers and manufacturers, as well as wholesalers, distributors and suppliers in general, there has been no general judicial expansion of this provision to include persons who supply a service. Thus, in Raritan Trucking Corp. v. Aero Commander, Inc., 458 F.2d 1106 [3rd Cir. 1972] (decided under New Jersey Law) an airplane servicer who worked on a plane's landing gear was held not to be strictly liable in tort, but liable only upon a showing of negligence. Even in those hybrid sale-service transactions in which the "seller" is held subject to 402A, that liability is limited to defects in the product supplied and does not include non-negligent mistakes in the service. See the discussion of Newmark v. Gimbel's, Inc., 54 N.J. 585, 258 A.2d 697  in Raritan, supra, at 1115:
"There the plaintiff had been injured when an allegedly defective permanent wave solution was applied to her hair by the defendant beauty parlor. The court, in holding the beauty parlor strictly liable for defects in the permanent wave solution, was careful to note the sales aspects of what it saw as a 'sales-service hybrid transaction.' It will be noted that the court there did not hold that the beauty parlor operator would be strictly liable for nonnegligent mistakes in its own application of the solution, but only for defects in the solution itself."
We find no differences under Pennsylvania law.
See also: "When Does a 'Service' Become a 'Sale'?", David L. Phipps, 39 Insurance Counsel Journal 274 .
This conclusion that only "sellers" and not "repairers" are within the scope of 402A is fortified by the structure of the Restatement of Torts, 2d, itself. In Section 404 of the Restatement, it is provided:
"One who as an independent contractor negligently makes, rebuilds, or repairs a chattel for another is subject to the same liability as that imposed upon negligent manufacturers of chattels." [Emphasis added].
That section provides for the liability of a repairer, like a manufacturer, but only upon a negligence standard. If the drafters wanted to make a repairman strictly liable for his defective work, they could well have said so. See: Speyer, Inc. v. Humble Oil Co., 275 F. Supp. 861, 868 [W.D.Pa.1967], aff'd 403 F.2d 766 [3rd Cir. 1968].