No. 823 April Term 1976, No. 724 April Term 1976, No. 743 April Term 1976, No. 916 April Term 1976, No. 824 April Term 1976, No. 725 April Term 1976, No. 744 April Term 1976, No. 915 April Term 1976, No. 738 April Term 1976, Appeals from the Judgments entered on April 27, 1976, April 30, 1976 and June 30, 1976 by the Court of Common Pleas of Allegheny County, Pa., Civil Div. at No. 3512 July Term 1973, No. 226 Oct. Term, 1973 and No. 2515 Oct. Term 1972, and on April 23, 1976 at No. 226 Oct. Term, 1973.
Edward J. Balzarini, Pittsburgh, for appellant, at Nos. 724, 725, 743, and 744.
Richard D. Klaber and James R. Miller, Pittsburgh, for appellant, at Nos. 823, 824, 915, and 916.
James R. Fitzgerald, Pittsburgh, for appellant, at No. 738.
John J. Repcheck, Pittsburgh, for appellee, at Nos. 724, 725, 823, and 916.
John R. McGinley, Jr., Pittsburgh, for appellee, at Nos. 743, 744, 824, and 738.
Bernice Hummert, Pittsburgh, for appellee, at No. 915.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Price, J., files an opinion in support of per curiam order in which Jacobs, President Judge, and Van der Voort, J., join. Spaeth, J., files an opinion in support of per curiam order in which Cercone, J., joins, in which Jacobs, President Judge, and Price and Van der Voort, JJ., join in parts 1, 2 and 3 as to appellant Pegg, and in parts 5 and 6, and in which Hoffman, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 64]
The judgment of the lower court as to appellant Pegg in his action against Olin is reversed, and a new trial ordered, as discussed in Judge SPAETH's opinion, with Judge HOFFMAN concurring in the result.
The judgment of the lower court as to appellant Parsons as plaintiff and as additional defendant is affirmed by a divided court: Judge PRICE's opinion is in support of affirmance; Judge SPAETH's opinion, in all matters relevant to appellant Parsons, is in support of reversal, with Judge HOFFMAN concurring in the result.
[ 258 Pa. Super. Page 65]
The judgments entered on the directed verdicts entered in favor of appellees General Motors and the City of Pittsburgh are affirmed, as discussed in Judge SPAETH's opinion, with Judge HOFFMAN concurring in the result.
The non-suits in favor of defendants Chemply, Inc., Samson Buick Company, and Jones Chemicals, Inc., which were not appealed, are not affected by this disposition.
IN SUPPORT OF PER CURIAM ORDER
We do not believe that appellant Parsons has a cause of action or standing to present a claim by reason of the circumstances under which he secured possession of the product. Therefore, in regard to appellant Parsons' suit against Olin and General Motors, we would affirm the verdict in favor of Olin and the directed verdict in favor of General Motors.
Furthermore, we find no error in the court below which would affect the verdict in favor of Pegg against Parsons. We would therefore affirm the judgment against Parsons in favor of Pegg.
[ 258 Pa. Super. Page 66]
IN SUPPORT OF PER CURIAM ORDER
These two appeals are from directed verdicts and jury verdicts in a tort and strict liability case. Given the rather complex division in the court, as noted in the foregoing per curiam order, a prefatory comment may be helpful.
Part 1 of this opinion concerns whether appellants Pegg and Parsons have a cause of action against Olin in strict liability and in negligence. Parts 2 and 3 concern whether liability on these causes of action was established at trial. Since the Court is evenly divided on whether appellant Parsons has a cause of action, it must be borne in mind that while the discussion in Parts 1, 2 and 3 represents the opinion of the majority of the court as to appellant Pegg, it speaks for only two members of the court as to appellant Parsons. To note at each appropriate point that various statements of the law as to Pegg represent as to Parsons the opinion of only two judges would be cumbersome and not illuminating; we therefore leave it to the reader to remember the distinction.
Part 4 of this opinion concerns whether the verdict in favor of Pegg and against Parsons as additional defendant should stand. Again, the court is equally divided, and this section of the opinion speaks for only two members of the court.
Parts 5 and 6 of this opinion represent the opinion of the majority of the court.
On July 7, 1971, Frank Parsons, an employee of the City of Pittsburgh, requested and received from another city employee, Joseph Balkovec, a small quantity of a chemical called HTH, to which Balkovec had access. HTH is a swimming pool sanitizer manufactured by Olin Chemical Hypochlorite Products, and was used by the city in its public pools; Parsons intended to give it to a friend for use in the friend's pool. Balkovec took the HTH from a drum with "DANGER" written on it; Parsons saw this but did not inquire about the danger. Balkovec placed the HTH in a
[ 258 Pa. Super. Page 67]
dirty paper bag, and Parsons put the bag on the floor of his General Motors car, behind the front seat. At the end of the workday, Parsons gave William Pegg a lift in his car, Pegg riding in the front passenger seat. They heard a hissing sound and suddenly were engulfed in flames. Pegg, trying to get out, reached for his door lock button, but slid onto the floor without opening the door. Parsons tried to open his door lock button but it would not open. Somehow, however, he got out of the car, and reached back in and pulled Pegg out of the driver's side. Both had suffered extensive burns.
Pegg sued Olin and General Motors, in separate suits. Each defendant joined the other and Parsons as additional defendants, and Olin also joined the City of Pittsburgh. Parsons sued Olin and General Motors.*fn1 The suits were consolidated for trial.
Testimony established that HTH is a granular substance the principal ingredient of which is calcium hypochlorite. HTH contains 1.2% water but is considered "dry." The granules can be decomposed by contact with various contaminants, including organic liquids (such as oil, gasoline or alcohol), grease, and cellulose (a material found in paper bags). Decomposition gives off oxygen, chlorine, and high heat, all of which together can easily result in further decomposition and ignite nearby combustibles, producing an intense chemical fire.
The trial judge granted General Motors and the City of Pittsburgh directed verdicts. The jury returned a verdict in favor of Olin but against Parsons as defendant in the amount of $250,000. Post-verdict motions were made and denied, and these appeals followed.
1. Whether Parsons and Pegg Have a Cause of Action
Since Parsons obtained city property for private use he might be characterized -- and the lower court did characterize him -- as a thief. The lower court's opinion states that because the HTH fell into the hands of a thief, Olin owed no
[ 258 Pa. Super. Page 68]
duty, either to Parsons or to Pegg, whether the action sounds in strict liability or in negligence.*fn2
(a) Is there a cause of action in strict liability?
In Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903 (1974), the Supreme Court abolished the requirement of horizontal privity in actions for breach of warranty, and allowed an employee of a purchaser to recover for an injury caused by a defective product. The Court reasoned that the relief available in breach of warranty actions should be as broad as that available in actions under the Restatement (Second) of Torts, § 402A (1965), and noted, "Today . . . a manufacturer by virtue of section 402A is effectively the guarantor of his products' safety." 457 Pa. at 32, 319 A.2d at 907 (citing Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), and Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968). Further, the Court said:
We have decided that no current societal interest is served by permitting the manufacturer to place a defective article in the stream of commerce and then to avoid responsibility for damages caused by the defect. He may not preclude an injured plaintiff's recovery by forcing him to prove negligence in the manufacturing process. Webb v. Zern, [ supra, which adopted § 402A].
Neither may the manufacturer defeat the claim by arguing that the purchaser has no contractual relation to him. Kassab v. Central Soya, [ supra, abolishing requirement of vertical ...