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JOSEPHINE JOHNSON v. GENERAL MOTORS CORPORATION (09/11/85)

September 11, 1985

JOSEPHINE JOHNSON, APPELLANT
v.
GENERAL MOTORS CORPORATION



Owner of automobile brought class action by filing complaint in assumpsit and in trespass seeking damages for allegedly defective automobile transmissions against automobile manufacturer. The Court of Common Pleas, Philadelphia County, Civil Division, No. 3440 May Term 1981, King, J., denied owner's motion to file amended complaint, sustained automobile manufacturer's preliminary objections and dismissed owner's complaint. Owner appealed. The Superior Court, No. 00079 Philadelphia 85, Hoffman, J., held that: (1) owner was not buyer of car under statute and did not have standing to bring action in assumpsit; (2) owner was not third-party beneficiary under statute and did not have standing to bring action in assumpsit; and (3) owner failed to state cause of action in tort for allegedly defective product.

COUNSEL

Laurence S. Berman, Philadelphia, for appellant.

Francis P. Burns, III, Philadelphia, for appellee.

Before Spaeth, P. J., and Hoffman and Hester, JJ.

Author: Hoffman

This is an appeal from the lower court's order sustaining appellee's preliminary objections in the nature of demurrers and dismissing appellant's complaint. Appellant contends that (1) she has standing to sue appellee for breach of warranty as either a buyer or a third party beneficiary under the Uniform Commercial Code (UCC), 13 Pa.C.S.A. §§ 1101-9507; (2) her warranty action is not barred by the requirement of horizontal privity;*fn1 (3) she has a cause of action in tort against appellee, manufacturer of an allegedly defective product, because she has sustained economic loss and been subjected to a serious risk of personal injury and property damage; and (4) the lower court erred in denying her leave to file an amended complaint that, appellant argues, alleges facts that properly state a cause of action in tort against appellee. For the following reasons, we affirm the order of the court below.

On May 22, 1981, appellant instituted this class action against appellee by filing a complaint*fn2 in assumpsit (breach of express and implied warranties) and in trespass (negligence). Appellant sought damages for allegedly defective automobile transmissions manufactured by appellee. On August 19, 1981, appellee filed preliminary objections to appellant's complaint alleging, inter alia, that appellant lacked standing to sue for breach of warranty and that she failed to state a cause of action for negligence. On January 27, 1984, before the lower court ruled on appellee's preliminary objections, appellant moved for leave to file an amended complaint that, inter alia, added a count in strict liability. The lower court denied appellant's motion on July 19, 1984, and on December 13, 1984, sustained appellee's preliminary objections and dismissed appellant's complaint. This appeal followed.

A plaintiff must state in a concise and summary form the material facts on which a cause of action is based, Pa.R.Civ.P. 1019(a), and is not exempt from so pleading solely because he or she brings suit as a class action, see id. 1701(b) ("the procedure in a class action shall be in accordance with the rules governing the form of action in which relief is sought"). Accordingly, "[t]he defendant may file any applicable preliminary objections . . . to the underlying merits of the class action claims. . . ." Id. 1705 explanatory note-1977. Furthermore, "[t]he class action in Pennsylvania is a procedural device designed to promote efficiency and fairness in the handling of large numbers of similar claims; class status or the lack of it is irrelevant to the question whether an action is to be heard. . . ." Lilian v. Commonwealth, 467 Pa. 15, 21, 354 A.2d 250, 253-54 (1976) (footnote omitted). With these principles in mind, we review appellee's demurrers in accordance with these well-established standards: "[w]e must accept as true all well-pleaded facts and the reasonable inferences therefrom. A demurrer can be sustained if it is certain that no recovery is permitted. Any doubt must be resolved against sustaining the demurrer." Douglas v. Schwenk, 330 Pa. Superior Ct. 392, 394, 479 A.2d 608, 609 (1984) (citations omitted). Accepting as true appellant's well-pleaded facts and the reasonable inferences therefrom,*fn3 we find that, because appellant would not be entitled to any recovery, the demurrers were properly sustained.

Appellant first contends that she has standing to sue appellee as either a buyer under 13 Pa.C.S.A. § 2103(a) or as a third party beneficiary of an express or implied warranty under 13 Pa. C.S.A. § 2318. Appellant's husband purchased the automobile in question, a 1978 Buick Regal, on November 7, 1977. (Appellant's Complaint 3). Appellant alleges that "[he] departed this life on August 18, 1978, and the title of the vehicle in question passed to [appellant] by operation of law making [her] a proper party in these proceedings. [Appellant] now owns and continues to use the vehicle in question." (Id.)

Appellant is obviously not a buyer of the car as that word is defined in the UCC: "[a] person who buys or contracts to buy goods." 13 Pa.C.S.A. § 2103(a). Appellant's husband was that person. Appellant, however, points to the comments to § 2103(a) in arguing that she is a "legal successor in interest" which would qualify her as a buyer entitled to bring this warranty action:

The phrase "any legal successor in interest of such person" has been eliminated [in the definition of "buyer"] since § 2210 of this Article, which limits some types of delegation of performance on assignment of a sales contract, makes it clear that not every such successor can be safely included in the definition. In every case, however, such successors are as of course included.

Id. comment 1 (emphasis added). Section 2210 of the UCC "recognizes both delegation of performance and assignability as normal and permissible incidents of a contract for the sale of goods." Id. § 2210 comment 1. Appellant, however, is not a delegatee; she is performing no "duty" owed by be husband to appellee. Id. § 2210(a). Nor is she an assignee; her husband did not assign to her any of the rights he may have had under his contract of purchase. Id. §221(b). Appellant cites no case, and we have found none, in which an heir was held to be a "successor in interest" under § 2103(a). Accordingly, we find this claim meritless.

Appellant alternatively argues that she is a third party beneficiary under § 2318 of the UCC, which provides as follows:

The warranty of a seller whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.

Id. § 2318 (emphasis added). We disagree. Appellant alleges that she "sustained damages which are compensable at law for dimunition in value of [her automobile], for repairs to [the car's] transmission[], and [she has] been caused to motor in [a] vehicle[] unsafe for the highways." (Appellant's Complaint 11). Nowhere in appellant's complaint (or in her proposed amended complaint) does appellant allege that she suffered personal injury. Appellant, therefore, is not a third party beneficiary under § 2318.*fn4

Appellant contends, however, that § 2318 does not limit the extension of appellee's warranty to only those who have suffered personal injury. Comment 3 to § 2318 states that "the [first alternative of § 2-318 of the Uniform Commercial Code (the alternative adopted by our Legislature)]. . . is neutral and is not intended to enlarge or restrict the developing case law on whether the seller's warranties, given to his buyer who resells, extend to other persons in the distributive chain." (Emphasis added). Assuming, arguendo, that appellant is a person to whom the buyer (her husband) resold the car,*fn5 the comment states nothing about extending § 2318 beyond personal injuries. We note that our Legislature did not adopt the so-called "third alternative" of § 2-318 of the Uniform Commercial Code:

A seller's warranty whether express or implied extends to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty. A seller may not exclude or limit the operation of this section with respect to injury to the person of an individual to whom the warranty extends.

1A U.C.C. (U.L.A.) § 2-318 (Alternative C) at 53 (1976) (emphasis added). This alternative extends warranty protection the furthest. See 13 Pa.C.S.A. § 2318 comment 3 (third alternative "extend[s] the rule beyond injuries to the person."). While our Supreme Court has enlarged the class of beneficiaries to whom the seller's warranty extends, see Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903 (1974) (holding that a lack of horizontal privity itself may no longer bar an injured party's suit for breach of warranty), appellant cites no case in this Commonwealth which has extended the warranty to persons (other than, of course, the buyer) who do not sustain personal injury.*fn6 Appellant's argument is better addressed to the Legislature and not to this Court.*fn7 See, e.g., House v. Allegheny County, 153 Pa. Superior Ct. 396, 402, 34 A.2d 48, 51 (1943) (this Court cannot write into a statute a provision obviously and intentionally omitted therefrom by the Legislature). In conclusion, we find that appellant has no standing to bring an action in assumpsit against appellee as either a buyer under 13 Pa.C.S.A. § 2103(a) or as a third party beneficiary under § 2318 and the case law enlarging it.

Appellant next contends that she has a cause of action in tort*fn8 against appellee for an allegedly defective product that caused her to sustain economic loss and to be subject to a serious risk of personal injury or property damage. The lower court, citing Industrial Uniform Rental Co., Inc. v. International Harvester Co., 317 Pa. Superior Ct. 65, 463 A.2d 1085 (1983), for the proposition "that the law in Pennsylvania does not recognize a claim in tort for the recovery of economic loss alone," (Lower Court Opinion at 5, found that appellant failed to state a cause of action because "[b]oth [her] original and amended complaints alleged purely ...


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