Yentzer v. Taylor Wine Co. , 414 Pa. 272 ( 1964 )

Opinion by

Mr. Justice Cohen,

In this action of assumpsit, plaintiff appeals from the judgment of the court below sustaining preliminary objections in the nature of a demurrer and dismissing the complaint.

The facts pleaded may be summarized as follows: Plaintiff, employed as manager of a hotel, personally purchased from a state liquor store, on behalf of his employer, four bottles of champagne produced and bottled by the defendant-corporation. The wine was intended for use and consumption by guests of the hotel. While plaintiff and other employees were preparing to serve the wine, a cap from one of the bottles suddenly ejected, propelled through the air and hit plaintiff in the eye, resulting in serious injury. This suit followed, based upon an alleged breach of the following implied warranties: (1) that the goods were adequately and safely packaged; (2) that the goods were fit for the ordinary purposes for which such goods were sold.

The lower court determined that our recent decision in Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A. 2d 575 (1963), controlled and dismissed the complaint. We do not think that the rigid construction we placed on a seller’s warranty in Hochgertel should be extended to a situation such as this.

The Uniform Commercial Code, §2-318, 12A P.S. §2-318 reads as follows: “A seller’s warranty 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.”

Comment 3 to this section states: “Beyond this, the section 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.”

In Hochgertel we noted that an employee of the purchaser was not within the group to which the warranty of merchantability was specifically extended by §2,-318 and on this basis refused to extend to such employee the benefit of the warranty.

However, we also recognized that we had abandoned the strict privity requirement in food cases and now permit in such actions the extension of the warranty of merchantability to persons within the distributive chain. While this statement in Hochgertel specifically referred to employer sub-purchasers, we did not foreclose the inclusion of the actual purchaser even though he be an employee of the party to whom title to the product passed.

“Buyer” is defined in §2-103 of the Code, 12A P.S. §2-103 as “a person who buys or contracts to buy.” Plaintiff is clearly a buyer within this definition and he is therefore definitely in the distributive chain. Were he an employee who had not “contracted to buy” the product, Hochgertel would control. But since the plaintiff was cast in the important role of “buyer” and consummated the “contract to buy” for his employer, the fact that he is an employee does not exclude him from the benefits of the warranty and deprive him of a right of action.

Judgment reversed.