Defense Digest

Warranty Defense Reaffirmed

A class of residential customers who purchased wood windows brought a single count action for breach of express warranty against the manufacturer of the wood preservative used in the windows. The plaintiffs' class failed when they could not show that they actually received an express warranty from the preservative manufacturer.

In Goodman v. PPG Industries, Inc., 849 A.2d 1239 (Pa. Super. 2004), purchasers of windows attempted to bring a class action suit against PPG when their wood windows prematurely began to rot and decay. The plaintiffs had purchased the windows from Marvin Windows.

By way of background, for years, Marvin Windows used a particular preservative to prevent deterioration of its wood windows. In 1985, Marvin switched to a new window preservative manufactured and distributed by PPG. PPG told Marvin that its preservative was effective in preventing wood rot for at least 26 years and that its preservative would outlast the preservative Marvin was then using. Marvin used PPG's preservative in its windows between 1985 and 1989. In order to promote its windows, Marvin made various claims about the quality of its own windows and issued a "Marvin" warranty with the windows. The purchasers of the Marvin windows began to experience premature rot and decay of the windows.

The window purchasers brought a direct claim against PPG for breach of the express warranty PPG made to Marvin. The trial court dismissed the Complaint when the plaintiffs were unable to produce any evidence that PPG's warranty was made directly to the window purchasers or that Marvin passed PPG's express warranty along to the purchasers. On appeal, the plaintiffs attempted to expand Pennsylvania's warranty law by arguing that PPG, in fact, issued an express warranty to the ultimate customer because it knew or should have known that Marvin would market the product based on PPG's express warranty, even if Marvin never mentioned PPG to its customers. After analyzing Pennsylvania law and Pennsylvania's Commercial Code, the appellate division refused to permit the plaintiffs' claims to proceed.

The appellate court found that PPG never communicated its express warranty to the ultimate customer. Likewise, Marvin never passed PPG's exact express warranty to its window purchasers. In fact, there was no indication that PPG's identity was even communicated to the customers so as to form a basis for their decision to purchase Marvin windows. The court, therefore, found that PPG did not create an express warranty with any of the plaintiffs.

The Superior Court, however, went a step further to determine if Pennsylvania's Commercial Code permitted the plaintiffs to enforce the express warranty that was created between PPG and Marvin. The appellate division found that Pennsylvania law permits the ultimate purchaser to bring a strict liability claim against the manufacturer of a product absent any direct relationship between the purchaser and the manufacturer. Likewise, Pennsylvania's Commercial Code imposes upon a product manufacturer an implied warranty of merchantability that extends to the ultimate customer absent direct contact between those two parties. The Goodman case, however, was not brought under either strict liability or breach of implied warranty. Instead, the plaintiffs brought a single claim for breach of express warranty. The Superior Court reaffirmed the law in Pennsylvania that in order to enforce an express warranty, the party issuing the warranty must have the intention to extend the specific terms of the warranty to third parties, and the third party must be aware of the specific terms of the express warranty. These requirements were not present between PPG and the purchasers of Marvin windows. The trial court's decision to the dismiss plaintiffs' Complaint was affirmed.

As a final note, the Superior Court was quick to point out that a class action was filed in Minnesota between Marvin wood window purchasers and Marvin, which was settled. Marvin also had successfully recovered $135 million in a lawsuit against PPG based upon a breach of express warranty. Both settlements were designed to address nationwide claims for the faulty windows.

*Dan, a shareholder in our Philadelphia, PA office, can be reached at (215) 575-2677 or dhart@mdwcg.com.