Lobianco v. Property Protection, Inc.

437 A.2d 417, 292 Pa. Super. 346, 33 U.C.C. Rep. Serv. (West) 281, 1981 Pa. Super. LEXIS 3767

• Court: Superior Court of Pennsylvania
• Decided: November 20, 1981
• Docket: 236
• Status: Published

Opinions

SPAETH, Judge:

Appellant seeks to recover $35,815 as the value of jewelry stolen from her home when a burglar alarm system installed by appellee failed to work. The action is in two counts. The first count is in assumpsit for breach of warranty. The second count is in trespass and alleges strict liability under the Restatement (Second) of Torts § 402A. The lower court heard the case without a jury. On the first count the court held that by the terms of the contract for the installation of the burglar alarm system, damages for breach of warranty were limited to the cost of repairs. On the second count the court held that “[Section 402A] does not apply in the present case. [The alarm system] was not dangerous and did not cause any physical harm to [appellant] or her property.” Opinion of the Lower Court, R. 62a. It being stipulated that appellee had repaired the alarm system without expense to appellant, the court found that appellant had suffered no damages. Appellant filed exceptions. The court dismissed the exceptions and entered judgment in favor of appellee. Appellant’s appeal from this judgment was argued before a panel of this court, and was re-argued before the court en banc. We affirm, although on the trespass count alleging strict liability under Section 402A our reasoning is somewhat different from the lower court’s.

I

The contract to install the burglar alarm system provided: Alarm system equipment installed by Property Protection, Inc. is guaranteed against improper function due to manufacturing defects of workmanship for a period of 12 months. The installation of the above equipment carries a 90-day warranty. The liability of Property Protection, Inc. is limited to repair or replacement of security alarm equipment and does not include loss or damage to possessions, persons or property.

R. 8a.

As installed, the alarm system included a standby battery source of power, in case the regular source of power failed. Appellant contends: that the burglary of her home and the theft of her jewelry occurred on November 22, 1975, which was within the 90 day warranty period (complaint, para. 8); that after “destroy[ing] [the electric meter] ... so that there was no electrical source to operate the said alarm system” (id., para. 11), the burglar, or burglars, entered through a rear door (id., para. 10); but that “no outside siren was detonated [sic] by the break-in as well as no telephone calls were received” (id. para. 9), because “[t]he standby alarm system . . . failed to operate in that the batteries installed by [appellee] . . . had no power and were ‘dead’ ” (id., para. 12).

Appellant argues that the clause limiting appellee’s liability to the cost of repairing the burglar alarm system is invalid for two reasons. First, she says, the clause is unconscionable under the Uniform Commercial Code § 2-719 (12A P.S. 2-719, repealed and re-enacted as 13 Pa.C.S. § 2719). Second, she says, the clause is a modification of appellee’s express and implied warranties of merchantability and fitness and as such, fails to conform to the requirement of Section 2-316 of the Code that it be in conspicuous type.

Before addressing these arguments, we must determine whether, as appellant assumes, the installation of the burglar alarm system was a sale of “goods” within the meaning of the Uniform Commercial Code. We conclude that it was. The Code defines “goods” to mean:

[A]ll things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities, and things in action. 13 Pa.C.S. § 2105(a) (cross reference omitted).

This definition embraces every species of property other than real estate, choses in action, or investment securities. Duffee v. Judson, 251 Pa. Superior Ct. 406, 380 A.2d 843 (1977) (mobile homes). See also, Belmont Industries, Inc. v. Bechtel Corp., 425 F.Supp. 524 (E.D.Pa.1974) (structural steel accompanied by design services).

A.

Section 2-719(c) of the Uniform Commercial Code provides:

Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not. 13 Pa.C.S. § 2719(c).

Here, neither presumption applies. There was no “injury to the person” of appellant; nor was the loss “commercial.” We must therefore look elsewhere to determine whether the clause limiting appellee’s liability to the cost of repairing the burglar alarm system should be enforced.

Generally, provisions in sales contracts limiting a seller’s liability to repair or replacement have been enforced when a defect in the product sold could result in excessive liability for consequential damages. See e. g., Ebasco Services, Inc. v. Pennsylvania Power & Light Co., 460 F.Supp. 163 (E.D. Pa.1978) (steam turbine generator); Posttape Associates v. Eastman Kodak Co., 450 F.Supp. 407 (E.D.Pa.1978) (motion picture film); Lincoln Pulp & Paper Co. Inc. v. Dravo Corp. v. Babcock & Wilcox Co., 445 F.Supp. 507 (N.D.Me.1977) (dictum) (heat and chemical recovery boiler); American Electric Power Co., Inc. v. Westinghouse Electric Corp., 418 F.Supp. 435 (S.D.N.Y.1976) (dictum) (steam turbine generator); Rust Engineering Co. v. Lawrence Pumps, Inc., 401 F.Supp. 328 (D.C.Mass.1975) (dictum) (circulating acid pumps); Schultz v. Jackson, 24 IlI.Dec. 395, 385 N.E.2d 162, 67 Ill.App.3d 889 (1979) (grain drier); D.O.V. Graphics, Inc. v. Eastman Kodak Co., 46 Ohio Misc. 37, 347 N.E.2d 561 (1976) (photographic paper); Murray v. Holiday Rambler, Inc., 83 Wis.2d 406, 265 N.W.2d 513 (1978) (recreational vehicle). But cf., Tuttle v. Kelly-Springfield Tire Co., 585 P.2d 1116 (Okl.1978) (sale of automobile tires; clause limiting liability held unconscionable when raised in defense of personal injury claim).

Clauses limiting liability in security alarm contracts have uniformly been upheld, although no case appears to have done so in the context of the Uniform Commercial Code. In Better Food Markets, Inc. v. American District Telegraph, 40 Cal.2d 179, 253 P.2d 10, 42 A.L.R.2d 580 (1953), the contract called for the defendant to send guards to the plaintiff’s premises and to notify the local police if the alarm was activated. A burglary took place, the alarm was activated, but the defendant failed to respond promptly. The burglars left with $35,930. Holding as a matter of law that it was impractical to estimate the actual damages resulting from the failure of the system, the California Supreme Court, applying the California Civil Code, upheld a cause limiting the defendant’s liability to $50. Id. at 186, 253 P.2d at 15. Similar reasoning has been applied in other states. See, e. g., Central Alarm of Tucson v. Ganem, 116 Ariz. 74, 567 P.2d 1203 (App.1977); Niccoli v. Denver Burglar Alarm, Inc., 490 P.2d 304 (Colo.App.1971); Alan Abis, Inc. v. Burns Electronic Security Services, Inc., 283 So.2d 822 (La.App. 1973); Shaer-Shoe Corp. v. Granite State Alarm, Inc., 110 N.H. 132, 262 A.2d 285 (1970) (fire sprinkler system); Foont-Freedenfeld Corp. v. Eletro-Protective Corp., 126 N.J.Super. 254, 314 A.2d 69 (1973) (fire alarm), aff’d, 64 N.J. 197, 314 A.2d 68 (1974).

We do not regard Wedner v. Fidelity Security Systems, Inc., 228 Pa.Superior Ct. 67, 307 A.2d 429 (1973) (allocatur denied), as contrary to these decisions. There, the plaintiff, a furrier, suffered a loss in excess of $46,000 from a burglary of his commercial premises. The lower court held that the plaintiff was bound by a clause limiting the defendant’s liability to the annual service charge of $312. Judge WATKINS, joined by Judge JACOBS and Judge SPAULDING, in the opinion in support of affirmance reasoned that the clause should be enforced because the contracting parties were both “experienced, established business persons.” Id., 228 Pa.Super. at 72, 307 A.2d at 432 (quoting the lower court). The plaintiff, Judge WATKINS said, “had a choice as to how to protect his property, and whether or not he should obtain insurance.” Id. Judge CERCONE, joined by President Judge WRIGHT and Judge HOFFMAN, in the opinion in support of reversal reasoned that the clause was invalid. Since the limitation was a sum equal to the yearly service charge, Judge CERCONE said, “the clause in effect works a recission of the contract, completely freeing defendant from proper performance of its terms and requiring only a return of the service charge when defendant has failed to properly perform thereunder. The contract thus becomes, in effect, an illusory one with defendant not being bound to perform and plaintiff not being entitled to performance by defendant.” Id., 228 Pa.Super. at 76, 307 A.2d at 434. While Judge WATKINS’s opinion in support of affirmance is in accord with the decisions from the other states that we have cited, Judge CERCONE’s opinion in support of reversal is not contra. For here the clause limiting appellee’s liability did not render the contract illusory. Appellee could not at its option escape its duty of performance. Appellant remained entitled to performance, that is, to require appellee to repair the alarm system so that it would work. Like the plaintiff in Wedner, appellant was capable of assuming the risk of loss that the contract left her with; she “had a choice as to how to protect [her] property, and whether or not [she] should obtain insurance.”

We therefore conclude, as have courts in other states, that the clause limiting appellee’s liability to the cost of repairing the burglar alarm system should be enforced. This conclusion, moreover, is consistent with the Uniform Commercial Code’s underlying purposes and policies in that it “permit[s] the continued expansion of commercial practices through custom, usage and agreement of the parties,” and conforms to the “law among the various jurisdictions.” U.C.C. § 1-102(2)(b) & (c). To avoid misunderstanding, we add that our conclusion extends only to so much of the clause as refers to “loss or damage to possessions ... or property;” insofar as the clause refers to “loss or damage to . .. persons,” we express no opinion regarding its validity, as that issue is not before us.

B.

Section 2-316(2) of the Uniform Commercial Code provides:

[T]o exclude or modify the implied warranty of merchantability or any part of it, the language must mention merchantability and in the case of a writing, must be conspicuous, and to exclude or modify any warranty of fitness, the exclusion must be by a writing and conspicuous ....

13 Pa.C.S. § 2316(b).

Appellant’s argument that this provision required the clause limiting appellee’s liability to the cost of repairing the burglar alarm system to be in larger or contrasting type is without merit. As the lower court observed, appellee is not seeking to exclude the warranties but rather is simply attempting to limit its liability, despite the warranties.

Opinion of lower court, R. 64a.

In this regard we also note that the clause limiting appellee’s liability, while not in larger or contrasting type, is in the same type as the body of the contract, and is in the paragraph where it logically belongs.

II

In Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), our Supreme Court expressly adopted the Restatement (Second) of Torts § 402A. This section states:

§ 402 A. Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

In explaining its decision that appellant is entitled to no relief under Section 402A, the lower court said:

It is immediately apparent from the foregoing language that this section does not apply in the present case. [Appellee’s] product was not dangerous and did not cause any physical harm to [appellant] or her property .... [T]he only products which come under the section are those which cause physical harm, such as food which causes illness, bottles which explode or a defective automobile tire which causes an accident. For example, in the present case, if the system had defective wiring which caused a fire, [appellee] might well be liable to [appellant] for the fire loss to her property.

Opinion of lower court, R. 62a.

On appellant’s petition for reconsideration, the lower court added:

We do not agree with [appellant] that we should equate the terms “physical harm” with the “theft” of the jewelry .... [T]here must be an actual injury to the plaintiff or his property.

Supplemental Opinion of lower court, R. 103a.

We find this reasoning unpersuasive. In explaining why, it will be convenient to consider first the lower court’s conclusion that the theft of appellant’s jewelry did not result in any “physical harm” to the jewelry, and next, the conclusion that the burglar alarm system “was not dangerous . . . to [appellant’s] property.”

In one sense of the expression, appellant’s jewelry did not suffer any “physical harm”—at least, the record does not show that it did. For all we can tell, after being stolen the jewelry was sold to a fence, and is now being worn, in the same physical condition in which it was when appellant had it, by some one who brought it from the fence. However, we regard this possibility as irrelevant, for in our opinion, the expression “physical harm” as used in Section 402A should not be construed as requiring that the plaintiff—“the user or consumer”—prove damage to the property.

Suppose that the burglar, or burglars, who took appellant’s jewelry had broken the mirror on her dressing table. If we were to accept the lower court’s reasoning, and construe “physical harm” as requiring appellant to prove damge to her property, we should conclude that the mirror had suffered physical harm but the jewelry had not. This conclusion would be artificial; it would make the outcome of a case depend on happenstance, with no reference to the reason Section 402A was adopted.

So far as appellant as the user or consumer of the jewelry is concerned, the theft of the jewelry deprived her of its use as effectively as if it had been broken and left lying, useless, on the floor of her home. The reason Section 402A was adopted was not to protect property from damage but to protect the user or consumer of the property from its loss. Whether the loss is caused by damage to the property or by its disappearance is immaterial.

Similarly, in one sense of the expression, the burglar alarm system was not “dangerous” to appellant’s property; as the lower court suggests, the system did not because of defective wiring cause a fire in appellant’s home. However the imposition of strict liability under Section 402A does not depend upon proof that the product itself caused the physical harm in question. To be sure, if the product itself did in fact cause the physical harm in question, strict liability may be imposed. It is, however, incorrect to say, as the lower court did say, that the “only products which come under [Section 402A] are those which cause physical harm, such as food which causes illness, bottles which explode or a defective tire which causes an accident.” Opinion of lower court, R. 22a.

A product may by itself be entirely innocuous—harmless—and yet, because in conjunction with some other thing or event it caused physical harm, strict liability may be imposed. For example: In Carpini v. Pittsburgh and Weirton Bus Co., 216 F.2d 404 (3d Cir. 1954), a pet cock was so placed in the undercarriage of a bus as to be unprotected from debris on the road. The bus, heavily overloaded, was proceeding on a highway filled with debris from a severe storm the night before. The pet cock hit the debris and became disengaged, the brakes drained, and the bus had an accident. In Ford Motor Co. v. Zahn, 265 F.2d 729 (8th Cir. 1959), an ash-tray on the dashboard of a Ford had a sharp edge. Another car suddenly darted from a side road, in front of the Ford, causing the driver to apply the brakes, throwing the passenger onto the ashtray, injuring his eye. In Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968), a head-on collision pushed the steering mechanism of a Chevrolet Corvair back into the driver’s head. In Turcotte v. Ford Motor Company, 494 F.2d 173 (1st Cir. 1974), a Maverick was hit by another car and burst into flames. The passenger died in the fire. In Ritter v. Narrangansett Elect. Co., 109 R.I. 176, 283 A.2d 255 (1971), a four-year old girl opened the drop-type oven door of an electric range and stood on it so that she could see into a pot on top of the range. He weight on the open door caused the range to topple over onto her and her sister. In Turner v. General Motors Corp., 514 S.W.2d 497 (Tex.Civ.App.1974), the driver of a Chevrolet Impala hardtop sedan was passing a truck when the truck tried to make a left-hand turn. In avoiding a collision, the driver left the road, and the Chevrolet overturned. The roof collapsed onto the driver’s head. In all of these cases it was held that strict liability might be imposed. In none of them did the product itself cause the harm. Nevertheless, it was held that the manufacturer of the product was bound to anticipate the thing or event in conjunction with which the product caused the harm. And see Cronin v. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972) (safety hasp failed in collision, permitting cargo racks to enter truck driver’s compartment); Badorek v. General Motors Corp., 11 Cal.App.3d 902, 90 Cal.Rptr. 305 (1970) (Corvette burst into flames in rear end collision); Friend v. General Motors Corp., 118 Ga.App. 763, 165 S.E.2d 734, cert. dismissed, 225 Ga. 290,167 S.E.2d 926 (1969) (seats folded over in collision); Volkswagen of America, Inc. v. Young, 272 Md. 201, 321 A.2d 737 (1974) (seat assembly failed to hold in rear end collision); Frericks v. General Motors Corp., 20 Md.App. 518, 317 A.2d 494 (1974) (roof collapsed and seat mechanism failed in roll over); Dyson v. General Motors Corp., 298 F.Supp. 1064 (E.D.Pa.1969) (roof collapsed in roll over); Ellithorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn.1973) (plastic emblem cut plaintiff’s face in accident). See also, Central Alarm of Tucson v. Ganem, supra, (negligence of alarm company proximately caused loss by theft).

We recognize that some cases are contra. For example, in Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966), another automobile hit a Chevrolet station wagon on its left side, which collapsed in on and killed the driver. The theory of the complaint was that General Motors as manufacturer of the station wagon had created an unreasonable risk of harm to the occupants because the wagon was designed with an “X” frame with no side rails to protect the occupants in case of side-impact collisions. In holding that the complaint failed to state a claim, the court—in a statement similar to the lower court’s here—said that the “X” frame had not itself caused any harm. 359 F.2d at 824. The Court distinguished such cases as Carpini v. Pittsburgh and . Weirton Bus Co., supra, and Ford Motor Co. v. Zahn, supra, saying that “[t]he products involved in all these cases were unfit for their intended use . . .. ” Id. at 825. In the case before it, the court said, “[T]he intended purpose of an automobile does not include its participation in collisions . .. . ” Id. The dissent found this distinction unpersuasive, and so do we. As the court observed in Larsen v. General Motors Corp., supra:

The intended use and purpose of an automobile is to travel on the streets and highways, which travel more often than not is in close proximity to other vehicles and at speeds that carry the possibility, probability, and potential of injury-producing impacts. The realities of the intended and actual use are well known to the manufacturer and to the public and these realities should be squarely faced by the manufacturer and the courts. We perceive of no sound reason, either in logic or experience, nor any command in precedent, why the manufacturer should not be held to a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents. The manufacturers are not insurers but should be held to a standard of reasonable care in design to provide a reasonably safe vehicle in which to travel.

391 F.2d at 502-03.

So here. The intended use and purpose of a burglar alarm system is to sound an alarm if a burglar enters the house. If because of defective batteries the system does not sound an alarm, with the result that a burglar is able to enter the house undetected and do physical harm to jewelry inside, the issue of the manufacturer’s strict liability may not be resolved by saying, as did the lower court, that although defective, the system was not “dangerous” to the jewelry it was supposed to protect.

Having said this much, we nevertheless agree with the lower court’s conclusion that Section 402A “does not apply in the present case.” Opinion of lower court, R. 62a. It is unimportant that we have reached that conclusion by reasoning different from the lower court’s, for we may affirm on reasoning different from the lower court’s. Commonwealth v. Dancer, 460 Pa. 95, 101 n.5, 331 A.2d 435, 438 n.5, (1975); Gilbert v. Korvette’s, Inc., 457 Pa. 602, 604, 327 A.2d 94, 96 (1974); Prynn Estate, 455 Pa. 192, 197 n.9, 315 A.2d 265, 267 n.9 (1974); Concord Township Appeal, 439 Pa. 466, 469, 268 A.2d 765, 766 (1970).

In Ray v. Alad Corp., 19 Cal.3d 22, 136 Cal.Rptr. 574, 560 P.2d 3 (1977), the court said:

The purpose of the rule of strict tort liability “is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 63, 27 Cal.Rptr. 697, 701, 377 P.2d 897, 901.) However, the rule i“does not rest on the analysis of the financial strength or bargaining power of the parties to the particular action. It rests, rather, on the proposition that ‘[t]he cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business.’ (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, , 150 P.2d 436 [concurring opinion].)” (Seely v. White Motor Co. (1965) 63 Cal.2d 9, 18-19, 45 Cal.Rptr. 17, 23, 403 P.2d 145, 151.) Thus, “the paramount policy to be promoted by the rule is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them.” (Italics added.) Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 251, 85 Cal.Rptr. 178, 181, 466 P.2d 722, 725.)

19 Cal.3d at 30-31, 136 Cal.Rptr. at 579, 560 P.2d at 8-9.

And see Miller v. Preitz, 422 Pa. 383, 221 A.2d 320 (1966) (concurring and dissenting opinions, discussing with a full collection of authority the development of the rule of strict liability; these opinions were cited with approval in Webb v. Zern, supra, 422 Pa. at 427, 220 A.2d at 854); Dawejko v. Jorgensen Steel Co., 290 Pa.Superior Ct. 15, 434 A.2d 106 (1981).

The purposes thus stated would not be served by applying Section 402A to the present case. Homeowners are not “otherwise defenseless victims” of burglar alarm manufacturers in the same sense that a buyer of an automobile, for example, may be the victim of the automobile manufacturer. If the property is valuable, the homeowner may insure it. To apply Section 402A to the present case would in practical effect excuse the homeowner from having to insure the property and would shift the risk of its loss to the burglar alarm manufacturer. This would represent a less, not more, equitable allocation of the risk. The homeowner, not the manufacturer, knows what property is in the home, and its value; the manufacturer does not. Even if the manufacturer were to find out what property was in the home before installing the burglar alarm system, the homeowner could, and probably would, add other property, without notice to the manufacturer. As between the homeowner and the manufacturer, the manufacturer is more “defenseless” than the homeowner. If the homeowner buys a silver service or a stereo system, at least he can get insurance against its loss; but the manufacturer cannot, for it will not know that the service or stereo has been put in the home. Thus it may not be said that “ ‘the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business.’ ” Ray v. Alad Corp., supra. Nor may it be said that the manufacturer ought to protect itself by increasing its charge, in that way distributing the risk. That would mean that a homeowner with personal property of only modest value would be required to pay for his burglar alarm system a price high enough to protect the manufacturer against the loss it might incur if a homeowner with personal property of great value were burglarized. Those of modest means would be subsidizing the rich.

Summarizing the cases on strict liability, Prosser has said:

The courts have tended to lay stress upon the fact that the defendant is acting for his own purposes, and is seeking a benefit or a profit of his own for such activities, and that he is in a better position to administer the uninsured risk by passing it on to the public than is the innocent victim. The problem is dealt with as one of allocating a more or less inevitable loss to be charged against a complex and dangerous civilization, and liability is imposed on the party best able to shoulder it. The defendant is held liable merely because, as a matter of social adjustment, the conclusion is that the responsibility should be his.

Prosser on Torts 495 (4th ed. 1971).

This is well said, for its recognizes—indeed, emphasizes— that whether a case is one appropriate for the imposition of strict liability is a decision that the court must make according to what “social adjustment” it believes just.

Our own Supreme Court has arrived at the same conclusion, in Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). There the issue was whether the trial judge should have instructed the jury that it could find strict liability only if it found the product in question “unreasonably dangerous.” The Court held that the judge should not have, and it approved the Proposed Standard Jury Instructions, which make no reference to “unreasonably dangerous,” instead directing the jury’s attention to whether the product had a “defect.” “It must be understood,” said the Court, “that the words, ‘unreasonably dangerous’ have no independent significance and merely represent a label to be used where it is determined that the risk of loss should be placed upon the supplier.” 480 Pa. at 556, 391 A.2d at 1025. The Court continued:

[T]he phrases “defective condition” and “unreasonably dangerous” as used in the Restatement formulation [Section 402A] are terms of art invoked where strict liability is appropriate. It is a judicial function to decide whether under plaintiff’s averment of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averments of the complaint.

480 Pa. at 558, 391 A.2d at 1026.

And see Dawejko v. Jorgensen Steel Co., supra (deciding when it is just to impose strict liability on corporation that is successor to corporation that manufactured the product).

Here, we hold that for appellant to be permitted to recover on a theory of strict liability would not be justified. “[A]s a matter of social adjustment,” Prosser, supra, the responsibility for protecting against the loss of her jewelry should, so far as the imposition of strict liability is concerned, be appellant’s, not appellee’s. Again, to avoid misunderstanding, we add that we have confined ourselves to the issue of strict liability for physical harm to property. If harm to a person were involved, as for example which might occur if a homeowner were injured by a burglar who had entered the home undetected because the burglar alarm system failed, a different case would be presented. As to what should be the disposition of such a case, we express no opinion.

AFFIRMED.

CERCONE, President Judge, files a concurring statement. BROSKY, J., files a concurring opinion, in which CAVA-NAUGH, J., joins. MONTGOMERY, J., files a dissenting opinion, in which HESTER, J., joins.