516 F2d 881 Omaha Pollution Control Corporation v. Carver-Greenfield Corporation S

516 F.2d 881

OMAHA POLLUTION CONTROL CORPORATION, a corporation, Plaintiff,
The City of Omaha, Nebraska, a Municipal corporation,
Plaintiff-Appellant,
v.
CARVER-GREENFIELD CORPORATION, a corporation, and Fred S.
Carver, Inc., a corporation, Defendants-Appellees.

No. 74-1951.

United States Court of Appeals,
Eighth Circuit.

Submitted May 13, 1975.
Decided May 16, 1975.
Rehearing and Rehearing En Banc Denied June 10, 1975.

Kent N. Whinnery, Asst. City Atty., Omaha, Neb., for appellant.

John T. Dolan, Crummy, Del Deo, Dolan & Purcell, Newark, N. J., for Carver-Greenfield.

Bruce H. Brodkey, Omaha, Neb., for Fred S. Carver.

Before HEANEY and STEPHENSON, Circuit Judges, and SMITH, Senior District Judge.*

PER CURIAM.

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1

Based on the record presented, the order of the District Court granting the defendants' motion for summary judgment against the City of Omaha is not appealable. The District Court granted the motion on the basis that

2

* * * Section 2-318 of the Uniform Commercial Code (Rev.Neb.Stat. Section 90-2-318) precludes the City of Omaha's reliance on the third-party beneficiary theory to prove either express or implied warranty because of the Code's limitations of warranties to "natural persons."

3

It appears from the face of the complaint, however, that the City of Omaha has advanced and still asserts common law theories of recovery that have not been considered by the District Court. Accordingly, the appeal is dismissed.

4

The complaint in this case was filed on November 20, 1970. The matter, thus, should be tried properly on remand.

*

TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation