Aliquippa & So. R., D.C.W.D.Pa.1954, 16 F.R.D. 272, 273; Byers v. Olander, D.C.W.D.Pa.1948, 7 F.R.D. 745, 746.
Defendant's motion for more definite statement will be denied.
3. Motion to dismiss.
The first paragraph of defendant's motion to dismiss states that the complaint fails to state a claim upon which relief can be granted. In support of this contention, defendant seems to rely primarily upon the ground stated in the third paragraph of the motion. Defendant apparently does not dispute the general proposition that an action for personal injuries to an ultimate consumer lies against a manufacturer for negligence in the manufacturing of the product, Magee v. General Motors Corp., D.C.W.D.Pa.1954, 124 F.Supp. 606, affirmed per curiam 3 Cir., 1955, 220 F.2d 270; Foley v. Pittsburgh-Des Moines Co., 1949, 363 Pa. 1, 68 A.2d 517, 530-534, or for breach of warranty, Magee v. General Motors Corp., supra; Caskie v. Coca-Cola Bottling Co., 1953, 373 Pa. 614, 96 A.2d 901, 903.
The second paragraph of the motion to dismiss is grounded upon the failure of the complaint to show the diversity of citizenship of the parties necessary to this court's jurisdiction. Plaintiff has remedied this defect by amendment.
The third paragraph of the motion seeks a dismissal of the complaint on the ground that it does not contain averments of fact showing that plaintiff gave notice to defendant of the alleged breach of warranty within a reasonable time after he discovered or should have discovered such breach. This contention is nearly disposed of by what has been said concerning defendant's motion for more definite statement. It does not and need not affirmatively appear from the complaint when plaintiff knew or should have known of the breach of warranty, when he notified defendant thereof, or how long was the intervening period of time. The court cannot hold a period of time to be unreasonable as a matter of law when it does not know how long that period of time was, and the court cannot assume facts in defendant's favor on defendant's motion to dismiss.
Defendant's motion to dismiss will be denied.
4. and 5. Objections to request for admissions and to interrogatories.
Defendant has filed objections to plaintiff's interrogatories and to plaintiff's request for admissions, pending disposition of the several motions filed by it. These motions have been decided, and defendant shall file his objections, if any, within ten days, or file answers within fifteen days.
6. Motion for protective order.
Plaintiff has filed a motion for a protective order, praying that defendant be denied opportunity to take plaintiff's oral deposition until defendant's motions, discussed above, have been determined, and until plaintiff's health permits such examination. Defendant's motions have been decided, and the court is not informed as to the present state of plaintiff's health. Therefore, plaintiff's motion will be denied without prejudice to his right to file an additional motion for a protective order if it should appear that plaintiff's health precludes the taking of his deposition upon oral examination. In the absence of such an additional motion, defendant will be permitted to take plaintiff's deposition upon oral examination upon ten days' notice.
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