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July 1, 1957


The opinion of the court was delivered by: MURPHY

Defendant moves (a) to dismiss, (b) for a more definite statement. Fed.Rules Civ.Proc. rule 12(b, e), 28 U.S.C. The more drastic remedy is denied. Sherwin v. Oil City National Bank, 3 Cir., 1956, 229 F.2d 835, at page 837; United States v. Employing Plasterers Ass'n of Chicago, 1954, 347 U.S. 186, 74 S. Ct. 452, 98 L. Ed. 618.

 Is the second amended complaint a short and plain statement of a claim showing that plaintiff is entitled to relief, Rule 8(a); Sierocinski v. E. I. Dupont De Nemours & Co., 3 Cir., 1939, 103 F.2d 843; Gold Seal Co. v. Weeks, 1954, 93 U.S.App.D.C. 249, 209 F.2d 802, at page 808; cf. Dioguardi v. Durning, 2 Cir., 1944, 139 F.2d 774; Smith v. Piper Aircraft Corp., D.C.M.D.Pa., 18 F.R.D. 169, at pages 173, 174; does it afford fair notice of the nature and basis of the claim or claims asserted and a general indication of the type of litigation involved, Continental Collieries, Inc., v. Shober, 3 Cir., 1942, 130 F.2d 631, at page 635; or is it is some respects so vague and ambiguous that defendant cannot be reasonably required to form a responsive answer thereto?

 By written contract November 6, 1946, defendant agreed to manufacture and deliver to plaintiff at Wilkes-Barre in this district sixty-two steam locomotives at $ 115,000 each. March 8, 1947, a contract was executed for twenty-six additional locomotives at $ 129,000 each. The two contracts entered into pursuant to proposals submitted by defendant are identical except as to number of proposal, date, number of locomotives, price, and time of delivery. The locomotives were to be manufactured according to specifications and drawings prepared by defendant and certified by plaintiff. All eighty-eight locomotives were delivered.

 Plaintiff seeks $ 1,175,248.70 for breach of contract and of warranty. In Count I for delay in making deliveries under the first contract, plaintiff claims a fine of $ 57.50 per day per locomotive for 2,027 days or $ 116,552.50. As to this count defendant does not press its request for a more definite statement asserting that sufficient information is already available; that it will plead the applicability of a 'force majeure' clause in the contract, deny liability because of plaintiff's laxity in moving the locomotives and counterclaim for damages. *fn1"

 The difficulty lies with Count II. Defendant guaranteed engine parts -- wheel sets (axles and wheels), tires and springs -- for three years; the rest of the material for one year. *fn2" If during the period of guarantee 'hitches or trouble should arise out of faulty material or defective manufacture' defendant agreed at its own expense 'to remedy the defect or, if necessary, replace all such parts at the earliest possible date * * *.' *fn3"

 In the original complaint plaintiff claimed $ 2,117,392.40 for breach of warranty, $ 1,058,696.20 under each contract in Counts II and III respectively, plaintiff's counsel advising by letter that $ 1,058,696.20 constituted their entire claim for breach of warranty but that they did not have sufficient information from Ankara to allocate the proper amount under each contract and therefore duplicated those items because they had to file their complaint to prevent the running of the statute of limitations.

 After defendant moved for a more definite statement plaintiff's counsel visited Turkey and thereafter filed the present second amended complaint defining its claim in precisely the same language as the original but joining the claim as to each contract in a single count and adding that as a result plaintiff was obliged to remedy defects in or replace '336 driving wheel tires, 119 tender wheel tires, 88 engine wheel tires and tender wheels, 88 air brake pipes, 88 boilers and numerous stay bolts' *fn5" for which plaintiff claimed damages of $ 1,058,696.20 plus interest and costs.

 Shortly thereafter plaintiff advised that its claim was made up as follows: Driving wheel tires, $ 24,024.00; tender wheel tires, $ 4,679.68; truck and tender wheels, $ 117,935.68; *fn6" air brake pipes, $ 3,146; stay bolts, $ 279,710.86; boilers, $ 629,200.

 Defendant seeks to compel plaintiff to separate its claims as to each contract, specifying when the defects occurred, when they were repaired or replaced, stating what if any part constitutes special damages, F.R.Civ.P. Rule 9(g). Defendant contends that such relief is necessary so that it may plead the statute of limitations or failure to state a claim upon which relief can be granted.

 While Rule 10(b) requires that 'each claim founded upon a separate transaction or occurrence * * * shall be stated in a separate count * * * whenever a separation facilitates the clear presentation of the matters set forth', see 2 Moore Federal Practice, 2d Ed., § 10.03, we find, on further reflection and study, that since deliveries were made in part simultaneously under the two contracts, the contract terms are so similar that separation into counts would not facilitate clarity or solve the present difficulty.

 Ordinarily, what difficulties within a generally defined area developed; when, whether they were due to faulty parts, materials or accessories, to defective manufacture or workmanship; whether they were repaired or replaced, and when; when and how notice was given and demand made, are proper subjects for discovery. Here the problem is not so simple.

 This being a diversity case, we look to Pennsylvania law to determine the rights and obligations of the parties. See and cf. Robt. H. Fox Co. v. Keystone Driller Co., 3 Cir., 1956, 232 F.2d 831, at page 834; Texas Motorcoaches, Inc., v. A.C.F. Motors Co., 3 Cir., 1946, 154 F.2d 91, at page 93. To recover plaintiff must show a breach within the warranty period. See and cf. Carr-Consolidated Biscuit Co. v. Moore, D.C.M.D.Pa.1954, 125 F.Supp. 423, at page 429. Defendant is not obliged to specially plead thereto under Rule 8(c). See and cf. Goodwin v. Townsend, 3 Cir., 1952, 197 F.2d 970; Matheny v. Porter, 10 Cir., 1946, 158 F.2d 478, 480; Kincheloe v. Farmer, 7 Cir., 1954, 214 F.2d 604, 605; A. G. Reeves Steel Const. Co. v. Weiss, 6 Cir., 1941, 119 F.2d 472, 476. An action to recover therein must be brought within six years from the date of the breach. Woodland Oil Co. v. A. M. Byers & Co., 1909, 223 Pa. 241, 72 A. 518; 6 Williston, Id. §§ 2004, 2020; Emich Motors Corp. v. General Motors ...

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