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GARDINER v. PHILADELPHIA GAS WORKS. (01/21/64)

January 21, 1964

GARDINER, APPELLANT,
v.
PHILADELPHIA GAS WORKS.



Appeal, No. 210, Jan. T., 1963, from order of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1962, No. 2347, in case of Betty E. Gardiner and Henry G. Gardiner v. Philadelphia Gas Works. Order reversed; reargument refused February 28, 1964.

COUNSEL

Michael Iannuzzi, with him Shein and Berlant, for appellants.

Harold E. Kohn, with him Jacob Kalish, and Dilworth, Paxson, Kalish, Kohn & Dilks, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, O'brien and Roberts, JJ.

Author: Jones

[ 413 Pa. Page 416]

OPINION BY MR. JUSTICE JONES

This assumpsit action was instituted by Betty E. Gardiner and Henry G. Gardiner, her husband (Gardiners), in the Court of Common Pleas of Philadelphia County against the Philadelphia Gas Works (Gas Works), for an alleged breach of "agreement, warranty and promise." In their complaint, Gardiners averred a month-to-month oral agreement with the Gas Works for the sale by the latter of gas; that the Gas Works, impliedly and expressly, warranted that the gas would be transmitted to Gardiners in a safe manner through an underground conduit maintained by it; that the Gas Works was careless and negligent in (a) allowing the gas to escape from its underground conduit into Gardiners' home and (b) permitting the gas conduit to become and remain in a defective and broken condition; that, as a result of the escape of gas, Gardiners sustained personal injuries.

Allegedly, Gardiners' injuries were sustained on January 7, 1961 and their assumpsit action was not commenced until January 15, 1963 - two years and eight days after the alleged "injury was done". The

[ 413 Pa. Page 417]

Gas Works filed preliminary objections to the complaint, averring that, on the face of the complaint, the action was barred by the two-year statute of limitations imposed by the Act of 1895*fn1 for injuries wrongfully done to the person. Court of Common Pleas No. 4 of Philadelphia County sustained the preliminary objections and entered an order dismissing the complaint. From that order Gardiners have appealed contending that the four-year period of limitations contained in ยง 2-725 of the Uniform Commercial Code (Code),*fn2 is controlling.

Prior to the enactment of the Code, it was held in this Commonwealth that the two year period of limitations imposed by the Act of 1895, supra, governed all actions for damages for personal injuries, whether arising out of contract or tort: Jones v. Boggs & Buhl, Inc., 355 Pa. 242, 49 A.2d 379; Rodebaugh v. P.T.C., 190 Pa. 358, 42 A. 953; Bilk v. Abbotts Dairies, Inc., 147 Pa. Superior Ct. 39, 23 A.2d 342.

In Jones, supra, the buyer of a coat with a fur collar brought an assumpsit action for breach of a contract of sale claiming damages (a) for personal injuries arising from a painful skin disease acquired from the fur collar and (b) for the return of the down payment made on the purchase price of the coat. As to the claim for personal injuries, the Court held such claim was barred by the statute of limitations imposed by the Act of 1895 but, as to the claim for return of the down payment, the Court held such claim was not barred by the Act of 1895. At first blush, the result in Jones might appear anomalous, i.e., the application of ...


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