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May 4, 1966

MATLACK, INC., Plaintiff,

The opinion of the court was delivered by: WOOD

 This is a motion for summary judgment under F.R.Civ.P. 56 brought by defendant Butler Manufacturing Company on the grounds that the plaintiff's claim is barred by the applicable statute of limitations and that the complaint fails to state a claim upon which relief can be granted.

 In 1960 plaintiff Matlack, Inc. purchased 50 cement carrying trailers from defendant, Butler Manufacturing Company. Hercules CV 4-180 gasoline engines were to be placed on the trailers in order to drive the unloading mechanism. Plaintiff alleges that shortly after delivery of the initial trailer, numerous defects arose in the Hercules engines causing it to expend money to repair, modify, replace and improve the engines and equipment damaged by the malfunctioning of the said engines. *fn1"

 Matlack filed a complaint against the manufacturer of the engines (Hupp Manufacturing Co.) on March 12, 1964, and a complaint against Butler on February 11, 1965. In the instant action, plaintiff demands judgment because of negligent design and breach of warranty. Butler's motion to dismiss the complaint was denied by Chief Judge Clary on January 27, 1966, without prejudice stating that a motion for summary judgment would be more appropriate to decide this case since affidavits and other material extraneous to the pleadings were necessary.

 Matlack is a Pennsylvania corporation having its principal place of business in Pennsylvania. Butler is a corporation organized and doing business under the laws of the State of Missouri and having a local place of business in West Chester, Pennsylvania. The purchase order, signed by Matlack on March 29, 1960, was subject to acceptance by Butler in some state other than Pennsylvania and we presume was so accepted in Minnesota, although there is no evidence of such on the record. On July 12, 1960, a representative of Butler accepted in Minnesota a conditional sales contract with Matlack.

 Plaintiff has filed in this case with its brief a series of documents extending from A to H which we took into account. Plaintiff was also permitted to file an affidavit of William J. Grannetino although filed after the argument. F.R.Civ.P. 56(f) provides:

"Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court * * * may order a continuance to permit affidavits to be obtained * * * or may make such other order as is just."

 Although plaintiff's excuse that the affiant was in Northampton, Pennsylvania, and could not come to Philadelphia to sign his affidavit is rather a weak excuse, we allowed Matlack to file an additional affidavit within 5 days of the hearing in the interests of substantial justice and since plaintiff had submitted an affidavit by another person who gave the facts which he had received from Grannetino by telephone. Moreover, we had extended the time for Matlack to file its brief up to one day of the argument because of counsel's other pressing engagement. *fn2"

 Summary judgment is to be granted to a party if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. F.R.Civ.P. 56. The court's function is to determine whether a genuine issue exists for trial and not to resolve disputed issues of fact. United States v. Diebold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962). Any reasonable doubt as to the facts should be resolved against the movant necessarily, since a trial is absolutely essential where there is a disputed issue of fact.


 Defendant's first argument is that plaintiff's claim is barred by the four-year statute of limitations applicable in Pennsylvania to all actions for breach of any contract for sale. The parties have agreed that the controlling statute of limitations is that of Pennsylvania, as they must. See Wilt v. Smack, 147 F. Supp. 700, 702 (E.D.Pa.1957). The Code provides in 12A Pa.Stat. tit. Section 2-725:

"(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. * * *
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered."

 This complaint was filed four years, five months and eleven days after delivery of the last trailer involved even under plaintiff's version of the delivery date. *fn3" Therefore, unless the ...

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