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TUCKER v. CAPITOL MACH.

December 11, 1969

Richard E. TUCKER, Plaintiff,
v.
CAPITOL MACHINE, INC., Defendant



The opinion of the court was delivered by: SHERIDAN

 This is a ruling on a motion by defendant for summary judgment.

 The complaint, filed January 21, 1969, alleges that on April 20, 1966, plaintiff, while employed at Williamson Veneer Company, was injured when a veneer clipper machine, sold to Williamson by defendant, was unintentionally activated. The complaint sets forth three causes of action: negligence in the design and manufacture of the machine; implied warranties of merchantability and fitness; and strict liability in tort.

 Jurisdiction is based on diversity of citizenship. 28 U.S.C.A. § 1332.

 Defendant moves for summary judgment on the negligence and strict liability in tort counts for the reason that these are barred by the Pennsylvania two year period of limitations. 12 P.S. § 34. Since these causes are for personal injuries, the Pennsylvania two year period of limitation controls, *fn1" and the statute begins to run as of the date of the injury unless, in the exercise of reasonable diligence, the plaintiff could not have ascertained defendant's culpability within the statutory period. Hoeflich v. William S. Merrell Co., E.D.Pa.1968, 288 F. Supp. 659; Carney v. C. N. Barnett Co., E.D.Pa.1967, 278 F. Supp. 572. In his brief, plaintiff has not addressed himself to the period of limitations, nor suggested that the statute has been tolled.

 While in its answer defendant made a general denial of the allegation that the accident occurred on April 20, 1966, it raised the affirmative defense of the statute of limitations. Defendant's motion is based on the allegations of the complaint and the date the action was filed. In 6 Moore, Federal Practice para. 56.11[2] it is stated:

 
"If the motion is made by the defendant solely on the basis of the complaint the motion is functionally equivalent to a motion to dismiss for failure to state a claim under Rule 12(b)(6); the complaint should be liberally construed in favor of the complainant; the facts alleged in the complaint must be taken as true; and the motion for summary judgment must be denied if a claim has been pleaded."

 Judgment on the negligence and strict liability in tort counts will be entered in favor of defendant and against plaintiff.

 Defendant moves for summary judgment on the breach of implied warranties of merchantability and fitness, for the reason that the complaint shows no privity of contract between plaintiff and defendant. Defendant argues that there is no "horizontal" privity in connection with the sale of the machine and that under Pennsylvania law the action cannot be maintained. Plaintiff argues that the law of Indiana controls, and that Indiana does not require privity of contract in an action for breach of implied warranty. Plaintiff argues further that even if Pennsylvania law were to be applied, privity is no longer required as a condition precedent to maintaining the action.

 The Pennsylvania Uniform Commercial Code, 12A P.S. § 2-318, provides:

 
"§ 2-318. Third Party Beneficiaries of Warranties Express or Implied
 
"A seller's warranty whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section. As amended 1959, Oct. 2, P.L. 1023, § 2."

 This section is sometimes referred to as establishing "horizontal" privity between a seller and a member of a buyer's family, household, and guests of the buyer, *fn2" which enables persons in these classes to maintain an action against a seller for breach of implied warranty. *fn3" If Pennsylvania law is controlling, plaintiff admits that in Hochgertel v. Canada Dry Corp., 1963, 409 Pa. 610, 187 A.2d 575, the Pennsylvania Supreme Court refused to extend the doctrine of "horizontal" privity to an employee of a buyer, and held that any implied warranty by the seller does not extend to the employee. A suit by the employee for breach of the warranty, therefore, cannot be maintained.

 Plaintiff argues, however, that later Pennsylvania Supreme Court cases are moving toward the abolishment of privity, citing Kassab v. Central Soya, 1968, 432 ...


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