MUIR, District Judge.
Before the Court are two motions of Defendant A.B. Chance Co.: (1) a motion to dismiss the fourth count of the claim of each of the plaintiffs, and (2) a motion to dismiss the fifth count of the claim of each of the plaintiffs.
According to the original and amended complaints, this action stems from extremely serious personal injuries suffered by Plaintiff Alvin Hoffman, an employee of the Borough of Mifflinburg, Pennsylvania, when he was thrown from an hydraulic aerial platform installed on a 1965 Ford truck purchased by the Borough to facilitate work on overhead electrical lines. The complaint alleges that on October 18, 1969, while Hoffman was standing on the aerial platform, the truck's Mico Brake Lock device, manufactured by Defendant Minnesota Automotive, Inc. and installed by Defendant A.B. Chance Co., malfunctioned, permitting the truck to roll forward. The truck struck a tree, and the force of the impact catapulted Plaintiff to the ground.
I. Motion to Dismiss Count Four:
The fourth count of the claim of each of Plaintiffs sets forth breach of implied warranty as a theory of liability.
The complaint alleges that A.B. Chance Co. delivered the Ford truck equipped with the Mico Brake Lock to the Borough of Mifflinburg on May 26, 1965, and that Hoffman suffered his injuries on October 18, 1969, nearly four years and five months after the date of delivery to his employer. The original complaint was filed March 30, 1971.
The motion pursuant to F.R. Civ. P.12(b)(6) to dismiss this count for failure to state a claim upon which relief can be granted is predicated on two grounds: (1) the expiration of the applicable statute of limitations, and (2) the Plaintiffs' lack of privity. It will only be necessary to deal with the first ground.
It is undisputed that the applicable law is the law of Pennsylvania. The Pennsylvania statute of limitations governing personal injury actions based upon breach of warranty is the Act of April 6, 1953, P.L. 3, § 2-725, 12A P.S. § 2-725, which provides that an action for breach of any contract for sale must be commenced "within four years after the cause of action has accrued." Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 420, 197 A. 2d 612 (1964); Rufo v. Bastian-Blessing Company, 417 Pa. 107, 113, 207 A. 2d 823 (1965); Bobo v. Page Engineering Company, 285 F. Supp. 664, 666 (W.D. Pa. 1967), aff'd, 395 F.2d 991 (3d Cir. 1968). Section 2-725(2) provides:
"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."
The four year period is, therefore, calculated from the date of the breach of warranty, and not from the date of the accident giving rise to the injuries. Rufo v. Bastian-Blessing Co., supra. With an exception for warranties which explicitly extend to future performance of the goods, a breach of warranty occurs at the time of tender of delivery. In the instant case, the complaint alleges a breach of warranty at the time of delivery, and no argument is made by Plaintiffs that this case falls within the exception in § 2-725(2). The complaint alleges in P6 that delivery was made on or about May 26, 1965. Therefore, the statute of limitations ran on May 26, 1969. The complaint was not filed until March 30, 1971, five years and ten months after delivery. The cause of action based upon breach of implied warranty is barred by the statute, and for this reason the Defendant's motion to dismiss Count Four of the claim of each Plaintiff will be granted.
II. Motion to Dismiss Count Five:
Count Five of each of the Plaintiffs' claims, as set forth in their Amended Complaint, avers as follows:
[Paragraphs 1-21 of the complaint are incorporated by reference]