decided: March 31, 1975.
ROYAL-GLOBE INSURANCE COMPANIES, APPELLANT,
HAUCK MANUFACTURING COMPANY
Appeal from order of Court of Common Pleas of Lebanon County, June T., 1971, No. 111, in case of Royal-Globe Insurance Companies v. Hauck Manufacturing Company.
R. Hart Beaver, Thomas P. Harlan, and Beaver, Wolf & Harlan, for appellant.
Mark C. McQuillen, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.
[ 233 Pa. Super. Page 250]
On March 21, 1966, the appellee, Hauck Manufacturing Company (Manufacturer), sold to Faber Engineering Company, Inc. (Engineer) a gas control valve which the engineer purchased in its capacity as consulting engineer for E. Keeler Company (Contractor). The valve was installed in a boiler at the Federal Trade Center in Denver, Colorado by the contractor; and, on June 13, 1967, the valve malfunctioned causing an explosion and extensive damage. The contractor repaired the damage and demanded payment from the engineer. The appellant, Royal-Globe Insurance Companies (Globe), was the engineer's insurance carrier and, as such, compromised the claim with the contractor. Globe then as subrogee of the engineer brought this action against the manufacturer.
The complaint in this action contains three separate counts. The first count is in trespass and avers negligence and recklessness on the part of the manufacturer. The second and third counts are in assumpsit and aver breach of implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose. Various pre-trial pleadings were filed in which the manufacturer claimed that the entire action was barred by reason of the statute of limitations and in the alternative by conditions annexed to the contract of sale between the manufacturer and engineer. The lower court in response to these pleadings granted the manufacturer's motion for summary judgment as to the two counts in assumpsit on the basis that the statute of limitations had run, but refused the manufacturer's motion for summary judgment as to the count in trespass*fn1 and permitted
[ 233 Pa. Super. Page 251]
Globe to file an amended complaint setting forth with more particularity both damages and acts which constituted a breach of duty owed to Globe as subrogee. Globe filed an amended complaint in trespass and now appeals the lower court's order concerning the counts in assumpsit.
As to the two counts in assumpsit the applicable statute of limitations for actions based on warranty is set forth in Section 2-725 of the Uniform Commercial Code.*fn2 This section provides that an action for breach of contract for sale must be commenced within four years after the cause of action has accrued. In this case the cause of action accrued either on the date of sale,*fn3 March 21, 1966, or on the date of the explosion,*fn4 June 13, 1967. Litigation was not commenced in the Lebanon County Court of Common Pleas until July 1, 1971. Therefore it is clear that unless the statute was tolled, both counts in assumpsit are barred regardless of whether the cause of action accrued on the date of the sale or on the date of the explosion.
Globe argues here, as it did in the court below, that the statute was in fact tolled*fn5 on October 14, 1968, when
[ 233 Pa. Super. Page 252]
the engineer filed a complaint against the manufacturer in the United States District Court for the Eastern District of Pennsylvania.*fn6 Therefore, the question which we must now decide is whether the commencement of an action in federal court tolls the running of the statute of limitations against an action in state court. While it is true that Globe's view is supported by limited authority*fn7 we feel that the weight of the authority compels us to hold, as did the lower court, that the action in federal court does not toll the statute as to the action in state court.
The principal behind this holding has been accepted by United States courts since the turn of the century. In the early case of Willard v. Wood, 164 U.S. 502, 523 (1896) the United States Supreme Court stated: "The general rule in respect of limitations must also be borne in mind, that if a plaintiff mistakes his remedy, in the absence of any statutory provision saving his rights, or where from any cause a plaintiff becomes non-suit or the action abates or is dismissed, and, during the pendency of the action, the limitation runs, the remedy is barred. Alexander v. Pendleton, 8 Cranch 462, 470;
[ 233 Pa. Super. Page 253]
Accordingly, we will not consider the count in trespass and we affirm the order of the court below concerning the two counts in assumpsit.