We conclude that neither Salvador nor any other case assists the plaintiff, and we therefore grant Whiting's motion for summary judgment.
Statutes of limitations, as their name suggests, are legislative, not judicial creations. While the Supreme Court of Pennsylvania and indeed to some extent this Court have the power to construe such statutes, neither they nor we can overrule them. Nor should a court "construe" a statute against the plain meaning of the words. See 46 Pa.Stat. § 551 (1969); United States v. Hartwell, 73 U.S. (6 Wall.) 385, 396, 18 L. Ed. 830 (1868). Moreover, the purpose of a court to overrule prior authority is not lightly to be presumed, especially an overruling sub silentio. City of Pittsburgh v. Public Parking Authority, 11 Pa.Cmwlth. 442, 314 A.2d 887, 890 (1974), cert. denied, 421 U.S. 912, 95 S. Ct. 1566, 43 L. Ed. 2d 777 (1975); cf. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 52 S. Ct. 443, 76 L. Ed. 815 (1932). Accordingly, we will not conclude that Salvador created a new, hybrid, four year limitation period accruing at the time of injury, or that Salvador overruled Rufo, if there is any other reasonable interpretation or explanation of that case.
We conclude that there is. The statute of limitations defense was apparently neither briefed nor argued in the Supreme Court in Salvador. Indeed, the defendant seems never to have raised the defense at all, and the date of sale of the allegedly defective boiler was not even in the record. See Murray, supra, 35 U.Pitt.L.Rev. at 261 & n. 25. The Supreme Court was aware of Professor Murray's article and hence of the crucial facts. See 319 A.2d at 906 n. 9. But under these circumstances, the Court must simply have deemed the point waived. See 42 Pa.Cons.Stat., R.Civ.P. 1030 & 1032 (1975); Schmucker v. Naugle, 426 Pa. 203, 231 A.2d 121, 123 (1967); Anderson v. Bernhard Realty Sales Co., 230 Pa.Super. 21, 329 A.2d 852, 854 n. 2 (1974), alloc. granted (Jan. 2, 1975); cf. United States v. Oregon Lumber Co., 260 U.S. 290, 299-300, 43 S. Ct. 100, 67 L. Ed. 261 (1922).
We have surveyed the case law from other jurisdictions, but it does not lend support to the plaintiff's position. Most of the cases distinguish breach of warranty of sale actions from strict liability actions and then apply the ordinary, non-U.C.C. statute to the latter class of claims. See, e.g., Romano v. Westinghouse Electric Co., 114 R.I. 451, 336 A.2d 555, 558-61 (R.I.1975); Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412, 418-27 (1973); and cases cited in Heavner, 305 A.2d at 419. Others would require at least some products liability actions to be brought within four years of the date of sale of the product. See, e.g., Anderson v. Fairchild Hiller Corp., 358 F. Supp. 976 (D.Alaska 1973) (also requires privity).
All these cases agree with Rufo that whenever the U.C.C. § 2-725 period applies, it accrues at the time of tender of delivery of the product; conversely, strict liability (like other tort actions) triggers a statutory period accruing at the date of injury. But as we have noted, neither theory would stave off Whiting's motion in this case. Plaintiff's position is simply incorrect and untenable.
We therefore enter the following order granting summary judgment for added defendant Whiting Corporation. All the other defendants having previously been granted summary judgment on other grounds, the case will be dismissed.