This is a diversity suit for personal injuries sustained by minor plaintiff when a pair of pajamas she was wearing caught fire. Presently before the court is the motion of the garment's manufacturer for summary judgment on the ground that the statute of limitations for plaintiffs' breach of warranty claim expired before the action was brought. For the reasons hereafter advanced, I find that the statute of limitations began to run on the date of the retail sale to plaintiffs, the suit was timely brought, and the motion must be denied.
1. Factual and Procedural History
On September 24, 1971, plaintiff, Carole Patterson, purchased a pair of pajamas from Lit Brothers, a retail store, for her daughter Kathleen, then age 12. Her Majesty Industries, Inc., (Her Majesty), had manufactured the pajamas and sold them to Lit Brothers for resale to the public. On the evening of October 11, 1971, Kathleen wore these pajamas to bed for the first time. The next morning, while preparing breakfast in her home, Kathleen reached over a gas stove to get a teabag. As she did, a spark from the stove contacted the lower portion of the pajama top. Almost instantaneously, the top was consumed by flames and Kathleen was badly burned.
On June 6, 1975, plaintiffs started suit against Her Majesty on theories of breach of warranty, negligence, and strict liability because the pajamas were not resistant to flame and Her Majesty had failed to provide appropriate warning. Thereafter, on December 9, 1975, leave was granted to join Lit Brothers as a third party defendant.
By order dated July 15, 1976, I entered judgment on the pleadings in favor of Her Majesty on those counts of the complaint based on negligence and strict liability since they were barred by the applicable two-year statute of limitations.
Her Majesty has now moved for summary judgment with respect to the breach of warranty claim, contending that 1) Pennsylvania would apply a two-year statute of limitations,
and 2) if a four-year statute of limitations does apply, as provided in Section 2-725 of the Uniform Commercial Code, 12 P.S. § 2-725, it began to run as of the date of the sale by Her Majesty to Lit Brothers, which was more than four years prior to the start of suit.
Plaintiffs urge the motion be denied and maintain that a four-year statute of limitations does apply and that it runs from the date of the retail sale and, alternatively, that Her Majesty's warranty explicitly extended to future performance so the statute started to run as of the date of the accident. After an analysis of Pennsylvania cases and those of other state and federal tribunals, I have concluded that the statute of limitations begins to run from the retail sale date and is of four years duration.
Oddly, this appears to be a case of first impression. Neither my continuous and exhaustive research nor that of counsel has disclosed any case that addresses this particular issue. Inasmuch as no Pennsylvania cases are on point, my decision must be governed by a prediction of what a Pennsylvania court would rule if this matter came before it. Becker v. Interstate Properties, 569 F.2d 1203, slip op. at 4-5 (3d Cir. 1977); Knapp v. North American Rockwell, 506 F.2d 361, 367 (3d Cir. 1974), cert. denied 421 U.S. 965, 95 S. Ct. 1955, 44 L. Ed. 2d 452 (1975). As in any diversity case,
a federal court must be sensitive to the doctrinal trends of the state whose law it applies, and the policies which inform the prior adjudications by the state courts. A diversity litigant should not be drawn to the federal forum by the prospect of a more favorable outcome than he could expect in the state courts. But neither should he be penalized for his choice of the federal court by being deprived of the flexibility that a state court could reasonably be expected to show. Becker, supra, at 1206.
2. Section 2-725: The Statute of Limitations
The parties agree that Section 2-725 of the Uniform Commercial Code (Code), 12 A.P.S. § 2-725, is the relevant limitations provision to be applied here. It states
that an action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. It is Her Majesty's position that under the clear language of Section 2-725(2), the limitation period as to any seller commences when he tenders delivery of the goods to his immediate purchaser, the retailer, and the four-year period would have expired prior to June, 1975. Plaintiffs' position is there could be no tender of delivery as to them until they had purchased the merchandise and, under their computations, the four-year period would have expired in September, 1975.
Although the Code is silent on the issue, defendant asserts that one purpose of the limitation is to enable firms to destroy their records four years after a commercial sale "without fear of being unable to defend against liabilities subsequently asserted." Engelman v. Eastern Light Co., Inc., 30 Pa. D. & C. 2d 38, 45 (1962). To some extent, this is supported by the comments of the National Conference of Commissioners on Uniform State Laws and The American Law Institute:
This Article takes sales contracts out of the general laws limiting the time for commencing contractual actions and selects a four year period as the most appropriate to modern business practice. This is within the normal commercial record keeping period.
If the limitation period was held to begin only upon sale by the retailer to the ultimate consumer, defendant argues it would not run for 25 years if the retailer were not able to sell the product for 21 years. Similarly, with respect to a machine which might be sold and resold a number of times over a great number of years, the manufacturer's warranty liability would be extended for even longer periods of time. Conversely, if defendant's reasoning were adopted, a calculation of the statute of limitations from the date of delivery to the retailer could bar an injured consumer before his cause of action even existed. For example, a sale and an injury could take place four years and one day after delivery of the product to the retailer. While the customer could maintain an action against the retail establishment, he would be foreclosed from bringing a breach of warranty claim against the manufacturer.
The initial step in my inquiry as to the probable reaction of Pennsylvania courts to this issue must be an examination of the development of warranty law in this state and the courts' recognition of the economic reality in cases involving manufacturers and users of allegedly defective products. Thereafter, I shall address those cases from other jurisdictions which have impliedly considered this issue.
3. The Pennsylvania law
Prior to the adoption of the Code in Pennsylvania, actions to recover for personal injuries, whether in contract or in tort, were governed by the two-year trespass statute of limitations, but the action did not accrue until an injury was sustained. Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517 (1949); Jones v. Boggs & Buhl, 355 Pa. 242, 49 A.2d 379 (1946). These clearly decided precedents were questioned after adoption of the Code and until the Pennsylvania Supreme Court's decisions in Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 197 A.2d 612 (1964), and Rufo v. Bastian-Blessing Co., 417 Pa. 107, 207 A.2d 823 (1965). In Gardiner, plaintiffs, injured by an alleged defective gas conduit installed by defendant, sued in assumpsit two years and eight days after the alleged injury, but within four years from the date of delivery. The court concluded that "a personal injury claim based upon a breach of warranty is a distinct claim from a personal injury claim based on negligence," 413 Pa. at 419, 197 A.2d at 614, and in the interest of uniformity under the Code, personal injury claims in an assumpsit action would be limited by the four-year provision of Section 2-725. One year later, in Rufo, the court was faced with a suit in assumpsit for personal injuries which had been filed more than four years after the date of delivery. Plaintiff's argument that the date of injury should trigger the limitation period was rejected, but the four-year rule was followed. Under the court's reasoning, the latest time the cause of action could accrue was when the plaintiff took delivery of the allegedly defective product. Since then, a number of state and federal court decisions have referred to the four-year period.
The only state court case that has even remotely considered whether the retail or wholesale date controls is Rufo v. Bastian-Blessing Co., supra, where the court intimated that it is the retail sale which provides the significant date. Rufo had bought a refilled, portable cylinder of liquefied gas from Martin in March, 1956. Defendant, Bastian-Blessing, had manufactured a valve which was connected to the cylinder. On December 8, 1957, plaintiff was injured in an explosion, caused by gas which escaped from the valve and caught fire. Alleging that defendant had violated an implied warranty of fitness, Rufo brought suit on July 12, 1960. In ruling that the action was barred by the statute of limitations, the court held:
Applying the statute, the latest time that the alleged breaches of implied warranties could have occurred and, therefore, the latest time that the cause could have accrued was when Rufo took delivery of the allegedly defective cylinder in March of 1956. Because the complaint was filed more than four years later, in August of 1960, it was too late (emphasis added). 417 Pa. at 113, 207 A.2d at 826.