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PATTERSON v. HER MAJESTY INDUS.

March 31, 1978

KATHLEEN PATTERSON, A MINOR, BY HER PARENTS AND NATURAL GUARDIANS, MARTIN PATTERSON AND CAROLE PATTERSON AND MARTIN PATTERSON AND CAROLE PATTERSON INDIVIDUALLY AND IN THEIR OWN RIGHT
v.
HER MAJESTY INDUSTRIES, INC. v. LIT BROTHERS, INC. v. AVONDALE MILLS, FAB INDUSTRIES and BURLINGTON INDUSTRIES AND WADE MANUFACTURING COMPANY



The opinion of the court was delivered by: DITTER, JR.

 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. *fn1" 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, *fn2" 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. *fn3" 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

 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. *fn5"

 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 ...


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