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AHMED SALVADOR v. ATLANTIC STEEL BOILER COMPANY (07/12/78)

decided: July 12, 1978.

AHMED SALVADOR, APPELLANT,
v.
ATLANTIC STEEL BOILER COMPANY, I. H. ENGLISH OF PHILADELPHIA, INC., IRWIN H. ENGLISH COMPANY, WALTER K. MUELLER AND JULIA M. MUELLER, HIS WIFE AND UNITED MACHINE & TOOL COMPANY, WALTER K. MUELLER, AND JULIA M. MUELLER, HIS WIFE AND MCKELVEY BROS



No. 938 October Term, 1977, Appeal from the Judgment entered the 17th day of January, 1977 of the Court of Common Pleas, Trial Division, Law of Philadelphia County at No. 5175 March Term, 1971.

COUNSEL

Carl M. Mazzocone, Philadelphia, for appellant.

Charles W. Craven, Philadelphia, with him Thomas H. Goldsmith, Philadelphia, for appellees, Atlantic Steel Boiler Co., I. H. English of Phila., Inc., and Irwin H. English Co.

James W. Hennessey, Norristown, with him Simon Pearl, Philadelphia, for appellees, Mueller, et ux.

No appearance entered nor brief submitted for appellee, United Machine & Tool Co.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 256 Pa. Super. Page 332]

The instant case has previously climbed the appellate ladder to the summit, and the result was the abolition in Pennsylvania of the requirement of horizontal privity as a condition precedent to the maintenance of a products liability claim for breach of warranty under the Uniform Commercial Code, 12A P.S. § 1-101 et seq. (1970). Salvador v. Atlantic Steel Boiler Co., 224 Pa. Super. 377, 307 A.2d 398 (1973), on appeal 457 Pa. 24, 319 A.2d 903 (1974). As has been the parties' plight, the instant appeal, from the lower court's order on remand granting summary judgment for defendants, raises another beclouded question in the body of Pennsylvania jurisprudence; to-wit: On a third party claim for personal injuries under the warranty provisions of the Uniform Commercial Code, where is the applicable statute of limitations to be found, and when does it begin to run?

In 1962, the S. H. English Company installed a boiler on business premises then owned by Walter Mueller and, apparently, his wife. The boiler had been manufactured by Atlantic Steel Boiler Company. In 1964 Mr. Salvador's employer, United Machine & Tool Company, purchased the

[ 256 Pa. Super. Page 333]

Mueller's company, lock, stock and boiler. However, it was not until May of 1967, while Mr. Salvador was engaged in his work for United, that the boiler exploded causing Mr. Salvador to suffer a substantial bilateral hearing loss. As a result of his injuries, on March 29, 1971 Mr. Salvador filed a writ of summons in assumpsit and trespass charging Atlantic Steel Boiler, English and the Muellers with liability for the explosion.

Following service of the complaint, the parties defendant initially filed preliminary objections in the nature of demurrers. Relying on Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A.2d 575 (1963) the defendants urged, and the court below agreed, that Mr. Salvador could not maintain a suit for breach of warranty under Section 2-318 of the Code because he was merely the employee of the purchaser of the boiler; in other words, he was not "in privity of contract." On appeal to this court we reversed, finding that Hochgertel had been effectively overruled by Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968). The Supreme Court affirmed per an opinion by Mr. Justice Roberts.

On remand to the trial court, the defendants filed answers and new matter raising the defense of the statute of limitations. With respect to Mr. Salvador's claim for relief under Section 402A of the Restatement of Torts, 2d, adopted in Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), defendants' argued the suit was barred by the two-year statute of limitations which began to run on the date of the injury in May, 1967. Act of June 24, 1895, P.L. 236, § 2, 12 P.S., § 34 (1953). With respect to Mr. Salvador's claim under U.C.C. § 2-318, defendants argued that the suit was barred by the Code's four-year statute of limitations which began to run from the date of tender of delivery of the boiler, and had expired prior to the filing of suit regardless of which delivery date of the boiler from the various defendants was deemed operative. Uniform Commercial Code, 12A P.S. § 2-725 (1970). Once again the court below agreed with the arguments advanced by the defendants and, on defendants' motion, granted summary judgment in their

[ 256 Pa. Super. Page 334]

    favor on both the warranty and tort claims. See Royal-Globe v. Hauck Manufacturing Co., 233 Pa. Super. 248, 335 A.2d 460 (1975). This ...


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