No. 62 October Term, 1978, Appeal From the Order Dated September 6, 1977, Dismissing the Defendants' Exceptions to the Adjudication and Award and Judgment Entered September 23, 1977, of the Court of Common Pleas, Civil Action--Law, of Cumberland County at No. 800 September Term, 1974, in Trespass.
David C. Eaton, Harrisburg, with him James R. Humer, Carlisle, for appellants.
George F. Douglas, Jr., Carlisle, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., files a dissenting statement. Hoffman, J., did not participate in the consideration or decision of this case.
[ 261 Pa. Super. Page 32]
Defendant-appellants, the trustees of the property of Penn Central Transportation Company (Penn Central) and Burlington Northern Railroad (Burlington), appeal from the order of the court below dismissing exceptions to an adjudication and award entered in favor of plaintiff-appellee, Cumberland Buildings Company, Inc. (Cumberland). For the reasons appearing below, we reverse.
[ 261 Pa. Super. Page 33]
In July of 1971, Cumberland engaged Penn Central and Burlington to transport certain building materials*fn1 from the Butler Manufacturing plant in Galesburg, Illinois to Bellaire, Pennsylvania. When the cargo arrived at its destination it was found to be in damaged condition.*fn2
On or about August 25, 1971, Cumberland submitted a claim to Penn Central in the amount of $10,606.80 as the replacement cost for the damaged materials. Cumberland's complaint in trespass alleging that the damage occurred while the materials were in transit was filed on August 1, 1974. A non-jury trial conducted on May 31, 1977 resulted in an adjudication and award for Cumberland against both carriers in the amount of $10,608.80. Exceptions to the adjudication and award were dismissed and this appeal followed.
The materials in question were shipped subject to the provisions of a uniform straight bill of lading approved by the Interstate Commerce Commission. Section 2(b) of the bill of lading provides in pertinent part:
"As a condition precedent to recovery . . . suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice. Where . . . suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable and such claims shall not be paid."
The foregoing provision is in conformity with Section 20(11) of the Interstate Commerce Act, 49 U.S.C. § 20(11), ...