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GERALD WILLIAMS v. WEST PENN POWER COMPANY (04/22/83)

filed: April 22, 1983.

GERALD WILLIAMS, DANIEL BANKS AND LINDA BANKS, HIS WIFE, APPELLANTS,
v.
WEST PENN POWER COMPANY, A CORPORATION, REIMANN AND GEORGER, INC., A CORPORATION, COMMERCIAL SERVICES COMPANY, A CORPORATION, SLOVENIAN HALL ASSOCIATION OF BROUGHTON, PENNSYLVANIA AND JOHN J. BAHR, ALFRED J. BAHR AND NEIL R. BAHR, INDIVIDUALLY AND TRADING AND DOING BUSINESS AS BAHR BROTHERS, V. JERRY LEE MILBEE, INDIVIDUALLY AND B & M ROOFING CONTRACTORS, A PARTNERSHIP; AND DANIEL BANKS



No. 1121 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, Allegheny County, at GD 77-11257.

COUNSEL

Robert Rade Stone, Pittsburgh, for appellants.

John C. Conti, Pittsburgh, submitted a brief on behalf of West Penn, appellee.

David R. Johnson, Pittsburgh, for Reimann and Georger, appellees.

J. Loughren, Pittsburgh, for Commercial Services, appellee.

John E. Hall, Pittsburgh, for Slovenian Hall, appellee.

Dan Cusick, Pittsburgh, for Bahr Brothers, appellee.

Rowley, Beck and Montemuro, JJ. Beck, J., filed a concurring and dissenting opinion.

Author: Montemuro

[ 313 Pa. Super. Page 462]

In this appeal we are presented with the difficult question of what statute of limitations to apply in an action for breach of warranty brought by a direct purchaser as well as a third party for personal injuries under the Uniform Commercial Code*fn1 [hereinafter "Code"]. Our consideration of this issue necessarily involves a complicated and somewhat confusing interplay between case law and a literal application of the Code.

B & M Roofing Contractors [hereinafter "B & M"], a partnership, was hired by Bahr Brothers, a general contractor, to perform work at the Slovenian Hall Association of Broughton. On May 19, 1975, Daniel Banks, one of the

[ 313 Pa. Super. Page 463]

    appellants herein, a partner*fn2 in B & M, and Gerald Williams, also one of the appellants herein, and an employee of the same, were injured at the Slovenian Hall work site when a ladder platform hoist they were using contacted an electrical power line. B & M had purchased the ladder from the Commercial Services Company. As a consequence of the mishap, both appellants suffered severe electrical burns.

On May 20, 1977, both gentlemen, and Mrs. Banks, in a derivative action based on her husband's injuries, filed a praecipe for writ of summons in trespass. Subsequently, on June 29, 1977, a complaint in trespass and assumpsit was filed against West Penn Power company, the electrical power line supplier, the Bahr Brothers, the Slovenian Hall Association of Broughton, Reimann and Georger, Inc., the ladder manufacturer, and Commercial Services Company, the immediate seller. Specifically, the appellants pled counts in negligence, strict liability under Section 402A, Restatement of Torts 2d,*fn3 and breach of warranty pursuant to 13 Pa.C.S.A. § 2314, § 2315 and § 2318.*fn4 All of the

[ 313 Pa. Super. Page 464]

    above named defendants, appellees herein, filed an answer and new matter alleging that the two-year personal injury statute of limitations*fn5 barred both causes of action. Shortly thereafter they filed a motion for summary judgment. The lower court granted the motion, finding that although

[ 313 Pa. Super. Page 465]

    the appellants filed suit in trespass and assumpsit Salvador v. Atlantic Steel Boiler Company, 256 Pa. Super. 330, 389 A.2d 1148 (1978), affirmed per curiam, 492 Pa. 258, 424 A.2d 497 (1981), (Salvador II) nevertheless mandated the application of the two-year statute. In Salvador II, this court held that the two-year statute of limitations applies to a breach of warranty action for third party personal injuries instead of the four-year statute contained in the Code at § 2725(a).*fn6 Notwithstanding the fact that the instant case involves a direct purchaser, appellant Banks, as well as a third party, appellant Williams, the lower court found Salvador II controlling:

Although Salvador [ II ] does, indeed, deal with an injury to a third party, its rationale and the cases and law review articles relied upon in Salvador [II], particularly the writings of Dean Murray, lead to the inescapable conclusion that the four-year statute of limitations is applicable only in those situations where a breach of warranty leads to some economic loss, but is inapplicable where the claim is for personal injury. Where the claim is for personal injury, the Superior Court has made clear that the two-year statute of limitations applies irrespective of whether the Complaint is labeled trespass or assumpsit.

Initially, for the sake of clarity, we shall set forth what is not disputed. First, there is no question that the counts in negligence and strict liability under 402A are barred by the two-year statute. Second, a prerequisite to an action for breach of warranty is that there must be a sale. Clearly, the only "sale" in the instant case was the transaction involving the ladder. As to West Penn Power Company, the Bahr Brothers and the Slovenian Hall Association of Broughton, there was no "sale" and therefore no viable breach of warranty claim. Third, Salvador II unequivocally

[ 313 Pa. Super. Page 466]

    disposes of Mr. Williams' suit. He is, as an employee of B & M, a third party to the sale of the ladder and, therefore, his breach of warranty action is barred by the two-year statute of limitations. See Salvador II, supra. Fourth, Mr. Banks is a direct purchaser only from Commercial Services Company; he is a third party to the sale of the ladder from Reimann and Georger, Inc. to Commercial Services Company. Thus, under Salvador II, Mr. Banks' action is likewise barred by the two-year statute of limitations. In sum, what remains is Mr. and Mrs. Banks' breach of warranty claim against Commercial Services Company. It is to this aspect of the lawsuit that we must determine whether the Code's four-year statute or the two-year personal injury statute applies. Specifically, does the rational enunciated in Salvador II logically extend to the instant situation where the direct purchaser is the injured party?

In Salvador II, the plaintiff was injured in May of 1967 when, during the course of his employment at United Machine & Tool Company, a boiler manufactured by Atlantic Steel Boiler Company exploded. As a result, plaintiff, Mr. Salvador, suffered severe bilateral hearing loss. Mr. Salvador, subsequently, on March 29, 1971 filed a writ of summons in assumpsit and trespass against Atlantic Steel Boiler, the S.H. English Company and Walter Mueller and his wife.*fn7

The first time on appeal this court abolished the requirement of horizontal privity under § 2318 of the Code, finding Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848, 849 (1968) effectively overruled Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A.2d 575 (1963) and permitted Mr. Salvador, as an employee of the purchaser, to maintain a suit for breach of warranty. Salvador v. Atlantic Steel Boiler ...


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