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submitted: September 9, 1983.


No. 1579 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4862 April Term 1975.


John F. Naulty, Philadelphia, for appellant.

Louis Podel, Philadelphia, for appellee.

Spaeth, President Judge, and Cavanaugh and Hoffman, JJ. Spaeth, President Judge, concurs in the result.

Author: Hoffman

[ 322 Pa. Super. Page 397]

Appellant contends that the lower court erred in granting appellee's motion for summary judgment. Finding no merit in appellant's claim, we affirm the judgment of the court below.

In April, 1975, appellant Joseph Eagan filed a complaint in assumpsit against appellee U.S. Expansion Bolt Company. For more than five years this case lay dormant. Finally, in August, 1980, following the enactment of the "240-Day Rule,"*fn1 appellant filed a Certificate of Readiness with

[ 322 Pa. Super. Page 398]

    the Court of Common Pleas. Subsequently, appellee filed motions for summary judgment and non pros alleging, inter alia, that appellant's claim was barred by the six-year statute of limitations applicable to assumpsit actions. See 12 Pa.S.A. ยง 31. On June 4, 1981, the lower court granted the summary judgment motion, holding that the six-year limitation period barred appellant's claim. This appeal followed.

Appellant argues that it was error for the lower court to grant appellee's motion for summary judgment. Specifically, appellant alleges that the applicable statute of limitations did not start running until 1972, thereby making the six-year limitation period no bar to the instant action which was filed in 1975.*fn2

It is well settled that a statute of limitations begins to run when the cause of action accrues. Myers v. USAA Casualty Insurance Company, 298 Pa. Superior Ct. 366, 373, 444 A.2d 1217, 1221 (1982). So viewed, the facts are as follows: In 1967, appellee filed suit in U.S. District Court against appellant and others claiming that appellee's patent rights on a certain type of expandable bolt had been infringed. At the time of the 1967 lawsuit, as now, appellant was employed as a salesman of expansion bolts manufactured by Jordan Industries, Incorporated. Prior to the initiation of the 1967 suit, appellee had sent letters to appellant's customers advising them to discontinue purchasing the Jordan expansion bolts because they infringed upon appellee's

[ 322 Pa. Super. Page 399]

    patent rights. In 1972, the federal court action was decided in favor of appellant and his co-defendants on the ground that appellee's patent was invalid and should never have been issued originally. See U.S. Expansion Bolt Co. v. Jordan Industries, Inc., 346 F.Supp. 541 (E.D.Pa. 1972). Following the termination of the federal lawsuit in 1972, until 1975, appellant took no legal action against appellee. Then, in 1975 appellant filed the instant suit alleging, inter alia, that appellee's warnings to the customers of appellant resulted in the irreparable loss of appellant's competitive position in the sales of expansion bolts.*fn3 Although these warnings may have continued until 1975, see Brief for Appellant at 8, there can be no question that appellant was aware of the warnings as early as 1967.*fn4 Thus, we agree with the lower court that appellant's cause of action accrued in 1967 and effectively survived until December 31, 1973, at the latest. Therefore, appellant's failure to file the instant action until 1975, well after the statutory limitation period had expired, has resulted in appellant's contention meritless and affirm the lower court's grant of appellee's motion for summary judgment.


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