Appeal from Order of the Court of Common Pleas, Civil Division, of York c County, No. 83-S-3820.
Daniel W. Shoemaker, York, for appellant.
Nevin Stetler, York, for appellee.
Wickersham, Wieand and Del Sole, JJ.
[ 342 Pa. Super. Page 512]
Edgar C. Ranker, Jr. purchased a travel trailer from an authorized dealer of Skyline Corporation and took delivery thereof on September 15, 1979. On October 31, 1983, he filed a complaint by which he sought to rescind the sale and recover the purchase price. In support thereof he alleged
[ 342 Pa. Super. Page 513]
that Skyline Corporation had breached express and implied warranties forming a part of the contract of sale. The trial court sustained preliminary objections in the nature of a demurrer and dismissed the complaint because it was time barred. Ranker appealed. We affirm.
The statute of limitations is properly raised by answer and new matter pursuant to Pa.R.C.P. 1030 and not by preliminary objection. However, if no objection is made to the raising of the statute of limitations via preliminary objections, the procedural objection is waived, and the court may proceed to consider on preliminary objection the effect of the statute of limitations. See: Lamp v. Heyman, 469 Pa. 465, 470-471, 366 A.2d 882, 885 (1976); Donnelly v. DeBourke, 280 Pa. Super. 486, 494 n. 4, 421 A.2d 826, 830 n. 5 (1980), overruled on other grounds, Bond v. Gallen, 292 Pa. Super. 207, 437 A.2d 7 (1981); Cooper v. Downington School District, 238 Pa. Super. 404, 407, 357 A.2d 619, 621 (1976).
The applicable statute of limitations is found at 13 Pa.C.S. § 2725 and provides as follows:
(a) General rule. -- An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued . . . .
(b) Accrual of cause of action. -- A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.
Unless there is a reason why appellant's cause of action did not accrue upon delivery of the trailer, a literal application of the statute clearly requires a holding that appellant's cause of action is barred by ...