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July 25, 1986

ALBERT J. FERENS and MARGARET L. FERENS, his wife, Plaintiffs,
DEERE & COMPANY, Defendant. ALBERT J. FERENS and MARGARET L. FERENS, his wife, Plaintiffs, v. JOHN DEERE COMPANY, a/k/a DEERE & COMPANY, Defendant

Cohill, C.J.

The opinion of the court was delivered by: COHILL

Presently before the Court is Defendant's Motion for Summary Judgment in the above-captioned cases. Diversity jurisdiction is proper pursuant to 28 U.S.C. § 1332 (1982).

 Summary of Facts and Procedural History

 On or about July 17, 1981, Plaintiff purchased a John Deere Sidehill #6620 Combine, Serial No. 454907, which was manufactured by Defendant. Complaint, para. 4. Defendant sold the combine in question to the Uniontown Farm Equipment Company, which company thereafter sold the combine to Plaintiff for use on his farm. Id., para. 6.

 On or about July 5, 1982, in Washington County, Pennsylvania, while Plaintiff was cleaning the combine, his right hand was pulled into the rotating auger, thereby amputating it above the wrist. Id., para. 7.

 On July 3, 1985, Plaintiffs filed C.A. 85-1534 in the Western District of Pennsylvania, basing their claim on the Pennsylvania Commercial Code, 13 Pa. C.S. §§ 1101-9507 (Purdon 1984). Specifically, Plaintiffs alleged that the combine was expressly and/or impliedly warranted by Defendant to be merchantable and fit for the ordinary purposes for which it was used, and that Defendant breached its express and/or implied warranties since the combine was, in fact, defective.

 Subsequently, on July 25, 1985, Plaintiffs filed C.A. 85-2725 in the Southern District of Mississippi, Jackson Division. That action, which was founded on the same accident whereby Plaintiff lost his right hand, sought damages which were identical to those sought in Plaintiffs' initial action; however, recovery was based on theories of negligence and strict liability under § 402A and B of the Restatement (2d) of Torts. In their complaint in the subsequent action, Plaintiffs alleged that the combine was defective in and of itself, and as a result of Defendant's failure to warn of the alleged defects.

 In a rather unusual procedural move, Plaintiffs then filed a motion for change of venue of the Mississippi action under 28 U.S.C § 1404(a). Plaintiffs' motion was granted on November 8, 1985 by United States Magistrate John R. Countiss, III of the Southern District of Mississippi, Jackson Division, who transferred Plaintiffs' second action to the Western District of Pennsylvania. Thereafter, by Order of this Court dated November 21, 1985, the two lawsuits were consolidated for all purposes.

 Summary Judgment

 Defendant has filed this Motion for Summary Judgment on the grounds that 1) the purchase order disclaimed any implied warranties of merchantability and fitness for a particular purpose, and contained an exclusion of consequential damages; and 2) Pennsylvania's two-year limitations period bars Plaintiffs' negligence and strict liability claims.

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 26; Anderson v. Liberty Lobby Inc., 477 U.S. 242, 54 U.S.L.W. 4755, 4757, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the burden of proving that no genuine issue exists, Adickes v. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970), and any doubts must be resolved in favor of the nonmoving party. Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (quoting Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).

 The United States Supreme Court has recently stated that "one of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 54 U.S.L.W. 4775, 4777, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 54 U.S.L.W. at 4757.

 Here, the motion is made by the Defendant solely on the basis of the pleadings without supporting affidavits; thus, the motion is functionally equivalent to a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c). Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir. 1968), quoting 6 J. MOORE, MOORE'S FEDERAL PRACTICE, para. 56.02[3], at 2035. As such, all well-pleaded factual allegations of the Plaintiffs must be taken as true and all allegations of the moving party which have been denied are taken as false; conclusions of law are not deemed admitted. Shade v. Commonwealth of Pennsylvania Dept. of Transportation, 394 F. Supp. 1237, 1243 (M.D. Pa. 1975).

 I. Disclaimer of Warranties

 Defendant claims that the purchase order conspicuously included the warranties which accompanied the sale of the combine and that it disclaimed the implied warranties of merchantability and fitness for particular purpose. In addition, Defendant emphasizes that said purchase order contained a clause excluding consequential damages. Defendant's Answer, Exhibit "A."

 Plaintiffs admitted to the authenticity of the purchase order in their Reply to Defendant's Answer; however, Plaintiffs contend that the terms of the purchase order are unconscionable, amount to a contract of adhesion and are against public policy.

 Under its adoption of the Uniform Commercial Code, 13 Pa. C.S. § 2316 provides that warranties may be excluded or modified at the time of sale:

§ 2316. Exclusion or modification of warranties
. . . .
(b) Implied warranties of merchantability and fitness. - Subject to subsection (c), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify an implied warranty of fitness the exclusion must be by a writing and conspicuous. . . .
(c) Implied warranties in general. - Notwithstanding subsection (b):
(1) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults" or other language which is common understanding calls the attention of the buyer to the exclusion of warranties and makes plain that there is no implied warranty.
(2) When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him.
(3) An implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade. . . .

 Id. See Thermo King Corp. v. Strick Corp., 467 F. Supp. 75 (W.D. Pa.), aff'd, 609 F.2d 503 (3d Cir. 1979) (manufacturer's warranty card contained "conspicuous" language to exclude implied warranties).

 In the present case, the purchase order provided as follows:

The Warranty on the reverse side is a part of this contract and the following applies where permitted by law: Neither seller, John Deere Company, nor the manufacturer makes any other representations or warranties, express or implied (AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS) ...

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