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VASQUEZ v. WHITING CORP.

May 5, 1987

Jose Vasquez and Maria Vasquez
v.
Whiting Corporation



The opinion of the court was delivered by: CAHN

 Edward N. Cahn, J.

 FACTS

 The crane at issue in this case is an "overhead 25-ton/aux 10-ton crane" that transports and carries materials of unspecified sizes, weights and dimensions. Whiting Corporation, an Illinois corporation ("Whiting Illinois") and a predecessor-in-interest to defendant Whiting, *fn1" manufactured the crane in 1941 and sold it that same year to Day and Zimmerman, Inc. ("Day and Zimmerman"). Employees of Day and Zimmerman apparently installed the crane at Birdsboro Steel Foundry and Machine Company.

 Defendant Whiting has moved for summary judgment, arguing that Pennsylvania's twelve-year statute of repose, 42 Pa. Cons. Stat. Ann. § 5536 (Purdon 1981), bars this action. Because I conclude that the Pennsylvania Supreme Court, were it to face this issue, would decide that the Pennsylvania statute of repose does not bar an action against a manufacturer who plays no role in the installation of a product, I will deny defendant's motion.

 DISCUSSION

 I. 42 Pa. Cons. Stat. Ann. § 5536.

 The Pennsylvania Statute of Repose provides in pertinent part:

 
(a) General rule -- Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
 
(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
 
. . . .
 
(3) Injury to the person or for wrongful death arising out of any such deficiency.

 The crux of defendant's argument is that plaintiffs' claims are barred because defendant's predecessor-in-interest designed, manufactured, fabricated and sold the crane, which eventually became an improvement to real property. See ...


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