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Luzzader v. Despatch Oven Co.

argued: September 10, 1987.

BETTY JANE LUZZADER, EXECUTRIX OF THE ESTATE OF DAVID P. LUZZADER, DECEASED
v.
DESPATCH OVEN COMPANY AND ECLIPSE INC. V. BROCKWAY, INC., A CORPORATION; HONEYWELL, INC., BETTY JANE LUZZADER, APPELLANT



Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh), D.C. Civil No. 81-2145.

Sloviter, Stapleton, Circuit Judges, and Brotman,*fn* District Judge.

Author: Brotman

Opinion OF THE COURT

BROTMAN, District Judge:

The present appeal calls upon this court to interpret a Pennsylvania statute of repose, 42 Pa.Cons.StatAnn. § 5536 (Purdon 1981), which extinguishes certain actions arising out of defects in improvements made to real property not commenced within twelve years of the making of such improvements. The district court below granted summary judgment in favor of appellees Despatch Oven Company, Eclipse, Inc., and Honeywell, Inc., determining that plaintiff's claim was barred by § 5536. Because we conclude that these defendant manufacturers do not fall within the class of persons sought to be protected by Pennsylvania's repose statute, we reverse the district court's grant of summary judgment.

I.

This action arises out of an accident which occurred on December 2, 1980 at the Brockway Plant, owned by Brockway Glass Company ("Brockway"), in Washington, Pennsylvania. Appellant's husband, David Luzzader, was injured when a natural gas fired furnace ("the oven") exploded. This oven was manufactured by Despatch Oven Company ("Despatch") and contained component parts manufactured by co-defendant Eclipse, Inc. ("Eclipse") and third-party defendant Honeywell, Inc. ("Honeywell"). The oven was sold to Brockway in March, 1965 and Brockway installed it for use in its glass molding operation.

As a result of the December, 1980 accident, appellant's husband suffered severe injuries. Appellant and her husband filed suit against Despatch and Eclipse in December, 1981. In May, 1982, appellant's husband committed suicide. Appellant amended her complaint to include a wrongful death claim, alleging that her husband's suicide was the result of a post-traumatic syndrome.

Eclipse filed a third-party complaint against Honeywell in June, 1983. Honeywell filed a crossclaim against Eclipse. Plaintiff asserted no claim against Honeywell.

Motions for summary judgment, Fed.R.Civ.P. 56, on the basis of Pennsylvania's Statute of Repose, 42 Pa.Cons.Stat.Ann. § 5536, were filed by Despatch, Eclipse and Honeywell on February 4, 1986. These motions were granted in December, 1986. Appellant then moved for sanctions under Fed.R.Civ.P. 11 against Despatch and Eclipse, claiming that these parties should have raised the § 5536 defense earlier in the proceedings. Eclipse had raised this defense in its answer while § 5536 had not been raised by Despatch in its pleadings. The motion for sanctions was denied. Appellant then filed this appeal, challenging both the grant of summary judgment and the dental of sanctions.*fn1

II.

(A) When 42 Pa.Cons.Stat.Ann. § 5536 is a Statute of Limitations or a Statute of Repose?

Appellant argues that § 5536*fn2 is a waivable statute of limitations, and not a non-waivable statute of repose. Thus, appellant urges, appellee Despatch waived any defense provided by § 5536 by not raising it in its pleadings.

Section 5536, which went into effect in 1978, is a substantial reenactment of Pa.Cons.Stat.Ann. tit. 12, § 65.1 (repealed).*fn3 Nonetheless, while the substance of the provisions appears to have remained the same, the ...


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