The opinion of the court was delivered by: NEALON
WILLIAM J. NEALON, CHIEF UNITED STATES DISTRICT JUDGE.
Currently before the court is third-party defendant Eaton Corporation's (Eaton) motion to dismiss Count III of the third-party complaint filed by William F. Rooney Electrical Contractor, Inc. (Rooney). For the reasons that follow, Eaton's motion will be denied.
Robert and Fadua Bednarski, citizens of New Jersey, filed the above-captioned diversity action on June 15, 1987 as administrators of the estate of Ronald Bednarski. The action arises out of a December 30, 1985 fire that allegedly originated in an electrical outlet located in plaintiff's house and completely destroyed the house. Plaintiff's son, Ronald Bednarski, was trapped in the house and died as a result of the fire.
Named as defendants in plaintiffs' complaint are Hideout Homes and Realty, Inc. (Hideout Homes) and Rooney. Hideout Homes, a Pennsylvania corporation with its principal place of business in Lake Ariel, Pennsylvania, was the builder of the house in question. Rooney, a Pennsylvania corporation whose principal place of business is also in Lake Ariel, was retained by Hideout Homes to wire and install the electrical system in the house. The complaint contains counts against these defendants for wrongful death and survival, strict products liability, breach of implied warranty of habitability, negligent infliction of emotional distress, and breach of contract. See document 1 of record.
Rooney filed a third-party complaint against third-party defendant Eaton on May 4, 1988. See document 43 of record. Rooney's complaint states that the original plaintiffs alleged that the cause of the fire was related to a circuit breaker box installed by Rooney and that the circuit breaker box was manufactured by Eaton. The third-party complaint contains counts for strict liability, negligence, and breach of warranty. See id.
Eaton filed a motion to dismiss the warranty count of the third-party complaint on May 26, 1988. See document 50 of record. It argues that Rooney failed to provide reasonable notice of the alleged breach of warranty as required by 13 Pa.C.S.A. § 2607(c). By Order dated August 17, 1988, the court deemed Eaton's motion to be withdrawn in accordance with M.D. Local Rule 401.5 based on Eaton's failure to file a supporting brief. See document 76 of record. Eaton filed a timely motion for reconsideration, arguing that it inadvertently failed to attach its supporting memorandum to the motion to dismiss. It also filed a copy of the supporting memorandum. See document 78 of record. By Order dated September 2, 1988, the court granted the motion for reconsideration, vacated its Order of August 17, 1988, and ordered Rooney to file a brief in opposition to the motion to dismiss. See document 79 of record. Rooney's opposition brief was filed on October 20, 1988. See document 92 of record. Eaton's reply time having lapsed without further submission to the court, the motion to dismiss is now ripe for disposition.
On a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the burden of proof lies with the moving party. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). In ruling upon a motion to dismiss, all of the well-pleaded allegations of the complaint must be accepted as true and construed in the light most favorable to the party opposing the motion. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Truhe v. Rupell, 641 F. Supp. 57, 58 (M.D. Pa. 1985) (Rambo, J.). The motion should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 746, 96 S. Ct. 1848, 1853, 48 L. Ed. 2d 338 (1976); see also Kuchka v. Kile, 634 F. Supp. 502, 506 (M.D. Pa. 1985) (Nealon, C.J.).
Section 2607(c) of the Pennsylvania Commercial Code provides, in part, as follows: "Where a tender has been accepted: (1) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy . . . ." 13 Pa.C.S.A. § 2607(c)(1). Comment 4 to this section continues in the following manner:
The content of the notification need merely be sufficient to let the seller know that the transaction is still troublesome and must be watched. There is no reason to require that the notification which saves the buyer's rights under this section must include a clear statement of all the objections that will be relied on by the buyer, as under the section covering statements of defects upon rejection (Section 2-605). Nor is there reason for requiring notification to be a claim for damages or of any threatened litigation or other resort to a remedy. The notification which saves the buyer's rights under this Article need only be such as informs the seller that the transaction is claimed to involve a breach, and thus opens the way for normal settlement through negotiations.
Id. § 2607 comment 4. Eaton argues that it did not receive any breach of warranty notice from Rooney. See document 78 of record, Supporting Memorandum. Rooney, however, contends that it provided notice to Eaton by filing its third-party complaint and that it is a question for the jury as to whether such notice was provided within a reasonable time. See document 92 of ...