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BEDNARSKI v. HIDEOUT HOMES & REALTY INC.

March 21, 1989

ROBERT BEDNARSKI and FADUA BEDNARSKI, his wife, and ROBERT BEDNARSKI, as Administrator of the Estate of RONALD BEDNARSKI, Deceased, Plaintiffs
v.
HIDEOUT HOMES & REALTY INC., A DIVISION OF U.S. HOMES & PROPERTIES, INC. and WILLIAM F. ROONEY ELECTRICAL CONTRACTOR, INC., Defendants/Third-Party Plaintiffs, v. CUTLER HAMMER CORPORATION, A Subsidiary Of EATON CORPORATION, WALTER W. GROTE, and PIKE-WAYNE INSPECTION AGENCY, Third-Party Defendants, v. DOWGARD STYROFOAM, A Division Of DOW CHEMICAL COMPANY, MARKEL PRODUCTS and ETTCO WIRE & CABLE COMPANY, Second Additional Third-Party Defendants



The opinion of the court was delivered by: NEALON

 WILLIAM J. NEALON, UNITED STATES DISTRICT JUDGE

 Currently before the court is a motion for partial summary judgment filed by defendant William F. Rooney Electrical Contractor, Inc. For the reasons that follow, defendant's motion will be denied.

 BACKGROUND

 The factual background of this diversity action is contained in this court's Memorandum and Order of November 30, 1988 and will not be reiterated here at length [ 709 F. Supp. 90 (M.D.Pa. 1988)]. See document 95 of record. Briefly, 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.

 Defendant Rooney was retained by the builder of the home, Hideout Homes and Realty, Inc., to wire and install the electrical system in the house. Rooney filed a motion for partial summary judgment on January 20, 1989. See document 112 of record. A supporting brief was submitted the same date. See document 113 of record. Plaintiffs responded with a brief in opposition to the motion on February 13, 1989. See document 117 of record. Defendant's reply time having elapsed without further submission to the court, this matter is now ripe for disposition.

 DISCUSSION

 Defendant's motion does not involve any factual dispute but instead raises the issue of whether defendant Rooney is entitled to judgment as a matter of law on certain claims raised by plaintiffs. Specifically, defendant argues that (1) plaintiffs' strict liability count (count IV) must be dismissed because a house is not a "product" for purposes of Restatement (Second) of Torts 402A (1965) *fn1" and (2) that plaintiffs' counts involving alleged breaches of an implied warranty of habitability (count V) and an implied warranty of reasonably workmanlike construction (count VII) must be dismissed because Pennsylvania's Uniform Commercial Code does not apply to contracts for construction of a residential home. These arguments will be addressed in turn.

 The substantive law of Pennsylvania applies to this diversity action. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). The Pennsylvania Supreme Court has not specifically addressed the issue of whether a building constitutes a "product" within the meaning of section 402A. There is, however, dicta from the Pennsylvania Supreme Court that bears on the issue and two (2) county court opinions that rely on the dicta. Two conflicting Superior Court decisions must also be considered. Thus, as summarized by the Third Circuit Court of Appeals, this court's task is as follows:

 
In the absence of an authoritative pronouncement from the state's highest court, the task of a federal tribunal is to predict how that court would rule. To make this prognostication, we are not inflexibly confined by dicta or by lower state court decisions, although we should look to such statements as indicia of how the state's highest court might decide. . . . The policies underlying the applicable legal doctrines, the doctrinal trends indicated by these policies, and the decisions of other courts may also inform our analysis. In addition, we may consult treatises, the Restatement, and the works of scholarly commentators.

 See Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir. 1981) (citations omitted); McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 662 (3d Cir. 1980), cert. denied, 449 U.S. 976, 101 S. Ct. 387, 66 L. Ed. 2d 237 (1980).

 The Supreme Court's only pronouncement on this subject is Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978). In Freezer Storage, the court was called upon to decide the constitutionality of a statute limiting the liability of persons performing construction improvements to property. In discussing the rationale behind adjusting time periods of liability for acts performed according to the substantive scope of the liability involved, the court stated as follows:

 
The scope of liability of the class of builders differs significantly from that of the class of owners. First, the class of persons to whom builders may be liable is larger than the class to which owners may be liable. Landowners may be liable to others who come onto their land. Builders, however, may be liable both to the landowners and to others who use the land. Second, a builder may be liable for construction defects under various legal theories -- contract, warranty, negligence, and perhaps strict liability in tort. [Footnote omitted]

 Id. at 276, 382 A.2d at 718 (emphasis added). In the footnote, the court directs the reader to compare section 402A with Restatement (Second) of Torts ยง 385. *fn2" Thus, at the very least, the Pennsylvania Supreme Court has recognized the ...


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