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decided: April 4, 1989.


Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Michael Lewis and Deborah Lewis v. Connaught Laboratories, Inc., County of Allegheny and Mary Edwards, M.D., G.D. 85-14333.


Stephen M. Houghton, with him, Nancy R. Winschel, Dickie, McCamey & Chilcote, P.C., for appellant, Connaught Laboratories, Inc.

John Newborg, Faderewski & Herrington, with him, Edward D. Klym, for appellants, Allegheny County and Mary Edwards, M.D.

Daniel M. Berger, with him, Michael Louik, Berger, Kapetan, Malakoff and Meyers, P.C., for appellees.

Judges Craig, Doyle and Palladino, sitting as panel of three. Opinion by Judge Craig.

Author: Craig

[ 124 Pa. Commw. Page 570]

Connaught Laboratories, the County of Allegheny, and Dr. Mary Edwards (defendants) appeal the Allegheny County Court of Common Pleas denial of their motion for summary judgment. Deborah Lewis, on behalf of her son, Michael, initiated this action against the defendants, alleging breach of warranty and negligence. In response, Connaught, joined by Allegheny County and Dr. Edwards, pursued the affirmative defense of the statute of limitations in a motion for summary judgment. In a separate motion for summary judgment, Allegheny County and the county's employee, Dr. Edwards, rely upon the additional defense of immunity under Chapter 85 of the Judicial Code, 42 Pa. C.S. §§ 8541-8542.

The trial court certified for interlocutory review the questions of whether the applicable statutes of limitation bar litigation of Lewis' negligence and breach-of-warranty claims, and whether the Tort Claims Act precludes Lewis from suing the County and Dr. Edwards. As permitted by Pa. R.A.P. 1311, 42 Pa. C.S. § 702(b), we granted the appellants' petition for permission to appeal and must now consider these issues.

In a motion for summary judgment a court must view the record in the light most favorable to the non-moving party, and may grant the motion only when the moving party has established that no material issues of fact remain. Fiore v. Pennsylvania Department of Environmental Resources, 96 Pa. Commonwealth Ct. 477, 508 A.2d 371 (1986). Therefore, a review of the facts disclosed in the parties' briefs, depositions, affidavits and documents in the record is necessary.

On April 18, 1978, Michael Lewis, who was then less than a year old, received his first diphtheria, pertussis and tetanus vaccination (commonly referred to as DPT) in Erie, Pennsylvania. Apparently, at that time, the attending

[ 124 Pa. Commw. Page 571]

    medical person who administered the DPT vaccine did not discuss with Ms. Lewis, nor warn her of, any of the potential side effects known to be associated with the DPT vaccine. Michael, however, did not suffer any bad reaction from that administration.

Dr. Mary Edwards, an employee of Allegheny County's Well-Baby Clinic administered the second of the three-part DPT vaccine series to Michael on August 3, 1978. Although Ms. Lewis signed a warning form regarding DPT vaccines, Dr. Edwards did not discuss with Ms. Lewis the possibility that the DPT shot would cause any adverse reaction. That evening Ms. Lewis discovered that Michael, who had been sweating and moaning in his sleep, had a temperature of 102 degrees. Ms. Lewis then took Michael to the hospital. The attending physician examined Michael and released him, diagnosing "flu-like" symptoms.

Ms. Lewis took Michael to the clinic again on October 5, 1978, for the third DPT vaccination. On this occasion, Dr. Edwards again attended Michael. Ms. Lewis signed another warning form and told Dr. Edwards of Michael's fever following the last shot. Although Dr. Edwards told Ms. Lewis that the third shot could be administered at a later date, or in two separate administrations (one-half on that day and one-half at a later date), according to Ms. Lewis' testimony at a deposition, Dr. Edwards never discussed any possible adverse side effects, nor did she suggest that the shot should not be given to Michael at all.

That evening Michael had a seizure. Ms. Lewis immediately took Michael to the hospital, where he remained for three days. According to Ms. Lewis, Dr. Beth Jackson, who examined Michael at the hospital, stated that Michael's seizure was a reaction to the DPT vaccination administered on October 5.

[ 124 Pa. Commw. Page 572]

On December 18 Michael had his second seizure and Ms. Lewis again took him to the hospital. Dr. Jackson, who had examined Michael after the first seizure, again attended Michael during his stay in the hospital. At that time, Ms. Lewis, apparently uncertain of Dr. Jackson's previous conclusion regarding the causal relationship between DPT and Michael's seizures, because Michael had not had a shot on December 18, asked Dr. Jackson if there was, indeed, a relationship between the DPT vaccines and Michael's seizures, as Dr. Jackson had stated in October after the first seizure. Dr. Jackson concluded that because Michael's second seizure did not occur after a DPT shot, the first seizure, which did concur with the administration of DPT, must have been coincidental or caused by high fever, rather than causally related to the administration of the vaccine. Ms. Lewis, in her deposition, also stated that she understood that Dr. Jackson based this conclusion on the belief that DPT related seizures do not recur.

Michael continued to suffer from seizures, and his physicians diagnosed him as autistic. Ms. Lewis claims that subsequent physicians continued to advise her that Michael's condition was not related to DPT and that she did not become aware of the fact that DPT vaccines could cause recurring seizures and brain damage until 1985 when she viewed a television program that revealed a definite connection between DPT and physical reactions such as those which Michael continues to experience and which have apparently permanently impaired Michael's mental and physical capacity. Thus, Ms. Lewis did not initiate this lawsuit until September 11, 1985.

As suggested above, we must consider three issues: (1) whether the two-year statute of limitations for personal injury claims bars Lewis' cause of action; (2) whether the applicable four-year statute of limitations

[ 124 Pa. Commw. Page 573]

    bars Lewis' breach-of-warranty claim; and, (3) whether the County and Dr. Edwards may successfully assert immunity under the Tort Claims Act.

Breach of Warranty

Connaught, wary of the discovery rule's applicability to a personal injury cause of action in tort, challenges the trial court's determination that "the plaintiff's breach of warranty claim should be reverted to fall under the two-year personal injury limitation period." The court, relying on the Pennsylvania Superior Court's decision in Salvador v. Atlantic Steel Boiler Co., 256 Pa. Superior Ct. 330, 389 A.2d 1148 (1978), and a Federal Court of Appeals opinion, Hahn v. Atlantic Richfield Co., 625 F.2d 1095 (3rd Cir. 1980), cert. den., 450 U.S. 981 (1981), deemed that the Uniform Commercial Code, adopted in Pennsylvania, which was designed primarily to establish the rights and duties of contracting parties in a commercial transaction, only protects the interests of individuals who are in privity of contract. The trial court, finding that Lewis was not in privity with Connaught, concluded that the plaintiff's breach-of-warranty claim should be treated as a personal injury claim, thus making the two-year statute of limitations for personal injury actions, rather than the four-year limitation period for breach-of-warranty claims, applicable to Lewis' breach-of-warranty action.

As Connaught correctly points out, contrary to the Court of Appeals prediction in Hahn, the Pennsylvania Supreme Court has rejected the proposition that a plaintiff who sustains personal injuries through the use of, or contact with, an allegedly defective product must be in privity of contract with the seller or manufacturer in order to assert a breach-of-warranty claim under the Commercial Code. In Williams v. West Penn Power, 502 Pa. 557, 467 A.2d 811 (1983), the Pennsylvania Supreme

[ 124 Pa. Commw. Page 574]

Court, recognizing "[t]he asymmetry [that] results from the disparity in the treatment between a direct purchaser and all other consumers, even though the plaintiffs were hurt in the same accident and sustained equally grievous injuries", held that the four-year statute of limitations provided in the Commercial Code is applicable to all breach-of-warranty claims and that no exceptions would be made merely because the claimant seeks to recover on a breach-of-warranty basis for personal injuries. 502 Pa. at 568-569, 467 A.2d at 817.

Thus, the trial court erred by allowing the breach-of-warranty claim to proceed only as a personal injury action under the two-year limitation period, and by implicitly allowing the plaintiff to claim the benefit ...

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