862 F.2d 31 (3rd Cir. 1987), 86-3595, Ferens v. Deere & Co.

Docket Nº:86-3595.
Citation:862 F.2d 31
Party Name:Albert J. FERENS and Margaret L. Ferens, his wife v. DEERE & COMPANY. Albert J. FERENS and Margaret L. Ferens, his wife v. JOHN DEERE COMPANY, a/k/a Deere & Company.
Case Date:May 28, 1987
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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862 F.2d 31 (3rd Cir. 1987)

Albert J. FERENS and Margaret L. Ferens, his wife

v.

DEERE & COMPANY.

Albert J. FERENS and Margaret L. Ferens, his wife

v.

JOHN DEERE COMPANY, a/k/a Deere & Company.

No. 86-3595.

United States Court of Appeals, Third Circuit

May 28, 1987

Argued March 5, 1987.

Opinion Nov. 25, 1988.

Rehearing and Rehearing In Banc Denied Jan. 5, 1989.

Stanley V. Ostrow, William A. Penrod, Finkel, Lefkowitz, Ostrow & Woolridge, Pittsburgh, Pa., Arnold Levin, David J. Perlman, Levin, Fishbein, Seoran & Berman, Philadelphia, Pa., for appellants.

Gary F. Sharlock, David P. Helwig, Sharlock, Repcheck & Mahler, Pittsburgh, Pa., for appellee.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GIBBONS, Chief Judge, and SEITZ and ALDISERT, Circuit Judges.

OPINION

GIBBONS, Chief Judge:

The present action is here on remand from the Supreme Court for reconsideration in light of Sun Oil Co. v. Wortman, --- U.S. ----, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988). In Ferens v. Deere & Co., 819 F.2d 423 (3d Cir.1987), vacated and remanded 486 U.S. ----, 108 S.Ct. 2862, 101 L.Ed.2d 898 (1988), this court held that a Mississippi court could not apply Mississippi's

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statute of limitations to a tort which occurred in Pennsylvania where both plaintiffs were residents of Pennsylvania and the combine was purchased in Pennsylvania. This panel held that application of the laws of Mississippi would have been "arbitrary, fundamentally unfair, and therefore unconstitutional." Id. at 427. The district court determination that Pennsylvania's statute of limitations was applicable and therefore barred the action was affirmed. Because Mississippi was found to be constitutionally obligated to apply the Pennsylvania statute of limitations, this court never addressed which forum's statute of limitations applies to the diversity action as a result of its having been filed in the Federal District Court for the Southern District of Mississippi and transferred pursuant to 28 U.S.C. Sec. 1404(a) (1982) to the Federal Court for the Western District of Pennsylvania. Under the court's reasoning, both states and hence both district courts 1 would apply the Pennsylvania statute of limitations making it unnecessary to determine if the transferor or transferee forum's law applied following plaintiff's successful request for transfer pursuant to Sec. 1404(a). This reasoning is inconsistent with the Supreme Court's determination in Sun Oil Co. v. Wortman. The Constitution does not preclude Mississippi's practice of applying its own statute of limitations to actions in its courts which are governed by the substantive law of another state. Thus, this court must address the previously undetermined question of which forum's law governs following a change of venue under 28 U.S.C. Sec. 1404(a) which was granted pursuant to plaintiff's request. Under the circumstances of this case, we hold that the transferee forum's law applies (Pennsylvania).

Albert J. Ferens and Margaret L. Ferens brought this appeal from a summary judgment which was entered in favor of defendant, Deere & Company (Deere), in their product liability action grounded in diversity. The district court held that the action was time barred by Pennsylvania's two-year statute of limitations. See 42 Pa.Cons.Stat.Ann. Sec. 5524(2) (Purdon 1981).

Because the action was transferred pursuant to 28 U.S.C. Sec. 1404(a) from the Southern District of Mississippi to the Western District of Pennsylvania, the appellants contend that Mississippi's six-year statute of limitations for personal injuries governs. See Miss.Code Ann. Sec. 15-1-49 (1972). We disagree. Thus we affirm the district court's judgment.

I.

The Ferenses reside in Dunbar, Fayette County, Pennsylvania. In July 1981, Mr. Ferens purchased, for use on his farm, a John Deere Sidehill No. 6620 combine from the Uniontown Farm Equipment Company in Uniontown, Washington County, Pennsylvania. The combine was manufactured and distributed by Deere, a Delaware corporation with its principal place of business in Moline, Illinois. It had been sold by Deere to Uniontown for resale. On July 5, 1982, in Washington County, Pennsylvania, while Mr. Ferens was cleaning the combine, his right hand became enmeshed in its rotating augur and was severed above the wrist.

On July 3, 1985, the Ferenses filed Civil Action No. 85-1534 in the Western District of Pennsylvania, alleging that Deere breached certain express and implied warranties of merchantability and fitness for use in violation of the Pennsylvania Commercial Code. See 13 Pa.Cons.Stat.Ann. Secs. 1101-9507 (Purdon 1984). This breach of warranty action, which is still pending, seeks compensation for Mr. Ferens' personal injuries. Under Pennsylvania law, a four-year statute of limitations governs actions for breach of warranty. See 13 Pa.Cons.Stat.Ann. Sec. 2725 (Purdon 1984); 42 Pa.Cons.Stat.Ann. Sec. 5525 (Purdon 1981).

On July 25, 1985, the Ferenses also filed Civil Action No. 85-2725 in the Southern

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District of Mississippi, Jackson Division, seeking identical damages as those sought in Pennsylvania for the same personal injuries suffered in the July 5, 1982 accident. In the Mississippi action, recovery was based on theories of negligence and strict liability in tort. Specifically, the Ferenses claimed that the combine was defective and that Deere failed to warn of the defects. The Ferenses chose Mississippi because Deere was qualified to do business there, having had appointed a local registered agent, as it had in many other states, and because the Mississippi statute of limitations for personal injuries is six years. 2 See Miss.Code Ann. Sec. 15-1-49 (1972). The Ferenses did not allege that Deere designed or manufactured the combine in Mississippi, or that they ever set foot in that state.

After Deere filed an answer in the Mississippi action, the Ferenses made a motion, pursuant to 28 U.S.C. Sec. 1404(a), to transfer their case to the Western District of Pennsylvania, claiming inter alia, a) that they resided in Pennsylvania; b) that the accident occurred in Pennsylvania; c) that their claim had no connection with Mississippi; d) that a substantial number of material witnesses resided in the Western District of Pennsylvania, while none were in Mississippi; e) that a substantial number of necessary documentary exhibits were in the Western District of Pennsylvania, while none...

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