Williams v. West Penn Power Co.

• Decision Date: 10 November 1983
• Citation: Williams v. West Penn Power Co., 502 Pa. 557, 467 A.2d 811 (Pa. 1983)
• Parties: , 37 UCC Rep.Serv. 720 Gerald WILLIAMS, Daniel Banks and Linda Banks, his wife v. WEST PENN POWER COMPANY, a corporation, Reimann and Georger, Inc., a corporation, Commercial Services Company, a corporation, Slovenian Hall Association of Broughton, Pennsylvania and John J. Bahr, Alfred J. Bahr and Neil R. Bahr, individually and trading and doing business as Bahr Brothers, v. Jerry Lee MILBEE, individually and B & M Roofing Contractors, a partnership, and Daniel Banks. Appeal of Gerald WILLIAMS, Daniel Banks and Linda Banks, his wife. Gerald WILLIAMS, Daniel Banks and Linda Banks, his wife, v. WEST PENN POWER COMPANY, a corporation, Reimann and Georger, Inc., a corporation, Commercial Services Company, a corporation, Slovenian Hall Association of Broughton, Pennsylvania and John J. Bahr, Alfred J. Bahr and Neil R. Bahr, individually and trading and doing business as Bahr Brothers, v. Jerry Lee MILBEE, individually and B & M Roofing Contractors, a partnership, and Daniel Banks. Appeal of REIMANN AND GEORGER, INC., a corporation. 1121
• Court: Pennsylvania Supreme Court

Page 811

467 A.2d 811

502 Pa. 557, 37 UCC Rep.Serv. 720

Gerald WILLIAMS, Daniel Banks and Linda Banks, his wife v.WEST PENN POWER COMPANY, a corporation, Reimann and Georger,

Inc., a corporation, Commercial Services Company, a

corporation, Slovenian Hall Association of Broughton,

Pennsylvania and John J. Bahr, Alfred J. Bahr and Neil R.

Bahr, individually and trading and doing business as Bahr Brothers, v.Jerry Lee MILBEE, individually and B & M Roofing

Contractors, a partnership, and Daniel Banks.

Appeal of Gerald WILLIAMS, Daniel Banks and Linda Banks, his wife.

Gerald WILLIAMS, Daniel Banks and Linda Banks, his wife, v.WEST PENN POWER COMPANY, a corporation, Reimann and Georger,

Inc., a corporation, Commercial Services Company, a

corporation, Slovenian Hall Association of Broughton,

Pennsylvania and John J. Bahr, Alfred J. Bahr and Neil R.

Bahr, individually and trading and doing business as Bahr Brothers, v.Jerry Lee MILBEE, individually and B & M Roofing

Contractors, a partnership, and Daniel Banks.

Appeal of REIMANN AND GEORGER, INC., a corporation.

1121

Supreme Court of Pennsylvania.

Argued Sept. 14, 1983.

Decided Nov. 10, 1983.

[502 Pa. 559] Daniel B. Winters, Pittsburgh, for John J. Bahr, Alfred J. Bahr and Neil R. Bahr, etc.

David R. Johnson, John D. Rhodes, Pittsburgh, for Reimann & Georger, Inc.

Edward C. Milburn, Pittsburgh, for Jerry Lee Milbee, etc.

Robert Rade Stone, Pittsburgh, for Gerald Williams, Daniel Banks and Linda Banks.

W.Arch Irvin, Jr., Pittsburgh, for Slovenian Hall Ass'n.

George M. Weis, Pittsburgh, for West Penn Power Co.

Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.

OPINION

NIX, Justice.

These appeals question whether the statute of limitations for tort actions, 42 Pa.C.S.A. § 5524(2), ¹ or the Uniform Commercial Code("Code"), ²section 2-725³ is applicable in suits brought under the Code that allege personal injury.We are not here reexamining the general question of the substantive right of a third party to sue under the Code for breach of warranty.Salvador v. Atlantic Steel Boiler Co., ("Salvador I")457 Pa. 24, 319 A.2d 903(1974) disposed of that issue.

What is being urged is that either based upon a concept of privity or a theory of the nature of the claim, the breach of warranty provisions under the Code should be controlled by the tort statute of limitations.

The Court of Common Pleas granted a motion for summary judgment based on the view that all of the claims were barred under the two-year tort statute of limitations.The Superior Court affirmed in part and reversed in part, ruling that the Banks' action against Commercial Services Company was governed by section 2-725 of the Code.Williams v. West Penn Power Co., --- Pa.Super. ---, 460 A.2d 278(1983).⁴

I.

Gerald Williams was an employee of B & M Roofing Contractors ("B & M"), a partnership, on May 19, 1975 when a ladder platform hoist, ⁵ which he and his employer, Daniel Banks, were lowering, contacted a high tension electric power line.Both Mr. Williams and Mr. Banks suffered severe electrical burns throughout their bodies as a result of the ladder's conducting electricity from the high tension wires through them.Additionally, Mr. Williams lost two toes on his right foot and Mr. Banks' left leg was amputated below the knee.

Reimann and Georger, Inc. manufactured the ladder alleged to be defective in design and construction.It was purchased by B. & M., of which Mr. Banks was a partner, from Commercial Services Company, a seller and distributor of ladders, hoists and commercial equipment.The complaint does not allege the date of purchase of the ladder; however, the brief submitted to this Court by Reimann and Georger, Inc., indicates the injuries were inflicted "the same day the ladder was purchased".

On May 20, 1977, Mr. Williams and Mr. and Mrs. Banks filed a praecipe for writ of summons in trespass in the Court of Common Pleas of Allegheny County.On June 29, 1977 a complaint in trespass and assumpsit was also filed in that court.In responsive pleadings, the defendants by way of new matter asserted the two-year tort statute of limitations.On motion for summary judgment, all claims of the plaintiffs were dismissed on November 3, 1980.This result was justified by Judge Wekselman's interpretation of the holding of the Superior Court in Salvador v. Atlantic Steel Boiler Co. ("Salvador II"), 256 Pa.Super. 330, 389 A.2d 1148(1978) affirmed per curiam, 492 Pa. 257, 258, 424 A.2d 497(1981).He held the two-year tort statute of limitations applicable to all breach of warranty actions where the damages claimed are personal injury.

On appeal to the Superior Court, Judges Montemuro and Rowley, while maintaining the tort/contract dichotomy, did not interpret Salvador II as broadly as did Judge Wekselman.They resurrected an additional dichotomy of direct buyer/injured third party previously discredited by this Court in products liability cases.By this decision Mr. Williams, as an employee who did not purchase the ladder, was denied the benefit of section 2-725 of the Code.That court also held that Mr. Banks, under Salvador II, could not maintain an action against the manufacturer who placed the ladder in the stream of commerce although he could proceed against the retail seller.It was emphasized that distinctions were made for statute of limitation purposes and not for substantive ones.Judge Beck, in a concurring and dissenting opinion, emphasized the legally asymmetrical result reached by the majority and noted the present trends in the resolution of what appears to be a conflict between section 402A of the Restatement (Second) of Torts ⁶ and the Code ⁷.For reasons that follow, we are of the view that the four-year statute of limitations provided in the Code is applicable to all breaches of warranty claims brought under the Code including those for personal injury.⁸

II.

At the outset it is clear that the actions in trespass brought by plaintiffs under § 402A of the Restatement (Second) of Torts are time-barred.Thus, we only address the question of the appropriate statute of limitations for that portion of the complaint entitled assumpsit which charges a breach of warranty attributed to Commercial Services Company, seller of the ladder, and Reimann and Georger, Inc., manufacturer of the ladder.⁹

An action for breach of warranty originally sounded in tort, being an action on the case for false warranty of an "undertaking" and fraud.It arose from the warrantor's consent to be bound.Later the element of consent was not required, but the "undertaking" and the existence of a warranty deemed the action to be one of contract.¹⁰As assumpsit became more exclusively a contract action, the requirement of an "undertaking" or agreement fathered the defense of lack of privity between the plaintiff and defendant.¹¹¹¹ By the time the Code was first adopted, it was clearly established through case law, see, Loch v. Confair, 361 Pa. 158, 63 A.2d 24(1949), that actions for breach of warranty in sales contracts were limited to the immediate or original buyer in reliance upon the rule of privity of contract.

Although § 2-318¹² of the Code extended the cause of action for breach of warranty to members of the buyer's family, his household or a guest in the purchaser's home, this Court continued the requirement of privity as to an employee of the purchaser of a product in Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A.2d 575(1963)(horizontal privity).¹³Both horizontal privity, determinative of who may sue, and vertical privity, which decides who may be sued, have been considered undesirable.¹⁴The primary reasons offered for the condemnation of the privity requirement centered upon the unfairness of insulating the remote manufacturer, who in fact made the defective product, and barring a non-buyer consumer who is in fact injured by that defect under present marketing practices.

The decision in Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69(1960), is considered the fall of privity in products liability cases.In that case an automobile made by Chrysler was sold to a dealer in Bloomfield.The dealer sold the automobile to Henningsen whose wife was injured when "something went wrong" with the steering gear.Mrs. Henningsen filed suit against Bloomfield Motors and Chrysler.The court held both defendants liable without a showing of negligence and without privity of contract.The court ruled that:

Accordingly, we hold that under modern marketing conditions, when a manufacturer puts a new automobile in the stream of trade and promotes its purchase by the public, an implied warranty that it is reasonably suitable for use as such accompanies it into the hands of the ultimate purchaser.Absence of agency between the manufacturer and the dealer who makes the ultimate sale is immaterial.

32 N.J. at 384, 161 A.2d at 84.¹⁵

Thus, after this Court adopted section 402A of the Restatement (Second) of Torts in 1966, it logically followed that the fall of privity in products warranty would occur in Pennsylvania.In Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848(1968) it was held that a purchaser of a product may maintain an action in assumpsit against a remote manufacturer for injury to commercial breed cattle caused by a breach of an implied warranty in the cattle feed.Kassab abolished vertical privity in assumpsit cases brought under the Code and indicated the Code should be construed as co-extensive with section 402A.¹⁶Chief Justice Roberts, then Mr. Justice Roberts, forcefully stated:

Vertical privity can no longer commend itself to this Court.

To retain this tort-contract dichotomy with its haphazard, crazy quilt of exceptions and appendages can only cause Justice VOELKER'S language (speaking for the Supreme Court of Michigan when that tribunal abolished the privity requirement) to ring painfully true for the law of...