text:
    460 A.2d 271
    Ronald G. WEISS, Evelyn J. Weiss and Sam Weiss, Inc., Appellants, v. EQUIBANK, Edward DeNino and the Borough of Ambridge.
    Superior Court of Pennsylvania.
    Argued March 16, 1982.
    Filed April 22, 1983.

      Jay D. Glasser, Pittsburgh, for appellants.
    Carol F. Graebner, Pittsburgh, for appellees.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

The order appealed from in this case granted a motion by appellee Equibank for summary judgment, dismissed with prejudice the complaint filed by appellants against appellee Equibank, and dismissed the complaint against appellees DeNino and the Borough of Ambridge, without prejudice should another proceeding end favorably to appellants, but with prejudice should that proceeding end adversely to appellants.

The events giving rise to the complaint whose dismissal is the subject of the instant appeal are as follows. Appellants [Weiss] are owners of a certain property in Ambridge. Weiss conducts a furniture store on the ground floor, and lets the second floor to a residential tenant. In 1976 defendant/appellee Equibank purchased the property adjacent to the Weiss property and at some point offered to purchase the Weiss property also. This offer was refused. After razing the buildings on the property purchased, Equibank arranged for a consulting engineering firm to inspect and evaluate whether the razing of its buildings had damaged the adjacent Weiss building. The engineering firm determined that the Weiss building did not meet the requirements of the Standard Uniform Building Code. On August 13, 1976, at 7:30 p.m., a representative from Equibank and defendant/appellee DeNino, who is the Fire Chief and Building Officer of Ambridge, met at the Weiss property. DeNino closed off the Weiss building, alleging dangerous and hazardous conditions, roped off the sidewalk in front of the building, posted condemnation notices on the building, and directed the upstairs tenant to move.

Weiss appealed DeNino’s action to the Ambridge Board of Appeals, which, in March 1978, affirmed DeNino’s action. Weiss accordingly took an appeal to the Court of Common Pleas of Beaver County at No. 587 of 1978, see note 1 supra.

Weiss then commenced action in the instant case by filing a praecipe for a writ of summons in trespass. This praecipe was filed on June 27, 1979. According to the trial court, in Beaver County the practice is (1) to file a praecipe for a writ of summons with the prothonotary and pay the filing fee, (2) to give written directions to the sheriff’s office for service of the writ, and (3) to pay the sheriff the costs of service before the writ is served.

In this case, however, at the time of filing of the praecipe no directions were given to the sheriffs office and no costs of service were paid. On September 14, 1979, nearly three months later, the writ of summons was reissued, the written directions having been given to the sheriff on September 13, 1979. On September 18, 1979, the service costs were paid. The defendants were served on September 25, 1979. In the brief to this court Weiss explains that the delay was due to an unintended mistake.

The complaint against appellees was filed on December 19, 1979. It is a complaint in trespass. The trial court analogizes it to a chameleon, saying that the claim was originally treated by Weiss as a cause of action in fraud and is now considered a claim for malicious use of process, slip op. at 6.

Treating the claim as one for malicious use of process, the trial court dismissed the complaint against Equibank on the grounds that Equibank was not a party to the appeal proceedings at case no. 587 and is therefore not a proper party in the malicious use of process claim. Treating the complaint as a claim in trespass to land, slip op. at 3, the trial court ruled that the complaint against Equibank was barred by the statute of limitations and the doctrine of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), in which our supreme court ruled that a writ of summons should remain effective to commence an action only if the plaintiff does not stall in its tracks the legal machinery he has set in motion. 469 Pa. at 478, 366 A.2d at 889.

The trial court stated that if Weiss is successful in its appeal at case no. 587 against the Borough of Ambridge Board of Appeals, Weiss .may have a cause of action for malicious use of process against the Borough and DeNino. Hence the dismissal by the trial court of the complaint against DeNino and the Borough, with prejudice or without, depending on the outcome of case no. 587.

In its brief to this court Weiss raised the proper party issue and the Lamp v. Heyman issue. Weiss argues with respect to the trial court’s order that although Equibank could not officially participate in the closing of its building by the borough official, Equibank could have participated by initiating the process which resulted in the closing, and thus that Equibank could be party to a claim of malicious use of process or of a conspiracy for malicious use of process.

Weiss then argues that its unintentional conduct and lack of bad faith, resulting in the passing of 83 days before written directions and costs were given to the sheriff, take the situation out of the bar of Lamp v. Heyman. Weiss further argues that the Lamp v. Heyman bar is not an inflexible rule but requires a case-by-case analysis.

Equibank argues in response that the dismissal as to it was correct because the Weiss complaint does not allege a cause of action against Equibank for malicious use of process, since the complaint does not aver the elements of such a cause of action.

Equibank also argues that the rule of Lamp v. Heyman does not allow for a distinction between negligent and intentional conduct, but applies quite simply where the plaintiff does not carry out his responsibility to do all that is required of him.

Ambridge and DeNino assert in their brief that the statute of limitations for an action in trespass to real property, and the rule of Lamp v. Heyman, bar the complaint, which they characterize, without argument, as a cause of action to deprive Weiss of the use of their building and to obstruct Weiss’ business operations.

In an attempt to spin a golden thread from this pile of straw we shall sift through what the complaint consists of, what the trial court in its opinion extracted from the pleadings, and what appellants now argue to us. First we must emphasize the rule as to the granting of a motion for summary judgment.

Pennsylvania Rule of Civil Procedure 1035 provides that summary judgment is to be entered only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). The moving party has the burden of demonstrating that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. In deciding whether this burden has been satisfied, the court must examine the record in the light most favorable to the non-moving party. Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977); Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). The court is not to resolve any genuine issue of material fact; its sole responsibility is to determine whether such an issue exists. Moreover, the court should enter summary judgment only when the case is clear and free from doubt. Amabile v. Auto Kleen Car Wash, supra; McFadden v. American Oil Co., 215 Pa.Super. 44, 257 A.2d 283 (1969).

Tom Morello Construction Co. v. Bridgeport Federal Savings and Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 749-50 (1980), petition for allowance of appeal denied December 31, 1980.

In granting Equibank’s motion for summary judgment the trial court decided that Equibank was entitled to judgment as a matter of law because (1) the action against Equibank was barred by the passing of time and (2) Equibank would not be a proper party to an action for malicious use of process once such an action were to accrue.

The complaint contains essentially the following allegations: that Equibank desired to purchase the Weiss property and made an offer which was refused; that Equibank representatives and DeNino met at the Weiss property after the close of business; that DeNino, alleging dangerous conditions, roped off and attached handwritten notices to the Weiss building without notice to Weiss; that Weiss believes such action to have been undertaken pursuant to a conspiracy between DeNino and Equibank to induce Weiss to sell the building to Equibank at Equibank’s price; that the defendants conspired to injure Weiss’ business and to compel them to sell to Equibank; that the defendants conspired to effect their purpose by closing down the Weiss building; that the building was not in a dangerous condition; and that Weiss has lost money due to the loss of business, of customers and of its position in the community, together with the expense of appealing the Borough’s action; and that it was the “unlawful and malicious” actions of the defendants which caused injury to Weiss.

Pennsylvania Rule of Civil Procedure 1019(a) provides that the “material facts on which a cause of action ... is based shall be stated in a concise and summary form.” This has been interpreted to mean that the complaint must apprise the defendant of the nature and extent of the plaintiff’s claim so that the defendant has notice of what the plaintiff intends to prove at trial and may prepare to meet such proof with his own evidence. Laursen v. General Hospital of Monroe County, 259 Pa.Super. 150, 393 A.2d 761 (1978), rev’d on other grounds, 494 Pa. 238, 431 A.2d 237 (1981). Furthermore, a plaintiff is not obliged to identify the legal theory underlying his complaint, as the burden of discovering such is on the court. DelConte v. Stefonick, 268 Pa.Super. 572, 408 A.2d 1151 (1979).

The Weiss complaint in effect attempts to give notice of an alleged conspiracy between the defendants to have the Weiss building officially closed down and thereby to damage the Weiss business. This would appear to be, then, if the complaint is sufficient, which we do not here decide, a cause of action alleging malicious use of process, injury to the plaintiffs’ business, and a conspiracy to maliciously use process and/or to injure the business.

With respect to the cause of action for injury to the Weiss business, the issue presented to us is the Lamp v. Heyman issue. This issue arises because of the delay by Weiss in setting in motion the procedure necessary to spark service of the writ of summons. See pages 2-3 supra.

Appellants argue that their situation does not fall within the Lamp v. Heyman proscription because (1) they did not act intentionally or in bad faith and (2) the supreme court in Lamp did not specify that the procedure for service had to be under way within thirty days of the filing.

We do not accept this argument. The supreme court ruled in Lamp that plaintiffs are to carry out promptly their responsibilities with respect to arranging for service. The supreme court’s exact words were:

Since the manner in which writs of summons are to be prepared and delivered to the sheriff for service is not covered by our rules and since there are differences among the judicial districts of Pennsylvania in the procedures followed in these matters, a plaintiff should comply with local practice as to the delivery of the writ to the sheriff for service. If under local practice it is the prothonotary who both prepares the writ and delivers it to the sheriff, the plaintiff shall have done all that is required of him when he files the praecipe for the writ; the commencement of the action shall not be affected by the failure of the writ to reach the sheriff’s office where the plaintiff is not responsible for that failure. Otherwise, the plaintiff shall be responsible for prompt delivery of the writ to the sheriff for service. Cf. Pa.R.C.P. 1009.

Lamp v. Heyman, 469 Pa. at 478-79, 366 A.2d at 889.

First, neglecting to pay the sheriffs fee was one of the examples given by the supreme court, 469 Pa. at 472, 366 A.2d at 886, of methods used by plaintiffs to delay service of the writ. Second, simple neglect or mistake is an example of failing to fulfill the responsibility on plaintiff or his counsel to see to it that the requirements for service are carried out. See Delphus v. Kastanek, 267 Pa.Super. 26, 405 A.2d 1285 (1979). Compare Pannill v. Seahorne, 278 Pa.Super. 562, 420 A.2d 684 (1980). Untoward circumstances, such as a third person preventing delivery to the sheriff of the writ, may except a plaintiff from the rule of Lamp, see, e.g., Sweet v. Ayres, 277 Pa.Super. 236, 419 A.2d 749 (1980), but the facts of this case do not warrant such an exception. We affirm the dismissal by the trial court of a claim against all the defendants for injury to the Weiss business, or as the trial court characterized it, for trespass to real property, on the grounds that by neglecting to do promptly what was necessary to ensure service of the writ, the plaintiffs are barred by the Lamp v. Heyman rule.

We now turn to the action for malicious use of process. Former Chief Judge Biggs of the United States Court of Appeals for the Third Circuit has defined the common law of Pennsylvania as to this tort:

The Pennsylvania decisions have drawn a distinction between actions for malicious use of process and actions for malicious abuse of process. The prime distinction between the two torts is that in actions for. malicious use of process the original issuance of process cannot be justified on the facts, but the process is used in the manner in which the law contemplated its use. If the plaintiff has no cause of action against the defendant but nonetheless maliciously brings suit against him, the action is a malicious use of process. In actions for malicious abuse of process the original issuance of the process was justified but the process itself was put to an illegal use. If the plaintiff sues the defendant on a valid cause of action but brings the suit, for example, not to collect his just debt but for a collateral purpose such as blackmail the action is a malicious abuse of process. See Morphy v. Shipley, 1945, 351 Pa. 425, 41 A.2d 671; Publix Drug Co. v. Breyer Ice Cream Co., 1943, 347 Pa. 346, 32 A.2d 413; Mayer v. Walter, 1870, 64 Pa. 283.

Baird v. Aluminum Seal Co., 250 F.2d 595, 600 (3d Cir. 1957) (footnotes omitted). Applying these definitions, we are of the opinion that the Weiss claim would concern the initiation of proceedings rather than a perversion of them and therefore the action would indeed be based on a malicious use of process. The elements of such an action, at common law, are that the legal process was used with malice, that there was a lack of probable cause for the legal process, and that the process terminated in the current plaintiff’s favor. Baird v. Aluminum Seal Co., supra;, Morphy v. Shipley, 351 Pa. 425, 41 A.2d 671 (1945); Publix Drug Co. v. Breyer Ice Cream Co., 347 Pa. 346, 32 A.2d 413 (1943); Casa di Sardi, Inc. v. Alpha Motors, Inc., 227 Pa.Super. 415, 323 A.2d 288 (1974). As the process in question has not yet terminated, see page 2 supra, all parties agree that any cause of action in malicious use of process has not yet accrued.

With respect to the lower court’s decision that Equibank would not be a proper party in an action for malicious use of process when, or if, such a cause of action should accrue, we do not agree. The lower court gave as its reason, slip op. at 7, that Equibank was not a party to the appeal petition at case no. 587, nor mentioned in the petition to, or in the opinion of, the Board of Appeals. The record of those proceedings is not before us. Before us is the record in the instant case with a complaint alleging that Equibank was involved in the activity leading to the closing of the Weiss building. The closing of the building would be the function of the borough officials. An appeal from the decision would be to the appropriate public officials. By analogy to the action for malicious prosecution, see Publix Drug Co., supra it would seem that, given the requisite malice and lack of probable cause, an action by a private person which directly causes the process of law to descend on the plaintiff is the actionable wrong which the actions for malicious use of process or malicious prosecution are designed to compensate. We have not been supplied with, nor have we found, case law defining specifically who may be a defendant in such an action. We have seen cases however in malicious prosecution where the defendant was, for example, a corporation whose manager had instituted the criminal prosecution of a former employee on a charge of embezzlement knowing that the employee had been authorized to retain the money in question, Hubert v. Alta Life Insurance Co., 136 Pa.Super. 147, 7 A.2d 98 (1939); neighboring land-owners who caused arrest warrants to be issued against the plaintiffs, charging them with stealing coal, with the purpose of forcing the plaintiffs to give them a coal-stripping lease, Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951); or a lessor who had made out an information charging the plaintiff with fraudulent conversion when she failed to pay installments due under a bailment lease for second-hand goods, as a result of which she was incarcerated for eight days before being acquitted at trial, Randall v. Fenton Storage Co., 117 Pa.Super. 212, 177 A. 575 (1935). From these cases it would appear that actions can be brought successfully against defendants who have wrongfully caused appropriate officials to ensnare the plaintiff in some form of legal proceeding.

The Restatement (Second) of Torts (1976) defines the torts of malicious prosecution and wrongful use of civil proceedings at sections 653 and 674 respectively. With respect to wrongful use of civil proceedings the Restatement provides:

§ 674. General Principle

One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if
(a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and
(b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.

Comment:

a. Meaning of “initiation of proceedings. ” The person who initiates civil proceedings is the person who sets the machinery of the law in motion, whether he acts in his own name or in that of a third person, or whether the proceedings are brought to enforce a claim of his own or that of a third person.

Since the term “civil proceedings” includes a counterclaim, one who files a counterclaim to a cause of action initiates a civil proceeding.

b. Procurement of civil proceedings. As in the case of criminal proceedings, one who procures the initiation of civil proceedings is liable under the same conditions as the one who initiates them. The considerations determining whether there has been a procurement are the same as those determining whether one has procured the institution of criminal proceedings. (See § 653, Comment /). (Emphasis added.)

Professor Prosser explains the question of the initiation of a malicious prosecution thus:

The defendant may be liable either for initiating or for continuing a criminal prosecution without probable cause. But he cannot be held responsible unless he takes some active part in instigating or encouraging the prosecution. He is not liable merely because of his approval or silent acquiescence in the acts of another, nor for appearing as a witness against the accused, even though his testimony is perjured, since the necessities of a free trial demand that witnesses are not to be deterred by fear of tort suits, and shall be immune from liability. On the other hand, if he advises or assists another person to begin the proceeding, ratifies it when it is begun in his behalf, or takes any active part in directing or aiding the conduct of the case, he will be responsible. The question of information laid before prosecuting authorities has arisen in many cases. If the defendant merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes an independent investigation, or prosecutes for an offense other than the one charged by the defendant, the latter is not regarded as having instigated the proceeding; but if it is found that this persuasion was the determining factor in inducing the officer’s decision, or that he gave information which he knew to be false and so unduly influenced the authorities, he may be held liable.

W. Prosser, Handbook of the Law of Torts § 119 (1971) (footnotes omitted) (emphasis added).

We interpret these authorities to indicate that one who thus causes officials to take certain legal action is a proper party defendant in an action for malicious use of process, and the fact that one is not a party to those proceedings is of no significance, provided the requisite elements are satisfied.

As we view the pleadings before us, we cannot say that Equibank is per se not a proper party to a possible future lawsuit for malicious use of process. Whether Equibank initiated civil proceedings wrongfully would seem to be a question of fact to be found at a trial. The trial court erred in deciding at this stage that Equibank could not be a party to such another future lawsuit.

We conclude that any cause of action alleged in this complaint, other than that which has not yet accrued, is barred by the statute of limitations and the doctrine of Lamp v. Heyman. That portion of the order of the trial court dismissing the within action against defendants Equibank, DeNino and the Borough of Ambridge is therefore affirmed.

That portion of the order which purports to prejudice the plaintiffs’ rights to bring an action against Equibank should case no. 587 terminate favorably to the plaintiffs is vacated.

The order of the trial court as so modified is affirmed. Jurisdiction is relinquished.

      . That other proceeding, Weiss v. Rodio et al., at No. 587 of 1978 (C.P. Beaver County) is an appeal from an Ambridge Borough Board of Appeals decision adverse to appellants.

      . See Weiss v. Equibank et al., No. 1203 of 1979, slip op. at 3 (C.P. Beaver County, filed October 22, 1981), describing this procedure.

      . The trial court used the transitional rule of the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, § 25 [see 1976 P.L. at page 814, and 42 Pa.C.S.A. at § 5521 (Purdon 1981) ]. The effect of this rule is that since the former statute of limitations for trespass actions was six years, 12 P.S. § 31 (repealed), and the new limitation is two years, 42 Pa.C.S.A. § 5524, in this case the plaintiff had until June 27, 1979 to commence a suit for a claim in trespass which arose on August 13, 1976.

      . This common law tort has been codified, with some modification, by the Act of December 19, 1980, P.L. 1296, No. 232, § 1; 42 Pa.C.S.A. §§ 8351-8354 (Purdon Pamp.1982).

      . The tort of malicious interference with business has been specifically defined by- the Restatement (Second) of Torts (1979). See, e.g., § 766J3 — Intentional Interference with Prospective Contractual Relation. See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 207-08, 412 A.2d 466, 470-71 (1979)7

      . See note 4 supra.

      . In Publix, 347 Pa. at 349, 32 A.2d at 415, the court said "the ... essentials [for an action for malicious arrest] are applicable to an action for malicious use of civil process.”

      . Section 653, Comment /, provides:
      /. Procuring the institution of criminal proceedings-Inducing private person to initiate criminal proceedings. It is not necessary to liability under the rules stated in this Section that the defendant personally or through an agent shall have made the formal charge upon which the proceedings were instituted. It is enough that he has induced a third person to make the charge. He cannot, however, be held liable for procuring the institution of criminal proceedings • merely because his actions caused a third person to make a formal charge. Thus one who merely encourages or advises a third person to bring proceedings that the third person already has in contemplation, docs not thereby procure the institution of the proceedings. If, however, he urges the bringing of proceedings or insists that they be brought by a third person who previously had no intention of doing so, a finding that he procured the institution of the proceedings subsequently brought by the third person may be justified.
      In Curley v. Automobile Finance Co., 343 Pa. 280, 289, 23 A.2d 48, 52 (1941), our supreme court quoted the earlier version (1938 ed.) of section 653. In Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 235 n. 19, 348 A.2d 734, 739 n. 19 (1975), it quoted the earlier version of section 674.

      . See note 7 supra.

      . We here emphasize that we express no opinion whether the complaint at issue in this case satisfies the Rule 1019(a) requirements for a complaint for a claim in malicious use of process even considering the admitted lack of the requirement that the process maliciously used must have terminated in the plaintiff’s favor.


source: Caselaw Access Project

author: MONTEMURO, Judge: BECK, Judge,

license: Public Domain

text:
    460 A.2d 278
    Gerald WILLIAMS, Daniel Banks and Linda Banks, his wife, Appellants, 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.
    Superior Court of Pennsylvania.
    Argued April 27, 1982.
    Filed April 22, 1983.
    Petition for Allowance of Appeal Granted Aug. 9, 1983.
    Beck, J., concurred in part and dissented in part and filed opinion.

      Robert Rade Stone, Pittsburgh, for appellants.
    John C. Conti, Pittsburgh, submitted a brief on behalf of West Penn, appellee.
    David R. Johnson, Pittsburgh, for Reimann and Georger, appellees.
    J. Loughren, Pittsburgh, for Commercial Services, appellee.
    John E. Hall, Pittsburgh, for Slovenian Hall, appellee.
    Dan Cusick, Pittsburgh, for Bahr Brothers, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

In this appeal we are presented with the difficult question of what statute of limitations to apply in an action for breach of warranty brought by a direct purchaser as well as a third party for personal injuries under the Uniform Commercial Code [hereinafter “Code”]. Our consideration of this issue necessarily involves a complicated and somewhat confusing interplay between case law and a literal application of the Code.

B & M Roofing Contractors [hereinafter “B & M”], a partnership, was hired by Bahr Brothers, a general contractor, to perform work at the Slovenian Hall Association of Broughton. On May 19, 1975, Daniel Banks, one of the appellants herein, a partner in B & M, and Gerald Williams, also one of the appellants herein, and an employee of the same, were injured at the Slovenian Hall work site when a ladder platform hoist they were using contacted an electrical power line. B & M had purchased the ladder from the Commercial Services Company. As a consequence of the mishap, both appellants suffered severe electrical burns.

On May 20, 1977, both gentlemen, and Mrs. Banks, in a derivative action based on her husband’s injuries, filed a praecipe for writ of summons in trespass. Subsequently, on June 29,1977, a complaint in trespass and assumpsit was filed against West Penn Power company, the electrical power line supplier, the Bahr Brothers, the Slovenian Hall Association of Broughton, Reimann and Georger, Inc., the ladder manufacturer, and Commercial Services Company, the immediate seller. Specifically, the appellants pled counts in negligence, strict liability under Section 402A, Restatement of Torts 2d, and breach of warranty pursuant to 13 Pa.C.S.A. § 2314, § 2315 and § 2318. All of the above named defendants, appellees herein, filed an answer and new matter alleging that the two-year personal injury statute of limitations barred both causes of action. Shortly thereafter they filed a motion for summary judgment. The lower court granted the motion, finding that although the appellants filed suit in trespass and assumpsit Salvador v. Atlantic Steel Boiler Company, 256 Pa.Super. 330, 389 A.2d 1148 (1978), affirmed per curiam, 492 Pa. 258, 424 A.2d 497 (1981), (Salvador II) nevertheless mandated the application of the two-year statute. In Salvador II, this court held that the two-year statute of limitations applies to a breach of warranty action for third party personal injuries instead of the four-year statute contained in the Code at § 2725(a). Notwithstanding the fact that the instant case involves a direct purchaser, appellant Banks, as well as a third party, appellant Williams, the lower court found Salvador II controlling:

Although Salvador [//] does, indeed, deal with an injury to a third party, its rationale and the cases and law review articles relied upon in Salvador [II], particularly the writings of Dean Murray, lead to the inescapable conclusion that the four-year statute of limitations is applicable only in those situations where a breach of warranty leads to some economic loss, but is inapplicable where the claim is for personal injury. Where the claim is for personal injury, the Superior Court has made clear that the two-year statute of limitations applies irrespective of whether the Complaint is labeled trespass or assumpsit.

Initially, for the sake of clarity, we shall set forth what is not disputed. First, there is no question that the counts in negligence and strict liability under 402A are barred by the two-year statute. Second, a prerequisite to an action for breach of warranty is that there must be a sale. Clearly, the only “sale” in the instant case was the transaction involving the ladder. As to West Penn Power Company, the Bahr Brothers and the Slovenian Hall Association of Broughton, there was no “sale” and therefore no viable breach of warranty claim. Third, Salvador II unequivocally disposes of Mr. Williams’ suit. He is, as an employee of B & M, a third party to the sale of the ladder and, therefore, his breach of warranty action is barred by the two-year statute of limitations. See Salvador II, supra. Fourth, Mr. Banks is a direct purchaser only from Commercial Services Company; he is a third party to the sale of the ladder from Reimann and Georger, Inc. to Commercial Services Company. Thus, under Salvador II, Mr. Banks’ action is likewise barred by the two-year statute of limitations. In sum, what remains is Mr. and Mrs. Banks’ breach of warranty claim against Commercial Services Company. It is to this aspect of the lawsuit that we must determine whether the Code’s four-year statute or the two-year personal injury statute applies. Specifically, does the rational enunciated in Salvador II logically extend to the instant situation where the direct purchaser is the injured party?

In Salvador II, the plaintiff was injured in May of 1967 when, during the course of his employment at United Machine & Tool Company, a boiler manufactured by Atlantic Steel Boiler Company exploded. As a result, plaintiff, Mr. Salvador, suffered severe bilateral hearing loss. Mr. Salvador, subsequently, on March 29, 1971 filed a writ of summons in assumpsit and trespass against Atlantic Steel Boiler, the S.H. English Company and Walter Mueller and his wife.

The first time on appeal this court abolished the requirement of horizontal privity under § 2318 of the Code, finding Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848, 849 (1968) effectively overruled Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A.2d 575 (1963) and permitted Mr. Salvador, as an employee of the purchaser, to maintain a suit for breach of warranty. Salvador v. Atlantic Steel Boiler Company, 224 Pa.Super. 377, 307 A.2d 398 (1973). This decision was affirmed by the Supreme Court in an opinion by Mr. Justice Roberts. Salvador v. Atlantic Steel Boiler Company, 457 Pa. 24, 319 A.2d 903 (1974).

The case was remanded to the trial court where the defendants argued in their answers and new matter that the appropriate statute of limitations (§ 2725) had expired. There was no dispute that Mr. Salvador’s 402A claim was barred by the two-year statute. The only question of viability concerned the breach of warranty claim. The defendants argued that § 2725 began to run from the tender of boiler and thus time had expired prior to the filing of Mr. Salvador’s suit. Further, the defendants contended that this was true no matter which sale was considered dispositive, i.e., from the 1962 original sale of the boiler to English, or from 1964, when United purchased English from the Muellers. Mr. Salvador argued that § 2725 did not begin to run until the date of the injury in May of 1967. The trial court agreed with the defendants and granted their motions for summary judgment on both the warranty and tort claims.

Both parties, apparently, conceded that § 2725 was applicable to Mr. Salvador’s status as a third party and therefore, the thrust of their arguments were directed solely to the appropriate time at which the cause of action accrued, i.e., the defendants argued for the date of delivery while, Mr. Salvador argued for the date of injury. This court found both arguments unpersuasive and went further, disagreeing that § 2725:

... under any construction, should be applied to third party personal injuries arising from a defective product. It is our view that the two-year statute of limitations should be uniformly applied to all such cases, and that the statute should ordinarily begin to run from the date of injury. Salvador II, supra, 256 Pa.Superior 335, 389 A.2d at 1151.

For the sake of brevity, the Salvador II rationale can be divided into three parts:

1) Toward achieving the desirable goal of legal symmetry, privity had been abolished whether a party sued in tort or in assumpsit. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966) (adoption of § 402A of the Restatement of Torts 2d); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968) (abolition of requirement of vertical privity under § 2318) and Salvador v. Atlantic Steel Boiler (Salvador II), supra (horizontal privity abolished). In light of this development, the court believed that legal symmetry required the application of the two-year personal injury statute.

2) In order to reach the desired end, Salvador II necessarily had to distinguish two prior Supreme Court cases which seemingly held to the contrary. In Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 197 A.2d 612 (1964) and Rufo v. Bastian-Blessing Company, 417 Pa. 107, 207 A.2d 823 (1965), the Supreme Court found § 2725 applicable to a purchaser’s breach of warranty action for personal injuries. Gardiner, supra, was distinguished as follows:

First, the Gardiners were purchasers of the natural gas so that they were in privity of contract and would have been entitled to recover for breach of warranty even under the doctrine of Hochgertel v. Canada Dry Corp., supra. Second, when Gardiner, supra, was decided the Code offered the only remedy for defective products which permitted the use of a strict liability theory, because Webb v. Zern, supra, had not been decided. Finally, Section 10-103 of the Code could not have repealed the two-year statute of limitations with respect to third party personal injuries because, as Hochgertel would establish, the Code provided no remedy for such injuries, except to the limited extent specifically set forth in Section 2-318. (Emphasis added) Rufo, supra, was distinguished on the same basis:
... the plaintiff was explicitly afforded a remedy under the Uniform Commercial Code as a purchaser of the defective product, and Pennsylvania had not yet adopted Section 402 A of the Restatement of Torts, 2d or an alternative remedy. (Emphasis added) .

Salvador II, supra, 256 Pa.Superior 335, 389 A.2d at 1152-53.

3) The holding itself rested upon three considerations:
a) The remedy under the Code for third parties is entirely one of judicial creation and therefore the courts should decide the appropriate statute of limitations. Since the theory of recovery for personal injuries under § 2318 sounds in tort the personal injury statute of limitations is applicable.
b) It would take a strained interpretation of § 2725 to conclude that it applies to anyone but the contracting parties.
c) Uniformity of application of the two-year statute is the only solution to attain legal symmetry.

We are faced with an extremely difficult proposition. The Code explicitly provides, as Salvador II recognizes, for the recovery of consequential personal injury damages as set forth in pertinent part under § 2715:

(b) Consequential damages resulting from the seller’s breach includes ...
(2) injury to the person or property proximately resulting from any breach of warranty.

Salvador II did not consider the above Code language and the abolishment of privity as controlling. Rather, Salvador II emphasized the need for legal symmetry and restated Justice Roberts’ observation in Kassab, supra, that the caption atop the complaint should not dictate a distinction. Therefore, a suit for personal injuries, whether or not the theory of recovery was based on breach of warranty, negligence, or strict liability should be commenced within the same time period, especially since the adoption of § 402 A of Restatement of Torts, 2d in Pennsylvania. While we commend the result, we do not believe the logic employed therein was meant to or can be extended to the instant situation.

Problematically, the resolution of the issue in the instant case can be stated as follows: On the one hand, if we found that Salvador II indeed extended to the situation involving a direct purchaser, we would be ignoring the explicit and exact language contained in the Code which provides for the recovery of personal injury damages caused by a breach of warranty. There is also no doubt that primarily Salvador II distinguished Gardiner, supra, and Rufo, supra, which applied the four year statute to a breach of warranty action for personal injuries, on the basis that in those cases a direct purchaser was the injured party. On the other hand, if we find Salvador II’s rationale inapplicable we will have a very unfair result. Mr. Banks, a direct purchaser, will be permitted to maintain his breach of warranty action; however, Mr. Williams, as a third party, will not. This will be so even though both parties were injured at the same time, at the same place and by the same electrical charge. Obviously, this approach will create legal asymmetry within the context of a breach of warranty action in reestablishing privity when applying the appropriate statute of limitations based upon a right under the Code which recognizes no such restriction. If a party has the right to initiate a particular cause of action, he should likewise be accorded all that follows.

We can, however, find no way to avoid the explicit provisions contained in § 2715 and § 2725. Both provide a purchaser with a breach of warranty claim against a seller for personal injuries which can be brought within four years. We believe that the Code and § 402A provide alternative remedies. Each remedy should be effectuated by its particular statute of limitations and find dispositive what was stated in Gardner, supra, 413 Pa. at 419-20, 197 A.2d at 614:

In this Commonwealth we have always recognized that a personal injury claim based upon a breach of warranty is a distinct claim from a personal injury claim based on negligence: Cunningham v. Joseph Horne Co., 406 Pa. 1, 176 A.2d 648; Loch et ux. v. Confair et ux, 361 Pa. 158,162, 63 A.2d 24; Bonenberger v. Pittsburgh Mercantile Co., 345 Pa. 559, 561, 28 A.2d 913, 143 A.L.R. 1417. Under such circumstances, a holding that Section 2-725 controls in this instant situation will effect no change in the substantive law of the Commonwealth.
Bearing in mind the language of Sections 2-725, 2-715 and 1-103 and the basic purposes underlying passage of the Code and the need for uniformity in this area of the law, we have no hesitancy in construing Section 2-725 to mean exactly what its language says____
This appeal presents a question of first impression in the appellate courts of this Commonwealth. Our examination of Sections 2-725, 2-715 and 1-103 and the background of the Code indicates that is was the legislative intent that there be a four year period of limitations on all actions for breach of contracts for sale, irrespective of whether the damages sought are for personal injuries or otherwise. (Emphasis added — footnotes omitted)

The adoption of § 402A in Pennsylvania by the Supreme Court did not and could not vitiate what the legislature has provided in the Code and, accordingly, we find that § 2725 applies to a purchaser’s breach of warranty action for personal injuries.

We hold, therefore, that § 2725 applies to the Banks’ breach of warranty claim. However, there are no facts appearing on this record indicating the date upon which the sale of the ladder occurred. This will have to be resolved before it can be determined that Mr. and Mrs. Banks have filed a timely suit. Mr. Williams’ suit for breach of warranty is barred by the two-year personal injury statute because of our holding in Salvador II, affirmed per curiam by our Supreme Court.

Order is affirmed in part and reversed in part.

BECK, J., filed a concurring and dissenting opinion.

BECK, Judge,

concurring and dissenting:

Preliminarily, I acknowledge the majority’s careful and discerning treatment of this complex subject. Additionally, I note that the majority’s holding rests upon the precedential weight of current Pennsylvania cases. However, I write to highlight the present trend which may be a pattern that should be considered. Having reviewed other jurisdictions’ resolution of the relationship between the Code and Section 402A of the Restatement, I am convinced that permitting both third-party beneficiaries and direct purchasers to sue within the Code’s four-year statute of limitations is more logically consistent with the Code’s express purposes. I, therefore, would remand as to Mr. Williams as well as to Mr. and Mrs. Banks.

As the majority explains, Pennsylvania case law is frought with repeated, if futile, attempts to reconcile decisions pursuant to the Code with pre-Code tort/contract law and with judicial rulings under Section 402A of the Restatement.

Over the years warranty actions metamorphosed dramatically. “[A]t early common law breach of warranty was a trespass action. As such, no privity was required. The later-developed indebitatus assumpsit was created as an alternative remedy. The privity requirement was later only applied to assumpsit.” Salvador v. Atlantic Steel Boiler Co. (“Salvador I”), 457 Pa. 24, 25 n. 1, 319 A.2d 903, 904 n. 1 (1974). Eventually, warranty became a “ ‘hybrid of both tort and contract ... [and operated] between parties not in privity of contract.’ ” Salvador v. Atlantic Boiler Co. (“Salvador I”), 224 Pa.Super.Ct. 377, 386, 307 A.2d 398, 403 (1973) (citations omitted), aff'd, 457 Pa. 24, 319 A.2d 903 (1974) .

Today, the Uniform Commercial Code establishes a statutory cause of action for breach of warranty. Nevertheless, courts have been reluctant to relinquish dependence upon common-law tort/contract warranty distinctions. See, e.g., Salvador v. Atlantic Boiler Co. (“Salvador II”), 256 Pa.Super.Ct. 330, 389 A.2d 1148 (1978), aff'd per curiam [without a published opinion], 492 Pa. 258, 424 A.2d 497 (1981), wherein the Superior Court asserted that the theory of recovery in a strict products liability suit under the Code sounded in tort and accordingly was subject to the two-year statute of limitations on personal injury actions. This hesitancy to function within the statutory framework of the Code has resulted in the very anomaly which the courts have struggled to avoid — legal asymmetry.

At present, if a direct purchaser and his employe are simultaneously injured in a fall from a defective ladder, the direct purchaser will have four years within which to sue for breach of warranty whereas the employe (third-party beneficiary) will have just two years within which to sue for breach of warranty. Compare Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 197 A.2d 612 (1964) with the Superior Court’s analysis in Salvador II (Gardiner applied the Code’s four-year statute of limitations to a direct purchaser’s suit for personal injuries while Salvador II applied the two-year statute of limitations on personal injury suits to an action brought by an injured employe of a direct purchaser).

I believe that the judicial posture most consistent with the Code’s purposes is that articulated by the Supreme Court of Texas in its well-reasoned opinion, Garcia v. Texas Instruments, Inc., 610 S.W.2d 456 (Tex.1980). Like Pennsylvania, Texas had a two-year statute of limitations on personal injury suits but had also adopted the Uniform Commercial Code which provided a four-year statute of limitations on suits alleging breach of a sales contract. In Garcia the Texas Supreme Court utilized the Code’s four-year statute of limitations to allow an employe’s (i.e., third-party beneficiary’s) action for personal injuries arising from a breach of the Code’s implied warranty of merchantability. “[A] statutory cause of action exists under the Code for personal injuries suffered as [a] result of a breach of implied warranty. The Code provides a statutory remedy, hence the traditional distinctions between tort and contract are not relevant.” Id. at 463 (emphasis added).

However, in Salvador II imposition of the two-year personal injury statute of limitations was premised not only upon the historical tort/contract dichotomy but also upon the Superior Court’s interpretation of Section 2-725 of the Code. In pertinent part Section 2-725 states:

(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.

(2) A cause of action accrues when the breach occurs, regardless of. the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made____

The court opined that “it takes a very strained reading of Section 2-725 to conclude that it was ever meant to apply to persons other than the contracting parties----” Id., 256 Pa.Superior at 341, 389 A.2d at 1154.

To the contrary, I find the wording of Section 2-725 as relevant to third-party beneficiaries as to direct purchasers. The initial sentence of Subsection (1) declares the general rule that an action for breach of a sales contract must be brought within four years from the accrual of the cause of action (defined in Subsection (2) as the occurrence of the breach when tender of delivery of the defective product is made). The precept contains no references to the parties to the sales contract; nor does it otherwise designate persons who may maintain an action.

Admittedly, the second sentence of Subsection (1) does specifically mention the “parties” to the original agreement., But the second sentence simply states that the parties to the original agreement may not (i) restrict the period for asserting an action to less than one year from the date on which the cause of action accrued or (ii) expand the statute of limitations to a period exceeding four years. Thus, the second sentence of Subsection (1) is similar in scope and intent to the second sentence of Section 2-818 (the rights of third-party beneficiaries) which provides that “[a] seller may not exclude or limit the operation of [Section 2-318].” Both “second sentences” acknowledge that as the contracting parties, only the seller and the direct buyer can negotiate the terms of the sales contract delimiting the available warranties and remedies for breach of warranty.

The necessity for this interdictory language is explained by Comment 1 to Section 2-318:

To the extent that the contract of sale contains provisions under which warranties are excluded or modified, or remedies for breach are limited, such provisions are equally operative against [third-party] beneficiaries of warranties ____ What ... [the second] sentence [of Section 2-318] forbids is exclusion of liability by the seller to the persons \i.e., third party beneficiaries] to whom the warranties which he has made to his buyer would extend under this section.

Therefore, the applicability of the general rule allowing four years for the commencement of an action is not limited by the second sentence of Subsection (1) solely to actions brought by direct purchasers.

As the Superior Court observed in Salvador II, “Section 2-725[ (2) ] also states that the cause of action accrues when the breach occurs, 'regardless of the aggrieved party’s lack of knowledge of the breach.’ [And] ... [Section 1-201 of] the Code defines an aggrieved party as anyone entitled to a remedy.” Id., 256 Pa.Superior at 342, 389 A.2d at 1155.

Construing Subsection (2) according to the facts before the court, in Salvador II, the Superior Court argued that “[i]t ... [could] not be said ... that Mr. Salvador [third-party beneficiary employed by a direct purchaser] was an aggrieved party on the date delivery of the boiler was tendered to his employer; at that time Mr. Salvador was not entitled to a remedy [because he had not yet incurred damages].” Id., 256 Pa.Superior at 342, 389 A.2d at 1155. Consequently, the court determined that Section 2-275 was not intended to cover actions by third-party beneficiaries.

However, a reading of Subsection (2) does not compel the court’s conclusion in Salvador II that only a person who suffers damages upon tender of delivery of a defective product can obtain relief pursuant to Section 2-725 of the Code. While the Code defines an aggrieved person as anyone entitled to a remedy, the Code does not place time constraints, other than those of Subsection (1), on a person’s ability to qualify for a remedy. The rule proclaimed in Subsection (2) is merely that whether a product contains a patent or a latent defect, the period stipulated under Subsection (1) for filing a warranty action begins to run upon the seller’s tender of delivery of the defective product to the direct buyer.

In his article “Products Liability — Another Word” John E. Murray, Jr., points to the case of Mendel v. Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 305 N.Y.S.2d 490, 253 N.E.2d 207 (1969), overruled, Victorson v. Bock Laundry Machine Co., 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275 (1975), as an example of the absurd result supposedly required by including third-party beneficiaries in the class of persons covered by Section 2-725 (four-year statute of limitations) of the Code. In Mendel the New York Court of Appeals applied the Code’s four-year statute of limitations to bar the action of a non-purchaser who was injured seven years after the defective product was delivered and installed. According to the Mendel approach, the third-party beneficiary’s suit was precluded by the running of the Code’s four-year period before the third-party’s cause of action arose (i.e., the third-party beneficiary’s injury occurred seven years after delivery to the buyer).

But the Mendel result is not mandated in Pennsylvania. In Pennsylvania the Uniform Commercial Code and Section 402A of the Restatement (Second) of Torts afford alternative —not identical — causes of action in strict products liability. Salvador II; accord, Garcia; Redfield v. Mead, Johnson & Co., 266 Or. 273, 512 P.2d 776 (1973); see, e.g., Demise of Horizontal Privity on Pennsylvania Breach of Warranty Actions, 48 Temple L.Q. 807 (1975); The Tocsin Has Sounded: A Post-Mortem Examination of Privity of Warranty in Pennsylvania, 13 Duquesne L.Rev. 53 (1974-75); Speidel, The Virginia “Anti-Privity” Statute: Strict Products Liability under the Uniform Commercial Code, 51 Va.L.Rev. 804 (1965).

A few examples will demonstrate the disparity between the Code and Section 402A. While the Code comprises a comprehensive statutory scheme, Section 402A of the Restatement is a special exception carved from the extant body of tort law. Section 2-607 of the Code debars a remedy for the purchaser where the purchaser has failed to notify the seller of a breach within a reasonable time after the purchaser has discovered, or should have discovered, the breach. Section 402A of the Restatement does not contain a similar notice provision. See Comment m to Section 402A of the Restatement. Several Code sections permit the exclusion or modification of warranties and remedies. See, e.g., Sections 2-314, 2-316, 2-718, and 2-719; see also Comment 1 to Section 2-318. Section 402A of the Restatement does not allow disclaimers except to the extent that appropriate warnings or instructions in the use of a product may reduce a seller’s liability. See Comment j to Section 402A of the Restatement.

Thus, since the Code and Section 402A of the Restatement are not coterminous , a third-party beneficiary should be able to maintain an action under Section 402A within two years of the date on which he suffered an injury or should have discovered his injury, see, e.g., Bickell v. Stein, 291 Pa.Super.Ct. 145, 435 A.2d 610 (1981), or under the Code’s statutory framework within four years of tender of delivery of the defective product to the direct buyer. Peeke v. Penn Central Transportation Co., 403 F.Supp. 70 (E.D.Pa. 1975), aff'd [without a published opinion], 538 F.2d 320 (3rd Cir.1976); accord, Garcia.

I therefore, would remand as to Mr. Williams as well as to Mr. and Mrs. Banks.

      . Act of April 6, 1953, P.L. 3, as amended 12A P.S. § 1-101 et seq. The Act of 1953 was repealed and reincorporated within the framework of Pennsylvania Consolidated Statutes as Title 13, Act of November 1, 1979, P.L. 255, No. 86, 13 Pa.C.S.A. § 1101 et seq.

      . There are various references on this record indicating that Daniel Banks is a partner in B & M. In any event, none of the appellees contest Mr. Banks’ status as a partner and, hence, purchaser of the ladder.

      . § 402A. (1) one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
      Restatement (Second) of Torts, § 402A (1965)

      . § 2314. Implied warranty: merchantability; usage of trade
      (a) Sale by merchant. — Unless excluded or modified (section 2316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.

        (b) Merchantability standards for goods. — Goods to be merchantable must be at least such as:
      (1) pass without objection in the trade under the contract description;
      (2) in the case of fungible goods, are of fair average quality within the description;
      (3) are fit for the ordinary purposes for which such goods are used;
      (4) run, within the variations permitted by the agreement even kind, quality and quantity within each unit and among all units involved;
      (5) are adequately contained, packaged, and labeled as the agreement may require; and
      (6) conform to the promises or affimations of fact made on the container or label if any.
      (c) Course of dealing or usage of trade. — Unless excluded or modified (section 2316) other implied warranties may arise from course of dealing or usage of trade. 1979, Nov. 1, P.L. 255, No. 86, § 1, effective Jan. 1, 1980.
      § 2315. Implied warranty: fitness for particular purpose
      Where the seller at the time of contracting has reason to know:
      (1) any particular purpose for which the goods are required; and
      (2) that the buyer is relying on the skill or judgment of the seller to select or furnish suitable goods;
      there is unless excluded or modified under section 2316 (relating to exclusion or modification of warranties) an implied warranty that the goods shall be fit for such purpose. 1979, Nov. 1, P.L. 255, No. 86, § 1, effective Jan. 1, 1980.
      § 2318. Third party beneficiaries of warranties express or implied.
      The warranty of a seller whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.
      1979, Nov. 1, P.L. 255, No. 86, § 1, effective Jan. 1, 1980.

      . Act of June 24, 1895, P.L. 236, § 2, as amended 12 P.S. § 34, was repealed and reenacted by the Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June, 1978, 42 Pa.C.S.A. § 5524(2).
      § 5524. Two year limitation
      The following actions and proceedings must be commenced within two years:
      (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

      . § 2725. Statute of limitation in contracts for sale
      (a) General rule. — An action for breach of any contract for sale must be commenced within four years after the cause of action has occurred. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.

      . In 1962 the boiler was sold by Atlantic Steel to the S.H. English Company which was owned by the Muellers. In 1964 Mr. Salvador's employer, United Machine, bought the business from the Muellers.

       Although I fully recognize a panel of the Superior Court cannot overrule either the Superior Court’s en banc decision in Salvador v. Atlantic Boiler Co. (“Salvador II”), 256 Pa.Super.Ct. 330, 389 A.2d 1148 (1978), or the Pennsylvania Supreme Court's per curiam affirmance of Salvador II at 492 Pa. 258, 424 A.2d 497 (1981), I write to present what I perceive as not only the better resolution of the instant subject matter but also the method of resolution increasingly preferred in our sister jurisdictions.

      . Uniform Commercial Code ("Code"), Act of April 6, 1953, P.L. 3, as amended, 12A P.S. §§ 1-101 et seq., revised and reenacted by the Act of October 2, 1959, P.L. 1023, and transferred by the Act of November 1, 1979, P.L. 255, without substantive change, to 13 Pa.C.S. §§ 1101 et seq. “Pennsylvania was the first state to adopt the Uniform Commercial Code____” Hochgertel v. Canada Dry Corp., 409 Pa. 610, 612, 187 A.2d 575, 577 (1963).

      . Section 402A of the Restatement (Second) of Torts (1965). The Pennsylvania Supreme Court adopted Section 402A of the Restatement in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).

      . Section 1-102(1) of the Code, 12A P.S. § 1-102(1), states that the Code "shall be liberally construed and applied to promote its underlying purposes and policies.” Section 1-102(2) of the Code, 12A P.S. § 1-102(2), lists the Code’s purposes and policies as: "(a) to simplify, clarify and modernize the law governing commercial transactions; (b) to permit the continued expansion of commercial practices ...; (c) to make uniform the law among the various jurisdictions." Similar provisions now appear in Section 1102 of the Code, 13 Pa.C.S. § 1102. See Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 197 A.2d 612 (1964).

      . Section 1-201 of the Code defines the word "party” as being different from the expression “third party” and as signifying “a person who has engaged in a transaction or made an agreement within this title [i.e., Code].”

      . Section 1-201 of the Code defines the word "agreement” to include a contract of sale.

      . See footnote 10, infra.

      . See Kassab v. Central Soya, 432 Pa. 217, 232-33, 246 A.2d 848, 855-56 (1968), on the use of the comments to the Code.

      . See Johnson v. Hockessin Tractor, Inc., 420 A.2d 154 (Del.Super.Ct. 1980) and cases cited therein; Garcia v. Texas Instruments, Inc., 610 S.W.2d 456 (Tex.1980) and cases cited therein.

      . 35 U.Pitt.L.Rev. 255 (1973-74).

      . Although the wording of Section 2-607 unmistakably links the notice requirement to the time of the buyer's acceptance of the seller’s goods, Comment 5 to section 2-607 explains that the notice requirement nevertheless applies to third-party beneficiaries despite the third parties' uninvolvement with acceptance of the goods. Comment 5 states that the third parties should notify the seller within a reasonable time after an injury has occurred. Compare language of Section 2-607 with language of Section 2-725(2).

      . As previously stated, efforts to make the Code coextensive with Section 402A of the Restatement do not avoid legal asymmetry. Under the reasoning of Salvador v. Atlantic Steel Boiler Co. (“Salvador, II"), 256 Pa.Super.Ct. 330, 389 A.2d 1148 (1978), aff'd per curiam [without a published opinion], 492 Pa. 258, 424 A.2d 497 (1981), a direct purchaser and a third-party beneficiary who are simultaneously injured in the same incident have different periods within which to assert their claims.

      . Denying third-party suits under the Code's statute of limitations while permitting direct purchasers’ suits under the Code’s statute of limitations suggests a return to restrictive privity concepts now in disrepute in this Commonwealth. Salvador v. Atlantic Steel Boiler Co. (“Salvador I"), 224 Pa.Super.Ct. 377, 307 A.2d 398 (1973), aff'd, 457 Pa. 24, 319 A.2d 903 (1974); Kassab.


author: MONTGOMERY, Judge: BROSKY, Judge,

text:
    460 A.2d 288
    Edward J. WILK, Sr., Administrator of the Estate of Edward J. Wilk, Jr., Deceased, Appellant, v. Robert S.S. HAUS, Sr. and Mary R. Haus, His wife and A.H. Casey, and Walter Thomas and Walter C. Thomas, Jr., I/A/T/D/B/A Thomas Remodeling.
    Superior Court of Pennsylvania.
    Submitted June 17, 1982.
    Filed April 22, 1983.

      Brosky, J., concurred and filed opinion.
    Michael J. Seymour, Pittsburgh, for appellant.
    Richard L. Rosenzweig, Pittsburgh, for Haus, appellees.
    Elmer G. Klaber, Pittsburgh, for Thomas, appellees.

      Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal by the Plaintiff-Appellant arises following the lower court’s granting of a motion for summary judgment which was filed by the Defendant-Appellees Robert S.S. Haus, Sr., his wife Mary R. Haus, and A.H. Casey. The Appellant contends that the lower court erred in granting summary judgment, because the record allegedly established the existence of material facts which precluded the entry of such a judgment. Moreover, the Appellant maintains the record was devoid of facts entitling the Appellees to summary judgment as a matter of law.

Our review in this case must be conducted in light of Pennsylvania Rule of Civil Procedure 1035, which governs summary judgments. It provides, in pertinent parts:

(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.
(b) The adverse party, prior to the day of hearing, may serve opposing affidavits. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issues of liability alone although there is a genuine issue as to the amount of damages.

In Schacter v. Albert, 212 Pa.Super. 58, 61-2, 239 A.2d 841, 843 (1968), this Court thoroughly explained the proper approach to be taken with regard to a request for summary judgment:

“The language- of Rule 1Q35, adopted in 1966, was taken verbatim from Federal Rule of Civil Procedure 56(c). Interpretation of the scope of Rule 1035 can be aided by reference to the cases decided under the Federal rule, which establish the following criteria. On motion for summary judgment the Court must consider the entire setting of the case and all the papers that are included in the record ... One who moves for .summary judgment has the burden of demonstrating clearly that there is no genuine issue as to any material fact ... The Court must consider both the record actually presented and the record potentially possible at the time of trial____ A hearing on a motion for summary judgment is not a trial on the merits, and the Court on such motion should not attempt to resolve conflicting contentions of fact ... The court is to accept as true all well pleaded facts in the plaintiff’s pleadings, as well as the admissions on- file, giving to the plaintiff the benefit of all reasonable inferences to be drawn therefrom ... The record must be examined in the light most favorable to the nonmoving party____ In passing upon a motion for summary judgment it is no part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment---- A party should not be deprived of an adequate opportunity to fully develop (sic) his case by witnesses and a trial, when the issues involved make such procedure the appropriate one____ It is often the case that although the basic facts are not in dispute, the parties in. good faith may nevertheless disagree about the inferences to be drawn from these facts, what the intention of the parties was as shown by the facts ... Under such circumstances the case is not one to be decided by the Trial Judge on a motion for summary judgment.” (citations omitted)

We examine the record with these concepts in mind. It shows that this trespass action was filed in July, 1981, seeking a recovery from the Defendants under the wrongful death and survival statutes. After expected prefatory paragraphs including those identifying the parties, the Complaint, in the first count, alleged that the Plaintiffs decedent was killed in July, 1979 when scaffolding on which he stood collapsed, causing him to fall and suffer injuries which caused his death two days later. At the time of this accident, it was asserted, the decedent was at work as a roofer on a residence in Mt. Lebanon, Pennsylvania. The Plaintiff next stated that the residence was owned, leased, operated, maintained, controlled and supervised by the Defendants Haus and Casey, their agents, servants and employees, and that the roofing work was being performed and supervised by the same defendants, their agents, servants, employees and contractors. Next, the Plaintiff asserted that the death of the decedent resulted from the negligence of Defendants Haus and Casey, whose lack of due care was purported to have occurred in the following particulars:

(a) In employing in the operation, management, control, maintenance and supervision of said premises agents, servants, employees and contractors who were negligent, careless and reckless in the performance of their duties assigned to them and so known by the Defendants to be on and for a long period of time prior to July 21, 1979;
(b) In causing and allowing the aforementioned premises and site to have erected thereon scaffolding in such a dangerous and defective manner so as to constitute a danger and trap the life and limbs of Edward J. Wilk, Jr., Plaintiffs Decedent herein;
(c) In causing and allowing the aforementioned dangerous scaffolding to be and remain in such a dangerous condition, all of which the Defendants knew or in the exercise of ordinary and prudent care should have known, on and for a long period of time prior to July 21, 1979;
(d) In failing to furnish Edward J. Wilk, Jr., Plaintiffs decedent a safe place to work;
(e) In failing to secure or otherwise prevent the scaffolding from collapsing, all of which was known or should have been known by the Defendants herein;
(f) In causing and allowing Edward J. Wilk, Jr., Plaintiffs decedent herein to work on the aforementioned property and site when the Defendants knew or in the exercise of ordinary and prudent care should and ought to have known that the aforementioned scaffolding would collapse causing the serious injuries and subsequent death;
(g) In failing to give Edward J. Wilk, Jr., Plaintiffs decedent herein, any notice or warning of the dangerous condition then and there existing;
(h) In failing to test or inspect the aforementioned scaffolding which the Defendants knew or should have known constituted a danger and a trap to Edward J. Wilk, Jr., Plaintiffs decedent herein;
(i) In failing to require the proper securing, proper bracing, proper spiking, proper guardrails, or proper safety belts and lanyards which the Defendants knew or should have known constituted a danger and a trap to Edward J. Wilk, Jr., Plaintiffs decedent herein;
(j) In failing to require the proper securing of the aforesaid scaffolding in accordance with the standards of the Department of Labor and Industry of the Commonwealth of Pennsylvania and of the U.S. Department of Labor;
(k) In failing to properly supervise the work as was required by the various contracts between the parties hereto and others and the laws of the Commonwealth of Pennsylvania in such cases made and provided;
(/) In violating the standards of the Department of Labor and Industry of the Commonwealth of Pennsylvania and the U.S. Department of Labor pertaining to the erection of scaffolding;
(m) In failing to properly plan, supervise, regulate and inspect the work as it was being performed;
(n) In allowing and improperly maintaining scaffolding, the existence of which they knew or should have known to continue to exist and be maintained;
(o) In failing to exercise the right to control all work procedures on a job site as is done by others under similar circumstances as was given to the Defendants;
(p) In failing to halt the work, when, in the exercise of reasonable and prudent care, the Defendants should and ought to have done so due to lack of proper safety devices and the unsafe conditions then and there existing;
(q) In failing to take such reasonable measures as were and are taken by others under similar circumstances;
(r) In failing to exercise the reasonable care that the law and circumstances then and there required;
(s) In violating the laws of the Commonwealth of Pennsylvania in such cases made and provided; and
(t) In otherwise being negligent.
(u) In violating § 413 of the Restatement of Torts 2d. All of the remaining paragraphs of Count I of the Complaint concerned damages.

Count II of the Complaint asserted negligence on the part of Walter Thomas and Walter C. Thomas, Jr., trading as Thomas Remodeling. These Defendants were not involved in the summary judgment proceedings, and the aspects of the Complaint relating to them will not be further discussed herein.

The Defendants Plaus and Casey responded to the Complaint with an Answer, containing New Matter. Inter alia, they denied knowledge of the decedent’s work activities, his fall from the scaffold or his death. They also responded that on the date of the alleged accident, Defendant Mary R. Haus owned the premises where the work was being performed, and that the Defendant Casey was merely the occupant of the residence. Further, the answer denied that the Defendants employed any agents, servants, or employees to act under their orders or subject to their control or in the furtherance of their business at the property on the date of the decedent’s alleged fall. Rather, they asserted:

“Any repair work or roof work that was done on that date was done by Walter Thomas and Walter C. Thomas, Jr. acting as an independent contractor, not subject to any supervision or control by these pleading Defendants. These pleading Defendants specifically deny any agency relationship between themselves and Defendants Walter Thomas and Walter C. Thomas, Jr. trading as Thomas Remodeling. These pleading Defendants further specifically deny any control of the work being performed by the independent contractors Walter Thomas and Walter C. Thomas, Jr. To the contrary, Walter Thomas and Walter C. Thomas, Jr. exercised full supervision and control over all repair and roof work being performed, particularly as to the manner and method of performing and accomplishing such work.”

Mr. and Mrs. Haus and A.H. Casey denied all of the specific averments of negligence alleged by Plaintiff, as set forth above, in this Opinion.

Under New Matter, the Defendants asserted that Mrs. Haus, as owner of the property, contracted with both Thomases for the repairs to the building. Further, it was alleged that neither Mr. Haus nor Casey contracted with Walter Thomas and Walter C. Thomas, Sr., and had no connection with the matter. The Defendants specifically contended, in the following numbered paragraphs: ■

“9. Walter Thomas and Walter C. Thomas, Jr. were hired as independent contractors to perform specified repairs. There was to be no supervision or control of the manner or method of performing these repairs by Mary R. Haus, Robert S.S. Haus, Sr. or A.H. Casey. All equipment, scaffolding, tools, and materials were to be selected and supplied by Walter Thomas and Walter C. Thomas, Jr. and the method and manner of utilizing the tools, scaffolding, and materials to accomplish the specified repairs was the sole responsibility of Walter Thomas and Walter C. Thomas, Jr. No direction, management, supervision, or control over the manner or method of performing the work was to be done by Mary R. Haus, Robert S.S. Haus or A.H. Casey.
“10. Edward J. Wilk, Jr. was an employee of Walter Thomas and Walter C. Thomas, Jr. who were acting as independent contractors for Mary R. Haus. Mary R. Haus is immune from suit by Plaintiff pursuant to the Pennsylvania Workers’ Compensation Act, 77 P.S. 51 et seq.”

The Plaintiff filed a reply to the New Matter, stating he was without knowledge or information sufficient to form a belief as to the truth of the averments of the New Matter because such proof was within the exclusive control of the Defendants. In response to paragraph 9 of the New Matter, which is set forth above, the Plaintiff merely restated that the Defendants had supervision and control over the manner or method by which the Thomases performed their work. Also, Plaintiff asserted the latter were subject to the Defendants’ direction, management, supervision and control.

During the period subsequent to the filing of the above-described pleadings, the Defendants Haus and Casey served interrogatories upon Plaintiff, to which the Plaintiff never responded. These Defendants also arranged for the deposition of Defendant Walter C. Thomas, Jr. on November 11, 1981, and the transcript of that deposition was, in due course thereafter filed, and became a part of the record in the lower court. The transcript had appended to its various exhibits, including copies of paychecks to the decedent, signed by both Thomases, a statement of the decedent’s work history and payroll information on the stationary of Thomas Remodeling, and a bill on a Thomas Remodeling bill form, purportedly rendered to Robert and Mary Haus, detailing the work done on the property in question, together with the amount charged for same. A notation on the billing indicated payment had been made in full for the job. Also, the exhibits included various other documents from the Thomas Construction files regarding the job, some on which only the name of Mrs. Haus appears and others on which just the designation “Haus”, or “Robert & Mary Haus” appears. Further exhibits were the decedent’s job application, pictures of the premises where the alleged accident occurred, and copies of Citations issued against Thomas Remodeling in 1979 by the U.S. Department of Labor, Occupational Safety and Health Administration, for various deficiencies in safety matters, including problems with scaffolding being used on the job on which the decedent was allegedly injured.

After the close of pleadings and the filing of the deposition transcript, the Defendants’ Motion for Summary Judgment was filed, and was thereafter granted by the court en banc. The lower court’s rationale, as is clearly explained in the opinion it filed, was that the Plaintiff failed to plead any material facts, rather than legal conclusions, to create a genuine issue for trial, as to either Mr. or Mrs. Haus or A.H. Casey.

We have thoroughly examined the pleadings and other matters before the lower court in this case. We conclude that the lower court was justified in its conclusions as to the Defendant A.H. Casey, but that the grant of summary judgment as to the Defendant Mary R. Haus was not proper.

First, it is apparent that there is no genuine issue of possible liability presented, under the claims asserted by the Plaintiff, as to Defendant Casey. While the Plaintiff asserted that Casey, together with Mr. and Mrs. Haus, was negligent in this case in several regards, it is clear from the record that Casey had no involvement in any way in the conduct of the job on which the decedent suffered his injuries. Casey had no role in the selection, employment, direction or control of Thomas Remodelers on the project. There is no hint that Casey was in any way involved in any relevant way in the material events in this case. Rather, all of the evidence indicates Casey merely resided in the structure owned by Mrs. Haus. The transcript of the deposition of Walter C. Thomas, Jr. makes this clear.

Mr. Thomas testified he was a partner with his father in their construction business. His testimony established that none of their dealings with regard to the remodeling to be done on the Mt. Lebanon property, within his personal knowledge, were with the Defendant Casey. He identified a couple of occupants of the building, including a dentist and apparently the Defendant Casey, but indicated that the extent of his familiarity with them was to nod or state a greeting as the occupants entered or left the premises while he worked on the remodeling. Of course, all of the exhibits indicate a contractual relationship between Mr. and Mrs. Haus and the remodelers, and Casey’s name does not appear on any of those documents. We also take note that the Plaintiff presented no evidence in the lower court to even suggest a ground for possible liability as to the Defendant Casey. No deposition testimony, answers to interrogatories, admissions, or even affidavits were offered by the Appellant. We also find no suggestion in the brief filed by the Appellant on the instant appeal to suggest a possible basis for denying summary judgment as to Casey. Plaintiff’s contention that such proof may be within the Defendants’ control holds no weight and creates no favorable inference, especially in light of the failure by Plaintiff to seek discovery of such information prior to the granting of summary judgment in this case. Therefore, based upon the record, it is clear that summary judgment was properly granted in favor of Casey.

Our review leads to a different conclusion as to Mrs. Haus. After thorough consideration, we believe that the record at this early stage in the proceedings suggests issues of fact to be tried, sufficient to find that the lower court committed error in granting summary judgment in favor of Mrs. Haus. The record clearly establishes that Mrs. Haus was named as a party in an agreement with Thomas Remodeling for the work on the Mt. Lebanon structure. If we accept as true all well pleaded facts in the Plaintiff’s pleadings, which we must, the Defendant Haus was negligent in the control, maintenance and supervision of the contractor on the job and in causing or allowing unsafe scaffolding to be erected on the project, all of which contributed to the decedent’s injuries and subsequent death. These matters were alleged generally and also with specificity in the Complaint. While the Appellees maintain that the record firmly establishes that both Thomases and Thomas Remodelers were independent contractors, so as to relieve Mrs. Haus from liability in these circumstances, we do not find that the record, as developed at this point, establishes such a relationship beyond all doubt. Moreover, even if we concluded that the record facts compelled a conclusion that the Defendants Thomases and Thomas Remodeling were independent contractors, we could not ignore the Appellant’s claims based upon the Restatement of Torts 2d.

In his Complaint, the Plaintiff specifically asserted a claim based on Restatement Section 413, which provides:

One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer
(a) fails to provide in the contract that the contractor shall take such precautions, or
(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.

In addition, the Plaintiff's Complaint asserted a right to recover based upon the Defendants being otherwise negligent. On this appeal, the Plaintiff cites another section of the Restatement of Torts 2d which could arguably impose responsibility upon Mrs. Haus even if it were determined that the remodelers were independent contractors. Section 411 states:

An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor
(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third persons.

We find these contentions of the Appellant to be meritorious. These sections raise some arguable basis for further proceedings in this case against Mrs. Haus.

Of course the record as established thus far does not permit one to reach any firm conclusion as to the final merits of any claim by the Plaintiff based upon these Restatement provisions. However, in the context of a request for summary judgment, it is clear that one could not fairly decide that no material issue of fact has been created by the pleadings and other matters of record in this case, at least with respect to the Plaintiffs claims against Mrs. Haus.

The lower court’s judgment in favor of the Defendant A.H. Casey is affirmed. The judgment in favor of the Defendant Mary R. Haus is vacated and this case is remanded for further proceedings. Jurisdiction is not retained.

BROSKY, J., filed a concurring opinion.

BROSKY, Judge,

concurring:

I concur in the majority opinion because I believe that, although proof of his claim may be difficult, appellant is nonetheless entitled to a chance to prove his case at trial.

Although appellant’s complaint was not supported by depositions, interrogatories or the like, neither, it seems, was it undeniably rejected by the deposition filed on behalf of the appellees. The deponent was the son of the Mr. Thomas who contracted to do the work on the premises. Although deponent said that Mrs. Haus did not direct or supervise the work, he also made it clear that it was his father, not he, who communicated with Mrs. Haus. His deposition did not itself contain sufficient evidence on which to determine the role played by Mrs. Haus or to ascertain whether Thomas Remodeling was an independent contractor. I agree that on the record before us entry of summary judgment was premature.

However, as the majority mentions, our decision today contains no conclusion as to the ultimate resolution of the case. I note, with interest, for example, that Comment (f)to Restatement Torts 2d § 413 and Comment (c) to Section 411 both explain that in applying those sections, the extent of the employer’s knowledge and experience in the field of work to be done is to be taken into account. The comments note specifically that an inexperienced widow employing a contractor to build a house is not to be expected to have the same information or exercise the same judgment as would professionals in the field.

While appellant may fail to sustain his burden of proof, appellees have at this point failed to show that there remains no genuine issue as to any material fact.

      . Robert S.S. Haus, Sr. was removed as a party to this action by a stipulation of the parties and an order of the lower court. However, his wife, Mary R. Haus, is still involved in this litigation as an Appellee on this appeal.

      . In support of their position, the Appellees contend that an owner of land is ordinarily not liable for injuries sustained by employees of independent contractors, invited on the premises to do work for the owner. They cite Wagner v. Grannis, 287 F.Supp. 18 (D.C.Pa.1968) for that theory. They also maintain that the employer of an independent contractor is not responsible for negligent acts or omissions of the contractor’s employees, and direct us to the decision in Gonzalez v. U.S. Steel Corp., 248 Pa.Super. 95, 374 A.2d 1334, affirmed 484 Pa. 277, 398 A.2d 1378 (1977). It would be inappropriate to analyze this point in view of our conclusion that no independent contractor status has been firmly established based upon the record thus far developed in this case.