The Pennsylvania Superior Court, the state’s mid-level appellate court, recently held in Kornfeind v. New Werner Holding Co., 2020 PA Super 266, that Pennsylvania’s “borrowing statute” applies only to foreign statutes of limitation and therefore does not require application of a statute of repose enacted in the state where the plaintiff used the product and was injured. But the Court also held that statutes of repose are substantive under Pennsylvania law, and therefore the statute of repose from the state of use and injury may bar the claim in a Pennsylvania court if Pennsylvania’s choice of law rules support application of that state’s law.
Principal Issues Presented in the Appeal
Kornfeind decided an interlocutory appeal from a denial of summary judgment in a case in which plaintiff alleged serious injuries caused by a fall from an extension ladder. He sued New Werner, headquartered in Pennsylvania, as the alleged successor to the ladder manufacturer, which had gone bankrupt and sold its assets; he also sued Home Depot as the alleged retailer that sold him the ladder.
There was no dispute that the ladder was manufactured, sold and used in Illinois, or that plaintiff was a resident of Illinois and injured there. The parties disputed whether the ladder was designed in Illinois or Pennsylvania. The parties agreed no statute of limitations barred the claim but that it would be untimely if the court applied the Illinois statute of repose, which precludes liability on a product claim more than 10 years after first sale, lease or delivery of possession to the initial consumer or user.
New Werner argued the Illinois statute of repose should be applied under Pennsylvania’s borrowing statute, 42 Pa. C.S.A. § 5521. That statute requires a Pennsylvania court to apply the “period of limitation” established either by the law of the state where the claim accrued or by Pennsylvania law, “whichever first bars the claim.” New Werner cited Pennsylvania case law holding that the purpose of the borrowing statute is to prevent plaintiffs from other states from suing in Pennsylvania where their claims would be untimely if brought in the states where they lived and were injured.
Analysis and Decision
The Court acknowledged that both statutes of limitation and statutes of repose create temporal limitations on the prosecution of claims, and that the language in the borrowing statute, “period of limitation,” was broad enough to encompass both. But the Court concluded the borrowing statute was ambiguous as to whether it applied to statutes of repose, and relied mainly on the short title of the statute – the “Uniform Statute of Limitations on Foreign Claims Act” – to resolve the ambiguity and hold that the borrowing statute applies only to statutes of limitation, not statutes of repose. The term “statute of limitations” is a legal term of art, the Court concluded, therefore the title of the statute indicated an intent to borrow only those statutes.
The Court acknowledged that a number of other states, including Delaware, California, Illinois, New York, Wisconsin, and Texas, have interpreted their borrowing statutes to apply to foreign statutes of repose, but rejected New Werner’s reliance on those decisions on the ground that their borrowing statutes were not identical in language to Pennsylvania’s. The Court noted that only two other states adopted the uniform act; one (West Virginia) has not addressed application to statutes of repose, and the other (Oklahoma) rejected it. The statutory analysis in Kornfeind may have only limited relevance elsewhere, given that only those two other states have adopted the same specific language in their borrowing statutes, though in states where the issue is unresolved arguments likely will be made to apply Kornfeind to similar statutory language.
The Court also held that statutes of repose are substantive and not procedural under Pennsylvania law, therefore a statute of repose in effect from the state where plaintiff was injured might bar his claim in a Pennsylvania court if Pennsylvania’s choice of law principles, based on sections 6 and 145 of the Restatement (Second) Conflict of Laws, support application of the foreign law. The Court nonetheless affirmed denial of summary judgment to New Werner based on an unresolved dispute concerning where the ladder was designed. Because plaintiff’s claims relied mainly on a theory of defective design, the Court held, this disputed question might affect the choice of law ruling, though the Court provided no guidance as to when or how the trial court should resolve that issue.
Finally, the Court reversed the trial court’s denial of summary judgment to Home Depot. Plaintiff testified he specifically recalled buying Werner ladders at Home Depot, and that the store was his “choice a hundred percent for buying things.” He also testified he only ever bought one extension ladder and that he was “almost positive” he bought the allegedly defective ladder there. But he admitted he had no sales receipt and no specific memory of the actual purchase. Although some of these facts could be seen as supporting an inference that Home Depot was the most likely seller, the Court ruled it would be “speculation” for a jury to find that, so summary judgment was required.
Implications of the Decision for Future Cases
Unless the Pennsylvania Supreme Court rules differently in this or another case, Kornfeind appears to preclude a defendant from invoking a statute of repose from the state where plaintiff used the product and was injured, under Pennsylvania’s borrowing statute – though cases elsewhere suggest that in other jurisdictions that argument will succeed.
As for Pennsylvania, the foreign statute of repose still might apply as substantive law under choice of law rules, so Pennsylvania defendants whose liability would be barred by such a statute must focus on making a record of the facts that support application of the other state’s substantive law. The decision in Kornfeind also suggests that where there is no documentary evidence of the identity of the seller, plaintiff’s recollection of the purchase, if not clear and certain, will not get the claim against the seller past summary judgment.
The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.