J-A11040-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROCK INVESTCO, L.P. (F/K/A ROCK 

INVESTCO, L.L.C.) 

Appellant

v.

LM WIND POWER BLADES (USA), 

INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 599 WDA 2022

Appeal from the Order Entered April 19, 2022

In the Court of Common Pleas of Cambria County Civil Division at No(s): 

No. 2021-000111

BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 22, 2023

Rock Investco, L.P. (Rock Investco) appeals from the order of the Court 

of Common Pleas of Cambria County (trial court) granting summary judgment 

in favor of LM Wind Power Blades (USA), Inc. (LM Wind). We affirm.

In 2017, Rock Investco bought a wind farm in Cambria County. The 

wind farm had 30 turbines. During an inspection in 2019, inspectors

discovered that one of the turbines had a cracked blade. The defective blade 

was produced by LM Wind and had been installed in 2013 before Rock Investco 

became owners of the wind farm.

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* Retired Senior Judge assigned to the Superior Court.
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In April 2021, Rock Investco filed a three-count complaint against LM 

Wind alleging (1) breach of implied warranties of merchantability and fitness, 

(2) strict liability, and (3) negligence. After the strict liability and negligence

counts were dismissed on preliminary objections, LM Wind moved for 

summary judgment on the remaining implied warranties claim. LM Wind 

argued that the claim was time-barred under the applicable four-year statute

of limitations found at Section 2725 of the Uniform Commercial Code – Sales, 

which provides:

(a) General rule.--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.

(b) Accrual of cause of action.--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, except that where a warranty explicitly 

extends to future performance of the goods and discovery of the 

breach must await the time of such performance the cause of 

action accrues when the breach is or should have been discovered.

13 Pa.C.S. § 2725(a)-(b).

Under § 2725, LM Wind argued, Rock Investco’s breach of implied 

warranties claim accrued in 2013 when the defective blade was installed and 

not when the crack was discovered in 2019. For support, LM Wind cited

Nationwide Ins. Co. v. General Motors Corp., 625 A.2d 1172 (Pa. 1993). 

In Nationwide, the Pennsylvania Supreme Court held that the exception

provided under § 2725(b) was inapplicable to implied warranty claims because 
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implied warranties do not explicitly extend to future performance. Id. at 

1178. In its response, Rock Investco acknowledged Nationwide but urged 

the trial court to follow our Supreme Court’s prior decision in Cucchi v. 

Rollins Protective Services Co., 574 A.2d 565 (Pa. 1990), where, in the

opinion announcing the judgment of the court, a plurality observed that “the 

better view is that warranties explicitly extending to future performance may 

be both express and implied by content and circumstances sufficiently specific 

as to unequivocally refer to future performance.” Id. at 573.

After argument on the motion, the trial court granted summary 

judgment in favor of LM Wind. Rock Investco filed a timely appeal and a 

Pa.R.A.P. 1925(b) statement alleging that the trial court erred in granting 

summary judgment before Rock Investco could conduct discovery into

whether the exception under § 2725(b) would be applicable to its implied 

warranty claim. Rock Investco reasserts the same argument in its brief, 

asserting, among other things, that our Supreme Court’s decision in 

Nationwide did not close the door on § 2725(b) applying to breach of implied 

warranty claims. We disagree.1

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1 Our standard of review of an order granting or denying summary judgment 

is well-settled:

We view the record in the light most favorable to the nonmoving 

party, and all doubts as to the existence of a genuine issue of 

material fact must be resolved against the moving party. Only 

where there is no genuine issue as to any material fact and it is 

(Footnote Continued Next Page)
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In Nationwide, the plaintiff sued for breach of a car warranty providing 

that the dealer would make necessary repairs for 12 months or 12,000 miles, 

whichever came first. The plaintiff sued the dealer for breach of express and 

implied warranties within four years of discovering the defect but not within 

four years of the tender of delivery. As a result, the timeliness of plaintiff’s

claims hinged on whether they fell under the exception under § 2725(b). 

Finding that the express warranty did not “explicitly extend to future 

performance of the goods,” the trial court dismissed the actions because it

deemed plaintiff’s action as accruing on the date of delivery. After we

affirmed, the Supreme Court granted allowance of appeal to address whether 

the warranties explicitly extended to future performance of the vehicle, in 

which case the action was timely filed, or whether the general rule regarding 

breach of warranty applied and the cause of action accrued upon tender of 

delivery, thus making the action untimely.

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clear that the moving party is entitled to a judgment as a matter 

of law will summary judgment be entered. Our scope of review of 

a trial court’s order granting or denying summary judgment is 

plenary, and our standard of review is clear: the trial court’s order 

will be reversed only where it is established that the court 

committed an error of law or abused its discretion.

Siciliano v. Mueller, 149 A.3d 863, 864 (Pa. Super. 2016). Moreover, the 

standard of review for issues involving the interpretation of a statute of 

limitations is de novo and the scope of review is plenary. See Erie Ins.

Exchange v. Bristol, 643 Pa. 709, 174 A.3d 578, 585 n.13 (2017).
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Before addressing the claims, the Nationwide Court explained the 

reasoning for why warranty actions generally have a four-year statute of 

limitations that begins running on the date of delivery.

In the ordinary case, a breach of warranty action accrues on, and 

suit must be filed within four years of, the date the seller tenders 

delivery of the goods, even if the breach is not apparent until after 

delivery has been tendered. Section 2725 sets tender of delivery 

as the point at which the cause of action accrues because the 

section “presumes that all warranties, express or implied, relate 

only to the condition of the goods at the time of sale.” Max E. 

Klinger, The Concept of Warranty Duration: A Tangled Web, 89 

Dick.L.Rev. 935, 939 (1985) (hereinafter, “A Tangled Web”). 

Such warranties are breached, if at all, when the goods are 

delivered but do not meet that standard. Of course, the deficiency 

contained in the goods may not be discovered by the buyer within 

four years of delivery. However,

[i]n the usual circumstances, ..., defects are apt to surface 

within that time period, and the few odd situations where this 

is not the case, resulting in hardship to the buyer, are thought 

to be outweighed by the commercial benefit derived by 

allowing the parties to destroy records with reasonable 

promptness.

William D. Hawkland, Uniform Commercial Code Series § 2-

725:02, at 480 (1984). See 13 Pa.C.S. § 2725, Uniform 

Commercial Code Comment (four year period “is most appropriate 

to modern business practice” because it “is within the normal 

commercial record keeping period”). Thus, in breach of warranty 

cases the four-year statute of limitations is essentially a statute 

of repose.[

2] (Emphasis added).

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2 As explained by our Supreme Court:

A statute of repose is defined as a “statute barring any suit that is 

brought after a specified time since the defendant acted (such as 

by designing or manufacturing a product), even if this period ends 

before the plaintiff has suffered a resulting injury.” BLACK'S LAW 

DICTIONARY 1451 (8th ed. 2004). Thus,

(Footnote Continued Next Page)
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Nationwide, 625 A.2d at 1174-75 (emphasis added).

With this in mind, the Nationwide Court first addressed whether a car’s 

express warranty “explicitly” extends to future performance, thus bringing it 

within the grasp of § 2725’s discovery exception. Finding that the express 

warranty did fall under the exception, the Court concluded that the cause of 

action for breach of express warranty was timely filed. Id. at 1178.

It, however, could not conclude the same about the plaintiff’s claim for 

breach of implied warranties because the implied warranties of 

merchantability and fitness did not extend to the future performance of the 

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A statute of repose ... limits the time within which an action 

may be brought and is not related to the accrual of any cause 

of action; the injury need not have occurred, much less have 

been discovered. Unlike an ordinary statute of limitations 

which begins running upon accrual of the claim, the period 

contained in a statute of repose begins when a specific event 

occurs, regardless of whether a cause of action has accrued 

or whether any injury has resulted.

City of McKeesport v. Workers' Compensation Appeal Board

(Miletti), 746 A.2d 87, 91 (2000) [(Nigro, J., dissenting)] 

(citations and emphasis omitted). While a statute of limitations 

merely bars a party’s right to a remedy, a statute of repose 

completely abolishes and eliminates a party’s cause of action.

Noll v. Harrisburg Area YMCA, 537 Pa. 274, 281, 643 A.2d 81,

84 (1994).

Eleanor Abrams, Executrix of the Estate of Kenneth Abrams v. Pneumo

Abex Corporation, 981 A.2d 198, 211 (Pa. 2009) (citations shortened).
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car. In so doing, the Court first looked at the language of the warranty and 

found that it did not create any implied warranties.

The warranty contains the following language: “ANY IMPLIED 

WARRANTY OF MERCHANTABILITY OR FITNESS FOR A 

PARTICULAR PURPOSE APPLICABLE TO THIS CAR IS LIMITED IN 

DURATION TO THE DURATION OF THIS WRITTEN WARRANTY.” 

We do not read this language as explicitly extending the terms of 

any implied warranties, because the document states that any 

implied warranties are of a duration no longer than that of the 

express warranty and not that they are of a duration equal to that 

of the express warranty. The quoted language does not create 

implied warranties, because such warranties are created not by 

contract language but by operation of law in certain 

circumstances. See 13 Pa.C.S. §§ 2314 and 2315. The legal 

effect of the quoted language is merely to limit the protection that 

the law might otherwise impose. Therefore, it cannot be read as 

the type of language that “explicitly extends to future 

performance” for purposes of § 2725(b)....

Nationwide, supra at 1178.

Besides the language of the warranty, the Court also noted that several 

other courts have concluded implied warranties cannot “explicitly” extend to 

future performance.

In addition, the great weight of authority takes the position that 

an implied warranty, by nature, cannot “explicitly” extend to 

future performance. See, e.g., General Motors Corp. v. Tate,

257 Ark. 347, 516 S.W.2d 602, 605-606 (1974); City of Carlisle

v. Fetzer, 381 N.W.2d 627, 629 (Iowa 1986) (collecting cases);

Safeway Stores, Inc. v. Certainteed Corp., 710 S.W.2d 544,

546-548 (Tex.1986) (collecting cases); White & Summers,

Uniform Commercial Code § 11-9, at 478 n. 17 (collecting cases);

Hawkland, Uniform Commercial Code Series § 2-272 5:02, at 480; 

Anno., What Constitutes Warranty Explicitly Extending to “Future

Performance” for Purposes of UCC § 2-725(2), 93 A.L.R.3d 690,

§ 2 (collecting cases).
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Nationwide, supra at 1178. Accordingly, because the implied warranties did 

not explicitly extend to the future performance of the car, the plaintiff’s claims 

of breach of implied warranties accrued on the date of delivery and, 

consequently, were untimely. Id.

A few years later, this Court addressed a similar scenario as that 

presented in Nationwide. In Antz v. GAF Materials Corp., 719 A.2d 758 

(Pa. Super. 1998), the plaintiff installed roof shingles on his new home in 

1989. About four years later, the shingles showed signs of defects. As a 

result, in 1996, the plaintiff sued the manufacturer of the shingles for breaches 

of express warranty, warranty of merchantability and warranty of fitness for 

a particular purpose. After the trial court denied partial summary judgment,

the parties submitted the matter to the trial court based on stipulated facts. 

The trial court found in favor of the plaintiff and awarded him damages, 

following which the manufacturer appealed to this Court.

On appeal, we recognized that the issue was whether the plaintiff’s

claims were barred by the statute of limitations since they were filed well 

beyond the general four-year limitations period for breach of warranty claims 

provided under § 2725. After reviewing § 2725, we explained that claims of

breach of implied warranties, after Nationwide, cannot explicitly extend to 

future performance.

Section 2725(a) permits an action to be brought within four years 

from tender of delivery of the goods. The shingles were delivered 

on August 1, 1989. The complaint was not filed until December 

15, 1995, well beyond four years. However, the exception 
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outlined in § 2725(b) increases the period of limitations where the 

warranty explicitly extends to future performance of the goods 

and discovery of the breach must await future performance. In 

such instances a cause of action accrues when the breach is or 

should have been discovered. Implied warranties of 

merchantability and fitness for a particular purpose cannot 

explicitly extend to future performance. Nationwide, 625 A.2d

at 1178. Therefore, claims for such warranties must be 

commenced within four years from tender of delivery.

Antz, supra at 760 (internal citation altered).

Based on Nationwide, this Court concluded that the plaintiff’s claims 

for breach of the implied warranties of merchantability and fitness for a 

particular purpose were time-barred. In so concluding, we found that the 

plaintiff’s claims “were not filed within four years after tender of delivery of 

the shingles and do not meet the exception under § 2725(b) as they cannot 

relate to future performance.” Id. (citing Nationwide, supra).3

After Antz, Pennsylvania federal courts have consistently applied 

Nationwide and Antz in holding that the discovery exception under 

§ 2725(b) do not apply to implied warranties. See, e.g., Allstate Prop. &

Cas. Ins. Co. v. Haier US Appliance Solutions, Inc., 2022 WL 906049, at 

*11 (M.D. Pa. 2022) (finding implied warranty claim time-barred because 

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3 While finding the plaintiff’s claims for breach of implied warranties timebarred, this Court ultimately affirmed the judgment by finding that the 

plaintiff’s damages were based on his claim for breach of express warranty, 

which we found was not time-barred and contained an unconscionable

damages limitation barring recovery for labor costs of repair for the defective 

shingles. Antz, supra at 760-63.
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“Pennsylvania courts hold implied warranties do not apply to the future 

performance of goods and, therefore, accrue on tender of delivery”); Vullings 

v. Bryant Heating & Cooling Systems, 2019 WL 687881, at *3 (E.D. Pa. 

2019) (finding plaintiff’s implied warranty claim time-barred because it 

accrued in 2005 when he purchased the defective furnace); Cooper-Booth 

Trans. Co., L.P. v. Daimler Trucks of N. Am., LLC, 2018 WL 1940527, at 

*3 (E.D. 2018) (finding implied warranty claims accrued upon tender of 

delivery in 2013 because Nationwide “implied warranties of merchantability 

and fitness for a particular purpose do not explicitly extend to future 

performance and the Section 2725(b) exception does not apply”); Red Rose

Transit Auth. v. N. Am. Bus Indus., 2013 WL 180201, at *6 (E.D. Pa. Jan.

16, 2013) (holding that claim of breach of implied warranty was untimely 

because implied warranties are breached at the time of delivery); McCracken 

v. Ford Motor Co., 588 F.Supp.2d 635,642 (E.D. Pa. 2008) (holding warranty 

of merchantability claim time-barred under Nationwide because claim 

expired in 2003 four years after plaintiff purchased car); Busche v. Monaco

Coach Corp., 2006 WL 3302477, at *4 (E.D. Pa. 2006) (dismissing implied 

warranty claims as untimely because they accrued on the date tender of 

delivery was made); Floyd v. Brown & Williamson Tobacco Corp., 159 

F.Supp.2d 823, 83 (W.D. Pa. 2011) (finding breach of implied warranty timebarred because implied warranties of merchantability and fitness for a 

particular purpose cannot explicitly extend to future performance).
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On appeal, Rock Investco asserts that the trial court should have allowed 

it more time to conduct discovery to determine whether its breach of implied 

warranties claim accrued on the date of discovering the defect in 2019 rather 

than the date of tender of delivery in 2013. “[P]arties must be given 

reasonable time to complete discovery before a trial court entertains any 

motion for summary judgment[.]” Anthony Biddle Contractors, Inc. v.

Preet Allied Am. St., LP, 28 A.3d 916, 928 (Pa. Super. 2011) (citation and 

emphasis omitted). However, “[s]ummary judgment may be entered prior to 

the completion of discovery in matters where additional discovery would not 

aid in the establishment of any material fact. Thus, the question is whether 

additional discovery would have aided in the establishment of any material 

fact.” Manzetti v. Mercy Hosp. of Pittsburgh, 776 A.2d 938, 950-51 (Pa. 

Super. 2001) (citation omitted).

As shown by our discussion above, discovery would have been fruitless 

under these circumstances because implied warranties cannot explicitly 

extend to future performance under Nationwide and Antz. See 

Nationwide, supra at 1178; Antz, supra at 760. We, thus, find no error in 

the trial court granting summary judgment when it did because Rock 

Investco’s breach of implied warranties claim was untimely under § 2725 

which, as was recognized in Nationwide, acts as a statute of repose that 

begins running regardless of when the injury or defect is discovered.
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Rock Investco nonetheless argues that this Court should ignore 

Nationwide and rely on the Pennsylvania Supreme Court’s 1990 decision in 

Cucchi for the proposition that claims of breach of implied warranties may, 

depending on the circumstances and on what was said or represented at the 

time the transaction was entered into, “explicitly” extend to future 

performance. However, as the trial court aptly explained, Cucchi, which 

predates Nationwide and Antz, is of no precedential value in this case.

First, Cucchi is a plurality decision of the Superior Court and 

its precedential value has been limited by our Supreme Court to 

its facts. Keblish v. Thomas Equip., Ltd., 660 A.2d 38, 40 n.1 

(1995). Second, the facts in Cucchi are readily distinguishable

from the facts here. In Cucchi, a homeowner entered into a lease 

agreement for a burglar alarm that required a one-time 

installation fee and an ongoing monthly fee for service and 

maintenance related to the system. Cucchi, 574 A.2d 565, 566. 

The Cucchi plurality determined that the ongoing agreement for 

service and maintenance constituted an explicit agreement for 

future performance related to the burglar alarm such that the 

section 2725(b) exception was applicable and thus the SOL did 

not begin to run until the breach was discovered. Id. at 574-75.

Here, there is no evidence that an agreement for future 

performance existed either in the form of a written agreement or 

by LM Wind having performed any future actions related to the 

blade or other blades installed at the wind farm after the initial 

installation....

Trial Court Opinion, 7/12/22, at 6-7.

Finding this discussion persuasive, we agree with the trial court and 

likewise find Rock Investco’s attempts to invoke Cucchi as precedential or 

persuasive authority unavailing. Accordingly, we find that the trial court did 
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not err in granting summary judgment in favor of LM Wind and dismissing 

count one of Rock Investco’s complaint alleging breach of implied warranties.4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/22/2023

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4 Because we find that Rock Investco’s claim of breach of implied warranties 

was time-barred, we need not address the trial court’s additional finding that 

Rock Investco had sufficient time to conduct discovery but failed to diligently 

conduct discovery. See Dockery v. Thomas Jefferson Univ. Hosps., Inc., 

253 A.3d 716, 721 (Pa. Super. 2021) (stating “this Court is not bound by the 

reasoning of the trial court, and we may affirm the trial court on any valid 

basis”) (citation omitted).