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NEDEROSTEK v. ENDICOTT-JOHNSON SHOE CO. (07/01/64)

July 1, 1964

NEDEROSTEK, APPELLANT,
v.
ENDICOTT-JOHNSON SHOE CO.



Appeal, No. 243, Jan. T., 1964, from judgment of Court of Common Pleas of Lehigh County, April T., 1963, No. 83, in case of Jacob W. Nederostek v. Endicott-Johnson Shoe Co. and Lehigh Safety Shoe Co. Judgment reversed.

COUNSEL

Paul A. McGinley, for appellant.

E. Drummond King, with him Robert B. Doll, for appellees.

Before Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Roberts

[ 415 Pa. Page 137]

OPINION BY MR. JUSTICE ROBERTS

In this suit for breach of implied warranty of fitness, the court below granted defendants' motion for judgment on the pleadings filed pursuant to Pa. R.C.P. 1034. Therefore, we must consider as presently admitted by defendants all well-pleaded allegations of fact in the complaint. Smith v. Brown-Borhek Co., 414 Pa. 325, 200 A.2d 398 (1964).

The crucial paragraph in the complaint alleges: "On or about June 14, 1961, the Plaintiff was in the employ of the GIANT PORTLAND CEMENT CO., ... and on said date Plaintiff commenced wearing a pair of safety work shoes which had been supplied to him by Giant Portland Cement Co., which had been purchased by them from Lehigh Safety Shoe Co. ..., which shoes were ... manufactured by the Defendant, Endicott-Johnson Shoe Co."

[ 415 Pa. Page 138]

The complaint continues that as a result of wearing the shoes, plaintiff developed extensive contact dermatitis of the feet and hands.

The court below held: "The word 'supplied' is a broad term and could include any number of relations. When used in the context of plaintiff's complaint, that an employer supplied safety shoes to its employee, we take it to mean something similar to the supply by a government to its soldiers through a supply sergeant. It may be a fringe benefit, but it is not a sale and purchase.

"Resort to the depositions taken in this case supports that connotation for the term. ..."

We must observe at this point that the court's consideration of the depositions was improper. When ruling upon a motion for judgment on the pleadings, a court may not consider depositions or other collateral evidence. Emery v. Metzner, 191 Pa. Superior Ct. 440, 445, 156 A.2d 627, 630 (1959); Bogojavlensky v. Logan, 181 Pa. Superior Ct. 312, 124 A.2d 412 (1956); 2A ...


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