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BIALEK v. PITTSBURGH BREWING COMPANY (05/21/68)

decided: May 21, 1968.

BIALEK, APPELLANT,
v.
PITTSBURGH BREWING COMPANY



Appeal from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1964, Nos. 3527 and 735, April T., 1966, No. 1095, and July T., 1966, No. 4020, in case of Sam Bialek v. Pittsburgh Brewing Company, Abraham Kronzek, individually and doing business as Craft Distributing Company, and Glenshaw Glass Company.

COUNSEL

Sanford A. Middleman, for appellant.

Joseph A. Katarincic, with him J. Richard Lauver, and Kirkpatrick, Pomeroy, Lockhart & Johnson, for appellee.

Norman J. Cowie, for appellee.

William J. Lancaster, with him Charles J. Duffy, Jr., and Lancaster, Mentzer & Kunz, for appellee.

Musmanno, Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell and Mr. Justice Roberts took no part in the consideration or decision of this case.

Author: Eagen

[ 430 Pa. Page 179]

Plaintiff instituted this action to recover for personal injuries he suffered when a bottle of beer allegedly exploded. The defendants are Glenshaw Glass Company, manufacturer of the bottle, Pittsburgh Brewing Company, the bottler of the beer, and Abraham Kronzek, the distributor who sold the beer to plaintiff. Suit was begun in assumpsit, based on breach of warranty, and in trespass, based on Section 402A of the Restatement 2d, Torts, which was adopted by this Court in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Before trial, plaintiff was required to elect between the two forms and he proceeded to trial on the trespass action. The jury verdict favored defendants. Plaintiff's motion for a new trial was denied. Judgment was entered on the verdict and this appeal followed.

Plaintiff testified that about one month prior to the accident four cases of Iron City Beer, bottled by Pittsburgh Brewing Company, were delivered to his tavern by Abraham Kronzek. Kronzek stacked them in a storeroom at the rear of the tavern. On the afternoon of July 2, 1964, plaintiff went to the storeroom to get a warm bottle of Iron City Beer for a customer. He lifted the cardboard top on one of the four cases and picked up a bottle. According to plaintiff's testimony, the bottle spontaneously exploded in his hand. He denied striking the bottle in any way. After the alleged explosion, plaintiff dropped the bottle fragments, took a handkerchief from his pocket, held it over his injured eye and went for medical treatment.

Leon Dorsey, an employee at the tavern, testified that he watched plaintiff take the bottle from the case

[ 430 Pa. Page 180]

    and saw it explode in plaintiff's hand. After the accident, Dorsey swept up the broken bottle fragments and saved them.

Dr. Scott Anderson, a physicist with experience in glass science, testified he examined the bottle fragments and found that the bottle varied greatly in thickness. He considered this variation so extreme that in his opinion the bottle was defective. Then the following exchange occurred between Dr. Anderson and plaintiff's counsel: "Q. Doctor, have you been able to determine an actual cause of the fracture of this bottle? A. I can't do it positively because in my opinion that fracture initiated in the region of the glass that is now missing. But the surfaces, -- well, I shouldn't say all the surfaces, but most of the surfaces, these three in particular, are the type of surface that you get when it has been broken by an exterior force. Because when something is -- when a piece of glass is broken -- let me illustrate this. That is considered a flat piece of glass which is being broken by force at this point (indicating). The glass breaks like so (indicating). A chunk of glass comes out so that on the side away from the force, you have a bigger area removed. And remove that piece of glass and we have the remaining pieces. These pieces will be beveled back, beveled toward the inside. Now that is the case on these three, these three fractured pieces. This surface is beveled toward the inside. That one is beveled towards the inside. This one up here, however, is beveled the other way. So this is why I say that I don't think the fracture took place right there. It took place over here someplace (indicating). And once the piece of glass breaks, if it is in a bottle like this, then the rules are all off as far as whether the stresses are -- Because the thing, the fluid starts coming out and the forces just go all haywire. And this is why I would need the

[ 430 Pa. Page 181]

    glass right at the point of origin in order to be able to positively say that was broken by an interior force or an exterior force. I can not possibly say."

Shortly thereafter, plaintiff's counsel asked: "Q. Doctor, from that bottle and all of your examinations, can you give an opinion as to ...


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