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GANT v. PENN FRUIT COMPANY (12/01/75)

decided: December 1, 1975.

GANT
v.
PENN FRUIT COMPANY, INC. ET AL., APPELLANT



Appeal from order of Court of Common Pleas of Delaware County, No. 12545 of 1971, in case of Rebecca Gant v. Penn Fruit Company, Inc., Topco Associates, Inc., Delaware County Bottling Works, and Frank's Beverage Company, and Frank's Beverage Company, additional defendant.

COUNSEL

Phillip B. Silverman, with him McWilliams & Silverman, for appellant.

James F. Proud, with him Gibbons, Buckley & Smith, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 237 Pa. Super. Page 248]

The sole issue before the Court is whether appellee's preliminary objection to its joinder as an additional defendant was properly granted.

In December, 1969, plaintiff, Rebecca Gant, was injured when an unopened bottle of "Gayla" ginger ale exploded, the glass fragments cutting plaintiff who was standing three feet away at the moment of the explosion. Plaintiff's husband had purchased the soda only minutes prior to the accident from a Penn Fruit Company, Inc., retail outlet located at 9th Street and Harlan Avenue, Chester, Delaware County ("Penn Fruit").

Plaintiff initiated suit on November 29, 1971, by filing a writ of praecipe in the Delaware County Court of Common Pleas. In her complaint filed on March 3, 1972, plaintiff

[ 237 Pa. Super. Page 249]

    named as defendants Penn Fruit, Topco Associates, Inc., a supplier of Penn Fruit, ("Topco"),*fn1 and Delaware County Bottling Works, Inc., one of the bottlers of Gayla sodas and a supplier of Topco ("Delco Bottling"). The complaint alleged negligence, breach of duty under ยง 402 (a) of the Restatement of Torts, 2d, and breach of warranty as alternative theories of liability.

During pre-trial discovery, the plaintiff revealed that she had not retained the remains of the broken bottle. Absent a coded identification number found on the soda bottle, it was impossible for Topco to prove that Delco Bottling was responsible for plaintiff's injury because both Delco and Frank's Beverage Company*fn2 ("Frank's"), supplied Topco with "Gayla" sodas. Therefore, because Topco intended to defend on the grounds that the bottler of the soda was liable for the plaintiff's injury, Topco filed a petition on April 6, 1973, to join Frank's as an additional defendant. A hearing was held on April 19, 1973; the lower court entered an order on April 30, 1973, that granted Topco's petition and allowed Topco thirty days in which to join Frank's.

Topco alleged in its brief that it did not receive notice that its petition had been granted. In response to Topco's inquiry, the lower court sent the following letter dated September 21, 1973, to Topco's counsel: "If you would check with the Court records, you would find that an Order granting your Petition was signed on April 30, 1973." Topco did not file a praecipe to join Frank's until November 7, 1973. The writ, however, was returned without being served. In July, 1974, the writ was reissued and properly served on Frank's.

On November 29, 1974, Frank's filed preliminary objections to Topco's failure to comply with the court's April 30 order to join ...


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