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CLOUSER v. SHAMOKIN PACKING COMPANY ET AL. (03/29/76)

decided: March 29, 1976.

CLOUSER, APPELLANT,
v.
SHAMOKIN PACKING COMPANY ET AL.



Appeal from order of Court of Common Pleas of Lycoming County, No. 74-3826, in case of Sally J. Clouser v. Shamokin Packing Company, Milton Provision Company, and John Pacento t/d/b/a Diz's Restaurant.

COUNSEL

Lester L. Greevy, Jr., with him Greevy & Mitchell, for appellant.

Allen E. Ertel, submitted a brief for appellee, Shamokin Packing Company.

John H. Humphrey, with him Candor, Youngman, Gibson & Gault, for appellee, Milton Provision Company.

No appearance entered nor brief submitted for appellee, John Pacento t/d/b/a Diz's Restaurant.

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

Author: Hoffman

[ 240 Pa. Super. Page 270]

Appellant contends that the trial court, in passing upon appellees' preliminary objections, improperly took judicial notice of the facts that a food processor cannot detect trichinae in raw pork, and that proper cooking of pork will destroy trichinae and render the meat fit for human consumption.

On September 7, 1974, appellant ordered a sausage breakfast at Diz's restaurant in Berwick, Pennsylvania. On November 19, 1974, appellant filed a complaint which alleged that she contracted trichinosis as a result of consuming the sausage at that restaurant. John Pacento, the owner of the restaurant, Milton Provision Company, the restaurant's supplier, and Shamokin Packing Company, the packer of the sausage, were all named as defendants. In her complaint, appellant asserted three theories of recovery against all defendants: negligence in failing adequately to inspect the raw pork; breach of implied warranty that the pork was merchantable and fit for human consumption; absolute liability for selling a product in a defective condition. In addition, the complaint alleged that John Pacento was negligent for failing to properly cook the pork.*fn1

[ 240 Pa. Super. Page 271]

On January 31, 1975, Milton Provision Company and Shamokin Packing Company, filed preliminary objections in the nature of a demurrer, see Rule 1017(b)(4), Pa.R.C.P., which were sustained by the court on June 30, 1975, with leave to appellant to file additional pleadings. Appellant, however, filed the instant appeal.

The lower court relied almost entirely on a single Supreme Court decision in holding that as a matter of law, distributors of pork are not liable to an individual who contracts trichinosis. See Adams v. Scheib, 408 Pa. 452, 184 A.2d 700 (1962). In Adams, the plaintiffs purchased raw pork from defendant's grocery store, cooked the meat, and contracted trichinosis after eating it. The complaint alleged that defendant breached his implied warranty that the meat products he sold were fit for human consumption. The jury returned a verdict in favor of defendant, but the court en banc reversed and ordered a new trial. The Supreme Court reversed and reinstated the jury verdict:

"Three propositions are self-evident: (1) that Scheib sold raw pork sausage to plaintiffs; (2) that coincident with that sale an implied warranty arose; (3) of such warranty the plaintiffs were beneficiaries. What was the nature and extent of that implied warranty? Plaintiffs and the majority of the court below take the position that Scheib, the seller, impliedly warranted to plaintiffs that the raw pork sausage was wholesome and fit for human consumption in the raw or uncooked state. Scheib takes the position that he impliedly warranted to ...


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