Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1970, No. 3692, in case of Sidney Williams v. Pepsi-Cola Metropolitan Bottling Company, Inc.
Frank Weitzman, submitted a brief for appellant.
Charles Jay Bogdanoff, with him Joel M. Lieberman, William L. Kinsley, and Gekoski & Bogdanoff, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.
[ 240 Pa. Super. Page 579]
This is an appeal from a judgment entered in favor of defendant Pepsi-Cola Metropolitan Bottling Company,
[ 240 Pa. Super. Page 580]
Inc. (hereinafter Pepsi) and against plaintiff-appellant Sidney Williams following an appeal from an award of arbitrators. We will affirm the judgment entered below.
Plaintiff-appellant Williams instituted the instant action in trespass on October 23, 1970 by writ of summons. A complaint was filed on November 6, 1970 in which appellant averred that he was injured as a result of drinking a bottle of appellee's Pepsi-Cola. He claimed therein that the bottle he drank contained particles of glass.*fn1 The complaint and the reissued writ of summons were served on November 10, 1970. A judgment upon default was entered against Pepsi on December 4, 1970.
On December 7, 1970, Pepsi filed an answer to appellant's complaint and the case proceeded thereafter as if the judgment upon default had not been filed.*fn2 The case was heard before a Board of Arbitrators and an Award of Arbitrators was made on May 1, 1973, for plaintiff-appellant Williams in the amount of $500.00. Appellant then appealed from the arbitrator's award and the cause was heard by Judge SPORKIN, without a jury, in March, 1974. On March 14, 1974, Judge SPORKIN held for appellee Pepsi, finding that the injuries sustained by plaintiff "were not occasioned by any negligence on the part of defendant" Pepsi. A verdict was entered in favor of Pepsi and against appellant. Appellant brought this appeal from the entry of judgment on that verdict, after his motion for a new trial was denied on March 14, 1975.
Two claims are made before this Court. Appellant first urges that the lower court erred in finding that appellant had failed to carry his burden of proving that appellee was negligent. Second, he urges that the court below erred by considering the issue of negligence.
[ 240 Pa. Super. Page 581]
Appellant thus argues that the lower court should not have ruled on appellee's negligence; alternatively, he claims that the court below, in improperly doing so, erred in its ...