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LOUIS A. ORLANDO AND ALICE C. ORLANDO v. HERCO (02/20/86)

filed: February 20, 1986.

LOUIS A. ORLANDO AND ALICE C. ORLANDO, HUSBAND AND WIFE, APPELLANTS,
v.
HERCO, INC.



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Dauphin County, No. 1848 S 1982.

COUNSEL

David L. Lutz, Harrisburg, for appellants.

Roger T. Shoop, Harrisburg, for appellee.

Wieand, Olszewski and Watkins, JJ.

Author: Wieand

[ 351 Pa. Super. Page 145]

Louis A. Orlando purchased and consumed shrimp creole in the dining room of the Hotel Hershey. Later, on the same evening, he experienced stomach cramps, nausea, sweating, vomiting, diarrhea and a general weakness. Orlando and his wife*fn1 brought an action to recover damages against Herco, Inc., the owner and operator of the Hotel

[ 351 Pa. Super. Page 146]

Hershey. The complaint contained a count in trespass based upon alleged negligence in the preparation of food and a count in assumpsit for breach of an implied warranty of merchantability, i.e., that the food was fit for human consumption. Immediately prior to trial, however, Orlando's counsel informed the trial court that he would proceed only on the claim for breach of warranty. He requested that the court exclude any and all evidence pertaining to the purchase of ingredients and the manner of preparing shrimp creole served on the night of his illness. Because the negligence count had been withdrawn, Orlando argued, the exercise of care in preparing the food was irrelevant. Orlando also requested the trial court to exclude evidence that shrimp creole had been consumed without complaint by other guests of the hotel on the same evening. The trial court refused to grant Orlando's motion to exclude this evidence, and the jury which tried the case returned a verdict for the defendant. A motion for new trial was denied, and judgment was entered on the verdict. Orlando appealed. We affirm.

Orlando contends that the trial court erred when it permitted Herco to introduce evidence that the shrimp creole had been carefully prepared. Specifically, he complains about testimony given by Celester Deimler, Jr., the hotel's food controller, and Heinz Hautle, the chef. Deimler testified to quality control procedures followed in ordering, storing and inspecting food prior to preparation and sale to guests of the hotel. He said that on the evening on which Orlando had been a guest of the hotel, his inspection of the ingredients used in preparing the shrimp creole had detected no imperfections. Hautle testified about food preparation in general and about the procedure which had been followed in preparing the shrimp creole from which Orlando had eaten.

In an action based on breach of an implied warranty of merchantability,*fn2 the "seller may be held liable irrespective of the existence or absence of negligence on his part, and it

[ 351 Pa. Super. Page 147]

    is not necessary that his negligence, if any, be shown." 63 Am.Jur.2d Products Liability § 456. "[T]he concern of both § 402A [of the Restatement (Second) of Torts] and warranty law is with the fitness of the product, not the conduct of the producer as measured by due care." MacDougall v. Ford Motor Co., 214 Pa. Super. 384, 391, 257 A.2d 676, 680 (1969). See also: Vlases v. Montgomery Ward & Co., 377 F.2d 846 (3d Cir.1967); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). If it is unnecessary to establish negligence in order to recover for breach of warranty, it does not follow that evidence showing the absence of a defect is inadmissible merely because it also tends to show that due care was exercised in the product's preparation or manufacture.

In the instant case, Orlando was required to show a food product that was unfit for human consumption and, therefore, unmerchantable. He was not required to show that the shrimp creole which he had eaten was unmerchantable because of Herco's negligence. In defense, Herco could show that its food product was not defective. In order to accomplish this, Herco could show the nature of the ingredients used, the manner in which the ingredients were stored to preserve their wholesomeness, the inspections made prior to use, and the manner in which the shrimp creole had been prepared on the night when appellant consumed it. This evidence was relevant to show that the food consumed by Orlando was fit for human consumption and merchantable. Its relevancy was ...


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