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ANNIE WILLIAMS AND WAYMAN D. WILLIAMS v. A-TREAT BOTTLING COMPANY (12/12/88)

filed: December 12, 1988.

ANNIE WILLIAMS AND WAYMAN D. WILLIAMS
v.
A-TREAT BOTTLING COMPANY, INC. AND PAVLISH BEVERAGE COMPANY. APPEAL OF PAVLISH BEVERAGE COMPANY



Appeal from the Judgment of the Court of Common Pleas, Northampton County, Civil Division, at No. 1985-C-9797.

COUNSEL

Edward McKarski, Bethlehem, for appellant.

Cavanaugh, Brosky and Montemuro, JJ.

Author: Brosky

[ 380 Pa. Super. Page 197]

This is an appeal from the Order of December 23, 1987, which denied appellant's post-trial motions and entered judgment upon the non-jury verdict in wife-appellee's favor.

Appellant now contends that the trial court erred: (1) in denying appellant's motion for a compulsory non-suit, when neither wife-appellee nor counsel for wife-appellee were present at trial, and no evidence was presented in her case-in-chief; (2) in denying appellant's motion for judgment non obstante verdicto (n.o.v.), when no evidence was entered in wife-appellee's case-in-chief, and insufficient evidence was introduced in husband-appellee's case-in-chief, to support the verdict; (3) in denying appellant's alternative motion for a new trial; and (4) in failing to enter a verdict against appellant's co-defendant, based upon appellant's cross-claim against the co-defendant.

Upon review of the record, and appellant's brief*fn1 we find merit to appellant's second contention, and accordingly reverse and enter judgment n.o.v.

On January 10, 1984, wife-appellee, Annie Williams, purchased one case of "Up" soda, bottled by A-Treat Bottling

[ 380 Pa. Super. Page 198]

Company, Inc. ("A-Treat"), from appellant, Pavlish Beverage Company ("Pavlish"). Later that day, she drank some of the soda directly from the bottle, and noticed that the soda had an unusual taste. She detected no cracks, or wear about the bottle, or its metal top. However, upon mentioning the strange taste to her husband, he mentioned that he smelled kerosene, and told her not to drink the remainder of the bottle. Approximately forty-five (45) minutes later, she began to have stomach pains.

She went to the emergency room of a nearby hospital in the early morning hours of January 11, 1984. Her stomach was not pumped, but the emergency room physicians, Doctors Twottle and Wyshock, performed blood tests, the results of which were normal, with no kerosene detected. After giving her an antacid and an antispasmodic, the physicians discharged her, instructing her to see her family physician if her stomach pain persisted.

Her pain persisted, and she went to see her family physician on January 12, 1984, who gave her some medication, and instructed her to return to the hospital that day in order to have her stomach pumped.

She did not return to the hospital until the early morning hours on January 14, 1984. She was attended to by the emergency room physician that night, Dr. Anthony Sorrentino. Again, blood tests were performed. Her stomach was pumped as well, and the contents analyzed. Neither the blood tests nor the stomach contents revealed any trace of kerosene in her system. Again, she was treated with an antacid, and released.

In the meantime, the bottle of soda from which she allegedly drank the kerosene, was turned over to the police for analysis. After one phone call, at which time the results were not yet available, Mrs. Williams made no further attempt to obtain the results of the analysis.

On December 18, 1985, Mr. and Mrs. Williams filed a complaint against appellant Pavlish and A-Treat. A non-jury trial was held on March 18, 1987. Neither Mrs. Williams, ...


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