author: CERCONE, Judge:

text:
    571 A.2d 426
    COMMONWEALTH of Pennsylvania v. Reginald BLASSINGALE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 8, 1990.
    Filed March 7, 1990.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We affirm.

On February 22, 1989, appellant, Reginald Blassingale, was arrested and charged, inter alia, with robbery, two counts of aggravated assault, conspiracy, recklessly endangering another person and possessing an instrument of crime. Prior to trial, appellant’s motion to suppress identifications made of him by a Commonwealth witness was denied. After a jury trial, appellant was found guilty of the above offenses. Post-verdict motions were timely filed and denied on June 1, 1989. Appellant was sentenced to six (6) to twelve (12) years imprisonment for the robbery and one count of aggravated assault, a consecutive term of two and one-half (2-1/2) to five (5) years for the second count of aggravated assault and ten (10) years probation for conspiracy. Sentencing was suspended for the possession of an instrument of crime and recklessly endangering another person counts due to merger. Appellant filed this timely appeal.

The underlying facts of this case, as determined by the trial court, are as follows:

On March 13, 1988, Gilbert Hall was walking home from a friend’s house at approximately 7:30 p.m. in the area of 23rd and Oxford Streets counting money (between $37.00 to $40.00). He noticed two black males standing near a wall approximately 25 to 30 feet in front of him. One of the males appeared to be urinating. As Hall approached the males, he put his money in his sweatpants. The male who appeared to be urinating, later identified as the [appellant], approached and told Hall to, “Give it (the money) up”. He held a pistol to Hall’s stomach. The other male, later identified as Stephen Ferguson (“Ferguson”), was standing 7 to 10 feet away from the [appellant]____
Initially, Hall denied having any money. At this point, Ferguson, who moved a few feet closer to Hall, said, “you better give it up or he will shoot you”____ Hall then took the money from his pants and threw it to the ground. [Appellant] then shot Hall in the stomach at close range and proceeded to search him for additional money, including pulling down his sweatpants____
Subsequently, [appellant] picked up the money and, when he observed a girl approximately 35 feet away, he fired two shots at her____
After being shot, Hall was taken to Hahnemann Hospital where he remained for fourteen (14) days. While there, he gave the police a description of his two assailants____ Later, on March 21, 1988, Hall identified [appellant] from a photo array of eight pictures, and on April 13, 1988, he identified Ferguson from a photo array of eight to ten pictures____ Hall subsequently identified both [appellant] and Ferguson in line-ups and in court---Hall spoke to [appellant] face to face and on the phone four (4) or five (5) times after the incident, during which conversations the [appellant] asked Hall not to testify in court____
The Commonwealth also presented the testimony of Neremia Jenkins (“Jenkins”), a 14 year old girl, who witnessed a portion of the incident. She said that on March 13th, between 7:00 and 7:30 p.m., she was walking to her girlfriend’s house when she saw three males talking, one was sitting on a wall and the others were standing. She heard one man say that he didn’t have anything, but she could not see any of their faces---Jenkins testified that she saw one of the males pull out a gun and shoot the man sitting on the wall---- She then screamed, at which point the male with the gun turned, and fired one shot in her direction. The two males then ran away____
Although Jenkins could not identify the males, she described them as black with one man about six inches shorter than the other. Further, she observed that the taller male was thin and the shorter male had a good build. She could not say which male shot at her—
On cross-examination, Jenkins stated that there were two (2) or three (3) nightlights in the alley but conceded that the light was not very bright____ (citations to the record and footnotes omitted).

Appellant raises the following seven issues for our review: (1) whether the trial court erred when it restricted appellant’s cross-examination of the complainant Gilbert Hall concerning criminal charges which were filed against Hall and subsequently withdrawn; (2) whether the appellant is entitled to a new trial as a result of after-discovered evidence; (3) whether the appellant was. improperly sentenced for robbery and aggravated assault; (4) whether the appellant is entitled to a new trial as a result of the prosecutor’s comment concerning the appellant’s failure to testify or present evidence; (5) whether the trial court erred when it denied the appellant’s motion to suppress identification based upon, an allegedly suggestive photo array and line-up; (6) whether the trial court erred when it limited the appellant’s cross-examination of the complainant Gilbert Hall concerning his use of a false identity to deceive the Courts; and (7) whether the trial court erred when it denied the appellant’s motion to strike the testimony of the complainant Gilbert Hall after Hall invoked his Fifth Amendment privilege against self-incrimination.

Our careful scrutiny of the record in this case has convinced us that the well reasoned opinion of the learned trial court judge concisely refutes appellant’s second, fourth, fifth, sixth and seventh arguments. Thus, we agree with the rationale of the trial court and affirm the lower court’s resolution of those issues. We will address appellant’s remaining issues below.

Beginning with appellant’s first argument, appellant alleges that the trial court erred when it restricted appellant’s cross-examination of the complainant Gilbert Hall concerning criminal charges which were filed against Hall and subsequently withdrawn. We agree with the trial court’s disposition of this issue, but in light of our recent decision in Commonwealth v. Nolen, 390 Pa.Super. 346, 568 A.2d 686 (1989), we supplement the trial court’s rationale. Defense counsel may cross-examine a prosecution witness on possible favorable treatment received from the Commonwealth in exchange for the witness’ testimony. Common wealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986); Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973). It is reversible error not to allow this type of cross-examination, but harmless error if it did not control the outcome of the case. Commonwealth v. Nolen, supra.

As in Nolen, the defense wished to cross-examine the Commonwealth’s witness with regard to criminal charges that had been brought against him and which had been withdrawn by the Commonwealth prior to his testimony at trial but during the period of his cooperation in the prosecution of this case. As we explained in Nolen:

In deciding to prohibit cross-examination on this question, the trial court incorrectly focused on the fact that there were no pending criminal actions against [the Commonwealth witness] at the time of the trial. If this were the test, then the Commonwealth need only ensure that its witness receive the favorable treatment before the start of the trial to avoid cross-examination challenging the witness’ bias.

Id., 390 Pa.Super. at —, 568 A.2d at 692. In Nolen, when the Commonwealth witness agreed to testify for the Commonwealth, he was in the Dauphin County Prison facing a theft charge in Dauphin County and facing extradition to Virginia for burglary and theft. Before the start of the Nolen trial, the Virginia charges were dropped and the Dauphin County charge was reduced to criminal mischief. The Commonwealth’s witness in Nolen was given a $200 fine and released from prison. Under those circumstances, we held in Nolen that there was an inference that when the witness agreed to testify for the Commonwealth, he had expectations of leniency concerning his own pending charges and that when he actually did testify, he felt obliged to tailor his testimony to favor the prosecution.

Unlike the circumstances in Nolen, our review of the record in the instant matter reveals that there were two different charges filed against Mr. Hall. In each case, the charges were ultimately withdrawn because the victims in each of those cases failed to appear. The Commonwealth clearly had no control over the actions of the victims in those cases. For this reason, we are not constrained by our decision in Nolen. We find that the trial court did not err when it restricted appellant’s cross-examination of the complainant Gilbert Hall and we affirm the trial court’s resolution of this issue.

Appellant’s third argument is whether the appellant was improperly sentenced for robbery and aggravated assault. While this issue is raised for the first time at this juncture, it is properly before us as the illegality of sentence cannot be waived and appellant’s failure to raise this issue previously does not preclude our present consideration of it. Commonwealth v. Mitchell, 319 Pa.Super. 170, 465 A.2d 1284 (1983), corrected at 483 A.2d 1389 (1984). An issue of legality of multiple sentences, based on a claim that convictions should have merged for sentencing, is not waived by failure to raise it in the trial court; such claim may be raised for the first time on appeal or in a collateral proceeding. Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986).

Crimes will not merge for sentencing purposes unless one of the crimes is a lesser included offense of the other. Commonwealth v. Williams, 521 Pa. 556, 559 A.2d 25 (1989). To determine whether one offense is a lesser included offense of the other, we must determine whether the elements of violation A, the lesser, are included in violation B, the greater. Commonwealth v. Pemberth, 339 Pa.Super. 428, 489 A.2d 235 (1985). Crimes will merge where a defendant commits one act of criminal violence and that act is the only basis upon which he may be convicted of the other crime. Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989). If he commits multiple criminal acts beyond that necessary to establish the bare elements of the additional crime, then the crimes will not merge. Id.

Robbery is defined as follows:

(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second degree;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
(v) physically takes or removes property from the person of another by force however slight.
(2) An act shall be deemed “in the course of committing theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.

18 Pa.C.S.A. § 3701. Aggravated assault is defined in relevant part as:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
(4) attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon; or

Id. § 2702. Under the specific facts of the case before us, there were two men who cornered the victim, Mr. Hall. One of the men, appellant, held a gun to Mr. Hall’s stomach. Appellant shot and seriously injured Mr. Hall, then also shot at Ms. Jenkins. Each of these shots were separate and distinct from the offense of robbery. These acts that were not necessary to enable the assailants to escape with their prey’s money. See Commonwealth v. Bell, 386 Pa.Super. 164, 562 A.2d 849 (1989) (wherein we held that aggravated assault merged with robbery when victim was struck twice because the two blows were struck in rapid succession and both were in furtherance of robbery and attempt to escape thereafter). We therefore agree with the trial court’s resolution of this issue and affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3701.

      . Id. § 2702.

      . Id. § 903.

      . Id. § 2705.

      . Id. § 907.

      . To the extent that the trial court focused on the fact that there were no pending criminal actions against the Commonwealth witness at the time of the trial, we disagree. However, as an appellate court, we may affirm by reasoning different than that used by the lower court. Commonwealth v. Toanone, 381 Pa.Super. 336, 553 A.2d 998 (1989).


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    571 A.2d 431
    SAGE HOLDING CORPORATION Assignee of Paul L. Herron, Assignee of Edward Z. Winkleman and the Estate of Jessie M. Winkleman, Appellants, v. SAGE FOLDING BOX COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1990.
    Filed March 9, 1990.

      Stanley M. Poplow, Paoli, for appellants.
    Edward Cohen, Philadelphia, for appellee.
    Before DEL SOLE, MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

This appeal follows a bench trial in the Court of Common Pleas of Philadelphia County, wherein the court ruled in favor of the appellee, the Sage Folding Box Company. In March of 1986, the Sage Holding Company (“SHC”), an appellant in the present appeal, filed a complaint in mortgage foreclosure against the appellee. It is undisputed that in February of 1982, Willie Johnson, a long time employee of the appellee, negotiated to purchase all of the issued and outstanding shares of stock of the Sage Folding Box Company from Edward and Jessie Winkleman, both deceased at the time of the bench trial. To this end, a mortgage in the amount of $66,500.00 was executed between the appellee and the Winklemans, and the appellee became obligated to pay monthly installments of $1,670.35. The mortgage was subsequently assigned in June of 1985 to Paul L. Herron, and then to the Sage Holding Company. The complaint in mortgage foreclosure filed in April of 1986 by SHC alleged that appellee had not paid any monthly installments since July of 1982. An answer to the complaint in mortgage foreclosure was filed by the appellee. This answer contained a New Matter which averred that an audit performed after the execution of the $66,500.00 mortgage revealed that Edward Winkleman had not recorded trade debts and taxes owed by the appellee, equalling over $60,000.00. Additionally, it was alleged that the inventory “had a value of $63,000.00.” R.R. at 20a. The New Matter further averred that when these facts were disclosed to Edward Winkleman, it was orally agreed between Edward Winkleman and Willie Johnson that the $66,500.00 mortgage would be deemed satisfied if the appellee would assume the previously unrecorded trade debts and taxes. Id. at 21a.

The record before us contains a reply to the New Matter, which SHC filed on July 11,1986. In the reply, SHC denied that any oral agreement had been reached between Winkle-man and Johnson concerning the satisfaction of the mortgage. On appeal, appellants contend that the trial court erred when it admitted evidence concerning the alleged oral agreement as such an agreement, even if proven to have been made, is violative of the Statute of Frauds. The trial court held, inter alia, that appellants had waived the Statute of Frauds defense because it was not raised until the time of trial. We agree.

It is well settled that the Statute of Frauds relating to interests in land is a declaration of public policy and can be waived if it is not raised in the pleadings of a case. Target Sportswear v. Clearfield Foundation, 327 Pa.Super. 1, 10, 474 A.2d 1142, 1150 (1984). “This waiver rule has been strictly adhered to by our courts.” American Leasing v. Morrison Co., 308 Pa.Super. 318, 324, 454 A.2d 555, 558 (1982). In most cases, it is the defendant who, by way of a New Matter, raises the Statute of Frauds defense. Our Supreme Court has recognized:

The plaintiff is entitled to be informed, before proceeding to the expense and burden of the prosecution of a fruitless trial, whether defendant intends, upon plaintiffs proof of an oral contract, to claim the protection of the Statute of Frauds.

Charles v. Henry, 460 Pa. 673, 678, 334 A.2d 289, 291 (1975).

The instant case is somewhat unusual, because it was the plaintiffs, appellants herein, who intended to affirmatively rely upon the Statute of Frauds. This, however, did not relieve the appellants from their obligation to specifically raise the Statute of Frauds in the pleadings prior to trial. In this case, plaintiffs failed to include the defense in the Reply to New Matter or, for that matter, in any paper filed with the trial court prior to trial. Thus, the defense is deemed waived. We reject the argument that because the Statute of Frauds is to be raised by way of New Matter under Pa.R.C.P. 1030, and because a reply is not to contain a New Matter, appellants were completely relieved from the duty to raise the Statute of Frauds defense. This view is patently unreasonable in light of the general rule of law requiring the party intending to affirmatively rely upon the Statute of Frauds to specifically raise it prior to trial. Additionally, Pa.R.C.P. 1032 provides that, subject to certain exceptions not relevant in the instant case: “A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply.” This case is readily distinguishable from cases where the Statute of Frauds was specifically raised in the pleadings, although not by way of the proper pleading. See Brown v. Hahn, 419 Pa. 42, 213 A.2d 342 (1965) (even though defendants erred procedurally in raising defense of statute of frauds by way of preliminary objections, defense would not be deemed waived due to confusion as to the proper procedure for raising the defense); In Re Estate of Brojack, 321 Pa.Super. 154, 467 A.2d 1175 (1983) (statute of frauds was raised in a trial court brief). The instant case involves no mention of the Statute of Frauds on the part of appellants until the day of trial. A finding of waiver is thus appropriate under the circumstances. See American Leasing v. Morrison Co., supra.

In addition to the issue concerning the Statute of Frauds, appellants contend generally that insufficient evidence was presented at trial to prove the existence of the oral agreement. Initially, we note that our record does not contain an original transcript of the bench trial which was held in the present case, although it is evident from an examination of appellants’ notice of appeal documents that appellants apparently did comply with the requirements of Pa.R.A.P. 1911 in ordering the transcript. A copy of the trial transcript does appear in our Reproduced Record. This omission from our original record does not prevent us from disposing of this appeal, however, because appellants’ argument necessarily attacks the trial court’s assessment of credibility. Credibility is a matter which rests within the sound discretion of the trial court. In this matter, the trial court viewed Willie Johnson’s testimony that the mortgage was considered by the parties thereto as satisfied as credible testimony. The trial court found that other testimony corroborated Johnson’s testimony: Winkleman never demanded payment of the loan or instituted legal action to attempt to collect the monies; Edward Winkleman loaned appellee $20,000.00 two years after the execution of the $66,500.00 mortgage even though only two payments had been made on the mortgage by appellee.

Finally, appellants contend that the evidence concerning the oral agreement was inadmissible under the parol evidence rule. The trial court correctly responded to this claim in the following manner: “... the testimony of Johnson is not barred by the parol evidence rule since it was not offered to modify the bond and mortgage, but to demonstrate that the mortgage debt was satisfied — ” Op. of Trial Court, August 25, 1989, at 8.

Judgment affirmed.

      . We note that in Goodrich-Amram 2d § 1030:4, the content of a plaintiffs reply to new matter is discussed. This text, in footnote 10, includes the following case citation and synopsis which is procedurally analogous to the case at bar:
      In Balaban v Howard, 61 York Leg Rec 57, 10 Fayette LJ 116 (1947), plaintiff filed a complaint in ejectment, to which defendant filed an answer including “new matter" which set up an oral conveyance. Plaintiff replied to this new matter, and then moved for judgment on the pleadings. The court ruled that plaintiff was not barred from raising the question of the statute of frauds on the argument of the motion for judgment even though plaintiff did not plead it as "new matter” in the reply. Since reply to new matter is the closing pleading, and no counterreply is permitted thereto, the setting up of “new matter" in the reply in such a case would be a useless act.


author: WIEAND, Judge. OLSZEWSKI, Judge,

text:
    571 A.2d 433
    Karen COVELESKI, Administrator Ad Prosequendum of the Estate of Baby Coveleski, Deceased, and in her own right, as mother and natural guardian of Baby Coveleski, Deceased, Appellant, v. Vincent A. BUBNIS, Jr., Zerbe Township, Raymond L. Bowers, Sr., t/d/b/a Corner Tavern, and Consolidated Rail Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1989.
    Filed March 9, 1990.

      John T. Robinson, Selinsgrove, for appellant.
    Charles H. Saylor, Sunbury, for Zerbe Township, appellee.
    David B. Marateck, Shamokin, for Bowers, appellee.
    Geoffrey S. Shuff, Harrisburg, for Consol. Rail Corp., appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge.

The issue presented in this appeal is whether the Wrongful Death and Survival Statutes, 42 Pa.C.S. §§ 8301 and 8302, provide a cause of action on behalf of an eight week old fetus after an abortion has been induced to avoid the risk of fetal damage because of injuries sustained by the mother in a motor vehicle accident and/or her subsequent medical treatment. We hold that there is no cause of action on behalf of a non-viable fetus. Therefore, we affirm the order of the trial court which granted defendants’ preliminary objections in the nature of a demurrer and dismissed the complaint on behalf of the fetus.

On January 3, 1986, Karen Coveleski suffered physical injuries, including a dislocated right hip, when the Jeep CJ-7 in which she was riding as a passenger plunged into a ravine on the property of Consolidated Rail Corporation (Conrail) in Zerbe Township, Northumberland County. Six days later, upon the advice of her physician, Ms. Coveleski consented to abort a fetus of approximately eight weeks gestation because of the risk that the fetus had sustained damage as a result of the accident or would be damaged by subsequent medical treatment.

Ms. Coveleski then brought actions against Vincent A. Bubnis, Jr., the driver of the Jeep; Zerbe Township; Conrail; and Raymond Bowers, Sr. t/d/b/a The Corner Tavern, which had served alcohol to the driver of the jeep prior to the accident. Coveleski not only sought recovery for her personal injuries, but she also asserted wrongful death and survival actions on behalf of the fetus. Bubnis, the driver, agreed to settle Ms. Coveleski’s claims. The remaining defendants filed preliminary objections in the nature of a demurrer to the claim on behalf of the fetus, asserting that the demise of an eight week old fetus did not give rise to wrongful death and survival actions.

A cause of action exists under the Pennsylvania Survival Statute only if it is determined that the fetus could have been a plaintiff. The Wrongful Death Act provides that an action may be brought to recover for the death of an “individual.” The legislature defines “individual”, at 1 Pa.C.S. § 1991, as a “natural person.” This is distinguished from the broader term “person”, which includes corporations, partnerships and associations. Legal status as a natural person is not determined solely by the humanity of the entity in question; it is a legal concept regarding the assignment of rights and duties. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (“person” as used in the Fourteenth Amendment does not include the unborn).

Until recent times, the Supreme Court in Pennsylvania had'required a live birth before the accrual of a cause of action for in útero injury. See: Scott v. Kopp, 494 Pa. 487, 431 A.2d 959 (1981); Marko v. Philadelphia Transportation Co., 420 Pa. 124, 216 A.2d 502 (1966); Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964). In other jurisdictions, however, judicial recognition was given to the individuality of a fetus because of medical information regarding the separate nature of the aspects of maternal and fetal physiology. The existence of a unique fetal physiology, however, does not alone resolve the legal question of whether to afford to a fetus the legal status necessary to assert a cause of action.

In Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985), the Pennsylvania Supreme Court overruled prior case law and joined a majority of American jurisdictions in recognizing a cause of action on behalf of a fetus of 42 to 43 weeks gestation which had been delivered stillborn. Having eliminated birth as the moment at which a cause of action accrued, the Amadio court suggested viability as the moment in time when a fetus attains the status of an individual for purposes of maintaining an action for his or her death. The Court said: “ ... we conclude that the time has arrived for us to join [the majority of our] sister states and the District of Columbia and recognize that survival and wrongful death actions lie by the estates of stillborn children for fatal injuries they received while viable children en ventre sa mere.” Id., 509 Pa. at 203, 501 A.2d at 1086-1087.

Viability is that “stage of prenatal development at which the fetus would be capable of independent existence if removed from its mother’s womb, and it has often been noted that a fetus ordinarily becomes viable during the sixth or seventh month of its mother’s pregnancy.” Annot., Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411, 432 n. 72 (1978). In support of its decision to allow a separate cause of action on behalf of a viable fetus, the Amadio court recognized that difficulties of proof are not necessarily greater where fetal death occurs shortly before birth than where death occurs shortly after birth. However, even those advocating a cause of action from the moment of conception must acknowledge that problems of proof become more difficult with lesser periods of gestation. Scott v. Kopp, supra 494 Pa. at 496, 431 A.2d at 964 (Dissenting Opinion by Larsen, J.). Where the wrongful death and survival statutes are not explicit regarding the rights of an unborn child, it is sound statutory interpretation to limit the right to assert such an action to a viable fetus. Before viability, any determination of damages for death of the fetus would be entirely speculative. Whether the child would be born healthy and talented would be incapable of prediction with reasonable certainty. It is in recognition of this difficulty in proof, that a majority of jurisdictions draw the line at viability. Indeed, only Georgia and Rhode Island hold otherwise. The majority view, we conclude, is the better view.

This is also the view followed by the Superior Court in Hudak v. Georgy, 390 Pa.Super. 14, 567 A.2d 1095 (1989). In the absence of an expression of contrary intent by the legislature, the Court reasoned, it would not accord to fetuses prior to viability the same rights accorded by the Wrongful Death and Survival Acts to children who have attained viability. Our review of the statutes is in accord. The language thereof does not suggest a legislative intent to create separate causes of action in favor of non-viable fetuses.

In the instant case, Coveleski’s pregnancy was only in its eighth week when the fetus was aborted. At such an early stage of her pregnancy, plaintiff could not allege that the fetus was viable. Therefore, the wrongful death and survival actions were properly dismissed by the trial court.

Affirmed.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting.

In Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985), our Supreme Court abandoned the live birth requirement of prior precedent and granted a cause of action on behalf of a stillborn fetus. Although the fetus in Amadio was alleged to have been viable at the time of its injuries, the Court did not establish viability as the moment in time when a fetus attains the status of an individual for purposes of maintaining an action for his or her death. To the extent the majority holds otherwise, I respectfully dissent.

The specific question addressed by the Court in Amadio was “whether a right of recovery exists under our Wrongful Death Act and Survival Statute on behalf of a stillborn child who died as a result of injuries received en ventre sa mere.” 509 Pa. at 201, 501 A.2d at 1085. Viability was never at issue in the case as the stillborn plaintiff was alleged to have been viable at the time of its death. Rather, the thrust of Amadio was directed towards the abandonment of prior caselaw mandating the live birth of a child before an action could be brought for its death. This was accomplished in large part by the Court’s utilization of the rationale and holding of Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960). As the Court stated:

We have, since our decision in [Sinkler ], recognized that a child en ventre sa mere is a separate individual from the moment of conception, and have permitted that child to sue for injuries received during gestation when the child is born alive. Implicit in our holding in Sinkler is the acknowledgement that a child en ventre sa mere is an individual with the right to be free of prenatal injury. If a child en ventre sa mere is an individual at the time of its injury, then, a fortiori, the child is also an individual when those injuries cause its death, and it makes no difference in liability under the wrongful death and survival statutes whether the child dies of the injuries just prior to or just after birth.
In short, the “live birth” or “still birth” of a child will no longer be determinative of that child’s status as an individual under our survival or wrongful death statutes. To be consistent with Sinkler and the body of medical knowledge underpinning it, we acknowledge a child en ventre sa mere to be an “individual,” “having existence as a separate creature from the moment of conception.” Sinkler, 401 Pa. at 273, 164 A.2d at 96. Henceforth, injuries received by a child while en ventre sa mere can form the basis for survival or wrongful death actions as maintained on behalf of a child born alive. Live birth can no longer be a limiting prerequisite to the maintenance of such an action. This is consistent with Mr. Justice Larsen’s dissent in Scott v. Kopp, [494 Pa. 487, 431 A.2d 959 (1981)], where he argues against drawing a line at the birth of a child, its viability, or some other arbitrary period of gestation, and instead concludes that the action should proceed to trial and let the orderly production of evidence by the adversaries prove or disprove causation, injury and damages in each case.

Amadio v. Levin, 509 Pa. at 204-05, 501 A.2d at 1087.

Appellees, and apparently the majority, dismiss this passage as mere dicta and would find Sinkler inapplicable to the present situation. Appellees reason that the child in Sinkler, though injured in the womb during its first month of gestation, survived and was born alive rendering the case of no moment here. I must disagree. First, a proper reading of Amadio indicates that the use of Sinkler was for more than purposes of persuasion; the Court expanded the holding and rationale of Sinkler to encompass those situations where an injured fetus dies prior to birth. Second, the fact of live birth in Sinkler does not render the case inapplicable here where the Court in Amadio clearly found this distinction no longer determinative of a child’s rights under our wrongful death and survival statutes.

The majority in the case at bar would limit a wrongful death or survival action brought on behalf of a fetus to those situations where viability is alleged. In support of this requirement, the majority lists as its reasons the problems of proof and a lack of legislative intent. Regarding intent, the majority cites our recent decision in Hudak v. Georgy, 390 Pa.Super. 14, 567 A.2d 1095 (1989). In that case, a panel of this Court, by per curiam opinion with Judge Johnson concurring, denied a cause of action on behalf of three non-viable fetuses. The majority reasoned that because the Wrongful Death Act and Survival Statute made no mention of non-viable fetuses, the issue was better left to the legislature. A similar argument was rejected after an extensive discussion by Justice Zappala in his concurring opinion in Amadio where he concluded that it was proper for the Court to interpret these statutes to include a viable still-born fetus. Amadio v. Levin, 509 Pa. at 222-30, 501 A.2d at 1097-1101 (Zappala, J., concurring). I find such a rationale appropriate and applicable to the facts presented herein.

Moreover, I do not find an alleged difficulty in proving one’s case reason enough to preclude an otherwise valid cause of action, nor do I find support in the rationale of Amadio for this result. Instead, following the natural progression of Sinkler and Amadio, I would allow the parents of the deceased plaintiff the opportunity to prove their case regardless of arbitrary gestation requirements. In so doing, I find the reasoning of Mr. Justice Larsen persuasive:

The alternative of drawing an arbitrary line anywhere is to recognize the cause of action generally while, of course, maintaining the not-insubstantial burden of proving causation in each case. Modern medical science has advanced to such a state that many of the heretofore existent causation gaps can now be closed. That such gaps might remain open in some cases should preclude recovery in those cases for failure to meet the burden of proof of causation, but should not invalidate those causes of action for which expert medical testimony can bridge the gap. Thus, rather than drawing a line at the birth of a child, viability or some arbitrary period of gestation, I would simply allow the action to proceed to trial and let the orderly production of evidence by the adversaries draw its own line.

Scott v. Kopp, 494 Pa. at 496, 431 A.2d at 964 (Dissenting Opinion of Larsen, J.) (emphasis in original).

For the foregoing reasons, I would reverse the order of the trial court and remand for proceedings consistent with this opinion.

      . 42 Pa.C.S. § 8302 provides as follows:
      All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.

      . 42 Pa.C.S. § 8301(a) provides as follows:
      (a) General rule. — An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no action for damages was brought by the injured individual during his lifetime.

      . Thirty-two jurisdictions recognize a cause of action on behalf of a fetus that sustains fatal injury in útero.

        Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974); Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985); Hatala v. Markiewicz, 26 Conn.Supp. 358, 224 A.2d 406 (1966); Worgan v. Greggo and Ferrara, Inc., 50 Del. 258, 128 A.2d 557 (1956); Simmons v. Howard University, 323 F.Supp. 529 (D.D.C. 1971); Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955); Volk v. Baldazo, 103 Idaho 570, 651 P.2d 11 (1982); Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 304 N.E.2d 88 (1973); Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20 (1972); Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962); Mitchell v. Couch, 285 S.W.2d 901 (Ky.1955); Odham v. Sherman, 234 Md. 179, 198 A.2d 71 (1964); Mone v. Greyhound Lines, Inc., 368 Mass. 354, 331 N.E.2d 916 (1975); O’Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971); Pehrson v. Kistner, 301 Minn. 299, 222 N.W.2d 334 (1974); Terrell v. Rankin, 511 So.2d 126 (Miss.1987); O'Grady v. Brown, 654 S.W.2d 904 (Mo.1983); White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969); Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (1957); Salazar v. St. Vincent Hospital, 95 N.M. 150, 619 P.2d 826 (1980); DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489 (1987); Hopkins v. McBane, 427 N.W.2d 85 (N.D.1988); Stidam v. Ashmore, 109 Ohio App. 431, 167 N.E.2d 106 (1959); Evans v. Olson, 550 P.2d 924 (Okl.1976); Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636 (1974); Presley v. Newport Hospital, 117 R.I. 177, 365 A.2d 748 (1976); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Farley v. Mount Marty Hospital Association, Inc., 387 N.W.2d 42 (S.D.1986); Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 425 A.2d 92 (1980); Moen v. Hanson, 85 Wash.2d 597, 537 P.2d 266 (1975); Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 (1971);
        Kwaterski v. State Farm Mutual Auto Insurance Company, 34 Wis.2d 14, 148 N.W.2d 107 (1967).

      . Justice Zappala, who drafted an extensive concurring opinion, recognized this fact and specifically reserved decision on the viability requirement. Amadio v. Levin, 509 Pa. at 230 fn. 7, 501 A.2d at 1101 fn. 7. See also Hudak v. Georgy, 390 Pa.Super. 14, 567 A.2d 1095 (1989) (Amadio decision does not decide the issue of non-viable plaintiffs).

      . In his concurring opinion, Justice Zappala emphasized this position. He stated:
      ... I conclude that the cause of action for prenatal injuries identified in Sinkler v. Kneale accrues to the child upon the occurrence of the injuries without regard to the later live birth of the child and, pursuant to the Survival Act, survives the death of the child whether the death occurs before or after birth.

        Amadio v. Levin, 509 Pa. at 221, 501 A.2d at 1096.


author: CIRILLO, President Judge:

text:
    571 A.2d 438
    COMMONWEALTH of Pennsylvania v. Thomas Mont PIGG, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1989.
    Filed March 7, 1990.
    Petition for Allowance of Appeal Denied Aug. 13, 1990.

      Samuel E. Teeter, Gettysburg, for appellant.
    Roy A. Keefer, Asst. Dist. Atty., Gettysburg, for Com.
    Before CIRILLO, President Judge, and BECK and . JOHNSON, JJ.
   CIRILLO, President Judge:

Thomas Pigg appeals from his judgment of sentence entered by the Court of Common Pleas of Adams County. We affirm.

The facts and procedural history of this case were comprehensively set forth in the opinion of the Honorable Oscar F. Spicer, President Judge of the Adams County Court of Common Pleas. The trial court found:

On April 5, 1987, at approximately 5:10 p.m., Jeffery Small drove his car eastward on Pennsylvania Highway Route 116. With him was his wife, Diane, and daughter, Justina. As he entered a curve, he saw an eighteen wheeled tractor trailer completely blocking his path, coming from the opposite direction. As a result of the collision, Diane and Justina were both killed.
Police arrived on the scene shortly thereafter. They determined, from physical evidence, that impact occurred in Mr. Small’s lane on the two-lane highway. Empty beer cans were seen in the vicinity of Defendant’s truck. The police observed classic signs of inebriation in Defendant’s mannerisms, actions, and appearance. Around 7:05 p.m. samples of Defendant’s blood were taken at Gettysburg Hospital as was a later urine specimen. One blood test was conducted at the hospital, yielding a result of .36 percent blood alcohol content. A second sample was sent to the state police laboratory, resulting in a reading of .30 percent. The urine specimen was checked by an independent laboratory and showed a .415 percent blood alcohol content.
G. Thomas Passananti, Ph.D., an expert called by Commonwealth at trial, explained the varying results. For example, the hospital test was based upon blood serum and such tests are higher than for whole blood. The state police test was of whole blood and was considered accurate. Dr. Passananti also described the effects of alcohol on the system and expressed an opinion thát Defendant’s blood alcohol content could not have been less than .30 percent at the time of the accident.
Defendant testified he was en route from Altoona to Lancaster to pick up a load. He stopped in Breezewood the previous evening and drank beer in his truck. He said that beer cans found at the scene were from that drinking episode. He stopped in Chambersburg on the day of the accident and had lunch, consisting of a cheeseburger, five or six cans of beer and four shots of whiskey. He said he felt normal as he later proceeded eastward on U.S. Route 30.
His first contact, or near contact, with an Adams County resident came just east of Gettysburg. Sharon L. Payne was stopped, facing west and waiting to make a left turn. She looked to see Defendant “laying over the steering wheel” and completely in her lane. (N.T. 40) Defendant swerved back into his lane when Ms. Payne blew her horn.
After Defendant went by, Ms. Payne remembered she needed to buy kerosene and turned around to return to Gettysburg. She was the third or fourth car behind Defendant when he stopped at a traffic light at the intersection of Buford Avenue, West Street, Springs Avenue and Chambersburg Street.
U.S. Route 30 is known as Buford Avenue west of this intersection and Chambersburg Street east of it. U.S. Route 30 curves to the left as one approaches from the west. If one approached the intersection from the east, Springs Avenue would seem a straight continuation of U.S. Route 30. Springs Avenue, then, intersects at a ninety degree angle with West Street to its south, where the point of the right angle marking the spot where U.S. Route 30 bends towards the north and west.
As Defendant proceeded through the intersection, his truck ran over the curb on the south side of Buford Avenue. He also hit a pole with a street sign on it. Ms. Payne said that wood flew all over and the pole hung halfway from the top.
Defendant said he was unaware of anything out of the ordinary occurring and kept going. Ms. Payne then determined to follow and obtain a license number.
The intersection of U.S. Route 30, (called York Street), Hanover Street, and Liberty Street is somewhat similar to the one earlier described. However, Hanover Street appears to be a continuation of U.S. Route 30 to one travelling east, as U.S. Route 30 again curves to the left. Hanover Street is also Pennsylvania Route 116.
Defendant mistakenly continued straight, instead of following U.S. Route 30, and found himself heading toward Bonneauville and McSherrystown. With Ms. Payne following, he proceeded through Bonneauville and then signalled for a right turn. He did not immediately turn, however, until farther down the highway. He then pulled into a private entrance.
Ms. Payne also turned and then went to Defendant’s truck. She asked if he were all right or needed help. She begged him not to continue. Defendant’s only response was to tell her to get out of his way, “so he could go down the road.” (N.T. 49) When Ms. Payne asked him if he had been drinking, Defendant said he had never drunk a drop in his life. He then proceeded to pull out, bumping Ms. Payne’s vehicle slightly.
Ms. Payne then called the police because she was “worried about this man hurting himself or somebody else.” (N.T. 52)
A few minutes later, the fatal collision occurred.
State Police charged Defendant with two counts each of murder in the third degree, homicide by vehicle, homicide by vehicle while driving under the influence, and driving under the influence.
******
After a change of venue was ordered, trial occurred in Cumberland County. Commonwealth presented nine witnesses in chief, one on rebuttal and Defendant, two witnesses during the trial. The case was presented to the jury on November 4, 1987. After deliberating for a period of time, the jurors were released and returned the next morning.
Shortly after Court reconvened, the jury asked for additional instructions on malice as it pertained to recklessness on the charge of murder of the third degree. The Court was also asked to discuss “the degrees of recklessness and consciousness.” (N.T. 301)
After the Court discussed recklessness, defense counsel requested that a definition of malice again be submitted to the jury. In complying, the Court instructed, inter alia, that “malice consists of cruelty, hardness of heart, an attitude or a mind heedless of social duty” which showed reckless indifference to the value of human life. (N.T. 307) No objection was made to the charge. The jury returned later with verdicts of guilty to all counts____

At trial Pigg was represented by John A. Wolfe, Esquire, who, following the entry of Pigg’s convictions, filed timely post-trial motions. On February 16, 1988 attorney Wolfe filed supplemental post-trial motions and at the same time filed a petition to withdraw as Pigg’s counsel. On February 19, 1988, Samuel E. Teeter, Esquire was appointed to represent Pigg and given thirty days to file supplemental post-trial motions. On March 21, 1988, attorney Teeter filed a motion to extend the time for reviewing the record and for filing additional post-trial motions. This motion was granted on the same date and attorney Teeter was given an additional twenty days. On April 11, 1988, attorney Teeter filed a second motion to extend and on April 12, 1988 the court entered an order giving attorney Teeter an additional ten days to review the record and to file supplemental post-trial motions. On April 21, 1988 attorney Teeter filed supplemental post-trial motions. Following oral argument, Pigg’s post-trial motions were denied. Thereafter, Pigg was sentenced and filed no motion to reconsider sentence. This appeal followed.

Pigg raises the following issues for our consideration:

(1) Whether the trial court erred when it denied the motion in arrest of judgment of appellant, Thomas Mont Pigg, in respect to the two third-degree murder charges based on appellant’s contention that insufficient evidence was introduced by the Commonwealth at trial to prove malice.
(2) Whether the trial court erred in denying appellant’s post-verdict motion challenging the adequacy of the trial court’s jury instruction on the essential prerequisites for proof of malice based upon the Commonwealth’s “recklessness” theory.
(3) Whether the trial court erred by denying appellant’s post-verdict motion based upon appellant’s claim that his trial counsel was ineffective for failing to object to prejudicial testimony offered by the Commonwealth concerning appellant’s prior erratic driving on the day, but not at the time, of the accident.
(4) Whether the trial court erred when it failed to find that the homicide by vehicle while driving under the influence convictions merged for purposes of sentencing into the third-degree murder convictions and whether the trial court exceeded its authority when it imposed consecutive sentences on the two homicide by vehicle while driving under the influence convictions.

First, Pigg contends that the Commonwealth’s evidence was insufficient to support the two third-degree murder convictions. Specifically, Pigg asserts that the Commonwealth failed to prove the requisite element of malice to support his murder convictions. Moreover, Pigg states that “proof of excessive drinking ... coupled with reckless or careless operation ... of his large tractor trailer rig on the roadway do not in themselves constitute malice absent other proof that [he] was conscious of the extraordinary and unusual peril or probable peril to human life caused by such operation of his vehicle at the time and place of the accident.” We disagree.

When reviewing a sufficiency of the evidence claim, this court views the evidence presented, and all reasonable inferences which may be drawn from that evidence in the light most favorable to the Commonwealth, the verdict winner, to determine whether there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt. Commonwealth v. Rolan, 520 Pa. 1, 549 A.2d 553 (1988). It is the province of the trier of fact to assess the credibility of the witnesses and the weight to be accorded the evidence produced. Commonwealth v. Polk, 347 Pa.Super. 265, 500 A.2d 825 (1985).

To support a murder conviction, the Commonwealth must prove Pigg committed the killing with malice aforethought. Commonwealth v. Reilly, 519 Pa. 550, 549 A.2d 503 (1988). A person may be convicted of third-degree murder where the murder is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice aforethought. Id. Malice consists of a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” Commonwealth v. Drum, 58 Pa. 9, 15 (1868); see also Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981) (court stated malice is one of the essential elements of third-degree murder and is the distinguishing factor between murder and manslaughter); Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176 (1982) (third-degree murder does not require the specific intent to kill, but does require malice; malice may be found where the defendant consciously disregards an unjustified and extremely high risk that his actions might cause serious bodily injury.) In addition, it is well established that malice may be inferred from the use of a deadly weapon upon a vital part of the body. Commonwealth v. Hinchcliffe, 479 Pa. 551, 552, 388 A.2d 1068, 1069, cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978).

Although it is rare for a death caused by vehicular incident to give rise to a conviction of third-degree murder, in Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975), our supreme court found that the requisite element of malice was present where an intoxicated automobile driver traveling at a high speed struck and killed a child on a bicycle near a playground. Id., 461 Pa. at 563-64, 337 A.2d at 548. In finding the evidence sufficient to sustain the third-degree murder conviction, the court stated that the evidence presented to the trier of fact, “the intoxicated condition of the driver, the distance the bodies and bicycles were propelled upon impact, [appellant’s] awareness that this was an area where children were likely to traverse, the absence of any physical or climatic condition which could explain or contribute to the happening of the accident, and the appellant’s failure to stop immediately after impact,” was sufficient basis to establish the presence of malice. Id.

In attempting to differentiate Taylor from the case at hand, Pigg argues that the evidence failed to show that he was driving at an excessive rate of speed when the accident occurred. He also states that he was unfamiliar with the rural area where the fatal accident occurred, that the weather conditions at the time of the accident were adverse because the rain was turning to snow, and that the accident occurred at an “extreme curve” in the roadway. The evidence also indicated, however, that Pigg drove his tractor trailer while in an intoxicated state.

In Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125 (1950), our supreme court found that there was sufficient evidence from which a jury could find beyond a reasonable doubt that appellant, formerly a prize fighter, committed second-degree murder (now third-degree murder) where the victim died following appellant’s “unjustified, unprovoked, brutal, and persistent attack upon deceased.” Id., 365 Pa. at 302, 74 A.2d at 131. In Dorazio the court dismissed appellant’s argument that the facts did not demonstrate the malice necessary to support his conviction, stating:

In general, it has been held that where the assault is not committed with a deadly weapon, the intent must be clearly felonious, or the death will be subject only to the charge of manslaughter. The presumption arising from the character of the instrument of violence, is not conclusive in either way, but where such weapons are used as do not usually kill, the deadly intent ought to be left in no doubt____ [W]here the weapon or implement used is not one likely to kill or to maim, the killing is held to be manslaughter, unless there is an actual intent which shows a felonious purpose.

Id., 365 Pa. at 300, 74 A.2d at 129-30. The court then stated that the question of whether malice could be implied from the use of appellant’s fists was dependent upon the circumstances of the case and thus considered “the size of the assailant, the manner in which the fists [were] used, the ferocity of the attack and its duration and the provocation.” Id., 365 Pa. at 300, 74 A.2d at 130. By finding the evidence sufficient to sustain a conviction of second-degree murder, the court found that the fists of the former prize fighter had been used with the intent that they have a lethal effect.

Here, assuming that an eighteen-wheeled tractor trailer is an instrument not likely to kill or maim, the killing would be held to be manslaughter unless there was an actual intent which shows a felonious purpose. See Dorazio, supra. Moreover, whether malice can be inferred from the use of the tractor trailer is dependent upon the circumstances of this case. See id. We find that Pigg’s operation of an eighteen-wheeled tractor trailer down a narrow road while in an intoxicated state is analogous to the boxer’s use of his fists in Dorazio, and is therefore sufficient to give rise to an inference of malice. Prior to the fatal accident, Pigg drove several other vehicles off the road and ignored a fellow driver’s plea to stop driving. On these facts, there can be no question that Pigg knew the danger he posed to others, yet willfully pursued a course of conduct that continued to subject them to that danger. As was stated by the trial court:

[Pigg] drunkenly drove [a]n instrumentality that would have made ravaging Vikings green with envy. No battering ram in ancient history could match the lethality or destructive force of a large truck on a relatively narrow road. His wake was filled with incidental flotsam pointing to a stubborn persistence to get down the road whatever the consequences. There were no weather or traffic conditions, nothing which required [Pigg] to continue driving, to explain the tragedy.

Accordingly, we find that the evidence of Pigg’s conduct was sufficient to demonstrate the wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty that constitute the requisite element of malice. Therefore, the evidence was sufficient to sustain the two third-degree murder convictions.

Next, Pigg asserts that when the trial court responded to the jury’s request for clarification of the definition of malice it gave incorrect instructions. Pigg argues that as a result the jury did not know whether to use the definition of malice which the trial court initially gave to the jury or the subsequent instructions given by the trial court in response to the jury’s requests for clarification. The alleged error to which Pigg refers lies in the trial court’s use of the word “or” instead of “and” when listing the elements of malice. Additionally, Pigg contends that the trial court’s instructions concerning “recklessness” as an element of malice were vague, imprecise and misleading.

Our review of the record reveals that defense counsel made no objection to the jury charge. At the conclusion of the charge, Judge Spicer asked if counsel had anything to add and defense counsel responded that he did not. During their deliberations the jury returned with a question for Judge Spicer regarding the concepts of malice and recklessness as they apply to third-degree murder and involuntary manslaughter. Judge Spicer responded to their question and at the conclusion of his explanation once again asked counsel if they had anything to add. At this time defense counsel stated that he thought that the jury was still confused as to those concepts and asked Judge Spicer to repeat the malice definition. After Judge Spicer complied with this request, defense counsel said that he was satisfied with the charge. Thereafter, the jury requested that the trial court explain malice as it pertains to recklessness in third-degree murder and to explain the degrees of recklessness and consciousness. Judge Spicer complied with this request. Defense counsel then asked that the malice definition be reviewed again and Judge Spicer repeated the definition. Thereafter, defense counsel did not place any objection on the record. Because counsel did not raise a specific objection, on the record, to the trial court’s clarified charge we find that Pigg has failed to preserve this issue for our review. See generally Pa.R.A.P. 302(b).

Next, Pigg alleges that the trial court erred in denying his claim that trial counsel was ineffective in failing to object to the testimony of Sharon Payne. Pigg asserts that Payne’s testimony was inadmissible because it introduced evidence of prior criminal conduct as substantive evidence of his guilt of the present charges. The prior criminal conduct referred to by Pigg is his reckless driving as witnessed by Sharon Payne immediately before his accident with Small.

To support a finding of ineffective assistance of counsel, the appellant must show that: (1) his underlying claim is of arguable merit; (2) counsel lacked any reasonable basis for his actions or inactions; and (3) he was prejudiced by counsel’s actions or inactions. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Parker, 387 Pa.Super. 415, 564 A.2d 246, 250 (1989). Evidence of other crimes and/or violent acts may be admissible in special circumstances where the evidence is not used merely to show that the defendant is a person of bad character. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988). One such “special circumstance” exists where the evidence sought to be used was part of the chain or sequence of events which became part of the history of the case and formed part of the natural development of the facts. Id., 518 Pa. at 303, 543 A.2d at 497. In such an instance, the evidence is admissible “to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.” Id. (quoting McCormick, Evidence, § 190 (1972 2d ed.)).

Sharon Payne testified about facts which occurred immediately prior to the accident. Clearly, this testimony was material in that it completed the story surrounding the accident and enabled the jury to determine Pigg’s mental state directly before the accident. As the evidence was clearly admissible and objection to it would have been futile, Pigg’s claim of attorney Wolfe’s ineffectiveness must fail. Trial counsel will not be deemed ineffective for failure to raise a meritless claim. See Parker, 387 Pa.Super. at 423, 564 A.2d at 250.

Finally, Pigg contends that the homicide by vehicle while driving under the influence convictions should have merged with the third-degree murder convictions. Pigg also asserts that the trial court erred in imposing consecutive sentences on the two charges of homicide by vehicle while driving under the influence. Pigg was sentenced as follows: on counts 1 and 2, murder in the third degree, Pigg was required to pay the costs of the proceeding and to undergo imprisonment in a State Correctional Institution for concurrent periods of not less than 10 years nor more than 20 years to be effective and to commence as of April 5, 1987; on count 7, homicide by vehicle while driving under the influence, Pigg was sentenced to a State Correctional Institution for a period of not less than 3 years nor more than 7 years to begin and to be effective as of April 5, 1987; and on count 8, homicide by vehicle while driving under the influence, Pigg was sentenced to a State Correctional Institution for a period of not less than 3 years nor more than 7 years to be served consecutively to the sentence imposed on count 7. The sentences on the homicide by vehicle while driving under the influence convictions were to be served concurrently with the sentences imposed on the third-degree murder convictions.

We will first evaluate Pigg’s claim that his convictions of homicide by vehicle while driving under the influence should have merged with his convictions for third-degree murder. Recently in Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1988), our supreme court overruled in part Commonwealth v. Michael Williams, 514 Pa. 124, 522 A.2d 1095 (1987), cert. denied 487 U.S. 1208, 108 S.Ct. 2852, 101 L.Ed.2d 889 (1988), which had set forth a test for determining when merger was appropriate. The Michael Williams test focused on whether “the crimes necessarily involved one another and whether they caused more than one injury to the Commonwealth.” Leon Williams, 521 Pa. at 559, 559 A.2d at 27 citing Michael Williams, 514 Pa. at 124, 522 A.2d at 1095; see generally Commonwealth v. Burdge, 386 Pa.Super. 194, 562 A.2d 864 (1989) (discussion of recent supreme court decisions regarding merger of sentences).

In Leon Williams, the supreme court modified the traditional merger analysis set forth in Michael Williams by stating that “except for lesser included offenses, the doctrine of merger based on whether the Commonwealth has an interest in prosecuting a criminal defendant for more than one crime is hereby abrogated.” Leon Williams, 521 Pa. at 563, 559 A.2d at 29; see also Commonwealth v. Perdue, 387 Pa.Super. 473, 564 A.2d 489 (1989) (court applied Leon Williams, determined that criminal mischief and institutional vandalism do not share the same elements, stated that the facts which established the commission of institutional vandalism also served as the basis for the conviction of criminal mischief, and concluded that under Leon Williams that the crimes did not merge). In Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989), the companion case to Leon Williams, the supreme court discussed its holding in Leon Williams. The court stated that “[I]n Leon Williams, we held that where the same facts are used to support convictions for crimes having different elements, the crimes do not merge for sentencing purposes, unless the same facts support convictions of lesser included offenses.” Weakland, 521 Pa. at 363, 555 A.2d at 1233 (emphasis added).

Applying the holding in Leon Williams to the present case, we first must determine whether third-degree murder and homicide by vehicle while driving under the influence share the same elements. See generally Perdue, supra. Murder is defined as:

§ 2502. Murder
(a) Murder of the first degree. — A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
(b) Murder of the second degree. — A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(c) Murder of the third degree. — All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
* * * sit * *

18 Pa.C.S. § 2502.

Homicide by vehicle while driving under the influence is defined as follows:

§ 3735. Homicide by vehicle while driving under the influence.
(a) Offense defined. — Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.
* * * * *

75 Pa.C.S.A. § 3735.

The elements of third-degree murder have been developed by case law. Third-degree murder is a killing done with legal malice but without the specific intent to kill required in first-degree murder. Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979). “Malice express or implied is the criteria and absolutely the essential ingredient of murder.” Commonwealth v. Commander, 436 Pa. 532, 537, 260 A.2d 773, 776 (1970); see also Commonwealth v. Dennis, 506 Pa. 460, 461, 485 A.2d 1097, 1098 (1984); Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983). A comparison of the elements of the two offenses demonstrates that third-degree murder consists of a killing committed with malice, while homicide by vehicle while driving under the influence requires that the killing be a direct result of a violation of 75 Pa.C.S.A. § 3731, and that the defendant be convicted of violating section 3731. Thus, it is apparent that the two crimes do not share the same elements.

It is true that the facts which established the grounds for the third-degree murder convictions in this case also served as the basis for the homicide by vehicle while driving under the influence convictions. However, under Leon Williams, if the same facts are used to support convictions for crimes having different elements, then the crimes do not merge unless the same facts support convictions of lesser included offenses. Leon Williams, 521 Pa. at 563, 559 A.2d at 29. Thus, according to Leon Williams these crimes do not merge unless one is a lesser included offense of the other.

“[A]n offense is a lesser included offense if each and every element of the lesser offense is necessarily an element of the greater.” Commonwealth v. Wilds, 240 Pa.Super. 278, 287, 362 A.2d 273, 278 (1976). Because each and every element of homicide by vehicle while driving under the influence is not necessarily an element of third-degree murder, we conclude that the crimes do not merge for sentencing purposes.

With respect to Pigg’s remaining claim regarding the imposition of consecutive sentences, we note that Pigg has failed to file a motion for reconsideration of sentence and hence any claims relating to the discretionary aspects of sentencing are waived. See generally Commonwealth v. Smith, 375 Pa.Super. 419, 544 A.2d 991 (1988) (en banc). Accordingly, we will not address this issue.

Judgment of sentence affirmed.

      . Although attorney Teeter filed supplemental post-trial motions alleging the ambiguity of the trial court’s charge, such motions will not preserve a challenge to the charge which has not first been raised by objection in open court.

      . Pigg did not file a motion for reconsideration of sentence. However, the legality of multiple sentences, based on a claim that the convictions should have merged for sentencing, is not waived by the failure to raise it before the trial court. Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986), alloc. denied 517 Pa. 602, 536 A.2d 1327 (1987).

      . We have applied the Leon Williams test to the present case because the issue here is whether the same evidence supported convictions of crimes having different elements. As stated in the text, the holding in Leon Williams is where the same facts are used to support convictions for crimes having different elements, the crimes do not merge unless the crimes are lesser included offenses. Leon Williams, 521 Pa. at 563, 559 A.2d at 29. In the present case the evidence of Pigg’s drinking supported his conviction of homicide by vehicle while driving under the influence by establishing the grounds for the "violation of section 3731” element of section 3735. The evidence of Pigg’s drinking also supported his conviction of third-degree murder by establishing part of the conduct that gave rise to the inference of malice. Thus, the same evidence supported convictions of crimes having different elements.
      This case does not present an issue under Weakland, decided by the Supreme Court as a companion case to Leon Williams. In Weakland, the question was "whether facts in evidence additional to those facts establishing aggravated assault, should be used to satisfy the threat of force requirement of kidnapping.” Weakland, 521 Pa. at 363, 555 A.2d at 1233.


author: WIEAND, Judge:

text:
    571 A.2d 446
    Linda REMY and Michael Mentz, d/b/a Pharo’s Restaurant and Pizzeria v. MICHAEL D’S CARPET OUTLETS, Stan’s Carpets, Inc., a/k/a Laramie Corporation and Panelrama, Inc., and General Foam Corporation Appeal of MICHAEL D’S CARPET OUTLETS, Laramie Corporation, Stan’s Carpet, Inc., and Panelrama, Inc. KIMCO DEVELOPMENT CORPORATION, House of Bargains, Inc., P.A.C. Meat Markets, Inc., d/b/a Boffa Brothers Fine Meats, Fabric Center, Inc., Alfred Palmerio t/a Palmerio Hairstyling, and Bagel Bin, Inc. v. MICHAEL D’S CARPET OUTLETS and Laramie Corporation and Stan’s Carpet, Inc. and Panelrama, Inc., and General Foam Corporation Appeal of GENERAL FOAM CORPORATION. MICHAEL D’S CARPET OUTLETS v. GENERAL FOAM CORPORATION. KIMCO DEVELOPMENT CORPORATION; House of Bargains, Inc.; P.A.C. Meat Markets, Inc. d/b/a Boffa Brothers Fine Meats; Fabric Center, Inc.; Alfred Palmerio, t/a Palmerio Hairstyling; Bagel Bin, Inc., Appellants, v. MICHAEL D’S CARPET OUTLETS and Laramie Corporation a/k/a Stan’s Carpet, Inc. and Panelrama, Inc. and General Foam Corporation, Appellees. MICHAEL D’S CARPET OUTLETS, Appellant, v. GENERAL FOAM CORPORATION, Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 15, 1989.
    Filed March 12, 1990.

      Hugh M. Emory, Paoli, for Panelrama.
    Peter J. Taylor, Pittsburgh, for Gen. Foam.
    Elliott R. Feldman, Philadelphia for Kimco, House of Bargains, P.A.C. Meat Markets, Fabric Center, Alfred Palmerio and Bagel Bin.
    Geoffrey Veith, Philadelphia, for Michael D’s Carpet and Laramie Corp.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   WIEAND, Judge:

During the early morning hours of May 10, 1983, a fire broke out in the basement of Michael D’s Carpet Outlets (Michael D’s) in the Springfield Shopping Center, Delaware County. It consumed the Michael D’s store and severely damaged the shopping center, which was owned by Kimco Development Corporation (Kimco), as well as premises of several Kimco tenants. In an action against Michael D’s and General Foam Corporation (General Foam), the manufacturer of polyurethane foam carpet padding stored in Michael D’s basement, a jury found that the fire losses had been caused by the negligence of Michael D’s in carelessly storing the foam padding (80%) and of General Foam in failing to warn of the highly flammable nature of the foam padding (20%). In response to special interrogatories, the jury also found that Michael D’s had not been negligent for failing to install a sprinkler system and that General Foam’s product had not been defectively manufactured (there was no breach of warranty) or packaged but was defective because of a failure to warn of the product’s highly inflammable nature. Pursuant thereto, verdicts were recorded in favor of Kimco in the amount of $694,-193.44; in favor of House of Bargains, Inc., a tenant, in the amount of $42,520.50; in favor of P.A.C. Meat Markets, Inc., another tenant, in the amount of $22,711.32; in favor of Fabric Center, Inc., a third tenant, in the amount of $38,967.49; in favor of Palmerio Hairstyling, a fourth tenant, in the amount of $20,566.82; in favor of Bagel Bin, Inc., a fifth tenant, in the amount of $14,155.00; and in favor of Pharo’s Restaurant and Pizzeria, a final tenant, in the amount of $22,332.40. For purposes of our discussion, all claims will be included in the claim of Kimco. In a separate but consolidated action, a verdict was entered in favor of Michael D’s and against General Foam in the amount of $597,934.43, representing the full amount of Michael D’s fire loss. Post-trial motions filed by Michael D’s and General Foam were denied, and judgments were entered on the verdicts. These judgments are the basis for appeals by Michael D’s and General Foam. Petitions for delay damages by Kimco and Michael D’s were denied, and these denials are the basis for separate appeals.

The evidence showed that a short time before the fire, Michael D’s had received from General Foam a large shipment of polyurethane foam carpet padding. This foam padding had been stored from floor to ceiling in the basement of Michael D’s store, taking up almost all available basement space. There was evidence from which a jury could find that Michael D’s employees had general knowledge of the inflammatory quality of foam padding and that it was inadvisable to store the same in close proximity to open light bulbs. There was also evidence that the foam padding had been stored too close to ceiling light bulbs and that this had caused the foam padding to ignite. This evidence was sufficient to sustain the finding that Michael D’s had been negligent in causing the conflagration and resulting losses.

There was no evidence that the foam carpet padding had been defectively designed or manufactured. The jury also found that it had not been defectively packaged. There was evidence, however, that General Foam had failed to warn of the highly inflammatory nature of polyurethane foam padding. Thus, although Michael D’s had a general knowledge that the foam padding was flammable, it was contended by Kimco — and also by Michael D’s — that General Foam had failed to warn of the capacity of the foam padding for rapid and uncontrollable spread of fire after ignition. General Foam does not dispute that no such warning was given. The jury, in separate answers to special interrogatories, found that General Foam had been negligent in failing to give adequate warning and that the product was “defective” because of this failure to warn. Our review discloses no basis for disturbing these findings.

Even though a product is properly designed and manufactured, “it may be in an unreasonably dangerous defective condition if its manufacturer fails to warn the user or consumer of latent dangers in the use or operation of the product.” Conti v. Ford Motor Co., 743 F.2d 195, 197 (3rd Cir.1984) (applying Pennsylvania law), cert. denied, 470 U.S. 1028, 105 S.Ct. 1396, 84 L.Ed.2d 784 (1985). Inadequate warning of a dangerous propensity of the product may be a sufficient basis for imposing liability. Ellis v. Chicago Bridge & Iron Co., 376 Pa.Super. 220, 226, 545 A.2d 906, 909 (1988).

A “defective condition” is not limited to defects in design or manufacture. The seller must provide with the product every element necessary to make it safe for use. One such element may be warnings and/or instructions concerning use of the product. A seller must give such warning and instructions as are required to inform the user or consumer of the possible risks and inherent limitations of his product. Restatement (Second) of Torts § 402A, comment h. If the product is defective absent such warnings, and the defect is a proximate cause of the plaintiff’s injury, the seller is strictly liable without proof of negligence.
“Comment h to the section [402-A] makes it clear that a product, as to which adequate warning of danger involved in its use is required, sold without such warning is in a ‘defective condition.’ ” Incollingo v. Ewing, et al., 444 Pa. 263, 287, 282 A.2d 206, 219 (1971).

Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 100, 337 A.2d 893, 902 (1975).

“Where the theory of liability is failure to warn adequately, the evidence must be such as to support a reasonable inference, rather than a guess, that the existence of an adequate warning may have prevented the accident before the issue of causation may be submitted to the jury.” Conti v. Ford Motor Co., supra at 198. See also: Staymates v. ITT Holub Industries, 364 Pa.Super. 37, 527 A.2d 140 (1987). Michael D’s maintains that if it had been warned that proper storage methods would decrease the risk of fire, it would have taken necessary precautions to prevent the rapid spread of a fire. In reviewing the issue of causation, therefore, the proper focus of our inquiry is on additional precautions that might have been taken if there had been a warning. See: Powell v. J.T. Posey Co., 766 F.2d 131 (3rd Cir.1985). The factfinder must “consider not only what did occur, but also what might have occurred____ Such a determination as to what might have happened necessarily requires a weighing of probabilities.” Hamil v. Bashline, 481 Pa. 256, 269-270, 392 A.2d 1280, 1286-1287 (1978). Here, a jury could have found from the testimony that adequate warnings would have enabled Michael D’s to install a sprinkler system or compartmentalize the storage of foam padding in order to minimize the risk of conflagration. See: Petree v. Victor Fluid Power, Inc., 831 F.2d 1191 (3rd Cir.1987). Although Michael D’s conduct when warnings were given after the fire was a relevant consideration for the jury, the failure to install sprinkler systems in its replacement store did not determine as a matter of law that precautions would not have been taken if adequate warning had been received prior to the fire. A jury could find, therefore, that the failure to warn was a substantial factor in causing the conflagration.

Both Michael D’s and General Foam contend that they should have been granted a judgment n.o.v. because Kimco’s evidence regarding the cause of the fire was contradictory. We disagree. There is no rule of law which prevents a plaintiff from advancing alternate theories of liability. In this case, there was testimony by the fire marshall, who was called as an expert by Kimco, that the fire had been caused by an electrical failure. A similar conclusion was reached by experts produced by Michael D’s. However, other expert witnesses called by Kimco attributed the fire to a contact between stored foam carpet padding and an unshielded light bulb. This conflicting evidence was properly submitted to a jury. Whether the ignition was caused by electrical failure or by the overheating of foam padding, moreover, it is abundantly clear that the foam padding acted as an accelerant and caused the rapid spread of the fire into the all-consuming conflagration which destroyed the premises. The difference of opinion as to the cause of initial ignition between the fire marshall and Kimco’s other experts was not fatal to its case.

Michael D’s contends that the trial court erred when it permitted Dr. Kaczmarczik, Kimco’s expert, to be recalled as a rebuttal witness. His testimony, it is argued, was repetitive, cumulative and a restatement of the testimony which he had given during Kimco’s case in chief. Kimco argues, however, that Kaczmarczik’s testimony was proper to rebut the testimony of Michael D’s expert regarding electrical reactions.

As a general rule, rebuttal testimony is proper where it is offered to discredit the testimony of an opponent’s witnesses. Schoen v. Elsasser, 315 Pa. 65, 66-67, 172 A. 301, 302 (1934); McNair v. Weikers, 300 Pa.Super. 379, 386, 446 A.2d 905, 908 (1982). Whether to allow rebuttal evidence is within the discretion of the trial court. Murphy v. Philadelphia, 420 Pa. 490, 491, 218 A.2d 323, 324 (1966); Neal by Neal v. Lu, 365 Pa.Super. 464, 476, 530 A.2d 103, 110 (1987); Mapp v. Dube, 330 Pa.Super. 284, 294, 479 A.2d 553, 557 (1984). In this case, there was no abuse of discretion. The rebuttal testimony was offered to discredit Michael D’s expert witness, and although it was at times repetitive of prior testimony given by the same witness, there is therein no basis for awarding a new trial.

Both General Foam and Michael D’s cite as error the trial court’s refusal to instruct the jury to apportion liability between General Foam and Michael D’s. In McMeekin v. Harry M. Stevens, Inc., 365 Pa.Super. 580, 530 A.2d 462 (1987), the Superior Court specifically held that it was permissible for a trial court to have the jury determine by means of special interrogatories “what percentage [of causal fault] was attributable to a defect in the product and what percentage [of causal fault] was attributable to the negligence of the joint tortfeasor.” Id., 365 Pa.Superior Ct. at 593, 530 A.2d at 468-469. This is necessary because “[i]t would ... be less than equitable to require a fifty-fifty apportionment when the facts, as determined by a jury, clearly established that one of the joint tort-feasors had greater responsibility for causing the harm'than the other.” Id., 365 Pa.Superior Ct. at 588, 530 A.2d at 466. Cf. Svetz for Svetz v. Land Tool Co., 355 Pa.Super. 230, 513 A.2d 403 (1986).

In the instant case, the trial court instructed the jury to apportion negligence, and the jury responded by finding that General Foam’s causal negligence was twenty (20%) percent and Michael D’s causal negligence was eighty (80%) percent. The trial court expressly refused, however, to instruct the jury to apportion causal fault or liability. This was error. After a careful examination of the record, however, we are persuaded that the error was harmless and does not require a new trial.

The evidence, as we have already observed, did not show that the foam padding had been defectively designed, manufactured, or packaged. The jury, in response to special interrogatories, specifically found that General Foam had not breached any warranty of fitness and had not packaged its product in a defective manner. The only basis on which the jury could have found that General Foam had been negligent or responsible for a defective product was its failure to warn of the highly flammable nature of its product. This the jury did. It determined that General Foam had acted unreasonably when it failed to give adequate warning. As such, the jury found that General Foam was both negligent and strictly liable for a defective product. Its verdict can only be interpreted as equating General Foam’s failure to give adequate warning with negligence.

This is readily understandable. Although there is contrary language in some decisions, most authorities have been forced to concede that in practice a determination of the adequacy of warnings can be made only by borrowing from negligence concepts. Thus, Dean Keeton has written:

[A] product may be defective as marketed because of a failure to adequately warn, or a failure to use proper means to warn about a risk or hazard related to the way the product was designed____ [Liability is imposed on the ground that the seller or manufacturer failed adequately to warn about some risk or hazard, or failed adequately to instruct about how to avoid the risk or harm. Under this approach, the product is allegedly defective as marketed because of the failure to properly present it to purchasers and users.
Notwithstanding what some courts have said, in establishing this ground of recovery, the plaintiff in most states must prove negligence in the failure to warn properly. There will be no liability in these cases without a showing that the defendant knew or should have known of the risk or hazard about which he failed to warn. Moreover, there will be no liability unless the seller or manufacturer failed to take the precautions that a reasonable person would take in presenting the product to the public.
Although this ground of recovery is sometimes referred to as strict liability, it is really nothing more than a ground of negligence liability better described as the sale of a product in a defective condition.

W. Keeton, The Meaning of Defect in Products Liability Law — A Review of Basic Principles, 45 Mo.L.Rev. 579, 586-587 (1980).

Thus, when the jury found, in accordance with the trial court’s instructions, that General Foam’s causal negligence was twenty (20%) percent, its liability for a defective product was of necessity determined also to be twenty (20%) percent. We hold, therefore, that contribution between General Foam and Michael D’s, joint tortfeasors, must be apportioned on the basis of the jury’s findings that the ratio of negligence was 20%-80%.

Logic and simple fairness would seem to suggest that the same apportionment should be applied in determining General Foam’s liability for Michael D’s fire loss. The current state of the law in Pennsylvania, however, is to the contrary. In McCown v. International Harvester Co., 463 Pa. 13, 342 A.2d 381 (1975), the Supreme Court specifically rejected contributory negligence as a defense in product liability actions based on Section 402A of the Restatement (Second) of Torts. This decision preceded the enactment of Pennsylvania’s Comparative Negligence Law, 42 Pa.C.S. § 7102, which became effective June 27, 1978, and the Supreme Court has not subsequently considered the effect of the Comparative Negligence Law on its holding in McCown. Nevertheless, the Supreme Court has remained steadfast in its refusal to allow the concept of strict products liability to become contaminated by negligence principles. See: Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590 (1987); Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978); Berkebile v. Brantly Helicopter Corp., supra. Believing that the “Pennsylvania Supreme Court, perhaps more than any other state appellate court in the nation, has been emphatic in divorcing negligence concepts from product liability doctrine,” the Superior Court has declined to follow sister states in holding comparative negligence principles applicable to cases of strict products liability. Staymates v. ITT Holub Industries, 364 Pa.Super. 37, 45, 527 A.2d 140, 144 (1987), citing Conti v. Ford Motor Co., 578 F.Supp. 1429, 1434 (E.D.Pa.1983). Thus, the law in this Commonwealth remains that the comparative fault of a plaintiff is irrelevant in products liability cases unless there has been an assumption of the risk, in which event there is a total defense. It follows that the trial court did not err when it refused to mold the verdict on Michael D’s claim in accordance with the provisions of the Pennsylvania Comparative Negligence Act.

Subrogation is an equitable doctrine; and, therefore, equitable principles apply in determining whether subrogation is available. By definition, subrogation can arise only with respect to the rights of an insured against third persons to whom the insurer owes no duty. Keystone Paper Converters, Inc. v. Neemar, Inc., 562 F.Supp. 1046 (E.D.Pa.1983). It follows and, indeed, is now well established that an insurer cannot recover by means of subrogation against its own insured. Keystone Paper Converters, Inc. v. Neemar, Inc., supra; Employers of Wausau v. Purex Corp., 476 F.Supp. 140 (E.D.Pa.1979); Turner Const. Co. v. John B. Kelly Co., 442 F.Supp. 551 (E.D.Pa.1976). Michael D’s contends, therefore, that Kimco’s action against it, which in reality is a claim by Kimco’s insurer to enforce subrogation rights, cannot be maintained because Michael D’s is an implied co-insured with Kimco under Kimco’s policy of fire insurance.

We reject this argument, as did the trial court. An argument that Michael D’s is a co-insured is not supported by the terms of Kimco’s fire insurance policy. The provisions of the lease, moreover, did not require Kimco, the landlord, to purchase fire insurance for the protection of Michael D’s, the tenant. The lease provisions, however, did require specifically that Michael D’s purchase and maintain its own liability insurance, including coverage for property damage. Under these circumstances, there is neither rule of law nor principle of equity which prevents the landlord or its fire insurance carrier from recovering against a tenant whose negligence has caused fire damage to the landlord’s premises. See: Turner Construction Co. v. John B. Kelly Co., supra. Michael D’s did not become a co-insured with its landlord merely because of lease provisions requiring the landlord to re-build in the event the demised premises were destroyed by fire. Neither were the subrogation rights of the landlord’s fire insurance carrier impaired by the language of the lease which excused the tenant from liability for damage by “unavoidable casualty ... to the extent that the same [was] covered by [Kimco’s] fire insurance policy.” The casualty in this case, as the jury found, was not unavoidable. Thus, there is here no bar to a third party tort action by Kimco or its fire insurance carrier, which stands in the shoes of its insured, against Michael D’s for fire damage caused by Michael D’s negligence.

The trial court found that the delays in the case were not caused by any of the parties and, in reliance upon Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), denied requests for delay damages. Pa.R.C.P. 238 was thereafter amended by the Supreme Court and was made applicable to cases then pending. See: Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989); Ceresini v. Valley View Trailer Park, Ephrata, Inc., 380 Pa.Super. 416, 552 A.2d 258 (1988), overruled on other grounds by Snelsire v. Moxon, 384 Pa.Super. 85, 557 A.2d 785 (1989) and King v. SEPTA, 383 Pa.Super. 420, 557 A.2d 11 (1989). Accord: Mathis v. United Engineers & Constructors, Inc., 381 Pa.Super. 466, 554 A.2d 96 (1989); Staats v. Noll, 381 Pa.Super. 162, 553 A.2d 85 (1989). Under amended rule 238, a plaintiff is entitled to damages for delay unless (1) a requisite offer, as therein defined, was made, or (2) the plaintiff was responsible for specified periods of time for which the trial was delayed. See: Schrock v. Albert Einstein Med. Center, 386 Pa.Super. 215, 562 A.2d 875 (1989); Modrick v. B.F. Goodrich Co., 383 Pa.Super. 498, 557 A.2d 363 (1989), overruled on other grounds by King v. SEPTA, supra; Sherrill v. Port Authority of Allegheny County, 383 Pa.Super. 104, 556 A.2d 450 (1989); Miller v. Wise Business Forms, Inc., supra. It is necessary, therefore, that we remand for a reconsideration of claims made by Kimco and Michael D’s for delay damages. These claims must be determined in accordance with amended Pa.R.C.P.238.

The judgments are affirmed. The cases are remanded, however, (1) for the entry of an order awarding contribution in accordance with the foregoing opinion, and (2) to permit the trial court to reconsider petitions for delay damages filed by the several claimants. Jurisdiction is relinquished.

      . A majority of the panel in this case is of the opinion that the better view would be to construe the comparative negligence statute as a comparative fault statute. This, we believe, is consistent with the intent of the legislature. See: Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 87-89, 485 A.2d 408, 442-443 (1984) (Dissenting Opinion by Wieand, J.).

      . The defendants argue that the amended Pa.R.C.P. 238 is grossly unfair. This is an argument which should more properly be made to the Supreme Court which adopted the rule.