author: CERCONE, Judge:

text:
    574 A.2d 1078
    COMMONWEALTH of Pennsylvania v. Ronald RINK, Appellant.
    Superior Court of Pennsylvania.
    Argued March 6, 1990.
    Filed May 2, 1990.

      Daniel M. Preminger, Philadelphia, for appellant.
    Kathy Echteruacht, Asst. Dist. Atty., Philadelphia, for Com.
    Before McEWEN, 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.

Appellant, Ronald Rink, was convicted, after a jury trial, of one (1) count of criminal conspiracy, one (1) count of simple assault, two (2) counts of ethnic intimidation, and two (2) counts of terroristic threats. Post-trial motions were denied. Appellant was sentenced to consecutive sentences of one (1) to five (5) years on each of the two counts of ethnic intimidation and one (1) to five (5) years on criminal conspiracy. A petition for reconsideration of sentence was refused.

The events underlying appellant’s conviction, as summarized by the trial court, are as follows. William and Mary Snow and their four children had been living at 4328 Wain Street in the lower Frankford section of the city for two (2) years. They were the only black family in the neighborhood. On November 6,' 1987, at about 10:00 P.M., Mr. Snow was driven home by his friend Al Bendzynski, a co-worker, with whom he intended to share the six pack of beer he had brought home with him. There was a crowd of teenagers across the street in front of the Snow residence playing a radio loudly. Mr. Snow asked them to hold the noise down. Moments after entering his home, Mr. Snow heard a knock at the front door. The group of teenagers was now at his front steps. Believing his wife and children to be asleep upstairs, he shut the door behind him to confront the knocker. A two-by-four hit him at the thigh, knocking him off the step. Armed with sticks, the crowd of about sixteen or seventeen white youths then started to pummel him on the arms, head, and body. They threw objects at his home, breaking windows. Appellant was urging the group to “kill the nigger; get him.”

When Mrs. Snow came to the door, her husband was on the ground surrounded by a group of young white males, wielding two-by-fours, some holding on to her husband, others tossing beer bottles at them and the house, cussing, yelling that they hated niggers, and “kill a couple of ... niggers.” Prominent in the group, holding a board and urging the group to “kill the niggers” was the appellant. The appellant punched Mrs. Snow and called her a “bitch” and “nigger.” The crowd of youths disbursed as the police arrived on the scene. At the end of it all, Mr. Snow was bleeding, suffering from contusions of arms, legs, and body. The housefront was in shambles with both first and second floor windows shattered including the windows of the living room located six feet behind the porch windows.

Appellant raises the following five issues for our review: (1) whether the evidence was insufficient as to the offense of ethnic intimidation; (2) whether the evidence was insufficient as to the offense of criminal conspiracy; (3) whether the lower court erred in refusing to permit appellant to show that his alleged co-conspirators had been acquitted of the charges which arose out of the incident for which appellant was being tried; (4) whether the trial court erred by sentencing appellant on two charges of ethnic intimidation; and (5) whether trial counsel rendered ineffective assistance.

The standard by which we review a challenge to the sufficiency of the evidence is well established. The evidence must be viewed in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine if the jury could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989). In Commonwealth v. Mudrick, 510 Pa. 305, 507 A.2d 1212 (1986), our supreme court further stated that: “When reviewing the sufficiency of the evidence, an appellate court may not substitute its judgment for the jury’s.” Id. 510 Pa. at 307-08, 507 A.2d at 1213 (quoting Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982) cert. denied 460 U.S. 1043, 103 S.Ct. 1440, 75 L.Ed.2d 797 (1983)).

Ethnic intimidation is defined in 18 Pa.C.S.A. § 2710 as:

(a) Offense defined. — A person commits the offense of ethnic intimidation if, with malicious intention toward the race, color, religion or national origin of another individual or group of individuals, he commits an offense under any other provision of this article or under Chapter 33 (relating to arson, criminal mischief and other property destruction) exclusive of section 3307 (relating to institutional vandalism) or under Section 3503 (relating to harassment by communication or address) with respect to one or more members of such group or to their property.
(c) Definition. — As used in this section “malicious intention” means the intention to commit any act, the commission of which is a necessary element of any offense referred to in subsection (a) motivated by hatred toward the race, color, religion or national origin of the individual or group of individuals.

Appellant alleges that the underlying incident was not motivated by hatred of the Snows’ race, but was the result of Mr. Bendzynski tapping one of the teenagers on the cheek. Allegedly, when the co-workers arrived at Mr. Snow’s home, Mr. Bendzynski engaged in a friendly discussion about football with the group of teenagers. At the conclusion of the discussion and after a handshake, Mr. Bendzynski purportedly gave one of the teenagers a friendly pat on the cheek. Appellant contends that the teenager was offended by this action and went to Mr. Snow’s house to seek an apology from Mr. Bendzynski.

While there is testimony to support appellant’s theory, viewing the testimony in the light most favorable to the Commonwealth, we find overwhelming testimony that Mr. Snow, and not Mr. Bendzynski, suffered the consequences of the teenagers’ actions. Not only were both Mr. and Mrs. Snow assaulted, but also their house was vandalized. Neither Mr. Bendzynski nor his car, which was sitting right outside the victims’ home, was touched. Mr. Bendzynski even admitted at trial that the teenagers did not seem to want him, but were after Mr. Snow. Further, no ethnic slurs were hurled at Mr. Bendzynski, but rather the teenagers directed all of their aspersions at the Snows. We are not persuaded by appellant’s rationalization that the ethnic epithets were not racially motivated but were the result of emotionally charged behavior. Finding no merit to appellant’s arguments, we affirm the trial court’s decision on this issue.

Appellant’s second contention is that the evidence was insufficient as to the offense of criminal conspiracy. Appellant specifically contends that the evidence proffered established only his mere presence at the scene of the altercation. Our review of the record, however, reveals otherwise.

Under 18 Pa.C.S.A. § 903, criminal conspiracy is defined, in relevant part, as follows:

(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

Furthermore, we have explained:

[a]n explicit or formal agreement to commit crimes can seldom be proved and it need not be, for proof of a criminal partnership may be extracted from circumstances that surround the crime. A conspiracy may be proven inferentially by showing the relation, conduct, or circumstances of the parties, and the overt acts of alleged co-conspirators are competent as proof that criminal confederation has in fact been formed. It follows that shared criminal intent may likewise be proven circumstantially.

Commonwealth v. Cruz Ortega, 372 Pa.Super. 389, 393, 539 A.2d 849, 852 (1988) (citation and quotation marks omitted).

In the instant case, the record clearly supports the jury’s imposition of guilt as to the criminal conspiracy offense. Appellant’s contention that this was a spontaneous event at which he happened to be present, is belied by the record. Not only was appellant present with the group of teenagers, but he was actively involved in striking both Mr. and Mrs. Snow, in encouraging the continuation of the confrontation, and in shouting the racial epithets. Further, the testimony found credible by the jury was that several of the the teenagers, including appellant, were at the door already armed. Finding no merit to appellant’s arguments, we affirm the decision of the trial court on this issue.

The third argument presented for our review is that the lower court erred in refusing to permit appellant to show that his alleged co-conspirators had been acquitted of the charges which arose out of the incident for which appellant was being tried. We initially note that admissibility of evidence is within the sound discretion of the trial court and appellate courts may reverse only upon a showing that the trial court abused its discretion. Commonwealth v. Wallace, 522 Pa. 297, 561 A.2d 719 (1989). We find no such abuse of discretion in the instant case.

Appellant alleges that it was prejudicial error to admit evidence of the fact that the other teenagers with appellant were arrested. To alleviate the prejudice, appellant claims that he should have been able to testify that his cohorts were acquitted of the charges which arose out of this incident. In support of his contention, appellant relies on our supreme court’s decision in Commonwealth v. Meredith, 493 Pa. 1, 425 A.2d 334 (1981). Our examination of the record, however, discloses that appellant’s reliance on the Meredith case is misplaced. As discussed more fully below, our supreme court’s holding represents a narrow exception to the general rule that evidence of the verdict in a co-conspirator’s case is inadmissible.

Along with four other individuals, the appellant in the Meredith case was arrested for murder. One of those individuals, Geraldine Stetler, was tried and acquitted prior to appellant’s trial. During the course of appellant’s trial, the Commonwealth repeatedly presented the details of Ms. Stetler’s involvement. Ms. Stetler was called as a defense witness to support appellant’s version of the events leading up to the decedent’s demise. At the end of Ms. Stetler’s testimony, appellant sought to disclose the fact that Ms. Stetler was acquitted in a separate trial of the same charges that the the defendant Meredith faced. The trial court refused appellant’s request because it deemed this information irrelevant. Our supreme court reversed, stating that the Commonwealth’s presentation of evidence impaired, if not destroyed the value of Ms. Stetler’s testimony.

The facts in the instant case are easily distinguishable from the facts in the Meredith case. In the case presently before us, none of the other teenagers from the group were presented as defense witnesses. Their testimony was not subject to impairment. Our supreme court in Meredith held that where there is evidence which tends to show that a defense witness is an accomplice, the defense may introduce evidence of the witness’s acquittal, for the limited purpose of restoring the value of the defense witness’s testimony. Commonwealth v. Meredith, id. 493 Pa. at 10, 425 A.2d at 339. These circumstances clearly do not exist in the instant case. Appellant was free to introduce the testimony of any one of his co-conspirators. If the Com.monwealth had impeached that testimony by making reference to the fact that the particular witness was arrested along with appellant, then the defense could have introduced evidence of his acquittal to rehabilitate the witness’s testimony. Since none of the co-conspirators testified on appellant’s behalf in the instant case, we find no abuse of the trial court’s discretion in not permitting this testimony.

In further support of our ruling, the trial court accurately points out that there were numerous references to the fact that there were other actors besides the appellant involved in the fracas. Finally, appellant was charged with conspiracy. The very nature of the offense of conspiracy infers that there were others arrested. Thus, the Commonwealth’s limited reference to the others being arrested did not disclose anything that the jury did not already know. We find no prejudice to appellant as a result of passing reference to the fact that other teenagers were also arrested.

Appellant’s fourth issue is that the trial court erred by sentencing him on two charges of ethnic intimidation. Initially, we note that appellant is questioning the legality of sentencing. 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 (1983).

A legality issue is essentially a claim that the trial court did not have jurisdiction to impose the sentence that it handed down. A trial court ordinarily has jurisdiction to impose any sentence which is within the range of punishments which the legislature has authorized for the defendant’s crimes. Commonwealth v. Smicklo, 375 Pa.Super. 448, 453, 544 A.2d 1005, 1008 (1988) (en banc) quoting, Commonwealth v. Smith, 375 Pa.Super. 419, 426, 544 A.2d 991, 994 (1988) (en banc). Because the statute is penal in nature, it must be strictly construed. Commonwealth v. Wooten, 519 Pa. 45, 545 A.2d 876 (1988); Statutory Construction Act, 1 Pa.C.S.A. § 1928(b)(1).

In support of his argument that his sentence is illegal, appellant relies on our supreme court’s decision in Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984). In Frisbie, the Pennsylvania Supreme Court held that in resolving an issue of whether a single act which injures multiple victims can be the basis for multiple sentences, the task of the court is to determine whether the legislature intended that each injury would be punished as a separate offense. Id. 506 Pa. at 466, 485 A.2d at 1100.

Appellant, in the instant case, argues that even though there were two individuals that were the subject of the racial slurs, there was a single act. Reviewing the language of the crimes code, appellant asserts that the legislature intended to preclude multiple punishments since it is worded to include “individual or group of individuals.” The Commonwealth, argues to the contrary that: (1) appellant is relying on dicta; and (2) the Frisbie case is distinguishable in that its facts involve a single act while in the case presently before us, appellant engaged in separate acts of racial intimidation by shouting racial epithets at each of the Snows.

In resolving this issue, we initially note that appellant is not relying on dicta. See Commonwealth v. DeSumma, 522 Pa. 36, 559 A.2d 521 (1989) (applying the Frisbie rationale to determine that a charge of attempting to put one victim, the driver of a car, in fear of bodily injury is a different offense than a charge of attempting to put the driver and his four passengers in fear of bodily harm such that it was impermissible to allow the Commonwealth to amend the criminal complaint at trial to include the victims of assault who were not named in the original complaint); Commonwealth v. Rozplochi, 385 Pa.Super. 357, 561 A.2d 25 (1989) (applying the Frisbie rationale to determine whether a defendant commits multiple robberies if he threatens two people while attempting to steal the property of their common employer). Nonetheless, we agree with the Commonwealth that the facts of this case are distinguishable in that unlike the facts in Frisbie, the facts in the instant case do not involve a single act.

Appellant’s first act involved urging the crowd of teenagers to “kill the nigger; get him” when Mr. Snow initially came out of his house. We find that on these facts and the other circumstances more fully set forth in the record, appellant engaged in ethnic intimidation as to Mr. Snow. There was no need for him to engage in any further activity to complete the offense of ethnic intimidation. However, rather than leaving the premises, appellant’s engaged in a second act of ethnic intimidation. This occurred when Mrs. Snow came out of the house. Upon her appearance, appellant, inter alia, called Mrs. Snow a “nigger,” was urging the crowd to “kill a couple of ... niggers,” and was party to the crowd that was assaulting Mr. Snow. Thus, appellant engaged in two separate acts of ethnic intimidation. If both Mr. and Mrs. Snow had been present when appellant and the other hoodlums began their melee, we would be inclined to rule to the contrary, However, under the circumstances of this case, we find that our supreme court’s decision in Frisbie is not controlling.

Appellant’s last issue is whether trial counsel was ineffective: (1) for failing to raise the issue of legality of sentencing; and (2) for failing to raise the argument now presented as to the trial court’s refusal to allow appellant to introduce evidence of the prior acquittal of the other teenagers involved in the underlying acts. Claims of ineffectiveness of counsel are subject to a three part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989) (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)). The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Chin, 373 Pa.Super. 163, 540 A.2d 573 (1988). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Silo, 509 Pa. 406, 502 A.2d 173, (1985); Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421 (1989). We decline to address appellant’s final issue. Appellant has not been prejudiced as to either claim of ineffectiveness. Since we found no merit to either of appellant’s bases of ineffectiveness, trial counsel was not ineffective for raising a merit-less argument. Id.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 903.

      . Id. § 2701.

      . Id. § 2710.

      . Id. § 2706.

      . While the trial court makes reference to prior incidents of racism against the Snows, our review of the record does not reveal any testimony to support this characterization of the facts. Nonetheless, this misstatement of the Snow’s experiences in the neighborhood does • not effect our decision in this case.

      . The Commonwealth asked appellant the following question on cross-examination:
      Q: How many other persons other than you were arrested?
      A: I believe maybe eight, seven, eight.

      . As Judge Beck stated in Commonwealth v. Rozplochi, 385 Pa.Super. 357, 363-64 n. 4, 561 A.2d 25, 28 n. 4 (1989):
      Justice Papadakos has expressed the view that Commonwealth v. Frisbie may have been implicitly overruled by the Pennsylvania Supreme Court’s decision in Commonwealth v. Weakland, [521] Pa. [353], 555 A.2d 1228 (1989). See Id. [521 Pa.] at [365], 555 A.2d [at] 1234 (Papadakos, J. concurring and dissenting). However, the Court recently cited Commonwealth v. Frisbie with approval in Commonwealth v. DeSumma, [522] Pa. [36], 559 A.2d 521 (Pa. 1989). We conclude that Commonwealth v. Frisbie has not been overruled.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    574 A.2d 1084
    William and Pauline TAYLOR, Appellants, v. The CELOTEX CORPORATION, Eagle-Picher Industries, Inc., The Keene Corporation, Owens-Illinois, Inc. and Pittsburgh-Corning Corporation, Appellees. William TAYLOR and Pauline Taylor, H/W, Appellees, v. The CELOTEX CORPORATION, Eagle-Picher Industries, Inc., The Keene Corporation, Owens-Illinois, Inc. and Pittsburgh-Corning Corporation, Appellants.
    Superior Court of Pennsylvania.
    Argued Aug. 16, 1989.
    Filed May 7, 1990.

      Suzanne Reilly, Philadelphia, for appellants (at 2592) and appellees (at 739).
    Vincent D. Duke, Philadelphia, for appellants (at 739) and appellees (at 2592).
    Before WIEAND, BECK and MONTGOMERY, JJ.
   WIEAND, Judge:

In December, 1980, William Taylor and his wife, Pauline, residents of New Jersey, filed a civil lawsuit in the Court of Common Pleas of Philadelphia County in which they sought to recover damages for injuries allegedly suffered by Taylor as a result of long term occupational exposure to asbestos during approximately forty years of employment in the shipbuilding industry at the New York Shipyard in Camden, New Jersey, and the Philadelphia Naval Shipyard. This action, based on theories of negligence and strict liability, named as defendants numerous manufacturers and suppliers whose asbestos products were alleged to have caused Taylor to develop asbestosis and other related ailments. A claim for loss of consortium was also asserted on behalf of Mrs. Taylor. Prior to trial, settlements were reached with the following named defendants: Raybestos Manhattan, Inc.; Forty-Eight Insulation, Inc.; Nicolet Industries, Inc.; GAF Corp.; H.K. Porter Co., Inc. & Southern Asbestos Co.; Garlock, Inc. — Precision Seal Division; U.S. Rubber Co. & Uni-Royal, Inc.; and Owens-Corning Fiberglas Co., Inc. Additionally, Johns-Manville Corp. & Johns-Manville Sales Corp., UNARCO Industries, Inc., Pacor, Inc., and Amatex Corp., who had been named as defendants, filed for protection under Chapter Eleven of the Bankruptcy Code, and the causes of action against these defendants were stayed.

Trial in this matter commenced before a jury on November 18, 1986 against the remaining defendants, who are now the appellants, Celotex Corp., Eagle-Picher Industries, Inc., Keene Corp., Owens-Illinois, Inc., and Pittsburgh-Corning Corp. The case was tried on issues of liability and damages pursuant to the substantive law of New Jersey, and this has not been challenged. On December 3, 1986, the jury returned a verdict awarding Taylor compensatory damages in the amount of eight hundred thousand ($800,000) dollars and damages for loss of consortium in the amount of one hundred thousand ($100,000) dollars. In response to specific interrogatories, the jury apportioned fault among eighteen different companies, including not only the defendant/appellants, but also defendants who had settled or gone into bankruptcy. Causal fault for Taylor’s illness was apportioned by the jury equally among the eighteen companies at 5.5% each.

After the verdict had been returned, defendant/appellants filed a post-trial motion for judgment n.o.v. and/or a new trial, or alternatively for a remittitur. The plaintiff/appellees filed a petition for delay damages, and both sides filed motions to have the verdict molded. Thereafter, the trial court denied defendant/appellants’ post-trial motions and refused to award delay damages on the ground that plaintiff/appellees’ petition therefor had been untimely filed. In its post-trial opinion, the trial court, without explanation, molded the verdict to five hundred thousand ($500,000) dollars. Judgment was entered on the verdict on February 7, 1989 and defendant/appellants have appealed therefrom, raising the following issues for our review:

1. Whether the trial court erred in permitting plaintiffs’ case to be decided by the jury where plaintiffs failed to prove that any specific products of defendants had caused husband-plaintiff’s injuries?
2. Whether the trial court erred in admitting plaintiffs’ expert testimony on state of the art issues where the proffered witness did not possess relevant expertise; where the witness’s testimony rested on inadmissible hearsay; where the testimony was speculative; and where the subject of the testimony went to the ultimate issues in the case, in an area where laymen were competent to render their own judgments?
3. Whether the trial court erred in permitting plaintiffs’ medical expert to testify beyond the scope of his pre-trial report?
4. Whether the trial court erred in refusing to permit defendants to elicit testimony on plaintiff’s coronary disease and its impact on his symptomology from a qualified defense expert physician?
5. Whether the trial court erred in failing to order a mistrial, or, alternatively, in denying a motion for a new trial where plaintiffs’ counsel addressed the jury in an inflammatory fashion, arguing facts not in the record and causes of action not before the jury?
6. Whether the trial court erred in charging the jury that it could not apportion plaintiffs’ damages where there was a reasonable basis for doing so?
7. Whether the trial court erred in refusing a remittitur?
8. Whether the trial court erred in its molding of the verdict?

In addition, plaintiff/appellees have filed a cross-appeal in which they assert that “the trial court abused its discretion by dismissing a petition for delay damages filed nine days post-verdict, instead of five days as specified in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986).” We will address these issues seriatim.

I

The first issue raised by defendant/appellants challenges the trial court’s denial of their motion for judgment n.o.v. on the ground that plaintiff/appellees failed to prove that Taylor’s injuries had been specifically caused by products which they manufactured. To resolve this claim, we apply the following standard of review:

In considering the sufficiency of the evidence to sustain the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences, and determine only whether the evidence introduced at trial was sufficient to sustain the verdict. Curran v. Stradley, Ronon, Stevens & Young, 361 Pa.Super. 17, 24, 521 A.2d 451, 454 (1987). See also: Laniecki v. Polish Army Veterans Assoc., 331 Pa.Super. 413, 417, 480 A.2d 1101, 1103 (1984).

Cooper v. Burns, 376 Pa.Super. 276, 280-281, 545 A.2d 935, 937 (1988). See also: Lopa v. McGee, 373 Pa.Super. 85, 540 A.2d 311 (1988); Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474 (1984), aff'd, 511 Pa. 402, 515 A.2d 517 (1986).

Appellants rely on the decision of the Pennsylvania Superior Court in Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1988), in support of their contention that plaintiff/appellees failed to establish at trial that their asbestos products caused the injuries suffered by Mr. Taylor. In Eckenrod, the Court upheld the grant of a summary judgment against the plaintiff in a products liability action on the ground that the plaintiff had failed to present any evidence to establish that injury had been caused by the asbestos products of a particular manufacturer or supplier. The Court reasoned:

In order for liability to attach in a products liability action, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). Additionally, in order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product. Wible v. Keene Corporation, No. 86-4451 Slip op. (E.D.Pa. August 19, 1987) [available on WESTLAW, 1987 WL 15833]; Anastasi v. Pacor, Inc., No. 6251 (C.P. Phila. Co., March 8, 1983) aff'd 349 Pa.Super. 610, 503 A.2d 44 (1985). Therefore, a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product’s use. Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985). Summary judgment is proper when the plaintiff has failed to establish that the defendants’ products were the cause of plaintiff’s injury. See Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).

Eckenrod v. GAF Corp., supra at 190-191, 544 A.2d at 52.

In a products liability action in New Jersey, however, “[a] claimant need only demonstrate that at the time it was sold the product was defective, and that the defect caused injury.” Huddell v. Levin, 537 F.2d 726, 734 (3d Cir.1976) (emphasis added). See also: Whitehead v. St. Joe Lead Co., Inc., 729 F.2d 238, 246 (3d Cir.1984); Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 205-210, 485 A.2d 305, 309-311 (1984); Scanlon v. General Motors Corp., 65 N.J. 582, 589-591, 326 A.2d 673, 677 (1974); Manieri v. Volkswagenwerk A. G., 151 N.J.Super. 422, 430-432, 376 A.2d 1317, 1322 (1977). The trial court must make the threshold determination “whether, under the circumstances, there is sufficient proof on the issues of defectiveness and causation to submit the case to the jury.” Huddell v. Levin, supra at 734-735. We additionally observe that “the New Jersey cases manifest a policy liberally favoring jury resolution of defectiveness issues, as well as causation issues, in products liability cases.” Huddell v. Levin, supra at 736, citing Moraca v. Ford Motor Co., 66 N.J. 454, 332 A.2d 599 (1975); Newmark v. Gimbel’s Inc., 54 N.J. 585, 258 A.2d 697 (1969); Cintrone v. Hertz Truck Leasing, 45 N.J. 434, 212 A.2d 769 (1965). With regard to causes of action for negligence, New Jersey law imposes a similar requirement that the plaintiff establish that the defendant’s negligent conduct was the proximate cause of the plaintiff’s injuries. See: Lamb v. Barbour, 188 N.J.Super. 6, 11-13, 455 A.2d 1122, 1125 (1982) (proximate cause established when negligent conduct is a substantial contributing factor in causing injury). See also: State Department of Environmental Protection v. Jersey Central Power & Light Co., 69 N.J. 102, 109-112, 351 A.2d 337, 341-342 (1976); Ettin v. Ava Truck Leasing, Inc., 53 N.J. 463, 483-485, 251 A.2d 278, 289 (1969).

In jurisdictions where actions against manufacturers and suppliers of asbestos products are grounded upon traditional tort principles of negligence, strict liability and breach of warranty, the burden of proving causation in fact is placed on the plaintiff. See: Comment, Special Project: An Analysis of the Legal, Social and Political Issues Raised by Asbestos Litigation, 36 Vand.L.Rev. 573, 608 (1983). Therefore, courts in these jurisdictions “have refused to impose liability on a defendant product manufacturer when the plaintiff could not trace his injury to the defendant’s products.” Id. at 608. “To prove causation in fact, the plaintiff customarily must identify both the product that injured him and that product’s manufacturer.” Id. at 609,, See: An-not., Products Liability: Necessity and Sufficiency of Identification of Defendant as Manufacturer or Seller of Product Alleged to Have Caused Injury, 51 A.L.R.3d 1344 (1973). See, e.g.: Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986); Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480 (11th Cir.1985); Thompson v. Johns-Manville Sales Corp., 714 F.2d 581 (5th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1598, 80 L.Ed.2d 129 (1984); Richards v. Raymark Industries, Inc., 660 F.Supp. 599 (E.D.Pa.1987); Starling v. Seaboard Coast Line Railroad Co., 533 F.Supp. 183 (S.D.Ga.1982); Flatt v. Johns-Manville Sales Corp., 488 F.Supp. 836 (E.D.Tex.1980); Case v. Fibreboard Corp., 743 P.2d 1062 (Okl.1987); Ward v. Celotex Corp., 479 So.2d 294 (Fla.App.1985); Wilder v. Amatex Corp., 314 N.C. 550, 336 S.E.2d 66 (1985).

The law in New Jersey appears to be in conformity with these authorities. Thus, in Namm v. Charles E. Frosst & Co., 178 N.J.Super. 19, 427 A.2d 1121 (1981), the Superior Court of New Jersey held that a plaintiff who was seeking to recover damages resulting from the use of the drug DES was required to identify the manufacturer or distributor of the specific drug which caused injury. In Namm, the plaintiff had sued forty-four pharmaceutical manufacturers but was unable to identify which defendant had manufactured the product which had caused her injuries. As a result, the trial court granted summary judgment in favor of all defendants. On appeal the plaintiff argued that the burden of proving causation should be shifted to the defendants under theories of alternative liability or enterprise liability. The Superior Court of New Jersey rejected both theories of liability proffered by the plaintiff, and stated the applicable law in the following manner:

“It is a fundamental principle of products liability law that a plaintiff must prove, as an essential element of his case, that the defendant manufacturer actually made the particular product which caused injury.” Gray v. U.S., 445 F.Supp. 337, 338 (S.D.Tex.1978); 1 Hursh & Bailey, American Law of Products Liability 2d, § 1:41 (1974); 63 Am.Jur.2d Products Liability, § 5 at 12 (1972); e.g., Scanlon v. General Motors Corp., 65 N.J. 582, 590, 326 A.2d 673 (1974); Annotation, “Identity of Manufacturer of Defective Part,” 51 A.L.R.3rd 1344, 1351.

Namm v. Charles E. Frosst & Co., supra 178 N.J.Super. at 27, 427 A.2d at 1125. See also: Herber v. Johns-Manville Corp., 785 F.2d 79, 87 (3d Cir.1986) (plaintiffs testimony identifying defendant’s logo on bag of asbestos cement was sufficient evidence to support a finding that he had been exposed to defendant’s products even in the absence of express evidence relating to defendant’s trademark); Kelly v. Johns-Manville Corp., 590 F.Supp. 1089, 1101 (E.D.Pa. 1984) (applying New Jersey law, summary judgment granted in favor of manufacturer where plaintiff failed to produce direct evidence that he was exposed to defendant’s asbestos products; plaintiff’s identification of generic types of asbestos products was not sufficient to allow a jury to conclude that he had been exposed to a particular manufacturer’s products); Butler v. PPG Industries, Inc., 201 N.J.Super. 558, 561-563, 493 A.2d 619, 620-621 (1985) (testimony of plaintiff and a co-worker was sufficient to meet burden of proving that the caustic soda causing plaintiff’s injuries had been manufactured by defendant where both identified photograph of barrel with defendant’s label on it as the source of the injury causing substance).

In the instant case, plaintiff was unable to identify any of the products manufactured by appellants. He did testify, however, concerning his constant exposure to asbestos dust on the various ships and submarines on which he worked. He also testified that he worked in close proximity to various other tradesmen and specifically identified several co-workers with whom he had worked on certain ships and submarines. To establish his exposure to asbestos products which had been manufactured by appellants, plaintiff relied on the testimony of three of his co-workers at the New York Shipyard and the Philadelphia Naval Shipyard. In its post-trial opinion, the trial court found that the plaintiffs evidence had been sufficient to allow the issue of causation to be determined by the jury. The trial court reasoned as follows:

Defendants next assignment of error is that plaintiffs failed to establish sufficient nexus between defendant’s asbestos products and William Taylor. Under strict liability and negligence theories, plaintiff has the burden of showing proximate cause. Plaintiff must show that the defendant’s products were a substantial factor in causing his injuries. [David] v. Broadway Maintenance Corp., 451 F.Supp. 877 (E.D. of Pa.1978). Plaintiff must show that he was exposed to the defendant’s products. Anatan v. Pacor, Inc., 2651 May Term 1978 (C.C.P.Phila. 1983). Moreover, the plaintiff must show that he worked “in the vicinity” of defendants products. Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1986).
This court notes that Mr. Taylor personally identified Johns-Manville, Owens-Corning Fiberglas, GAF and Gar-lock as products with which he worked. (N.T. 11/21/86, p. 45). He did not specifically identify any of the products of the five remaining defendants, Eagle Picher, Keene, Celotex, Owens-Illinois and Pittsburgh Corning Corporation as those he recalled being in his work area. However, plaintiff described working in close quárters with other tradesmen, and recalled the following co-workers; Mike Nasife, George Watts, and Tony Caparola. (N.T. 11/21/86 p. 48). He specifically recalled Nick Nasife and George Watts on the following ships with him: the “REDFIN”, the “RASHER”, THE [“]R0CK”, and the “POM POM.” (NT 11/21/86 p. 51-52).
Mr. Taylor testified that between 1965 and 1984 he went back to the Philadelphia Naval Shipyard, again working primarily on submarines. (N.T. 11/21/86, p. 50). He specifically recalled working on the “SAILFISH” in 1965. He also worked on the “SABLEFISH,” the “BECUNA,” the “TROUT,” the “CLAMAGORE,” the “GRUMPUS,” the “HARDHEAD,” the “PICUK,” the “TIFUROW,” and the “TIGRONE.” (N.T. 11/21/86 p. 50-51 and p. 69-73). Taylor specifically recalled Nick Nasife while working on the SAILFISH between 1965 and 1966 (N.T. 11/21/86 p. 51).
Though Mr. Taylor identified Johns-Manville, Owens-Corning, GAF, and Garlock, he stated that he “didn’t know all of the names of the companies.” (N.T. 11/21/86, p. 44) Even so, this court feels that plaintiff’s testimony is relevant to the issue of product identification for Mr. Taylor identified types of asbestos products — including but not limited to asbestos, asbestos cloth, pipe covering, pipe cement, asbestos blocks, asbestos blankets and asbestos mud.
To [b]y Caparola, an electrician, testified that he worked at New York Shipbuilding in Camden from 1939-1967 and at the Philadelphia Naval Shipyard from 1967 until 1983. (NT 11/24/86 p. 5-6). Mr. Caparola testified that he worked on the “CLEVELAND,” the “PRINCETON,” and the “INDEPENDENCE.” On those three ships, Mr. Caparola identified a cement and pipe covering manufactured by Eagle-Picher and Keene as being on those vessels. Mr. Caparola recalled working with plaintiff on those vessels during the years in question.
Nicholas Nasife worked at the Philadelphia Naval Shipyard from 1941 to 1979 as a sheet metal worker. (NT 11/24/86 p. 34). Mr. Nasife worked on the following submarines: “HALFBEAK,” “SAILFISH,” “CLAMAGORE,” “SABLEFISH,” and “TREADFISH” during the year 1965-1966. He testified that during this time he both used and was exposed to dust from asbestos products in very close quarters. (NT 11/24/86 p. 36-41) and p. 46). On the “SAILFISH” in 1[9]65 Mr. Nasife recalled the following asbestos products: Cary block Celotex Corporation (NT 11/25/86 p. 67-74): Eagle-Picher Super 60 and onecote cement; Thermasil pipe covering and block (Keene Corporation) (NT 11/25/86 p. 45); and Unibestos Pittsburgh-Corning Corporation, (NT 11/25/86, p. 18-20) (NT 11/24/86 p. 42-41). He testified that the products that the pipe coverers used in close proximity to the electricians were also breathed by the electricians. This witness explained that he saw the products on the pier, in the shop and on the ships.
Mr. Watts testified that he worked at the Philadelphia Naval Shipyard as a pipefitter from at least 1946 to 1974. (NT 11/21/86 p. 94-95). He testified that during 1958 he worked on vessels in the Migraine program during which the following submarines were lengthened: “RAY,” “REDFIN,” “RASHER,” “POM POM,” “ROCK,” and “RATON.” (NT 11/24/86 p. 95). During this period of time Mr. Watts recalled using asbestos products made by Baldwin-Ehret-Hill, predecessor to Keene (NT 11/25/86, p. 38-39). Carey, predecessor to Celotex (NT 11/25/86 p. 60-69) and Kaylo, manufactured by Ownes-Illinois from 1950 to 1953 (NT 11/25/86 p. 32-33). (NT 11/24/86 P. 103). The products were used throughout the Philadelphia Naval Shipyard from 1941-1974, and were used on all the various ships.
This court holds that through the various witnesses, the evidence presented shows that the various defendant companies products were on the several ships that the plaintiff worked on. We note that the various witnesses, one or the other, not only placed the material outside or off the ship, but on the ship. This testimony related to all five defendants. Accordingly, a sufficient nexus between William Taylor’s exposure to asbestos, and the products of the five remaining defendants: Eagle-Picher, Keene, Celotex, Owens-Illinois and Pittsburgh Corning Corporation has been established. This was done, if not directly, certainly circumstantially.

(Trial Court Opinion at pp. 20-23).

After carefully reviewing the record in the instant case, we are satisfied that plaintiff established a sufficient use of appellants’ products to enable a jury to find that he had been exposed to asbestos products which had been manufactured by appellants. The testimony of Taylor’s co-workers established that Taylor had been on specific ships and submarines at times when appellants’ products were present and that he had worked in close proximity to such products. This evidence was sufficient to meet plaintiffs burden of proving causation. Cf. Odum v. Celotex Corp., 764 F.2d 1486, 1488 (11th Cir.1985) (“Testimony of co-workers who can identify a plaintiff by name as having worked with or around a particular defendant’s asbestos-containing products is substantial evidence of exposure in asbestos cases.”); Richards v. Raymark Industries, Inc., supra at 601 (To avoid summary judgment, there must be evidence that plaintiff was exposed to defendant’s asbestos-containing products, “either by working with them himself or by working in the vicinity of them.”); Ward v. Celotex Corp., supra at 296 (testimony by plaintiff’s co-workers that plaintiff worked in vicinity where defendant’s asbestos products were used raised substantial fact issue regarding causation so as to defeat motion for summary judgment).

II

At trial, plaintiff/appellees presented video tape deposition testimony of Dr. Katharine Boucot Sturgis, a retired physician, who had practiced in the field of preventative medicine and had been a board certified internist, specializing in pulmonary diseases. Dr. Sturgis was offered by the plaintiffs as an expert on the “state of the art” to provide an opinion concerning the time when defendants should have been aware of the dangers inherent in exposure to asbestos. Based upon her review of numerous medical articles dating back to the early part of this century, along with her own experiences as a clinical physician, Dr. Sturgis opined that by 1940 the defendants should have known that asbestos had been identified by the medical community as causing asbestosis, lung cancer and other injuries. Defendant/appellants contend that this evidence should not have been received.

“The admissibility of expert testimony is a matter initially to be determined by the trial court and we will not disturb that determination unless the trial court clearly abused its discretion.” Bolus v. United Penn Bank, 363 Pa.Super. 247, 267, 525 A.2d 1215, 1225 (1987). See also: Laubach v. Haigh, 433 Pa. 487, 491, 252 A.2d 682, 683 (1969); Kubit v. Russ, 287 Pa.Super. 28, 34-35, 429 A.2d 703, 706 (1981). Generally, expert testimony is permitted as an aid to the jury when the subject matter of the testimony is so distinctly related to some science, skill, or occupation as to be beyond the knowledge or experience of the average layman. See: Packel and Poulin, Pennsylvania Evidence, § 702.1 (1987); Beary v. Container General Corp., 368 Pa.Super. 61, 74, 533 A.2d 716, 722 (1987); Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 35-36, 485 A.2d 408, 415 (1984).

The standard of qualification is a liberal one: “If a witness ‘has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his [testimony] is for the jury: [citations omitted]....’ McCullough v. Holland Furnace Co., 293 Pa. 45, 49, 141 A. 631, 632 [(1928) ].” Moodie v. Westinghouse Electric Corp., 367 Pa. 493, 80 A.2d 734 (1951).

Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974). See also: Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 597-598, 437 A.2d 1198, 1201 (1981); Vernon v. Stash, 367 Pa.Super. 36, 51, 532 A.2d 441, 448 (1987).

Appellants first assert that Dr. Sturgis was not properly qualified to testify as an expert regarding state of the art because she did not qualify “as a biostatistician, a toxicologist, a mineralogist, a product labeling expert, an industrial hygienist, or, for that matter, as a physician who held herself out as having any special expertise in the area of asbestos-related diseases.” However, appellants did not challenge Dr. Sturgis’s qualification as an expert at trial, nor specifically assert this issue in their post-trial motions. Therefore, this issue has not been preserved for appellate review.

“It is well settled that a matter not raised in the trial court will not be considered on appeal.” Eck v. Powermatic Houdaille, 364 Pa.Super. 178, 189, 527 A.2d 1012, 1017 (1987). To preserve an issue for appellate review, an appellant must make a timely objection at the appropriate stage of the proceedings before the trial court and must specifically raise the issue in post-trial motions. See: Pa.R. C.P. 227.1(b); Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 214-215, 489 A.2d 1291, 1296 (1985). “The purpose for this rule is to afford the trial court the opportunity to correct an error at the time it is made, and to inform the court of the issues which must be decided at the post-trial stage ... thereby giving it the first opportunity ‘to review and reconsider the determination it made at trial.’ ” DiSalle v. P.G. Publishing Co., 375 Pa.Super. 510, 545-546, 544 A.2d 1345, 1363 (1988), quoting Wier by Gasper v. Ciao, 364 Pa.Super. 490, 494, 528 A.2d 616, 618 (1987). For the same reason, appellants’ assertions that Dr. Sturgis’s testimony should have been excluded because it “went to areas where laymen were competent to judge” and because it was based on inadmissible hearsay have also been waived. Neither of these contentions was the subject of an objection at trial nor an issue raised in appellants’ post-trial motions.

Appellants’ remaining objections to Dr. Sturgis’s testimony have been preserved for appellate review and were discussed in the post-trial opinion of the trial court. They assert that Dr. Sturgis’s testimony was immaterial, irrelevant and that certain instances of her testimony were “speculative, conjectural and prejudicial.” The testimony of Dr. Sturgis was immaterial, appellants contend, because it was unrelated to any of the issues before the jury. We disagree. The jury in the instant case was presented with strict liability and negligence claims regarding appellants’ failure to place any warnings on their asbestos products and their placing into the stream of commerce hazardous products. Pursuant to New Jersey law, a defendant in a products liability action based upon failure to warn is presumed to know of the dangerous character of the product and, as such, the plaintiff is not required to prove that the defendant knew or should have known of such danger. Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 432 A.2d 925 (1981). See: Beshada v. Johns-Manville Products Corp., 90 N.J. 191, 447 A.2d 539 (1982) (in strict liability actions, culpability is irrelevant; therefore, in failure to warn cases, defendant may not present a state of the art defense and medical community’s presumed unawareness of dangers of asbestos was not a defense). Although Dr. Sturgis’s testimony, under these cases, was not necessary to establish plaintiffs' strict liability claim, it was nevertheless relevant thereto. It was also relevant to prove appellees’ claim that appellants had acted negligently. See: Beshada v. Johns-Manville Products Corp., supra at 204, 447 A.2d at 546 (“state of the art is a negligence defense”). As such, the trial court cannot be said to have erred in refusing to exclude Dr. Sturgis’s testimony on grounds that it was irrelevant and immaterial.

Appellants also assert that Dr. Sturgis’s testimony was improper because her testimony was based on medical articles which had been written about asbestos exposure in other industries, e.g., textile mills and mining and manufacturing settings where workers were exposed to 100% raw asbestos fiber. According to appellants, the quantity and quality of asbestos exposure in these settings were substantially different than that present in the shipbuilding industry in which the plaintiff had worked. The trial court rejected this argument, holding that Dr. Sturgis’s testimony was relevant because it pertained “to the effects of the exposure itself notwithstanding the industry in which that exposure occurred.” Our review has disclosed no abuse of discretion on the trial court’s part. Dr. Sturgis’s testimony was offered to establish that appellants should have been aware of the dangers of exposure to asbestos at a date much earlier than they admitted knowing of such dangers. That the medical profession had identified asbestos exposure in other industries as causing injury to the workers in those industries, therefore, was relevant to establish that appellants had reason to know of the dangers inherent in the use of asbestos.

Ill

Appellants next assert that the trial court abused its discretion by allowing the videotaped testimony of plaintiffs’ expert, Dr. Robert Stiner, regarding Taylor’s prognosis, because this testimony had not been included in the witness’ pre-trial report, which included only a diagnosis of Taylor’s injuries. Our review of the record, however, fails to disclose that the witness expressed an opinion as to Taylor’s prognosis. Moreover, his testimony that in many patients “progression will occur” was harmless; for he was unable to say whether there would be such progression in Taylor’s case. There was no substantial deviation between matters disclosed during discovery and the testimony of the witness at trial. See: Trent v. Trotman, 352 Pa.Super. 490, 502-503, 508 A.2d 580, 586-587 (1986).

Appellants also assert that the trial court erred when it refused to allow their own expert witness, Dr. Leonard Berkowitz, to testify concerning Taylor’s history of heart disease on the ground that the witness was not a cardiologist. This issue, however, was not raised in appellants’ post-trial motions and, therefore, has been waived. See: Hreha v. Benscoter, 381 Pa.Super. 556, 564, 554 A.2d 525, 528 (1989); O'Malley v. Peerless Petroleum, Inc., 283 Pa.Super. 272, 283, 423 A.2d 1251, 1257 (1980).

IV

In his closing argument to the jury, plaintiffs’ counsel made the following remarks:

Forty years later they first indirectly conceded that the product was hazardous. Is that the kind of corporate activity you will condone? Do you say that's what they should do? Do you say that, in an effort to maximize profits, you’ve got to put human beings on a level that’s so far do.wn the line it takes you 40 years to concede you hurt any?
MR. BELLO: Objection
[Mrs. Taylor] told you that during the course of his working life, they lived right across the river there in New Jersey; and that he came home in his work clothes, which she laundered; and that these clotehs [sic] were covered with a whitish dust; and it didn’t concern her in the least, because she had no reason to suspect that the dust on his clothing was a killer; that it could rob him of his life and that it could cause potential harm to those who breathed it secondarily.
In her household, where this invasion occurred, were three children—
MR. BELLO: Objection, Judge.
MR. BYRD: She told you that she was responsible for caring for the family and doing this laundering; and in that household, in addition to William Taylor, Pauline Taylor, were three children, all five of whom breathed that dust.
Do you believe that the companies were obliged to protect Mr. Taylor from that dust? Do you believe that they should have allowed him to take it home to his wife and to his kids? Do you think that these companies should escape liability for their conduct?

N.T. 12/1/86 at pp. 60-62. In response to appellants’ objections to these remarks the trial court made no immediate rulings. However, on the following day, prior to the start of the proceedings, the court sustained the first of these objections and overruled the second. Thereafter, at the conclusion of its charge to the jury, the trial court instructed the jury that:

During closing arguments yesterday, counsel made certain remarks, counsel for the plaintiff made some indication regarding maximizing profits by the defendants.
Well, let me caution you, there is no testimony in this record that the defendants were in any way maximizing any profits.

N.T. 12/2/86 at pp. 45-46.

In its post-trial opinion, the trial court concluded that its curative instruction was sufficient to alleviate any prejudice that may otherwise have resulted from counsel’s remark about maximizing profits. With regard to counsel’s remark about Mrs. Taylor and the plaintiffs’ children having been exposed to asbestos dust, the court concluded that the remark had not been sufficiently prejudicial, in light of the court’s instructions to the jury regarding the persons who were entitled to recover damages if appellants were found liable. On appeal, appellants contend that the remarks of plaintiffs’ counsel were so prejudicial that the grant of a new trial is compelled. We disagree.

Whether a lawyer’s argument to the jury transgresses the bounds of legitimate advocacy is primarily for the discretion of the trial judge, and an appellate court will not interfere with the exercise of this discretion, unless the record manifests that it was clearly abused.

Abrams v. Philadelphia Suburban Transportation Co., 438 Pa. 115, 119, 264 A.2d 702, 704 (1970). Moreover,

[t]he grant of a new trial for improper remarks is within the discretion of the trial judge. Stevenson v. Pennsylvania Sports and Enterprise, Inc., 372 Pa. 157, 93 A.2d 236 (1953). Further, an appellate court’s “review of the grant of a new trial is limited to cases of gross abuse of discretion by the trial judge or the application of erroneous rules of law by the trial court.” Atene v. Lawrence, 456 Pa. 541, 318 A.2d 695, 697 (1974). (Emphasis added). See also, Canery v. Southeastern Pennsylvania Transportation Authority, 267 Pa.Super. 382, 406 A.2d 1093 (1979).

Harvey v. Hassinger, 315 Pa.Super. 97, 106-107, 461 A.2d 814, 819 (1983).

On the record before this Court, we are unable to conclude that there was a gross abuse of the trial court’s discretion in refusing to award a new trial because of remarks made by plaintiffs’ counsel in his closing argument to the jury. The trial court sustained the objection to counsel’s remark about maximizing profits and instructed the jury to disregard the same. As such, the grant of a new trial because of this remark was not required.

There was no claim made for damages to Mr. Taylor’s wife and children because of their possible exposure to asbestos brought home on Taylor’s clothing, and counsel’s statement that appellants should not escape liability for allowing Mrs. Taylor and the Taylor children to be exposed to secondhand asbestos dust was clearly improper. In view of the trial court’s instructions, however, it does not appear that counsel’s remarks were so prejudicial as to require a new trial. The trial court’s instructions made clear on what basis and to whom damages could be awarded and specifically informed the jury that Mrs. Taylor could be compensated only for loss of consortium. The jury, therefore, was unlikely to have concluded that it could have awarded damages because Mrs. Taylor and the children had been exposed to' asbestos dust. Moreover, during the course of the trial, both Mr. and Mrs. Taylor had testified, without defense objection, that Taylor had brought asbestos dust home on his clothing. Therefore, the jury had already learned of the family’s exposure to asbestos, and the comments of counsel, albeit improper, injected no facts which the jury had not already heard.

V

Appellants next argue that the trial court erred when it refused to instruct the jury to apportion the damage caused to Taylor by (1) his exposure to asbestos, (2) his smoking related emphysema, and (3) his heart disease. The trial court concluded that the evidence presented at trial was insufficient to provide the jury with any reasonable basis upon which to apportion Taylor’s poor health among the various causes thereof.

Section 433A of the Restatement (Second) of Torts provides:

§ 433A. Apportionment of Harm to Causes
(1) Damages for harm are to be apportioned among two or more causes where
(a) there are distinct harms, or
(b) there is a reasonable basis for determining the contribution of each cause to a single harm.
(2) Damages for any other harm cannot be apportioned among two or more causes.

This section of the Restatement was cited by the New Jersey Superior Court in Hill v. Macomber, 103 N.J.Super. 127, 246 A.2d 731 (1968). There the plaintiff’s automobile had been struck by another automobile and, thereafter, had again been struck by a second automobile. The driver of the second automobile argued that the jury should have been permitted to apportion the plaintiff’s damages between him and the driver of the automobile which first struck the plaintiff. The New Jersey Court rejected this argument and determined that the evidence had provided no basis upon which the jury could apportion the causes of the plaintiff’s harm. The Court reasoned as follows:

Although concurrent tortfeasors generally are not jointly and severally liable where their acts caused distinct and separate injuries, or where some reasonable means of apportioning the damages is evident, the negligent driver of the automobile in the successive impact has been held jointly and severally liable for all of plaintiff’s injuries, if the injuries are “indivisible” and the liability therefor cannot be allocated with reasonable certainty to the successive collisions. This has come to be known as the “single, indivisible injury” rule. For some cases in which it was applied, see Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33, 100 A.L.R.2d 1 (Sup.Ct.1961); Holtz v. Holder, 101 Ariz. 247, 418 P.2d 584 (Sup.Ct.1966); Berryman v. People’s Motor Bus Co., 228 Mo.App. 1032, 54 S.W.2d 747 (CtApp.1932); Brantley v. Couch, 383 S.W.2d 307 (Mo.Ct.App.1964).
In these days of chain collisions, it is better that a plaintiff, injured through no fault of his own, should be compensated by both tortfeasors, even though one of them may pay more than his theoretical share of the damage which his wrong has helped to create, than that the injured party have no recovery. Our courts have seemingly favored this more modern policy. See Ristan v. Frantzen, 14 N.J. 455, 102 A.2d 614 (1954) and Matthews v. Delaware, L. & W.R.R. Co., 56 N.J.L. 34, 27 A. 919, 22 L.R.A. 261 (Sup. Ct.1893).

Hill v. Macomber, supra 103 N.J.Super. at 136-137, 246 A.2d at 736-737. See also: Fosgate v. Corona, 66 N.J. 268, 272, 330 A.2d 355, 358 (1974) (“[WJhere the malpractice or other tortious act aggravates a preexisting disease or condition ... the burden of proof should be shifted to the culpable defendant who should be held responsible for all damages unless he can demonstrate that the damages for which he is responsible are capable of some reasonable apportionment and what those damages are.”).

The parties have cited no New Jersey decisions and our own research has disclosed none which have addressed the issue of apportionment under circumstances analogous to those in the instant case. Where the law of New Jersey is unclear, we may presume it to be the same as in Pennsylvania. See: Melville v. American Home Assurance Co., 584 F.2d 1306, 1308 (3d Cir.1978); In re Trust of Pennington, 421 Pa. 334, 340, 219 A.2d 353, 356 (1966). In Martin v. Owens-Corning Fiberglas Corp., 515 Pa. 377, 528 A.2d 947 (1987), the Supreme Court of Pennsylvania applied § 433A of the Restatement and held that it had been error for a trial court to instruct the jury on apportionment where the evidence failed to establish the existence of any reasonable basis on which to apportion the cause of the plaintiffs injuries between asbestosis and emphysema. In so holding, the Martin Court reasoned:

The jury, although presented with a great deal of testimony concerning appellant’s history and physical condition, was provided no guidance in determining the relative contributions of asbestos exposure and cigarette smoking to appellant’s disability. In fact, two experts testified that such a determination was not possible. A situation analagous [sic] to the instant case arose in Offensend v. Atlantic Refining Co., supra [322 Pa. 399, 185 A. 745 (1936)]. There, a jury award of damages for aggravation of an existing tubercular condition was modified (reduced), because the expert testimony did not address the duration of the aggravation. “If the doctors were not in a position to make an estimate of the extent of the aggravation in point of time, the jury should not have been allowed to hazard a guess beyond the period shown with reasonable certainty.” Id., 322 Pa. at 404, 185 A. 745. Here, as in Offensend, the jury cannot be expected to draw conclusions which medical experts, relying on the same evidence, could not draw. The causes of disability in this case do not lend themselves to separation by lay-persons on any reasonable basis. Thus, common sense and common experience possessed by a jury do not serve as substitutes for expert guidance, and it follows that any apportionment by the jury in this case was a result of speculation and conjecture and hence, improper. “Rough approximation” is no substitute for justice.

Id., 515 Pa. at 384-385, 528 A.2d at 950 (footnotes omitted).

The evidence in the instant case was that Taylor began experiencing fatigue and shortness of breath in the mid 1970s. In 1980 he was diagnosed as having asbestosis. The evidence also disclosed that Taylor had smoked a pack of cigarettes a day for approximately 30 years before quitting in the early to mid 1970s. Additionally, Taylor suffered from hypertension, arteriosclerotic heart disease, emphysema and he had once had pneumonia. Dr. James Guidice, a specialist in pulmonary medicine, testified that Taylor, as a result of exposure to asbestos, had both pleural and parenchymal asbestosis and also pleural plaque formation or thickening in a localized area over the left diaphragm. He testified further that Taylor’s asbestosis was an incurable condition, which was progressively getting worse and that the prognosis was guarded. Dr. Robert Stiner, a radiologist, testified that his review of Taylor’s x-rays disclosed bilateral pulmonary interstitial scarring, bilateral pleural thickening and diaphragmatic pleural calcification and that such findings were consistent with a diagnosis of asbestosis.

Defendant/appellants presented three expert medical witnesses. Dr. Joseph Becker, a radiologist, said that upon reviewing Taylor’s x-rays from 1972 until 1986 he concluded that Taylor had emphysema and some scarring of the lung from past pneumonia, but. that there was no evidence of interstitial lung disease (asbestosis). Dr. Leonard Berkowitz, a pulmonary disease specialist, testified that Taylor had mild pleural thickening related to asbestos exposure and that he also had moderate obstructive lung disease of an emphysematous variety which was related to cigarette smoking. He testified further that pleural thickening generally causes no symptoms and that based upon a physical examination, pulmonary function tests and review of x-rays, he concluded that Taylor showed no signs of having asbestosis. Finally, Dr. John Helwig, a cardiologist, testified that Taylor had hypertension (high blood pressure) and arteriosclerotic heart disease, for which a triple bypass surgery had been advised. He characterized Taylor’s heart condition as life threatening. The defense experts also provided testimony of a general nature that emphysema, hypertension and arteriosclerotic heart disease were all associated with the symptoms exhibited by Taylor. Dr. Helwig said also that medications taken by Mr. Taylor for his hypertension and heart condition could produce fatigue as a side effect. Based on this testimony by defense medical experts, the defense argued to the jury that Taylor’s medical problems were the result of his smoking related emphysema and heart disease rather than his exposure to asbestos.

After a careful review of the record, we are satisfied that the trial court correctly determined that the expert testimony did not provide an adequate basis to require the jury to apportion the cause of Taylor’s poor health between asbestos exposure, smoking related emphysema and heart disease. It is significant that neither the experts called by plaintiffs nor the experts called by the defense attempted to apportion the cause of Taylor’s illness among asbestos exposure, smoking, and heart disease. Defense experts testified that Taylor did not have asbestosis, but the jury rejected their diagnoses.

VI

Appellants also assert that the jury’s award of damages to the plaintiffs was excessive and that, therefore, the trial court erred by refusing to order a remittitur. When faced with a claim that the jury’s award of damages was excessive, we must be “ever-mindful that our standard of review is extremely narrow.” Glomb v. Glomb, 366 Pa.Super. 206, 216, 530 A.2d 1362, 1368 (1987).

The determination of damages lies initially within the discretion of the jury, which weighs the evidence and assesses the credibility of the witnesses. See Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892 (1974). The decision to grant or to deny a new trial on the ground of excessiveness lies, in turn, within the discretion of the trial court. We will not disturb the decision absent a clear abuse of that discretion. See Skoda v. West Penn Power Co., 411 Pa. 323, 191 A.2d 822 (1963); Ammon v. Arnold Pontiac-GMC, Inc., 361 Pa.Super. 409, 522 A.2d 647 (1987); Powell v. City of Philadelphia, 311 Pa.Super. 526, 457 A.2d 1307 (1983). A verdict will stand unless its excessiveness shocks our sense of justice. See Weed v. Kerr, 416 Pa. 233, 205 A.2d 858 (1965); Ammon v. Arnold Pontiac-GMC, Inc., supra; Robert v. Chodoff, 259 Pa.Super. 332, 393 A.2d 853 (1978).

Id., 366 Pa.Superior Ct. at 216-217, 530 A.2d at 1368. Moreover,

[t]he trial court has the authority to order a remittitur of excessive damages. Ready v. Motor Sport, Inc., 201 Pa.Super. 528, 193 A.2d 766 (1963). However, the trial court should not interfere with functions of the jury and undertake to determine facts, which is exclusively the province of the jury. When it is apparent that the jury has returned a verdict excessive in amount and clearly beyond what the evidence warrants, the trial court should set aside or reduce the verdict. Jones v. Stiffler, 137 Pa.Super. 133, 8 A.2d 455 (1939). Conversely, if the verdict is supported by evidence, it must be permitted to stand where there is nothing to suggest that the jury was in any way guided by partiality, prejudice, mistake or corruption. Stoughton v. Kinzey, 299 Pa.Super. 499, 445 A.2d 1240 (1982). Therefore, it is the duty of the court to enforce the jury’s verdict unless the circumstances cry out for judicial interference. Prather v. H-K Corp., 282 Pa.Super. 556, 423 A.2d 385 (1980); Stoughton, supra.

Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 352, 464 A.2d 355, 357-358 (1983). See: 10 Std.Pa.Prac.2d § 62:105. Compare: Baxter v. Fairmont Food Co., 74 N.J. 588, 379 A.2d 225 (1977).

Instantly, the plaintiffs presented evidence that Taylor was suffering from asbestosis, a progressive and incurable disease, and that as a result thereof he had been experiencing fatigue, shortness of breath and pain or tightness in the chest at the slightest exertion. Because of his condition, Taylor was- unable to participate in or enjoy the same acti|ities as before his illness and was forced to retire from work three years before he had intended to do so. At the time of his retirement, he had been earning $23,000 per year. Additionally, there was evidence that he lived under constant fear of developing cancer in the future because of his long time exposure to asbestos in the work place. This evidence, if accepted by the jury, was sufficient to support the jury’s award of compensatory damages in the amount of $800,000 and damages for loss of consortium in the amount of $100,000. The trial court did not abuse its discretion when it refused to grant a new trial or order remittitur because of the amount of the verdict.

VII

The final contention raised by defendant/appellants is that the trial court erred in molding the verdict. The jury responded to special interrogatories by determining that Taylor’s injuries had been caused by exposure to the asbestos products of not only the five defendant/appellants, but also those of the settling defendants, the bankrupt defendants, and the Armstrong Co., a party which had not been sued. Thus, the jury found that eighteen asbestos manufacturing and supplying defendants had caused Mr. Taylor’s injuries, and it allocated causation for Taylor’s injuries equally among the eighteen companies.

In their motion to mold the verdict, the defendant/appellants asserted that the verdict should have been molded in accordance with the jury’s findings of fault, which would have fixed defendant/appellants’ liability at 27.5% of the total verdict. Plaintiff/appellees, on the other hand, contended that only the causal fault of the non-settling defendant/appellants and Owens-Corning Fiberglas Co. could be included in the molding of the verdict, by virtue of its settlement agreement conceding joint tortfeasor status. See: Griffin v. United States, 500 F.2d 1059 (3d Cir.1974). The trial court, without explanation, concluded its post-trial opinion by stating: “[t]he verdict is molded to Five Hundred Thousand Dollars — ($500,000.00).”

Our review of the relevant New Jersey authorities leads to the conclusion that the verdict should have been molded in accordance with the jury’s findings of causal fault. In Dimogerondakis v. Dimogerondakis, 197 N.J.Super. 518, 485 A.2d 338 (1984), the applicable law in New Jersey was discussed as follows:

Liability for damages in cases when two or more defendants were deemed causally negligent by the trier of fact was formerly apportioned pro rata in accordance with the Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-1 et seq. The Comparative Negligence Act, N.J.S.A. 2A:15-5.1 et seq., now makes each tortfeasor liable for a percentage of the judgment equal to the percentage of negligence attributed to him by the trier of fact. This is the clear import of that portion of the Comparative Negligence Act which mandates that the jury find the percentage of negligence allocable to each party. See NJ.S.A. 2A:15-5.2, Theobald v. Angelos, 44 N J. 228, 208 A.2d 129 (1965).
The Comparative Negligence Act applies to this trial even though the settlement reached by Surrett with plaintiff bars a claim by Antonios for contribution against Surrett. Cf. Tefft v. Tefft, 192 N.J.Super. 561, 471 A.2d 790 (App.Div.1983). In this situation, the jury must allocate liability between Surrett and Antonios even though Surrett, as a settling tortfeasor, cannot be affected by the jury’s verdict. Cf. Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 569, 410 A.2d 674 (1980); Tefft v. Tefft, 192 N.J.Super. at 565-67, 471 A.2d 790; see also Rogers v. Spady, 147 N.J.Super. 274, 277, 371 A.2d 285 (App.Div. 1977).
The reason for submitting the question of Surrett’s negligence to the jury is that if Antonios had been found causally negligent he would have been required to pay “... the total verdict less that attributable to the settling defendants’ percentage share.” Cartel Capital Corp. v. Fireco of N.J., 81 N.J. at 569, 410 A.2d 674. A non-settling tortfeasor against whom a verdict is rendered is entitled to an offset of an amount equal to the settling tortfeasor’s proportionate share of liability. Id.; Rogers v. Spady, 147 N.J.Super. at 278, 371 A.2d 285. Expressed another way, a non-settling joint tortfeasor will be liable to a plaintiff only for that percentage of negligence attributable to him. Thus, even though a non-settling codefendant does not have a viable cross-claim against a settling tortfeasor, he should endeavor to prove the negligence of the settling codefendant in order to minimize the percentage of negligence for which the jury may find him responsible.

Id. at 521-522, 485 A.2d at 340 (footnote omitted). See also: Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 410 A.2d 674 (1980); Lee’s Hawaiian Islanders, Inc. v. Safety First Products, Inc., 195 N.J.Super. 493, 480 A.2d 927 (1984). The same principles are' applicable “to fault emanating from strict product liability.” Cartel Capital Corp. v. Fireco of New Jersey, supra at 569 n. 7, 410 A.2d at 685 n. 7; Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 406 A.2d 140 (1979).

Pursuant to the New Jersey Comparative Negligence Act, N.J.S.A. 2A:15-5.1 et seq., therefore, a non-settling defendant is “chargeable with the total verdict less that attributable to the settling defendant’s percentage share.” Cartel Capital Corp. v. Fireco of New Jersey, supra at 569, 410 A.2d at 685. The policy reasons underlying the Comparative Negligence Law have been explained as follows:

It is clear that the effect and intent of the Comparative Negligence Act were not only to accord a fairer result to moderately negligent plaintiffs but also to accord fairer justice to joint tortfeasors by calling upon them to contribute to the award in proportion to their own actual degree of negligence. That is the express mandate of N.J.S.A. 2A:15-5.3. Thus, the Comparative Negligence Act recognizes that it was as unfair for a 10% negligent tortfeasor to bear 50% of the damages as it was for a 10% negligent plaintiff to be denied any recovery at all. We also note that if achieving fairness for joint tortfeasors had not also been a purpose of the Comparative Negligence Act, there would have been no reason for it to base contribution on allocated percentages. It would have been sufficient, had the focus been exclusively on plaintiffs, for a plaintiffs award to be reduced by the percentage of his negligence and to then require joint tortfeasors to contribute to the reduced award on a pro rata basis pursuant to the Joint Tortfeasors Contribution Law.

Lee’s Hawaiian Islanders, Inc. v. Safety First Products, Inc., supra at 505-506, 480 A.2d at 933. Cf. Pecarsky v. Marina Associates, 107 F.R.D. 107 (D.N.J.1985) (defendant in personal injury action permitted to file third-party complaint against unidentified party for sole purpose of enabling jury to assess percentage of fault against such party under Comparative Negligence Act); Matthews v. Johns-Manville Corp., 307 Pa.Super. 300, 306, 453 A.2d 362, 365 (1982) (stay in personal injury action as to bankrupt defendants interpreted as not precluding remaining defendants from introducing evidence of bankrupt defendants’ liability in their own defense).

In the instant case, Taylor and the three product identification witnesses (Caparola, Nasife and Watts), on direct and cross-examination, identified products manufactured or supplied not only by the defendant/appellants, but also defendants who had settled and who had gone into bankruptcy. The defendant/appellants, therefore, could not be held wholly responsible for causing Taylor’s injuries. The jury allocated causal fault between eighteen companies, and by answer to special verdict interrogatories determined that each of the companies was equally at fault in causing Taylor’s injuries. Under New Jersey law the verdict should have been molded in accordance with the jury’s findings of causal fault. As such, the judgment must be modified in accordance with the jury’s finding. It must be modified to reflect the jury’s finding that each of the manufacturers and suppliers of asbestos products were liable for 5.5% of the total damages. Therefore, the judgment in favor of William Taylor and against the appellants will be reduced to two hundred twenty thousand ($220,000) dollars, and the judgment in favor of Pauline Taylor will be reduced to twenty-seven thousand, five hundred ($27,500) dollars.

VIII

On October 8, 1986, the Supreme Court announced its decision in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), in which it directed that “claims for delay damages are to be presented by petition within five days of a jury verdict or arbitration award.” Id., 512 Pa. at 65, 515 A.2d at 1353. The jury’s verdict in the instant case was rendered on December 3, 1986, and, as such, the Craig decision was applicable. Plaintiff/appellees, however, did not file their petition for delay damages until December 12, 1986, nine days post-verdict. Because the trial court deemed this petition untimely under the directive set forth in Craig, it refused to award delay damages. In their cross-appeal challenging the denial of delay damages, plaintiff/appellees assert that the trial court abused its discretion in refusing to award delay damages. They assert that because procedural rules are to be liberally construed, their filing of the petition for delay damages nine days post-verdict should be deemed to be in substantial compliance with the rule announced in Craig. However, the Supreme Court’s directive in Craig was clear. Therefore, the trial court cannot be deemed to have erred or abused its discretion by following the law as announced by the Commonwealth’s highest tribunal.

The judgment in favor of William Taylor and against the appellant defendants is reduced to two hundred twenty thousand ($220,000) dollars, and the judgment in favor of Pauline Taylor is reduced to twenty-seven thousand, five hundred ($27,500) dollars. As so reduced, the judgment is affirmed.

      . Taylor began working in the shipbuilding industry in 1942 at the New York Shipyard. Later in the same year, he entered the military, where he served until 1945. Upon leaving the military, Taylor returned to the New York Shipyard in 1945 and remained there until 1952, when he went to work at the Philadelphia Naval Shipyard. In 1953, Taylor again returned to the New York Shipyard and remained there until 1965, at which time he returned to the Philadelphia Naval Shipyard. He remained at the Philadelphia Naval Shipyard until his retirement in 1984.

      . J.P. Stevens Co., Asbestos Textile Institute, Inc., and Asten Hill Manufacturing Co. were dismissed from the action when the trial court granted their motions for a summary judgment. Their dismissal is not challenged on appeal.

      . In addition to the five defendant/appellants, the eight settling defendants and the four bankrupt defendants, the jury found that Armstrong Co., an entity which had not been sued, was also responsible for Taylor’s injuries.

      . Appellants have also identified four specific instances in Dr. Sturgis's testimony where they assert the testimony was so "speculative, conjectural and prejudicial” as to require a new trial. We have reviewed each of these portions of the testimony and have found nothing therein so prejudicial as to warrant the grant of a new trial. The trial court did not abuse its discretion when it denied a new trial for these reasons.

      . Appellants also offered the expert testimony of Dr. John Helwig, who was a cardiologist, regarding Taylor’s heart condition. This testimony was permitted by the trial court.

      . Testimony that products made by Armstrong Co. were present at the Philadelphia Naval Shipyard was elicited from Mr. Taylor on cross-examination. Neither party has raised as an issue the propriety of the jury’s allocation of a portion of the fault to a manufacturer who was not a party to the action.


author: CAVANAUGH, Judge:

text:
    574 A.2d 1101
    George F. DOPPLER, Appellee, v. Alice H. DOPPLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 14, 1990.
    Filed May 11, 1990.

      Angela L. Martinez, Bala Cynwyd, for appellant.
    I.B. Sinclair, Media, for appellee.
    Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge:

This is an appeal from the order of the Court of Common Pleas of Delaware County concerning the partition of a certain parcel of real estate jointly owned by the parties, who were divorced in 1964. Finding that the trial court erred in fashioning the order directing partition, we reverse and remand for entry of an appropriate order.

The trial court summarized the facts and procedures of this case as follows:

[Appellee] and Alice H. Doppler [appellant] owned as tenants by the entireties the premises located at 1127 Bryan Street, Drexel Hill, Pennsylvania. [Appellee] and [appellant] were divorced by Decree entered on June 3, 1964 by the Court of Common Pleas of Delaware County.
On August 19, 1964, [appellee] commenced the first Partition Action in the Court of Common Pleas. Pursuant to the 1964 Partition Action, an inventory and appraisal of the parties’ real and personal property was completed in 1966. The appraisal of the real estate in May of 1966 was Twelve Thousand, Five Hundred Dollars ($12,-500.00).
Subsequently, an oral agreement was reached between the [appellee] and [appellant] in Court before the Honorable Francis J. Catania, regarding the disposition of their real and personal property. The parties agreed that [appellant] would receive title of the premises in exchange for [appellant] paying the [appellee] one-half of the equity in the premises (determined to be Twenty-five Hundred Dollars ($2,500.00).
Settlement was scheduled for August 31, 1967 to execute the agreement and formally transfer title of the premises to the [appellant] in return for payment of one-half of the equity to the [appellee]. Title to the premises was never transferred as [appellee] failed to attend the settlement. No further action was taken and the 1964 Partition Action was never officially terminated.
However, on March 13, 1984, [appellee] initiated a second Partition Action. In response to the new action, the [appellant] filed a Petition for Leave to File an Amended Answer, New Matter, Counterclaim, and Motion to Stay proceedings in the instant case pending disposition of the prior 1964 action.
On November 26, 1984, Charles F. Knapp, Esquire was appointed Master in the case by this Court.
On May 31, 1985, the Honorable Melvin G. Levy filed an opinion in which he granted [appellant’s] Petition to File an Amended Answer, New Matter, and Counterclaim. Judge Levy denied, however, the Motion to Stay Proceedings pending disposition of the 1964 Partition Action. In his opinion, Judge Levy, while recognizing that the 1964 Partition Action should have been terminated pursuant to Delaware County Local Rule 34, nevertheless ordered that the 1964 and 1984 actions be consolidated.
On June 19, 1986, Judge Reed granted a Motion to Withdraw Charles F. Knapp, Esquire as Master of the present action and on July 17, 1986, appointed John H. Toal, Esquire as Master. Mr. Toal had an updated appraisal made on the real estate by Jan H. Connor of the Richard G. deGrouchy Agency[.] [T]he value of the premises was then established to be Seventy-eight Thousand Dollars ($78,000) effective January 29, 1987.
On March 3, 1987 a hearing was held before Mr. Toal and testimony was taken. As part of the testimony, [appellant] acknowledged the oral agreement reached between the parties and entered on the record in Court during the 1964 Partition Action.
Mr. Toal filed his report on October 20, 1988, and requested that [the trial court] enter an Order incorporating his findings and conclusions which required [appellee] to transfer title (pursuant to the agreement reached by the parties) to [appellant] upon the [payment of] Twenty-five Hundred Dollars ($2,500.00) plus interest to [appellee].

Opinion of trial court, at 1-4.

Timely exceptions to the report and recommendation were filed on behalf of appellee. On October 31, 1988, the trial court entered an order adopting the master’s report and recommendation without consideration of these exceptions. Appellee then filed a notice of appeal with this court which was later discontinued after the trial court rescinded its order of October 31, 1988. Upon review of appellee’s exceptions, the court entered the following order:

AND NOW, the 29th day of June, 1989, it is hereby ORDERED and DECREED that within thirty (30) days of the date of this Order, George F. Doppler and Alice H. Doppler have the property located at 1127 Bryan Street, Drexel Hill, Pennsylvania, appraised by the Richard G. deGrouchy Agency.
Within fifteen (15) days of the appraisal’s completion, it is ORDERED that Alice H. Doppler make an election either to buy out George F. Doppler’s interest in the equity established in the appraisal value, or to have the Court sell the real estate.
If Alice H. Doppler elects to buy out George F. Doppler’s interest in the real estate, she is directed to execute an Agreement of Sale with George F. Doppler within fifteen (15) days of the date of her election.
Sixty (60) days thereafter from the date of execution of the Agreement of Sale, it is Ordered that Alice and George Doppler go to settlement on this property and at that time, Alice H. Doppler shall pay to George F. Doppler one-half of the equity established by the afore-ordered new appraisal value of said property. She shall thereupon receive a deed from George F. Doppler giving her full title to the said real estate.
If Alice H. Doppler elects not to buy out George F. Doppler’s interest in the said real estate, it is Ordered that she report her intention to this Court and the Court shall then appoint a Master to sell the property, either on the open market or by auction, and divide the proceeds equally between Alice and George Doppler.

Appellant has timely appealed and raised the following issues for our review:

A. Based upon the record, did the [l]ower [c]ourt act correctly in ruling the 1964 case was active and pending?
B. Based upon the record, did the lower court correctly find that [] there was an oral agreement between the parties, entered of record before the [cjourt, settling all issues outstanding in the 1964 case?
C. Based upon the record, did the lower court err in determining that the equity [m]aster incorrectly applied the law in determining that one [of] the contracts] was rescinded[?]

Brief of appellant at 3.

Before turning to the merits of the case, we will first address the appealability of the trial court’s latest order. It has been suggested that the court’s order is not one directing partition but merely one directing a process of partition similar to the order which we found to be unappealable under Pa.R.A.P. 311(a)(6) in the case of Gasper v. Gasper, 238 Pa.Super. 478, 432 A.2d 613 (1981).

In Gasper, we determined that the order directing that partition proceedings continue with respect to other remaining property after the court found that neither party sustained its burden of proving who was in possession of certain missing property was not an order directing partition and was therefore not appealable as an interlocutory order under Pa.R.A.P. 311(a)(6). We found rather that the order in question was one which merely directed the continuation of a process of partition which had already been agreed to by the parties. Gasper, 432 A.2d at 615.

The reason for our holding was that there was no disagreement between the parties as to the right of partition or as to the respective interests to which the parties were entitled. Id. The focus of the entire case was which parties were entitled to specific property given their agreed-upon respective interests in the whole. Indeed, the order from which the Gasper appeal was taken did not address the distribution of specific property so much as it excluded certain missing property from the partition process because its whereabouts were unknown. Thus, the parties’ appeal was not addressed to the legal consequences of the partition as ordered; rather the parties merely took issue with a collateral factual finding. Under these circumstances, it was inappropriate to allow the appeal as one from an order of partition as permitted under the appellate rules.

Gasper stands in sharp contrast to the instant case. Here the parties are in disagreement as to whether they are each legally entitled to a one-half interest in the value of the property at the time of the first partition action or whether they are each entitled to a one-half interest in the present value of the property. Any assertion that the parties do not dispute that each has a one-half interest in the property and that therefore the appeal is improper under Gasper glosses over the real issues, which are whether the 1964 partition agreement is still binding on the parties and whether therefore the property should be divided according to its 1964 value or its present value.

Consequently, the parties are not in agreement as to their respective entitlements as they were in Gasper. Mrs. Doppler argues that she is entitled to have the partition agreement enforced while Mr. Doppler is arguing that an entirely new order, based on significant increases in the value of the property, be entered. Moreover, the instant order goes to the essence of the parties’ dispute and not merely to a collateral factual matter as in Gasper.

Finally, a close look at the ramifications of the partition order entered by the court convincingly demonstrates that this is precisely the type of partition order from which interlocutory appeal is permitted under Pa.R.A.P. 311(a)(6). It is only in hearing this appeal on the merits that we can protect the interests which Rule 311(a) mandates us to protect.

One obvious rationale of Rule 311(a)(6), allowing interlocutory appeal specifically from an order of partition, is to protect the possessory interests of a party in specific property for which a party might not be properly compensated by monetary damages if an appellate court later found error but a partition by sale and distribution had already taken place. The lower court’s order places Mrs. Doppler in precisely this position by ordering her to make a choice between buying Mr. Doppler’s share at its present day value, which will indisputably be much higher than it would have been had the 1964 appraisal been the basis for partition, or standing by while her home is sold and receiving only a monetary award. It is entirely likely that Mrs. Doppler will not have the necessary funds to buy Mr. Doppler’s share and preserve her possessory interest through the conclusion of the partition process. She is in danger of losing forever possession of her home if she does not obtain timely appellate review.

No legally significant conditions must be met before the lower court’s order can be characterized as one of partition. It is irrelevant to the parties’ dispute whether the court-ordered property appraisal will determine that the house is today worth $78,000.00 or $90,000.00. Common sense indicates that the house is still worth at least $73,000.00 more than it was in 1964, when the parties agreed that equity in the property was $5000.00. The present order of the lower court decides the major disputed issues in the case, namely the respective interests of the parties in the property. We believe the order effectively puts Mrs. Doppler out of court and we must review the order to guard against the potential evil which Pa.R.A.P. 311(a)(6) is designed to avoid.

Turning to the merits of the case, we reverse the order of the trial court and remand for entry of an order which effectuates the 1964 partition agreement to which the parties consented in open court.

The following facts are undisputed. Mr. Doppler was the party who initiated the 1964 action in partition. Mrs. Doppler fully complied with the 1964 partition agreement. Mr. Doppler was the party initially responsible for frustrating completion of the partition by failing to appear at the scheduled real estate settlement, even though he had already received other property from Mrs. Doppler under the partition agreement. Until 1984, Mr. Doppler never sought to repudiate the 1964 agreement. In 1984, Mr. Doppler brought another action to partition the same property between the same parties.

Mr. Doppler should be equitably estopped from pursuing the 1984 partition action. The doctrine of equitable estoppel protects the reasonable expectations of one who relies on another’s course of conduct; it prevents a party from taking a position that is inconsistent with a position previously taken which is disadvantageous to the other. E.g., Curran v. Eberharter, 361 Pa.Super. 65, 521 A.2d 474 (1987). In this case, Mr. Doppler should be prevented from pursuing a later action in partition when he failed to perform his obligations under the 1964 partition agreement and permitted Mrs. Doppler to maintain the property as if she were the sole owner. Since the order of the trial court permits Mr. Doppler to benefit from his failure to perform under the 1964 partition agreement, it must be reversed.

In addition, Mr. Doppler is guilty of extraordinary laches. Laches will bar a claim when it appears that, under the circumstances, the plaintiff is chargeable with a lack of due diligence in failing to assert his rights which works to the prejudice of another. Estate of Doerr, 388 Pa.Super. 474, 565 A.2d 1207 (1989). Mr. Doppler’s failure to bring his original action to conclusion or to assert any rights to the property for twenty years lulled Mrs. Doppler into believing he had relinquished any further claims to the property. She paid the mortgage and taxes and maintained the property without any contribution from him; it would work to her prejudice to allow Mr. Doppler to benefit from the increase in the property’s value during his twenty years of inaction.

Even if it could be claimed that Mrs. Doppler was also lax in bringing about completion of the 1964 partition, it is not the case that she is similarly guilty of laches. First, it must be remembered that Mrs. Doppler is the defendant in the instant action and was the defendant in the original action as well. Thus it was not incumbent upon her, as it was upon Mr. Doppler, to prosecute the partition action with diligence. Second, Mrs. Doppler’s inaction has not prejudiced Mr. Doppler since the lower court can order Mrs. Doppler to pay interest upon the $2500 she was to have paid Mr. Doppler in order to receive sole title; Mr. Doppler would thus receive full compensation plus interest for his share in the property.

As an alternate basis for decision, we also find that there still exists an enforceable contract between the parties. Briefly, the terms of the 1964 agreement were as follows: Mr. Doppler was to receive title to the parties’ automobile and life insurance policies as well as one-half the value of the equity in the parties’ house while Mrs. Doppler was to receive title to those premises.

The contract was partially performed by Mrs. Doppler when she turned over title to the car and the life insurance policies. Mrs. Doppler received no separate consideration for these transfers; nothing indicates that her completed performance of these provisions was somehow separable from Mr. Doppler’s obligation to transfer his interest in the real estate, even though the further condition of Mrs. Doppler paying to Mr. Doppler one-half of the value of equity in the realty did not take place because of Mr. Doppler’s failure to appear at the real estate settlement. Mrs. Doppler’s partial performance of the contract also militates against a finding that the 1964 agreement was rescinded by the parties.

Indeed, there is no evidence on the record of an intent by Mrs. Doppler to rescind the agreement, nor was there any express repudiation of the 1964 agreement by Mr. Doppler until now. A mere failure to object even to a repudiation is not a manifestation of an assent to it. In Re Robert’s Estate, 380 Pa. 600, 112 A.2d 394 (1955). Therefore, it cannot be said that Mrs. Doppler in any way consented to a recission of the contract. In addition, a recission can only be granted where the parties to a contract can be restored to their original positions with regard to the subject matter of the contract. Sullivan v. Allegheny Ford Truck Sales, Inc., 283 Pa.Super. 351, 423 A.2d 1292 (1980). For twenty years, Mrs. Doppler has maintained the property, paid off the mortgage in full, and paid all taxes without any contribution from Mr. Doppler. Mrs. Doppler will not be restored to her original position with respect to the property if she receives only half of its present value and nothing further.

Finally, we note that under the 1964 partition agreement, Mr. Doppler was to receive all of the relief he requested in his original action, namely half of the then-appraised value of the realty. The only reason Mr. Doppler refused to complete the partition was that he learned that his wife succeeded in keeping the existing mortgage on the property while having his name removed.

All of the circumstances of this case suggest that equity can be accomplished only under the terms originally recommended by the master and initially accepted by the trial court. Therefore, we reverse the latest order of the trial court; we further instruct the trial court to enter an order in terms substantially similar to that recommended by the master and initially accepted by the court, in order to put this dispute, at long last, to rest.

Reversed and remanded. Jurisdiction relinquished.

      . At this juncture, I would note that the value of the property which is to be partitioned is not properly characterized as a disputed factual issue. Instead, the value of the property for the purpose of partition is a legal issue; specifically, the parties ask this court to determine whether the lower court should use the value of the house at the time of the first partition agreement or the value of the house today in re-ordering partition. We note that the case would be more like Gasper if the parties were merely arguing over the propriety of a specific valuation of the property. While this issue is also noted by Mr. Doppler, it is not an issue presented by the present appeal.

      . In other words, Mr. Doppler had absolutely no liability on the mortgage from 1964 onwards.

      . Specifically, Mr. Doppler was to transfer his interest in the property and Mrs. Doppler was to pay him $2500.00, plus interest for the period since 1964.