author: HESTER, Judge:

text:
    661 A.2d 375
    Dennis and Shirley DOUGHERTY, H/W and Frances M. Friel, Individually and as Administratrix of the Estate of Edward D. Friel, Deceased and John T. Harris, Jr. and Rebecca Harris, H/W v. EDWARD J. MELONEY, INC., Burnham Boiler Corp., White-Rodgers Co., a Division of Emerson Electric Company Thalheimer & Weitz Architects, P.C., the Phila. Gas Works Co., Phila. Facilities Management Corp., Barber-Colman Co., Honeywell Inc., Adcock & Matz Associates, Inc., McDonnell & Miller, Inc., and Consolidated Brass Co., ITT Corporation, and Conbraco Industries, Inc. Appeal of WHITE-RODGERS CO., a Division of Emerson Electric Company (at 3193). Appeal of Dennis and Shirley DOUGHERTY, Frances M. Friel, Individually and as Administratrix of the Estate of Edward D. Friel, Deceased, John T. Harris, Jr. and Rebecca Harris, H/W (at 3194).
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1994.
    Filed May 31, 1995.
    Reargument Denied Aug. 4, 1995.

      James D. Crawford, Philadelphia, for White-Rodgers.
    Donald E. Matusow, Philadelphia, for Dougherty.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

White-Rodgers, a division of Emerson Electric Company, appeals from a jury’s determination that it is liable in this products liability action. The plaintiffs also filed a cross-appeal, raising one issue relating to the computation of delay damages. For ease, we refer to White-Rodgers as appellant until we address the plaintiffs’ delay damages claim. We affirm.

This action arose from a boiler explosion at fire station number thirty-four, which is known to firefighters as Engine 34, in Philadelphia on May 3, 1986. At the time of the explosion, the only firefighters present were those of platoon C of Engine 27. On that evening, platoon C initially had been assigned to its own station, but at around 10:00 p.m., the platoon was “detailed” to Engine 34, which means that they had been sent to Engine 34 to cover alarms while members of Engine 34 were fighting a fire. Notes of Testimony, 10/8/91, at 36. Platoon C consisted of Captain John T. Harris, and Firefighters Edward Friel, Dennis Dougherty, and Bruce Weber. The explosion occurred at approximately 10:30 p.m. Thirty-one-year-old Firefighter Friel, who was bending over the boiler, was killed. Captain Harris, who was standing at the bottom of the basement steps, was blown back up the stairs by the force of the blast, suffered severe, permanent, orthopedic injuries, and has been unable to return to work. Firefighter Dougherty, who was standing near Captain Harris, suffered disfiguring burns over sixty percent of his body and also has not been able to return to work. Firefighter Weber, who was on the first floor of the fire station, was not injured.

Three separate civil actions were instituted as a result of the incident: one by Frances M. Friel, individually and as administratrix of the estate of her deceased husband, Edward Friel; one by John Harris and his wife, Rebecca; and one by Dennis Dougherty and his wife, Shirley. The three actions subsequently were consolidated. While a number of defendants initially were involved in these proceedings, by the time of jury trial, most either had been dismissed or had settled with the plaintiffs.

The case was submitted to the jury based upon appellant’s liability as manufacturer of a valve, a component part of the boiler. Appellees contended that appellant’s valve, an automatic safety shut-off gas valve, failed to close, resulting in what is known as a runaway condition. A runaway condition results when gas is permitted to flow continuously to the burner which fires a boiler, and results in uncontrolled overheating thereby causing the boiler to explode. At trial, questions were raised as to whether the boiler had exploded or whether the explosion was caused by a gas leak and as to whether appellant’s valve had caused the accident. However, on appeal, appellant does not contest the jury’s determination that the boiler exploded or that its valve caused the boiler to explode.

As noted supra, appellant’s product is an automatic gas safety shut-off valve designed to prevent a runaway condition, which appellees established was a widespread problem in the boiler industry. This safety valve would stop the gas flowing to the boiler if either one of two conditions occurred: 1) the boiler temperature rose beyond safe limits, or 2) the water level in the boiler became dangerously low. It was the former safety feature which failed in this case.

In its brief, appellant explains how the relevant safety device operated. When the valve was operating properly, the thermostat in the fire station would signal the gas valve to open when the temperature in the fire station dropped below the level selected on the thermostat. An electromagnet in the valve then would be energized, pulling a metal armature against the electromagnet, which caused the gas valve to open. When the fire station warmed to the selected level, the thermostat would again signal the valve. The electromagnet then would release the metal armature and the valve would close.

Approximately ten years after it was installed, the valve intermittently began to fail to open; thus, gas did not flow to the boiler so that the fire station was without heat. In other words, the valve was stuck in the closed position even though the fire station had dropped below the temperature on the thermostat.

The evidence indicates that when the valve first began to fail, firefighters in Engine 34 would press a lever that protruded from a slot in the cap that covered the valve’s inner workings. The protruding lever pressed against the armature attracted by the electromagnet and forced the armature against the magnet, opening the valve. The boiler then would start to operate. Eventually, the lever came off of the valve. Then, the firefighters would either tap on the cover or if that did not work, unscrew the metal cap that enclosed the valve and tap on. the metal armature to get it to open. This enclosing metal cap was removed easily by removing two screws. Furthermore, the armature they pressed upon manually was the same one that was activated before the lever fell off.

The amount and type of actions the firefighters perform in order to open the armature when it was stuck was disputed at trial. We will examine this evidence in detail in connection with our discussion of whether appellant is entitled to judgment notwithstanding the verdict based on misuse of its product.

The reason the valve failed to open was the inability of the electromagnet, when energized, to attract the metal armature. Initially, when the valve was stuck closed, it continued to reclose once the desired temperature was reached. However, on two or three occasions it stuck in the open position. On those occasions, the firefighters pulled on the armature to close the valve.

On April 23,1986, the valve stuck in the open position twice, causing the boiler to overheat. On that date, the boiler was turned off, and Philadelphia Gas Works (“PGW”) was called to remedy the situation. The first time, the PGW servicemen concluded that the valve was not operating properly and would not shut off the boiler when the desired heat was obtained because the armature was not aligned properly. They fixed the armature by bending it with pliers. The second time the boiler overheated, the PGW repairmen informed the fire captain on duty, Captain Gerard McKeown, that the entire valve needed to be replaced. This replacement was necessary because the armature had been bent out of shape and not aligned properly.

Captain McKeown was not authorized to approve the repair and advised the PGW repairmen he would obtain authorization. The PGW servicemen left but failed to tell Captain McKeown that the boiler could not safely be used again. The Captain obtained authorization for appellant’s valve to be replaced and called PGW. A PGW repairmen came to the station on April 26, 1986, to replace the valve, but the station was locked and unoccupied. Tragically, the explosion occurred on May 6, 1986, before the valve was replaced.

At trial, appellees alleged that appellant was liable on three bases. First, it manufactured a defective product in that the cover to the valve should have been sealed, a safety feature available at the time of manufacture, so that no manual manipulation of the valve could occur. They contended that the possibility of the armature becoming bent from people tapping on it after removing the cap was foreseeable. This was particularly true, herein, appellees argued, since appellant actually provided a tool with the valve that could be inserted into a slit in the valve cover to operate the valve manually by pressing down on the same armature that the fireman depressed. With a sealed cover, any problems with the safety features of the valve, which cost less than $300, then would have to have been remedied by replacement, preventing the possibility of runaway due to the bending of the armature, as occurred in this case.

Secondly, appellees alleged that the valve should have contained a warning not to tamper with its inner workings. Finally, appellees contended that appellant was negligent for failing to inform the manufacturer of the boiler that the valve could be dualed; in other words, two valves could be placed together with the second acting as a back-up to prevent a runaway.

On December 16,1991, the jury returned verdicts against 1) appellant; 2) Burnham Corporation, the boiler manufacturer; 3) E.J. Meloney, Inc., the installer of the heating system; and 4) Thalheimer & Weitz Architects, P.C., which designed the fire station and hired the engineering firm which designed the heating system. Appellant and Burnham Corporation each were assigned a thirty percent share of liability. Meloney and Thalheimer each were assigned a twenty percent share of liability. The jury awarded approximately sixteen million dollars in damages collectively to the five plaintiffs. Burn-ham and Meloney previously had settled with the plaintiffs. Thalheimer did not appeal the verdict.

After the filing of the appropriate post-verdict motions, the trial court molded the damage award to reflect the liability determination of the jury and added delay damages, resulting in an order entering judgment jointly and severally against appellant and Thalheimer in the following amounts:

1. in favor of plaintiff Dennis Dougherty in the amount of two million five hundred thousand dollars ($2,500,000.00), to which is added delay damages pursuant to Rule 238 Pa. R.C.P. in the amount of one million two hundred seventeen thousand dollars ($1,217,000.00), for a total judgment of three million seven hundred and seventeen thousand dollars ($3,717,000.00);
2. in favor of plaintiff Shirley Dougherty, on her loss of consortium claim, in the amount of five hundred thousand dollars ($500,000.00);
3. in favor of plaintiff Frances M. Friel, Individually and as Administratrix of the Estate of Edward D. Friel, Deceased, in the amount of one million seven hundred and fifty thousand dollars ($1,750,000.00), awarded under the Pa. C.S.A. Wrongful Death Action Statute, to which is added Rule 238 delay damages in the amount of seven hundred seventy one thousand five hundred seventy five dollars ($771,575.00), for a total wrongful death award of two million five hundred twenty one thousand five hundred seventy five dollars ($2,521,575.00);
4. additionally, in favor of plaintiff Frances M. Friel in the amount of three thousand four hundred dollars ($3,400.00) under the Pa.C.S.A. Survival Action Statute, to which is added Rule 238 delay damages in the amount of one thousand four hundred ninety-nine dollars and six cents ($1,499.06), for a total survival action award of four thousand eight hundred ninety-nine dollars and six cents ($4,899.06);
5. in favor of plaintiff John Harris in the amount of one million one hundred and twenty five thousand dollars ($1,125,000.00), to which is added Rule 238 delay damages in the amount of four hundred forty-nine thousand four hundred thirty seven dollars and fifty cents ($449,437.50), for a total judgment of one million five hundred seventy-four thousand four hundred thirty-seven dollars and fifty cents ($1,574,437.50); and,
6. in favor of plaintiff Rebecca Harris, on her loss of consortium claim, in the amount of fifty thousand dollars ($50,000.00);
together with lawful interest thereon from the aforesaid date of the verdicts.

This appeal and cross-appeal followed.

The events surrounding the accident are as follows. Firefighter Weber witnessed the accident. He was assigned to platoon C at Engine 27, along with Captain Harris, Firefighter Friel, and Firefighter Dougherty. He reported to work at 6:00 p.m. on May 3, 1986, and at approximately 10:00 p.m., platoon C was detailed to cover Engine 34 because the members of that fire station had been called to fight a fire.

Approximately twenty to thirty minutes after he arrived at Engine 34, Firefighter Weber noticed a volume of steam emanating from the running gear room, which is where firefighters keep their boots, hats, and firefighting coats. Firefighter Weber reported the steam to Captain Harris. Captain Harris, Firefighter Weber, and Firefighter Dougherty went in to examine the room while Firefighter Friel was “on watch,” which means that he was manning the emergency radio. N.T., 10/8/91, at 41.

In the running gear room, the steam reached the ceiling, and the men noticed that a drain in middle of the room had water draining down into it. The water was black, and the men were able to determine that the steam was hot enough to melt some of the rubber from the boots. Firefighter Weber picked up a boot, which was hot. However, the men did not have time to discover from where the steam was emanating since just then “a run” came. Id. at 43. A run is a fire call.

The men immediately left. However, they were gone only ten to fifteen minutes because the fire, which was close to Engine 34, was being handled by another station. Platoon C immediately returned to Engine 34 where they again observed the steam. Captain Harris decided to examine the heating system, and Firefighter Friel, who knew where it was, led Captain Harris and Firefighter Dougherty in that direction.

Firefighter Weber, meanwhile, removed his running gear before he followed the other three men. As he arrived at the basement door, there was “an explosion” which resembled a “bomb.” Id. at 47. The force was so strong that Firefighter Weber felt like someone had pushed him from behind, and it threw him across the floor.

After the explosion, Firefighter Weber heard Captain Harris calling to him, and he rushed to the basement door which had much debris behind it. Firefighter Weber pushed the door open. Although the basement was pitch black, Firefighter Weber found Captain Harris who was covered with debris and cinder blocks. Firefighter Weber tried to drag Captain Harris, but Captain Harris screamed in pain. Fearing that Captain Harris had suffered a back injury, Firefighter Weber stopped. Firefighter Weber then heard Firefighter Dougherty calling faintly for him. Realizing that help was needed, Firefighter Weber reported the explosion on the engine radio. He checked on Captain Harris again and reassured him that help was coming. Firefighter Weber found his way down to the basement and found Firefighter Dougherty at the bottom of the stairs on top of a pile of debris.

When Firefighter Weber looked up, he saw Firefighter Friel laying face down in water that was covering the basement floor. Firefighter Weber immediately tried to pull Friel from the water but could not due to debris on top of Friel. Firefighter Weber then placed a cinder block under Firefighter Friel’s head to keep it out of the water. Firefighter Dougherty kept repeating that he was hurt badly. Firefighter Weber went to him, grabbed him by his running coat, pulled him up, and carried him out of the basement, through the station and into the street. He returned in a futile effort to help Firefighter Friel.

Firefighter Dougherty confirmed Firefighter Weber’s testimony to the extent that he was able. He remembered that on the night of the accident, he was detailed to Engine 34 between 6:00 and 10:00 p.m. and remembered investigating the steam prior to being called to fight a fire. He then recalls returning from the fire call and backing into the station. He remembers nothing after this, including the explosion. He awoke in the hospital.

Firefighter Dougherty also testified that on prior occasions when he had been detailed to Engine 34, he had not come into contact with the heating system and was not aware of any problems with the system. N.T., 10/9/91, at 11.

Captain Harris testified that he was aware that Engine 34 was experiencing difficulties with its heating system, stating that “scuttlebutt” indicated that Engine 34 had “a heating problem.” N.T., 10/9/91, at 34. That was the extent of his knowledge. He confirmed that he entered the running gear room and observed steam. An alarm was received immediately after Captain Harris observed the steam, and he did not report the matter at that point. After the firefighters returned, Captain Harris decided to investigate if the heating system was creating the steam. Firefighter Friel went down the steps first, and Captain Harris followed.

The explosion occurred after Captain Harris reached the bottom of the steps and was standing in the doorway to the heating room. He did not smell the odor of gas inside the basement, did not hear any abnormal sounds from the boiler, and did not see steam or water in the basement prior to the explosion. Nothing appeared out of the ordinary. He recalls standing in the doorway and speaking with Firefighter Friel, who was bent over the boiler but does not recall what he was saying. He remembers the explosion, and a floating sensation. His next memory is of being awakened by Firefighter Weber. Id. at 39.

After the testimony relating to the accident itself, appellees presented the testimony of Fire Captain Nathaniel Carr, who investigated the incident for the fire marshal’s office and concluded that the explosion was caused by the boiler.

Evidence relating to the boiler’s heating problems followed. Fire Captain Gerard McKeown of Engine 34 testified that he kept a logbook of service calls made in connection with the boiler. His logbook indicated that on April 23, 1986, at 6:00 p.m., he checked the boiler, discovered that the hot water temperature was 260 degrees, shut down the boiler, and called Philadelphia Gas Works to repair the boiler. The repairmen from PGW arrived at approximately 7:00 p.m., told Captain McKeown that appellant’s gas valve needed to be replaced, and quoted the price of the replacement valve. Captain McKeown told the repairman that he did not have the authority to approve the repair, and they left. The heater still was not operating. Neither repairman told Captain McKeown not to turn the heater on again. Captain McKeown did not believe that the heater was turned on again between April 23, 1986, and May 3, 1986. Prior to the April 23, 1986 incident, Captain McKeown’s personal experience with heating problems involved the pilot light, which had extinguished on several occasions, or a leaking pipe. Captain McKeown testified specifically that he was not at all familiar with an allegation that his firemen would tap on the valve to get the boiler to start and that the first time he heard about the practice was in court.

The next morning, the department with the authority to approve the purchase was notified and gave its approval. PGW was notified on April 24, 1986, at 10:00 a.m. to replace the valve. Several days later, Captain McKeown realized the work had not been performed and had another firefighter call the maintenance department and remind them that the valve had not been replaced. We will now address the various issues raised by appellant and examine the evidence relating to each issue raised on appeal as we address that issue.

Applicability of Strict Liability

Appellant’s first two claims relate to the applicability of products liability law to this action. It argues first that the trial court committed error in failing to perform the balancing test mandated by Pennsylvania law as to whether products liability should be applied to an action. Second, it contends that if such a balancing test had been performed, the court would not have submitted this case to the jury on the basis of products liability principles.

For its initial assertion, which is that appellate courts require the trial court to place its reasons on the record for submitting a case to the jury on the basis of strict liability, appellant relies upon Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978), wherein our Supreme Court stated that a decision as to whether the condition of the product justifies placing liability upon the supplier must be made.

However, our subsequently-decided case law clearly provides that in the absence of a motion by the supplier or manufacturer asking the trial court to make an express ruling on the threshold determination of social policy, Azzarello contains no requirement that such a determination be made. Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 51 n. 6, 485 A.2d 408, 423 n. 6 (1984). In the absence of a motion for an express ruling, it is presumed that the court, by permitting the case to go to the jury, resolved the threshold determination against the supplier or manufacture. Id. In the present case, there is no indication that appellant asked the court to make its decision on the record; accordingly, this issue lacks merit.

Appellant’s reliance on Marshall v. Philadelphia Tramrail Co., 426 Pa.Super. 156, 165 n. 2, 626 A.2d 620, 625 n. 2 (1993), is misguided. In that case, we stated that while an on-the-record analysis regarding the social desirability of application of products liability law in a case may be useful to the appellate courts, we did not hold that it is required in the absence of an explicit request by the manufacturer.

Appellant next argues that if the threshold balancing test is applied, it is clear that application of products liability law in this case was inappropriate. Appellant notes that the case was submitted to the jury based upon the position that the valve was not safe for its intended use because the cover was removable easily and because the valve did not contain warnings not to tamper with the small armature which was tapped when the boiler did not heat. It then posits that the intended use of the valve, a valve for commercial boilers, was in commercial settings and thus, that any intended user of the valve was “a person knowledgeable about the operation of commercial heating systems.” Appellant’s brief at 28. It continues that therefore, as a matter of law, the intended user of the product would know not to tap the armature and application of products liability law was inappropriate.

This argument is meritless. Commercial boilers are used in churches, apartment buildings, office buildings, and many other types of non-residential buildings. Persons knowledgeable about the operation of commercial heating systems are people who manufacture and repair such systems. Unless this valve was to be sold only to such people, appellant’s argument fails. There is no indication that apartment owners or firemen or clergymen or employees who are responsible for the general maintenance of office buildings are knowledgeable about how boilers operate, the purpose of appellant’s valve, or the dangers of tapping appellant’s valve to re-start an inoperable boiler. The intended users of this product are no different from anyone who owns a furnace in their home. They do not necessarily know how it works. We therefore reject appellant’s argument that as a matter of law, the valve was safe for its intended users.

Judgment notwithstanding the verdict

Appellant’s next set of claims involve its position that it was not liable as a matter of law under applicable products liability principles. First, we examine our standard of review in this context.

In reviewing a motion for judgment n.o.v., the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moreover, a judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Further, a judge’s appraisement of the evidence is not to be based on how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury’s deliberations. There are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, a court reviews the record and concludes even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Alfred M. Lutheran Distributors, Inc. v. A.P. Weilersbacher, Inc. 437 Pa.Super. 391, 396, 650 A.2d 83, 85 (1994) quoting Moure v. Raeuchle, 529 Pa. 394, 402-03, 604 A.2d 1003, 1007 (1992).

A manufacturer’s liability for its defective products is outlined in section 402A of the Restatement (Second) of Torts, which was adopted by our Supreme Court in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Under section 402A, a plaintiff must prove that the product was sold in a defective condition that is dangerous to the user and that the defect was the proximate cause of the injuries. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). In addition, it long has been the law that a defective condition includes the failure to give adequate warnings required for a product’s safe use. Walton v. Avco Corp., 530 Pa. 568, 610 A.2d 454 (1992). A seller is required to give warnings that are needed to inform the user or consumer of the possible risks and inherent limitations of his products. Id.

Warnings and Removable Covers

Appellant presents the same argument with respect to its position that it was not liable for its failure to seal the valve cover and with respect to its position that it was not liable for its failure to warn against manual manipulation of the armature. That argument pertains to the fact that the valve was to be used in “commercial” boilers. Specifically, it argues as follows regarding the first basis of products liability presented to the jury:

As explained above, the fact that the valve cover could be removed with a screw driver does not make the valve unsafe for its intended commercial use or for commercial users. First, such users would be capable of overriding sealed valves if they wished to do so. Second, such users know better than to operate a gas valve as an on/off switch with the danger of bending the armature out of shape. Whether or not the valve had a sealed cover, a commercial user would know not to use the valve, whose purpose is to carry out the thermostat’s commands, as a manual on/off switch for over a year.

Appellant’s brief at 29 (citations to record omitted).

Similarly, with respect to the lack of warnings, appellant claims:

In this case, the intended user of the valve was an operator of commercial boilers. Such a user need not be warned not to open and tamper with the inner workings of a gas valve. The risks inherent in such manipulation are obvious to the professionals for whom a commercial heater is designed to be serviced and maintained.

Appellant’s brief at 31.

We categorically reject these arguments based on appellant’s total failure to produce any evidence that these firefighters were experienced boiler “professionals” or, for that matter, that they even knew any more about boilers than the average person. A manufacturer is not exempt from products liability law because he sells his products to commercial establishments. These plaintiffs were firefighters, not boiler repairmen. This argument would be acceptable if appellant sold its valve for boilers which were sold only to heating system repairmen.

However, appellant presented no evidence that anyone at Engine 34 or platoon C of Engine 27 knew how to operate or repair a boiler or knew what its valve did or did not do. Firemen are knowledgeable about the properties and dangers of fires, not boilers. Compare Mackowick v. Westinghouse Electric Corp., 525 Pa. 52, 575 A.2d 100 (1990) (electricians are knowledgeable about the properties of electricity).

Instead, the evidence was that the firefighters knew how to light the pilot to the boiler and did so when the boiler did not work because the pilot was extinguished. When the boiler did not operate and the pilot was lit, which happened only occasionally, the firefighters pressed the armature, imitating the function of the red lever that was missing. When anything more serious was wrong with the boiler, the firefighters called professionals, Philadelphia Gas Works.

In fact, Fire Marshal Carr testified specifically that this was the first time he had investigated a boiler explosion and that he did not consider himself an expert on boilers. Similarly, when asked whether he knew any firemen knowledgeable in the operation of boilers, Firefighter Francis Kane stated that he knew one firefighter who was a boiler “professional” and that the firefighter in question operated a plumbing and heating business as a second occupation. Finally, the firefighters who tapped on the armature to get the boiler to work stated that when they did so, they thought they were getting the boiler to function in a proper manner rather than creating a potential for a boiler explosion.

Dualing

Appellant posits that it was not responsible for the boiler manufacturer’s decision not to “dual” two of the valve’s together. While true, this is not the basis upon which this issue was submitted to the jury. Appellees alleged that the boiler was defective in that a second valve was not installed as a back-up against runaway conditions. Appellees argued that Burnham, as manufacturer, was responsible for the decision as to whether to place a back-up valve on the boiler. However, Burnham presented evidence that it never had been informed about the dual valve manifold. The issue presented to the jury was whether appellant had told Burnham about this safety feature and not whether appellant was responsible for Burnham’s decision not to “dual” the valve. See R.R. at 2089a.

Misuse

Appellant defended on the basis, inter alia, that the valve had been misused by members of Engine 34 and requests judgment n.o.v. based on that misuse. Appellant contended that the misuse occurred when the valve failed to open when the temperature was low and consisted of the firemen pressing the valve armature. Again without citation to the record, appellant suggests, “By their own admission, for well over a year, the firefighters banged-on, tapped, pushed, pulled and prodded a gas valve that had, by all appearances, worn out.” Appellant’s brief at 37. Appellant misrepresents the admissions of the firefighters of Engine 34 and ignores the fact that its own evidence regarding the nature of the manipulation of the valve was contradicted extensively.

The evidence on this issue follows, Appellant read into evidence the deposition of Firefighter Francis Kane. His deposition indicates that initially, the valve had a lever to push and this reset the valve if the heat would not come on. R.R. at 1670a. Later, when the lever “was not there,” the firefighters would tap on the case or remove the cover, hit the armature, and the boiler would start. R.R. at 1670a.

Firefighter Kane testified that the lever that was pressed initially came through a slot in the cover of the valve. When it was gone, the firefighters would remove the cover and tap the armature so as to perform the same function initially performed by the lever. He described the lever as a red plastic device that resembled the end of a popsicle stick which came through the slot in the cover. Firefighter Kane first encountered the lever when he went to the basement with a PGW employee, and the employee hit the lever to reset the valve. Thereafter, when the lever was missing, the firefighters would remove the cover to the valve and hit or tap the armature to duplicate the same function that the lever once performed. Firefighter Kane stated specifically that when the lever disappeared and the boiler would not start, he would remove the cover, and he “pushed down the lever that the popsicle stick would have hit.” R.R. at 1675a. Once or twice Firefighter Kane pulled the arm when the valve was stuck open.

Firefighter Steven Archibald of Engine 34, another firefighter involved in this activity, testified that in winter, 1985, the boiler would not turn on. R.R. at 384a. This was an intermittent problem. Id. at 385a. Firefighter Archibald would remove the unsecured cover and tap or press on the armature to get the boiler to operate. Id. at 388a. He merely thought that he was getting the boiler to operate properly by pressing on the armature. He did this five or six times.

Finally, Lieutenant Richard Brooks of Engine 34, indicated the following. Most of the heating problems at the fire station occurred because the pilot light would extinguish. He was told how to re-light the pilot and did so when the boiler failed to operate. He stated that two or three times for two heating seasons, the boiler did not operate after the pilot was ignited. When that occurred, he was able to get the boiler to operate by tapping on the cover of appellant’s valve with his knuckles. R.R. at 409a.

Appellant did present other evidence of misuse through the testimony of the Philadelphia Gas Works servicemen, John Meyer and Edward Pearson, who testified that they were told by the firefighters that the firefighters were inserting metal objects into the valve armature to keep it open. This hearsay evidence was refuted. Firefighter Archibald was questioned as follows:

Q. Did you ever stick anything in that valve in order to keep it open or in order to try to have it remain open? A. Never.
Q. Did you know of anybody at Engine 34 who did that? A. No, I do not.

R.R. at 389a.

Firefighter Kane’s deposition reads similarly:
Q. Well, I’m just talking about the valve. Did you ever do anything to keep the valve in the open position other than tapping it?
A. To keep it from lighting?
Q. No. To keep it in the open position so the gas was flowing.
A. No.
Q. Did you ever put anything on top of any lever to keep the gas flowing?
A. No.
Q. Did you ever jam anything into the valve to keep the gas flowing?
A. No.
Q. To your knowledge, did anyone at the fire station ever do anything like that?
A. No.

R.R. at 1678a.

Lieutenant Brooks was asked the same question:
Q. Lieutenant Brooks, there has been a representation in this court in opening speeches that Mr. Meyer is going to testify that while he was present [the] afternoon [of April 23, 1986] the firemen, which is obviously either you or Mr. Kane, according to your testimony, told him that they would jam something into that valve, a piece of metal or whatever, in order to keep that valve open at all times. Did you ever say anything of the kind to that repairman that afternoon? A. No, I did not.
Q. Did you ever hear Francis Kane ever say anything like that to that repairman?
A. No, sir, I did not.

R.R. at 418a.

Furthermore, Captain Carr testified that he questioned Mr. Meyer and Mr. Pearson in connection with his own investigation. Neither PGW repairmen told him about the firefighters allegedly sticking items into the valve to keep it open. R.R. at 225a.

Viewing the evidence in light of the appropriate standard, we cannot say that two reasonable minds would differ that it was unforeseeable that the valve cap would be removed and the armature would be tapped when the valve was stuck. This is especially true in this case since Firefighter Kane’s testimony indicates that he started this procedure because it replicated the function of a lever which originally was on the valve itself. Only exceptionally negligent misuse of a product warrants grant of judgment n.o.v. in favor of the manufacturer of the product. See Mathis v. United Engineers & Constructors, Inc., 381 Pa.Super. 466, 554 A.2d 96 (1989). Normally, the issue of whether conduct involved in misuse is foreseeable is to be resolved by the jury. See Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 539 A.2d 880 (1988); Burch v. Sears, Roebuck & Co. 320 Pa.Super. 444, 467 A.2d 615 (1983).

We conclude that the facts herein differ significantly from Davis v. Berwind Corp., 433 Pa.Super. 342, 640 A.2d 1289 (1994), where we determined that a product’s alteration was the intervening cause of a plaintiff’s injuries as a matter of law. In Davis, the buyer, plaintiff’s employer, removed a safety device from the product in direct violation of the manufacturer’s specific warnings not to remove the safety device. We concluded that the decision to remove the safety device despite warnings not to do so was unforeseeable and a substantial change in the condition of the product and that the manufacturer should not be liable when a product’s original design is so significantly altered against its specific instruction. Our holding also was premised upon policy concerns since the employer’s removal of the safety device constituted a violation of state safety law.

Herein, there were no instructions or warnings, and the misuse did not involve removal of a safety device but involved taking off an easily-removable covering and duplicating the function of a device included in the manufacturer’s original design. Thus, reasonable minds would differ as to the foreseeability of the firefighters’ actions, unlike in Davis, and the issue properly was left to the jury to resolve.

Superceding and Intervening Cause

Appellant also contends that the failure of the PGW repairmen to replace the valve is, as a matter of law, a superceding or intervening cause of the explosion, absolving it from liability. The Supreme Court recently spoke on this issue, stating that an actor is relieved from liability due to an intervening or superceding cause only if the intervening or superceding negligent acts were “so extraordinary as not to have been reasonably foreseeable.” Powell v. Drumheller, 539 Pa. 484, 492, 653 A.2d 619, 623 (1995). We cannot say, as a matter of law, that PGWs delay in replacing the valve was so extraordinary as not to be foreseeable.

Evidentiary claims

Appellant next complains about various evidentiary rulings of the trial court.

“Our standard of review of the denial of a new trial is to decide whether the trial court committed an error of law which controlled the outcome of the case or an abuse of discretion.” Robertson v. Atlantic Richfield Petroleum Products Company, 371 Pa.Super. 49, 61, 537 A.2d 814, 820 (1988), allocatur denied 520 Pa. 590, 551 A.2d 216 (1988).
The appellant bears a heavy burden in persuading this court that such error occurred. In considering all of the evidence in the light most favorable to appellee we must, to reverse the trial court, conclude that the verdict would be changed if another trial were granted. Id.
When the basis of the request for a new trial is the lower court’s ruling(s) on evidence, to constitute reversible error, such ruling “must be shown not only to have been erroneous but harmful to the party complaining.” Hart v. W.H. Stewart, Inc., 523 Pa. 13, 16, 564 A.2d 1250, 1252 (1989) (citations omitted). “An evidentiary ruling which did not affect the verdict will not provide a basis for disturbing the jury’s judgment.” Id.

Wilson v. Donegal Mutual Insurance Co., 410 Pa.Super. 31, 34, 598 A.2d 1310, 1312 (1991).

Appellant first suggests that the trial court erred in precluding it from introducing into evidence reports appended to the fire marshal’s reports. It contends that the reports were admissible as business records and that the reports appended to it were admissible because the fire marshal “solicited and reviewed” the reports “in reaching his conclusions.” Appellant’s brief at 44.

We need not consider whether the report of a fire marshal may be admissible under the business records exception to the hearsay rule. See Githens, Rexsamer & Co. v. Wildstein, 428 Pa. 201, 236 A.2d 792 (1968). The reports that appellant sought to admit were not reports of the fire marshal. They were reports prepared by outside agencies and related to testing of the various parts of the boiler. Fire Marshal Carr stated twice that he did not rely upon those test results in forming his opinion as to the cause of the explosion. R.R. at 226a, 228a.

Appellant attempted to gain admission of these reports based on the hearsay exception which allows expert reports to be admitted as long as those reports are relied upon customarily by the testifying expert in forming his opinion. It is clear that the rule provides that reports relied upon by a testifying expert in rendering his opinion are in some cases admissible if the testifying expert customarily relies upon that type of report in the practice of his profession. See Allen v. Kaplan, 439 Pa.Super. 263, 653 A.2d 1249 (1995). Since Captain Carr stated explicitly that he did not rely upon those reports, appellant failed to establish the foundation for their admissibility.

The next issue concerns the trial court’s alleged failure to allow appellant to cross-examine Captain Carr about the fact that the boiler, in violation of certain city ordinances, never had been registered or inspected. Appellant cites to a case holding that violation of a city ordinance is evidence of negligence. We do not question the propriety of this statement of law. However, appellant has not substantiated the merits of its claim by citation to the proper section of the record. It also fails to direct our attention to any city ordinances on this issue.

Specifically, in support of this argument, appellant cites to page 148a of the reproduced record where Captain Harris, not Captain Carr, was being cross-examined about whether he ever discussed the results of the fire marshal’s investigation with Captain Carr. That portion of the reproduced record has nothing to do with city ordinances. Thus, we do not know if the trial court did restrict Captain Carr’s cross-examination or its rationale for such restriction. Further, we do not intend to scour the record to discover this information. Finally, the fact that a city ordinance was violated was not relevant herein since there is no evidence that any plaintiff or any defendant was responsible for ensuring the inspection or registration of the boiler.

Appellant’s argument on its next evidentiary issue reads in its entirety as follows:

Thomas Bonner, PGW’s Chief Operating Officer on the date of the accident, reviewed the Fire Marshal’s conclusions concerning the cause of the explosion, shortly after the accident in 1986 and, while doing so, made highly-critical hand-written notations concerning certain of the Fire Marshal’s conclusions which Captain Carr repeated at trial. (1737a; 1739a-1741a). At trial, five years later, Bonner lacked a present recollection of his earlier notations. However, his notations satisfied all requirements for admissibility under the past recollection recorded exception to the hearsay rule. The erroneous exclusion of these notations, which would have undermined portions of Captain Carr’s trial testimony as to the cause of the accident, was highly prejudicial to White-Rodgers. See 1741a-1750a (excluding notations).

Appellant’s brief at 46-47.

As noted above, the appellant has the burden of showing that an evidentiary ruling was in error and prejudicial. Appellant fails to indicate in what specific way Mr. Bonner’s past recollection recorded was critical of the fire marshal’s report. More importantly, however, is that the fire marshal’s report established only one evidentiary matter: that the boiler exploded. Meanwhile, appellant’s primary defenses were that the valve stuck open due to the manufacturer’s failure to construct the boiler properly or that it was absolved from responsibility for the valve sticking open based on the fact that the firemen misused the valve.

Appellant fails to substantiate how Mr. Bonner’s past recollection recorded aided in its defenses or would have affected the outcome at trial. Appellant neglects to indicate what his recollection was.

“The argument shall be followed by such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). Compare Commonwealth v. Rodgers, 413 Pa.Super. 498, 605 A.2d 1228, 1239 (1992), appeal denied, 532 Pa. 655, 615 A.2d 1311 (appellate brief must include pertinent discussion along with citation to pertinent authorities). Arguments that are not appropriately developed are waived. Id., citing, Commonwealth v. Nelson, 389 Pa.Super. 417, 422-23, 567 A.2d 673, 676 (1989), alloc. denied, 527 Pa. 623, 592 A.2d 44 (1990).

Nimick v. Shuty, 440 Pa.Super. 87, 655 A.2d 132, 138 (1995). Since appellant fails to refer to any authority in support of this contention that the trial court erred, the claim is waived. Id.

Appellant next contends that the trial court erred in precluding the display to the jury a video which showed that “if the boiler had been built as designed the explosion would not have occurred, even if the valve was stuck in the open position.” Appellant’s brief at 47. Appellant notes that the video showed that the firehouse boiler runaway would not have resulted in an explosion if it had been equipped with a certain back-up safety device. Initially, we question how this would relieve appellant from liability since its defective gas valve, which stuck in the “on” position, caused the situation which created the need for the safety device.

Second, appellant fails to cite to a case in this portion of its brief regarding which evidentiary rule supports admission of the videotape. The introduction of experiments as evidence was discussed in Leonard v. Nichols Homeshield, Inc., 384 Pa.Super 1, 557 A.2d 743, 745 (1989) (emphasis added), wherein we stated that:

“[The] general rule regarding corroboration by experiments is that ... the demonstration may be admitted into evidence when the circumstances under which the experiment was performed were sufficiently similar to the event in question to throw light on a material point in controversy and to assist the jury in arriving at the truth rather than to confuse the jury or prejudice the other party.”

The record indicates that there were various differences in the videotaped boiler experiment and the boiler incident at issue. R.R. at 1760a-1772a. Accordingly, this claim fails.

Appellant next complains that the trial court erred in not allowing it to cross-examine Glenn Sward, the director of engineering of Burnham Corporation, as an expert witness since Burnham had identified him as a potential expert witness during discovery. However, the record indicates that .Mr. Sward testified as a fact witness since Burnham settled prior to trial and the proposed cross-examination concerned matters beyond the scope of direct. In addition, during this cross-examination, appellant was attempting, once again, to introduce into evidence hearsay reports of non-testifying experts. No error occurred.

Cross-Appeal

Cross-appellants-plaintiffs claim that the trial court erred in applying Anchorstar v. Mack Trucks, Inc., 533 Pa. 177, 620 A.2d 1120 (1993), to eliminate its original assessment of delay damages on the consortium claims of Mrs. Harris and Mrs. Dougherty. Cross-appellants note that the issue was not raised in the timely filed response to cross-appellants’ motion for assessment of delay damages but was raised via motion for reconsideration filed during the post-trial-motions phase of this action.

Recent case law provides that an issue presented to a trial court in untimely post-verdict motions is considered preserved as long as the trial court chooses to address the claim presented in the untimely motion. See Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989); Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (1988); Millard v. Nagle, 402 Pa.Super. 376, 587 A.2d 10 (1991); Pomposini v. T.W. Phillips Gas & Oil Co., 397 Pa.Super. 564, 568 n. 3, 580 A.2d 776, 778 n. 3 (1990), aff’d on other grounds sub nom. Kepple v. Fairman Drilling Co., 532 Pa. 304, 615 A.2d 1298 (1992); Commonwealth v. Sopota, 403 Pa.Super. 1, 587 A.2d 805 (1991).

We do not view Brocklehurst by Brocklehurst v. Watson, 409 Pa.Super. 1, 597 A.2d 631 (1991), as changing this conclusion. In that case we held that a motion for Rule 238 damages must be filed timely since a Rule 238 motion is an affirmative request for assessment of damages and since Rule 238 is designed as a punishment for non-settling litigants. We did not discuss whether the trial court could consider untimely responses to such a motion.

Further, in Brocklehurst we distinguished a motion for delay damages from other post-verdict motions since the latter are designed to bring to a trial court’s attention errors which question the integrity of the trial process. Thus, by considering untimely post-verdict motions, the trial court is deciding whether to right a wrong.

Finally, Rule 238 provides that if there is no opposition to a motion for delay damages, the trial court will assess those damages. However, the trial court still must calculate those damages properly. Nothing in the rule prevents a party from requesting reconsideration if the trial court utilizes the inaccurate figures or dates in calculating the damages.

Herein, cross-appellee’s motion for reconsideration did not involve a request for punishment of plaintiffs. Rather, it clearly was bringing to the trial court’s attention an error in calculation utilizing recent case law. Since this issue was presented to the trial court and addressed by it, even though the issue was not raised in a timely response to the motion for delay damages, the issue is preserved under the previously-cited case law, and we cannot accept cross-appellant’s position that the issue resolved in the Anchorstar decision was “not properly raised or preserved.” Cross-appellants’ brief at 36.

Judgment affirmed.

      . Appellant does not raise on appeal any question as to the amount of damages awarded.

      . At page forty-two of its brief appellant alleges that for the same reasons outlined in its argument for judgment n.o.v., the verdict was against the weight of the evidence in that the jury rendered a verdict so contrary to the evidence as to shock one’s sense of justice. Our sense of justice is not shocked by the verdict, and we will not overturn the verdict based upon appellant’s cursory weight argument.


source: Caselaw Access Project

author: POPOVICH, Judge: HUDOCK, Judge,

license: Public Domain

text:
    661 A.2d 390
    COMMONWEALTH of Pennsylvania, Appellee, v. Daniel CARTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1995.
    Filed June 6, 1995.
    Reargument Denied Aug. 4, 1995.

      Patrick J. Egan, Doylestown, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before POPOVICH, HUDOCK and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County following appellant’s convictions for first degree murder, possession of an instrument crime, possession of a prohibited offensive weapon and criminal conspiracy.

Appellant now raises the following questions for review:

1. Whether the trial court erred by admitting as substantive evidence the prior inconsistent statement contained in the preliminary hearing testimony of Shaw [sic] Bayne (“Ali”) where, inter alia, Ali did not testify and was therefore not subject to cross-examination at appellant’s murder trial in violation of Brady-Lively.
2. Whether the trial court erred by admitting as substantive evidence the prior inconsistent statement contained in the preliminary hearing testimony of Shaw [sic] Bayne (“Ali”) where, inter alia, Ali’s statement was not trustworthy or reliable in violation of Brady-Lively and the Confrontation Clause of the Sixth Amendment to the United States Constitution.
3. Whether the defense counsel was ineffective for failing to call any witnesses where, inter alia, said witnesses were known to the defense attorney, JOSHUA BRISKIN, ESQUIRE, and whose testimonies would have cast reasonable doubt on the Commonwealth’s case.

After careful review, we affirm.

On July 3, 1992, at approximately 1:30 a.m., appellant and one Jamal Jones arrived at the home of Daniel Witherspoon at 711 Mercy Street in Philadelphia. Appellant requested to speak with Shawn “Ali” Bain, who was Witherspoon’s step-son and resided with him. Appellant asked Bain if he could borrow his twelve gauge sawed-off shotgun. Bain agreed and retrieved the shotgun, loaded with three shells, from his bedroom. Appellant and Jones left with the shotgun and met one Wayne “Hawk” Witherspoon. The three men proceeded to a playground, approximately one and one-half blocks from Witherspoon’s house. Once inside the playground, appellant approached the victim, Darryl Chinn, who was sitting on a park bench facing the basketball court. Appellant fired a single, fatal shot into Chinn’s groin and pelvis from approximately two yards away.

On September 11, 1992, Daniel Witherspoon, while in police custody for an unrelated domestic abuse offense, requested to speak to the police regarding Chinn’s homicide. Witherspoon described to the police the events which transpired on the evening of July 3, 1992. Witherspoon stated that Bain gave appellant a twelve gauge shotgun, and that he observed appellant, Jones and “Hawk” enter the playground where the victim was sitting. According to Witherspoon, appellant fired one shot at the victim and then retreated north on Seventh Street. Witherspoon reviewed the verbatim transcription of his statement and signed each page. On October 29, 1992, Wither-spoon gave a second statement to police, reaffirming the contents of the September 11, 1992, statement.

The police brought Bain in for questioning on September 11, 1992, in order to corroborate Witherspoon’s story. Bain gave a statement, implicating appellant, to Detective Michael Cahill. His statement established that he gave appellant his twelve gauge shotgun, loaded with three shells, on the evening of July 3, 1992. Bain stated that “Hawk” returned the gun to him approximately five to ten minutes after borrowing it, with one shell missing. Later that night, Witherspoon warned Bain, to get the gun out of the house because appellant had just killed somebody with it. Bain agreed and delivered the gun to one George Mitchell. The police retrieved the shotgun from Mitchell’s house the following day. Bain reviewed the verbatim transcription of his statement and signed each page. On October 5, 1992, Bain reaffirmed the statement of September 11, 1992, in a second version that was signed and reviewed by Bain.

On October 31, 1992, appellant was arrested and charged with the murder of Darryl Chinn. A preliminary hearing was scheduled for December 6, 1992, at which both Witherspoon and Bain recanted their prior statements to police. Wither-spoon testified, during questioning by the prosecution, that he was high on crack cocaine when he gave police the September 11, 1992, statement and could not remember the substance of that statement. Witherspoon denied witnessing appellant shoot Darryl Chinn. The prosecution then introduced Wither-spoon’s September 11, 1992, statement as both substantive and impeachment evidence.

Bain also recanted his September 11,1992, statement. Bain contended that he gave his unloaded shotgun to Jones, not appellant, on the night of July 3, 1992. Bain testified that he lied in his September 11, 1992, statement because he was scared. Bain also stated that during his October 5, 1992, interview with police, Detective Morton did not read his September 11, 1992, statement to him. The prosecution then introduced Bain’s prior inconsistent statement as both substantive and impeachment evidence. The trial court held appellant for trial based on Witherspoon’s and Bain’s statements as well as other evidence.

Appellant proceeded to a bench'trial on January 31, 1994. Witherspoon appeared at trial and again recanted his September 11,1992, statement. He denied witnessing appellant shoot the victim. The prosecution then introduced Witherspoon’s prior inconsistent statement as substantive and impeachment evidence.

A bench warrant was issued to secure Bain’s appearance at appellant’s trial but the police were unable to locate him in order to compel him to testify on behalf of the Commonwealth. Apparently, Bain had fled. The prosecution attempted to introduce Bain’s prior inconsistent statement pursuant to 42 Pa.C.S.A. § 5917 on the ground that Bain was “unavailable.” Various Philadelphia police officers testified on behalf of the Commonwealth regarding their unsuccessful attempts to locate Bain and secure his attendance at trial. The trial judge then permitted the prosecution to introduce Bain’s preliminary hearing testimony which included his prior inconsistent statement made September 11, 1992.

The Commonwealth also introduced substantial evidence in addition to Witherspoon’s and Bain’s statements, connecting appellant to the crime. The twelve-gauge shotgun that appellant used to commit the murder and the shotgun pellets that were removed from the victim’s body were introduced into evidence. The Commonwealth established that the shotgun was in working condition and that Chinn was killed by a single blast from a twelve-gauge shotgun. A ballistics report demonstrated that the shotgun fired the same type of shells that were fired at the victim.

Also, one Dr. Lieberman, the Commonwealth’s forensic pathologist, stated that the victim was killed by a single shotgun blast which was fired from a distance of about two or three feet. Philadelphia police officer John Ross testified that he found the victim lying next to the bench on which Wither-spoon observed him immediately before the shooting. Properly introduced evidence also established that Witherspoon could have observed the playground and the bench where the shooting occurred. Appellant offered no evidence after the Commonwealth rested.

The court found appellant guilty of first degree murder, various firearms offenses and criminal conspiracy. Prior to sentencing, appellant filed an oral motion for extraordinary relief pursuant to Pa.R.Crim.P. 1405(B), claiming that the trial court erred by admitting Bain’s out-of-court statement. After a penalty phase hearing, on March 10, 1994, appellant was sentenced to life imprisonment on the murder charge. Sentence was suspended on the remaining charges. The trial court denied appellant’s motion for extraordinary relief and this timely appeal followed.

Appellant now contends that the trial court erred in admitting Shawn Bain’s prior inconsistent statement to police because the admission of his evidence did not qualify as a prior inconsistent statement pursuant to Brady-Lively and violated appellant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. We agree that the trial court erred, but find the error was harmless and affirm the judgment of sentence.

The trial court determines whether evidence is relevant and admissible and the trial court’s ruling on admissibility will not be disturbed absent an abuse of discretion. Commonwealth v. Owens, 437 Pa.Super. 64, 649 A.2d 129 (1994).

Our supreme court established the rule for admissibility of a non-party witness’ prior inconsistent statement in Commonwealth v. Brady, supra and Commonwealth v. Lively, supra. In Brady, the court held that, “otherwise admissible prior inconsistent statements of a declarant who is a witness in a judicial proceeding and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein.” Brady, 510 Pa. 130, 507 A.2d at 70. Lively involved a reexamination of the rule announced in Brady and resulted in our supreme court reaffirming the general principle established in Brady. Lively, 530 Pa. 468-469, 610 A.2d at 9-10. The court, in refining the Brady rule, held:

In an effort to ensure that only those hearsay declarations that are demonstrably reliable and trustworthy are considered as substantive evidence, we now hold that prior inconsistent statement may be used as substantive evidence only when the statement is given under oath at a formal legal proceeding; or the statement has been reduced to a writing signed and adopted by the witness; or a statement that is a contemporaneous verbatim recording of the witness’s statements.

Id. at 470, 610 A.2d at 10 (citation omitted).

This case presents an unusual situation for admission of a prior inconsistent statement in that the statement was contained in the transcript of Bain’s preliminary hearing testimony. The Commonwealth introduced Bain’s preliminary hearing testimony to provide a foundation for offering Bain’s prior inconsistent statement implicating appellant. Appellant contends that Bain’s September 11, 1992, statement was inadmissible under Brady and Lively because Bain did not testify at trial and was not subject to cross-examination.

Our en banc decision in Commonwealth v. Bujanowski, 418 Pa.Super. 163, 613 A.2d 1227 (1992), allocatur denied, 533 Pa. 642, 622 A.2d 1374 (1993), addressed a similar situation. In Bujanowski, Ronald Bujanowski, Jr. gave the police a statement that implicated Marvin Gorelick, himself, and his father, Ronald Bujanowski, Sr., in a series of robberies. Id. 418 Pa.Super. 165, 613 A.2d at 1228. Bujanowski, Jr. recanted his prior statement to police at the preliminary hearing and stated that he knew nothing about the burglaries. Id. The Commonwealth then introduced Bujanowski’s prior inconsistent statement as substantive evidence of guilt of Bujanowski, Sr. and Gorelick. Id.

At trial, Bujanowski, Jr. was unavailable to testify at which point the Commonwealth attempted to introduce Bujanowski, Jr.’s preliminary hearing testimony, containing his prior inconsistent statement implicating Bujanowski, Sr. and Gorelick. Id. The trial court barred the use of the statement as substantive evidence. Id. at 167, 613 A.2d at 1229.

On review, we affirmed the trial court’s ruling, stating, “[t]he prior inconsistent statement of Ronald Bujanowski, Jr. in the instant case does not qualify as admissible substantive evidence under Commonwealth v. Brady ... because the declarant will not be present in the court and subject to cross-examination.” Id. at 173, 613 A.2d at 1232. Also, we held that the admission of the prior inconsistent statement violated the defendants’ rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution. Id. at 175-178, 613 A.2d at 1233-1235.

Here, the lower court erroneously admitted the preliminary hearing testimony of Bain in light of the identical situation that existed in Bujanowski The trial court erred in admitting the evidence under both the Brady/Lively standard and pursuant to the Confrontation Clause of the United States Constitution. Bain was unavailable at trial and the Commonwealth attempted to introduce his prior inconsistent statement by laying a foundation with his preliminary hearing testimony. Because the trial court erred in admitting this evidence, we must determine if the error was harmless.

The Commonwealth has the burden of establishing that an error is harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). “[A]n error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict.” Id., 476 Pa. 409, 383 A.2d at 164. An error is harmless where:

... (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Commonwealth v. Foy, 531 Pa. 322, 612 A.2d 1349 (1992) (citations omitted).

Here, Bain’s erroneously admitted testimony was substantially similar to Witherspoon’s properly admitted testimony. Both Witherspoon and Bain gave statements to the police averring that appellant came to their house and asked for Bain’s shotgun. In fact, Witherspoon’s properly admitted statement contained information that was much more damaging to appellant. Witherspoon actually observed the shooting, whereas Bain stated that he only heard about the shooting after it occurred.

There was substantial evidence introduced by the Commonwealth in addition to Bain’s erroneously admitted statement. The Commonwealth introduced the murder weapon as well as the shotgun pellets that were recovered from the victim’s body. It was established that the victim was killed by a single blast from a twelve-gauge shotgun and that the shotgun was in a working condition. The ballistics report indicated that the shotgun fired the same type of shells that were fired at the victim.

Dr. Lieberman, the Commonwealth’s forensic pathologist, stated that the victim was killed by a single shotgun blast which was fired from a distance of about two or three feet away. This evidence lends support to Witherspoon’s statement to police that appellant fired one shot from a close distance as the victim sat on a bench in the playground. The Commonwealth produced further evidence corroborating Witherspoon’s statement to police via the testimony of Officer John Ross who stated that he found the victim laying next to the bench on which Witherspoon observed him. Evidence also established that Witherspoon could have observed the playground where the shooting occurred. Thus, even without Bain’s similar statement, the Commonwealth produced a substantial amount of evidence corroborating Witherspoon’s properly admitted statement to police.

Further examination of Bujanowski, reinforces our finding that the admission of Bain’s testimony was harmless. In Bujanowski, the unavailable witness’ testimony was the only means by which the Commonwealth could prove its case against the defendant. Id. 418 Pa.Super. 166-167, 613 A.2d at 1228-29 (emphasis added). In fact the Commonwealth stated that its case would not survive a demurrer without the evidence. Id. at 167, 613 A.2d at 1229. Here, Bain’s statement to the police was not the only evidence that would enable the Commonwealth to connect appellant with the crime. As previously outlined, the Commonwealth had a substantial amount of additional evidence in addition to Bain’s statement. Wither-spoon’s properly admitted testimony provided a similar version of the crime and, in the absence of Bain’s statement, it is clear that the Commonwealth could still prove its case. In light of the foregoing, the error in admitting Bain’s testimony was harmless. See, Commonwealth v. Stinson, 427 Pa.Super. 289, 628 A.2d 1165 (1993), allocatur denied, 537 Pa. 608, 641 A.2d 309 (1994) (holding that error was harmless where erroneously admitted evidence was substantially similar to properly introduced eyewitness testimony).

Appellant’s final allegation of error is that defense counsel was ineffective for failing to call any witnesses where, inter alia, said witnesses were known to trial counsel. We disagree.

The standard for evaluating the effectiveness of counsel is well-known: “The ineffectiveness of counsel is shown where there is merit to the underlying claim, the course chosen by counsel does not have a reasonable basis, and the defendant shows prejudice.” Commonwealth v. Graham, 522 Pa. 115, 118, 560 A.2d 129, 130 (1989).

An ineffectiveness claim, based upon the failure of counsel to call of investigate witnesses, requires an appellant to demonstrate the identity of the witnesses; that counsel knew of the existence of the witnesses; the material evidence the witnesses would have provided; and the manner in which the witnesses would have been helpful to his cause. Commonwealth v. Polk, 347 Pa.Super. 265, 500 A.2d 825 (1985); Commonwealth v. Woodward, 418 Pa.Super. 218, 227, 614 A.2d 239, 244 (1992) (citation omitted). A defendant must also establish prejudice by demonstrating that he was denied a fair trial because of the absence of his testimony. Commonwealth v. Nock, 414 Pa.Super. 326, 606 A.2d 1380 (1992). We must first determine if there is merit to appellant’s underlying claim that witnesses should have been presented for the defense.

Ineffectiveness for failing to call a witness will not be found where a defendant fails to provide affidavits from the alleged witnesses. Commonwealth v. Davis, 381 Pa.Super. 483, 554 A.2d 104 (1989), allocatur denied, 524 Pa. 617, 571 A.2d 380 (1989).

Here, appellant’s claim lacks arguable merit and his claim of ineffectiveness must fail. Appellant simply makes bald assertions in his brief that two witnesses, Wayne Witherspoon and Ellis Glenn, would have provided testimony that would rebut the Commonwealth’s evidence. He provides no affidavits from either of these men averring that they would have been ready and willing to testify at trial. Such a claim does not meet the standard for establishing ineffectiveness and this claim must fail. Davis, supra.

Judgment of sentence affirmed.

HUDOCK, J., files a Dissenting Statement.

HUDOCK, Judge,

dissenting:

I agree with the majority that this Court’s en banc decision in Bujanowski 418 Pa.Super. 163, 613 A.2d 1227 (1992), alloc. den., 533 Pa. 642, 622 A.2d 1374 (1993), controls the present case. The trial court erred by allowing the Commonwealth to introduce Bain’s prior inconsistent statement as substantive evidence of Appellant’s guilt. I do not agree, however, that this error was harmless.

In Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), our Supreme Court announced that an error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless. Id. at 405, 383 A.2d at 162. Furthermore, if there is a reasonable probability that an error “might have contributed to the conviction,” the error is not harmless. Id. at 409, 383 A.2d at 164 (citation omitted).

In this case, I am not convinced beyond a reasonable doubt that the admission of Bain’s prior inconsistent statement as substantive evidence did not influence the jury’s guilty verdict. Contrary to the majority’s conclusion, the Commonwealth did not present overwhelming evidence linking Appellant to the murder of Chinn. The cruxes of the Commonwealth’s case implicating Appellant were the prior inconsistent statements of Witherspoon and Bain, which were both recanted at the preliminary hearing. The “additional” evidence presented by the Commonwealth which the majority cites as corroborative of Witherspoon’s prior inconsistent statement included the following evidence: (1) the pellets which were recovered from the victim’s body matched the twelve-gauge shotgun, (2) the victim died as a result of a wound from a gun fired at close range, (3) Officer John Ross found the victim lying next to a bench, and (4) Witherspoon could have observed the playground where the shooting occurred. Although this evidence is corroborative of portions of Witherspoon’s prior inconsistent statement to police, it does not identify Appellant as the man who fired the gun. The “additional” evidence introduced by the Commonwealth does not single out Appellant as the murderer. The majority overlooks the fact that “Hawk” and Jones came with Appellant to Witherspoon’s house on the night of the murder to retrieve the gun. According to the Commonwealth’s additional evidence, any one of the three men who arrived at Witherspoon’s house could have been the perpetrator. The Commonwealth did not present any additional evidence besides Witherspoon’s prior inconsistent statement and Bain’s improperly admitted statement which identified Appellant as the man who aimed and pulled the trigger. For this reason I cannot conclude that Bain’s improperly admitted statement did not contribute to Appellant’s guilty verdict.

The majority concludes that Bain’s improperly admitted prior inconsistent statement was merely cumulative of Witherspoon’s statement. In Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977), Justice Roberts, writing for a plurality of our Supreme Court, explained a cumulative evidence test first propounded by Professor Field. Id. at 448-451, 372 A.2d at 777-78; see Field, Assessing the Harmlessness of Federal Constitutional Error — A Process in Need of a Rationale, 125 U.Pa.L.Rev. 15 (1976). In order for evidence to be considered cumulative and its admission therefore harmless error, the following three requirements must be met: (1) There should be substantial similarity in type of evidence and incriminating factual details between the tainted evidence and the untainted evidence of which it is cumulative. (2) The untainted evidence should be indisputable, either because the facts are in some way affirmatively accepted by the defendant or for other reasons. (3) The untainted evidence is not derived from the tainted evidence. Rodgers, at 448-451, 372 A.2d at 777-78. Moreover, “the cumulative evidence test “would limit harmlessness to situations in which the unconstitutionally admitted evidence in retrospect was wholly unnecessary.’ ” Id. at 451, 372 A.2d at 778 (citation omitted).

In the present case, I agree with the majority that there is substantial similarity between Witherspoon’s statement to police and Bain’s improperly admitted prior inconsistent statement. I also agree that the third test is met — Witherspoon’s statement was not derived from Bain’s statement to police. However, I do not find that Witherspoon’s statement was “indisputable.” When Witherspoon gave his statement to police which implicated Appellant he was already in police custody and may have been seeking lenient treatment for his cooperation with police. At trial Witherspoon recanted the story he originally told police. Furthermore, the Commonwealth did not present any additional evidence which corroborated Witherspoon’s identification of Appellant as the man who shot Chinn.

For these reasons, I dissent from the majority’s conclusion that Bain’s improperly admitted statement was “wholly unnecessary” and harmless error to admit.

      . 18 Pa.C.S.A. § 2502(a).

      . 18 Pa.C.S.A. § 907(b).

      . 18 Pa.C.S.A. § 908.

      . 18 Pa.C.S.A. § 903(a)(1).

      . Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986); Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992).

      . Bain was accompanied by his mother because he was a juvenile.

      . 42 Pa.C.S.A. § 5917 provides:

        Whenever any person has been examined as a witness, either for the Commonwealth or for the defense, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross-examine, if such witness afterwards dies, or is out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he becomes incompetent to testify for any legally sufficient reason properly proven, notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue. For the purpose of contradicting a witness the testimony given by him in another or in a former proceeding may be orally proved.


author: CERCONE, Judge: BECK, Judge,

text:
    661 A.2d 397
    Helen HOFFMAN, Executrix of the Estate of Helen M. Perpinka and Theodore J. Perpinka, Appellants, v. BRANDYWINE HOSPITAL, Gordon R. Eck, D.O., Sanda Rajan, M.D., American Red Cross, American Red Cross Penn-Jersey Region and William C. Sherwood (2 cases).
    Superior Court of Pennsylvania.
    Argued March 28, 1995.
    Filed June 29, 1995.

      Gary R. Block, West Chester, for appellant.
    Charles T. Roessing, Philadelphia, for Eck, appellee.
    Dolores A. Figueroa, Fort Washington, for Rajan, appellee.
    Before BECK, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is a consolidated appeal from two orders of court granting appellees Gordon Eck, D.O. and Sanda Rajan, M.D. summary judgment in a medical malpractice action. We affirm in part, reverse in part, and remand for further proceedings.

On December 3, 1984, decedent Helen M. Perpinka was admitted to Brandywine Hospital with a mass in her left breast. Dr. Sanda Rajan, decedent’s surgeon, performed a left radical mastectomy on December 17, 1984. During the course of pre-operative, operative, and post-operative procedures, Dr. Rajan ordered several blood transfusions. In October of 1986, the American Red Cross notified Dr. Eck, the decedent’s family physician, that a unit of blood transfused to the decedent had been donated by an individual who subsequently tested positive for the presence of HIV antibodies. Tragically, the decedent contracted the HIV virus from the contaminated blood. Before ultimately succumbing to AIDS related complications, decedent suffered chest congestion, drastic weight loss, viral infections, and fatigue.

Appellant Helen Hoffman filed this medical negligence suit on behalf of her deceased mother, Helen Perpinka. The original named defendants were Brandywine Hospital, American Red Cross, American Red Cross Penn-Jersey Region, William C. Sherwood, Dr. Gordon R. Eck, D.O., and Dr. Sanda Rajan, M.D. Appellant reached a settlement with American Red Cross, American Red Cross Penn-Jersey Region and William Sherwood, providing them with a joint tortfeasor release. Brandywine Hospital was dismissed from the action without objection from appellant. Appellant proceeded against Dr. Rajan and Dr. Eck.

In her complaint, appellant accused Dr. Rajan of ordering unnecessary blood transfusions and failing to obtain the patient’s informed consent to those transfusions. Appellant further claimed that Dr. Eck, decedent’s family physician, negligently cared for Mrs. Perpinka after she was diagnosed as HIV positive. Appellees, Dr. Rajan and Dr. Eck, successfully moved for summary judgment. In response, appellant filed the instant timely appeal arguing that because she had stated a valid cause of action against both appellees for negligence and against appellee Dr. Rajan for lack of informed consent, summary judgment was improper.

Summary judgment may be properly granted when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035, 42 Pa.C.S.A. The judgment may only be granted in cases that are clear and free from doubt. Szabo v. Bryn Mawr Hospital, 432 Pa.Super. 409, 412, 638 A.2d 1004, 1006 (1994). A reviewing court must examine the record in the light most favorable to the non-moving party, accepting as true all well-pleaded facts and giving that party the benefit of all reasonable inferences drawn from those facts. Id. We may overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988). Accord Marks v. Tasman, 527 Pa. 132, 134-35, 589 A.2d 205, 206 (1991).

To state a prima facie cause of action for malpractice, a plaintiff must establish that (1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) the damages suffered by the patient were a direct result of that harm. Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990). Moreover, a plaintiff must “present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered.” Id. at 62, 584 A.2d at 892.

Appellant has maintained throughout this action that Dr. Rajan breached the duty of care owed by a physician to a patient by ordering unnecessary blood transfusions. To that end, appellant' relies on an expert in the field, Thomas H. Gouge, M.D. Dr. Gouge opined:

At issue is the blood transfusion which was the clear cause of Ms. Perpinka’s AIDS and death. Although it is clear in 1991 that one would not give a blood transfusion to such a patient unless she was symptomatic from anemia, this was much less clear in 1984.
A general guideline at that time was that no single unit transfusion would be given and transfusion should not be given unless the hematocrit was below 30%, except to replace blood lost at operation.
Ms. Perpinka was not symptomatic from anemia. Her hematocrit was in an acceptable range for surgery. No significant blood [loss] occurred at surgery. No rationale for transfusion is documented in the chart.
Given the patient’s nutritional deficiency and mild anemia with low iron scores, attention to her red cell mass and serum iron was appropriate and the four units of blood transfused only kept her hematocrit in the same range but transfusion was not the only method of dealing with nutritional anemia. Transfusion is hazardous, as the outcome shows, and should only be used when necessary. Accordingly, I believe the four unit transfusion over December 15-17, 1984 departs from the appropriate standards of medical care. The transfusion as a cause of AIDS speaks for itself.

R. at 72a (emphasis added).

Although Dr. Gouge acknowledged the propriety of transfusions to replace blood lost during an operation, he did not conclude that the December 17, 1994 transfusion was appropriate. To the contrary, he opined that the amount of blood lost during decedent’s surgery was insufficient to justify replacement through transfusion. We are therefore confronted with expert testimony that Dr. Rajan’s conduct in ordering unnecessary blood transfusions deviated from accepted medical practice and that a transfusion of tainted blood caused the specified harm. Because this matter is before us on appeal from a grant of summary judgment, we need not assess the ultimate merits of the proffered testimony. Rather, we conclude only that the lower court erred in entering summary judgment on this issue because it is the function of the trier of fact to resolve genuine issues of material fact. Accordingly, we reverse the lower court’s order with respect to this claim and remand for further proceedings.

Appellant next argues that by granting summary judgment, the lower court improperly disposed of the lack of informed consent claim. Specifically, appellant maintains that Dr. Rajan improperly failed to obtain the decedent’s informed consent before administering blood transfusions. Our court has recently authored a comprehensive discussion of the doctrine of informed consent:

The underlying premise of this doctrine is that a physician is precluded from administering to or operating upon a mentally competent adult patient in non-emergency situations without his consent. “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” In order for the consent to be valid, the physician is duty bound to apprise the patient “of such important matters as the nature of the therapy, the seriousness of the situation, the disease and the organs involved and the potential results of the treatment.”

Stover v. Association of Thoracic & Cardiovascular Surgeons, 431 Pa.Super. 11, 19, 635 A.2d 1047, 1051 (1993) (citations omitted) (quoting Festa v. Greenberg, 354 Pa.Super. 346, 350, 511 A.2d 1371, 1373 (1986), appeal denied, 515 Pa. 580, 527 A.2d 541 (1987)). A physician need not disclose all known information. Id. at 21, 635 A.2d at 1051. Rather, the physician must advise the patient of the material facts, risks, complications and alternatives to surgery that a reasonable person in the patient’s situation would consider significant in deciding whether to undergo the operation. Id.

We must preliminarily ascertain whether the decision to transfuse blood lost during surgery or the hazards associated with such transfusions trigger the doctrine of informed consent under Pennsylvania law. Appellee Dr. Rajan, relying on a series of cases involving the use of therapeutic drugs, argues that the requirements of informed consent attach only in the surgical context:

The basis of an action for a lack of informed consent is that when a physician touches a patient a technical battery occurs, unless that touching is done with the patient’s consent. An emergency situation is, of course, an exception. The case law has consistently refused to extend informed consent to the administration of therapeutic drugs. This Court has consistently limited informed consent to a battery theory. We will not expand informed consent here.
In [Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985) ], the Court held that the doctrine of informed consent should be limited to those cases involving surgical or operative procedures. The Court based this determination on the fact that the Pennsylvania Supreme Court, in Gray v. Grunnagle [423 Pa. 144, 223 A.2d 663 (1966) ], grounded the doctrine of informed consent “upon the legal theory that the performance of a medical procedure without a patient’s informed consent constitutes a technical assault or battery.” The Court in Boyer felt that to expand the doctrine to the administration of therapeutic drugs would totally obliterate the standard set forth in Gray, and therefore, felt bound by the decision of our Supreme Court in Gray. We must agree with the court in Boyer.

Wu v. Spence, 413 Pa.Super. 352, 355, 605 A.2d 395, 397 (1992). See id. (doctor not required to obtain a patient’s informed consent to inject therapeutic drugs outside the realm of surgery). See also Dible v. Vagley, 417 Pa.Super. 302, 612 A.2d 493 (1992), appeal denied, 535 Pa. 619, 629 A.2d 1380 (1993) (physician not held liable for failing to obtain informed consent before administering radiation treatments because those treatments did not involve surgery).

To the contrary, when surgical or operative procedures are involved, a physician must obtain informed consent as to injected drugs. See Stover, supra, 431 Pa.Super. at 25, 635 A.2d at 1054 (requiring a physician to disclose the attendant risks and alternatives to the surgical implantation of a mechanical heart valve, specifically that the valve would cause the patient’s body to produce clots and therefore require the patient to take anti-coagulents). See generally Sauro v. Shea, 257 Pa.Super. 87, 390 A.2d 259 (1978) (during surgery, a hospital staff member intravenously administered a general anesthetic that caused the patient’s death; because the drug had been administered during surgery, the doctrine of informed consent was applicable). The doctrine of informed consent encompasses the entire surgical treatment and all of its recognized and material risks. Stover, 431 Pa.Super. at 26, 635 A.2d at 1054. Both the method of insertion and the potential latent harm of any substance injected, inserted, or otherwise introduced into the patient’s body and left there during surgery may be the subject of informed consent. Id.

In the instant case, decedent underwent surgery on December 17, 1984 between 7:55 a.m. and 12:15 p.m. The certified record reveals that the fatal transfusion was administered on December 17, 1984 at 7:30 p.m. Because the contaminated blood was not introduced into the patient’s body during surgery, appellee Dr. Rajan was not required to disclose the attendant risks and alternatives to transfusion. Consequently, the lower court did not err in granting summary judgment in favor of appellee Dr. Rajan on the issue of informed consent.

Appellant’s final allegation of error concerns the purported negligence of appellee Dr. Gordon Eck in treating decedent after she was diagnosed as HIV positive. In attempting to state a prima facie case, as set forth in Mitzelfelt, supra, appellant relies on the expert report of David H. Solis, D.O.:

To review, it is my opinion that Dr. Eck did not meet the standard of care for a family physician in the treatment of his patient, Helen Perpinka from the time that she was discovered to be HTLV III (HIV) positive to the time that she was referred to an infectious disease specialist____ It is my opinion that because he chose not to refer Mrs. Perpinka to an infectious disease specialist that he undertook these awesome responsibilities on his own and he was ill-prepared to carry them out. This in all likelihood delayed the administration of anti-viral medication which may have hastened the onset of opportunistic disease in Mrs. Perpinka and caused her illness to progress sooner than it might have.

R. at 74a.

As set forth above, to establish a prima facie case of malpractice, a plaintiff must present an expert witness who will testify to a reasonable degree of medical certainty that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered. Mitzelfelt, supra, 526 Pa. at 62, 584 A.2d at 892. An expert need not testify with absolute certainty or rule out all possible causes of a condition. Id. Likewise, the testimony need not be expressed in precisely the language used to enunciate the legal standard. See In re Jones, 432 Pa. 44, 246 A.2d 356 (1968) (medical testimony need not conform to precise statutory definitions). Rather, expert testimony should be reviewed in its entirety to assess whether it expresses the requisite degree of medical certainty. McCann v. Amy Joy Donut Shops, 325 Pa.Super. 340, 343-44, 472 A.2d 1149, 1151 (1984) (en banc “An expert fails this standard of certainty if he testifies ‘that the alleged cause “possibly”, or “could have” led to the result, that it “could very properly account” for the result, or even that it was “very highly probable” that it caused the result.’ ” Kravinsky v. Glover, 263 Pa.Super. 8, 21, 396 A.2d 1349, 1356 (1979) (citations omitted). After reviewing the expert report in its entirety, we conclude that Dr. Solis has not expressed the requisite degree of medical certainty. Accordingly, appellant has failed to state a prima facie case of medical malpractice. As such, the lower court properly granted summary judgment in favor of appellee Dr. Eck.

Order affirmed in part and reversed in part. We remand for further proceedings with respect to the negligence claim against appellee Dr. Rajan. Jurisdiction is relinquished.

BECK, J. files a concurring statement.

BECK, Judge,

concurring.

I concur in the majority opinion. I write separately to emphasize my discomfort with the distinction between operative and nonsurgical procedures in our informed consent law. The artificial nature of the distinction is highlighted in this case where the fatal blood transfusion occurred within eight hours after surgery was completed, and was ostensibly administered to replace blood lost during that surgery. However, because the law on this issue is clear, I concur.

      . Expert testimony need not be expressed in precisely the language used to enunciate the legal standard. See In re Jones, 432 Pa. 44, 246 A.2d 356 (1968) (medical testimony need not conform to precise statutory definitions). See also McCann v. Amy Joy Donut Shops, 325 Pa.Super. 340, 343-44, 472 A.2d 1149, 1151 (1984) (en banc) (a reviewing court will consider expert testimony in its entirety to determine whether the opinion has been expressed with a reasonable degree of medical certainty). After reviewing Dr. Gouge's report in its entirety, we conclude that it conveys the requisite degree of reasonable medical certainty.

      . Decedent was also given a transfusion during surgery at 10:40 a.m. We shall assume for the purposes of argument that Dr. Rajan was required but failed to obtain informed consent to introduce a substance into the decedent’s body during surgery. There is no evidence that this unit of blood was tainted. As such, appellant has failed to show that this particular breach of duty caused the specified harm.

      . A panel of this court has acknowledged "a degree of artificiality in creating a distinction which limits the touching required for actionable informed consent to be the surgical cut..... However, it appears that until such time as our supreme court expands the technical assault definition, such artificiality must hold sway.” Stover v. Association of Thoracic & Cardiovascular Surgeons, 431 Pa.Super. 11, 26 n. 6, 635 A.2d 1047, 1054 n. 6 (1993).