author: POPOVICH, Judge: HESTER, Judge,

text:
    564 A.2d 165
    William A. LEAPHART and Jonnie Leaphart, his wife, Appellants, v. WHITING CORPORATION, Controlled Motions, Inc., Matx, Inc., and A.C. Kuhn and Son, Inc., Estep Electrical Service Company, and Electro Lift, Inc., v. HARVEY HUBBELL, INCORPORATED, Appellees, William A. LEAPHART and Jonnie Leaphart, his wife, v. WHITING CORPORATION, Controlled Motions, Inc., Matx, Inc., and A.C. Kuhn and Son, Inc., Estep Electrical Service Company, and Electro Lift, Inc., HARVEY HUBBELL, INCORPORATED and Square D Company, Appellees Appeal of CONTROLLED MOTIONS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1989.
    Filed July 27, 1989.
    Reargument Denied Sept. 14, 1989.

      Joseph Lurie, Philadelphia, for Leaphart, appellants (at 333) and appellees (at 346).
    Thomas J. Williams III, Carlisle, for Harvey Hubbell, Inc., appellee.
    John B. Mancke, Harrisburg, for Controlled Motions, Inc., appellant (at 346) and appellee (at 333).

      Before WIEAND, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

The appellants, William and Jonnie Leaphart, appeal from the judgment entered in favor of the appellees following a jury trial. This action arose after William Leaphart received an electrical shock and then fell from the superstructure of the overhead crane which he was repairing at the foundry where he was employed. As a result of the shock and fall, the appellant now suffers from permanent paraplegia. Although we sympathize with the appellants, we are unable of discern any reversible error committed by the trial court. Accordingly, judgment is affirmed.

On appeal, the appellants allege:

I. The trial court erred in charging the jury that “even wrongful or negligent conduct by defendant is not a defense.”
II. The trial court erred in granting the defendants twenty peremptory challenges and the appellants only eight jury challenges.
III. The trial court erred by refusing to allow the appellants to cross-examine an expert witness as to bias, interest and compensation.
IV. The trial court erred by allowing evidence of industry standards to be admitted against the appellants in a strict liability case.
V. The trial court erred in permitting a defendant to present a witness who had not been previously identified.
VI. The trial court erred in admitting into evidence an exhibit when the appellants had been advised through discovery that said exhibit was unavailable.
VII. The trial court erred in barring evidence of post-accident modification of the defective product by a non-party.

The record reveals the following facts: In 1975, Controlled Motions, Inc. sold two five ton overhead cranes to Frog Switch Manufacturing Company which then were installed in Frog Switch’s foundry located in Carlisle, Pennsylvania. Whiting Corporation, a manufacturer of cranes and their component parts, sold a substantial portion of the cranes’ parts to Controlled Motions which assembled the cranes. The cranes’ ballast resistor was manufactured by Harvey Hubbell, Inc and installed in the cranes by Controlled Motions. The runways for the cranes were constructed by Matx, Inc., and the cranes’ electrical wiring was performed by Estep Electrical Service Company, in accordance with the wiring diagrams supplied by Controlled Motions. Each crane had a disconnect switch located approximately eighteen feet off the floor, and a master disconnect switch controlling the power to both cranes simultaneously was located at floor level.

On the date of the accident, May 19, 1982, William Leap-hart was employed by Frog Switch as an electrician and was directed to perform routine maintenance work on one of the cranes. To allow the operation of one crane while he serviced the other, William Leaphart climbed the crane under repair in order to throw the upper disconnect switch and de-energize the crane. As he reached out to trip the switch, he placed his hand upon the cover of ballast resistor to steady himself. This caused the cover of the resistor to touch the energized resistor wires, as a result of which William Leaphart suffered a severe electrical shock, lost his balance and fell eighteen feet to the ground. William Leaphart, due to the fall, is a permanent paraplegic, confined to a wheelchair.

William and Jonnie Leaphart brought suit against Whiting, Controlled Motions, Matx and Estep. The Leapharts initially proceeded to trial on both strict liability and negligence theories against Whiting and Controlled Motion. Harvey Hubbell was joined as an additional defendant by Controlled Motions. During the course of the trial, the appellants withdrew the negligence claims against the Whiting and Controlled Motions. At the completion of evidence, a compulsory non-suit was entered in favor of Estep and Matx on the appellants’ negligence claims. The case then went to the jury solely on the strict liability claims against Whiting and Controlled Motions and the indemnification claim of Controlled Motions against Hubbell.

In sum, the appellants maintained that the crane manufactured by Whiting was defective, that Controlled Motions assembled, sold and installed the defective crane and that Hubbell manufactured the defective ballast resistor which Controlled Motions installed in the defective crane.

Following deliberations, the jury returned a verdict in favor of Whiting, Controlled Motions and Hubbell. The appellants then filed a motion for a new trial, and Controlled Motions filed a protective motion for a new trial against Harvey Hubbell. Both motions were denied. Judgment was then entered on May 16, 1988, and this appeal followed.

First, the appellant alleges that the trial court erred when instructing the jury, as follows:

The focus in this type of a product liability case is on the product. Even wrongful or negligent conduct by a defendant is not a defense. The issue is whether the use of the product by the plaintiff was foreseeable to the manufacturer or suppler [sic], whether the product was defective when it left the manufacture’s [sic] or supplier’s hands, and whether a defective product was a substantial factor in causing the accident and injury to the plaintiff. Trial transcript, p. 946 (emphasis added).

Following completion of the charge, the appellants objected, correctly pointing out that the charge should have read: “Even wrongful or negligent conduct by the plaintiff is not a defense.” Thus, the jury would have been advised that, even if William Leaphart was contributorily negligent, he could still recover for his injuries. When alerted to the error, the trial judge refused to correct the error.

To constitute reversible error, a jury instruction must not only be erroneous, but also harmful to the complaining party. Anderson v. Hughes, 417 Pa. 87, 90, 208 A.2d 789, 791 (1965); Spearing v. Starcher, 367 Pa.Super. 22, 29, 532 A.2d 36, 40 (1987); Mickey v. Ayers, 336 Pa.Super. 512, 514, 485 A.2d 1199, 1201 (1984). Whether harmful error has been committed must be determined by reading the jury charge in its entirety, not merely isolated excerpts quoted out-of-context. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 575, 475 A.2d 1314, 1316 (1984); Spearing, 532 A.2d at 40; Mickey, 485 A.2d at 1199. Having reviewed the charge in its entirety, we find that reversible error was not committed by the lower court. With the sole exception of failing to instruct the jury properly that contributory negligence is not a defense to strict liability, the lower court correctly instructed the jury on strict liability. Furthermore, the defendants did not attempt to prove that William Leaphart was contributorily negligent. Finally, the lower court gave the following curative instruction in response to allegedly improper comments concerning William Leaphart’s conduct made during the closing argument of Controlled Motion:

Counsel can comment on what he feels the facts show as to what caused this accident. I will ultimately charge you that any wrong-doing or negligence that you may find Mr. Leaphart did that resulted in his accident is not a defense in this case with any of these defendants and I’ll explain that to you when I charge you.
Trial court op., p. 11.

Instantly, the appellants have not sustained their burden of proving that the erroneous instruction harmed their case. Since we find that the erroneous instruction was harmless, a new trial is not warranted.

Second, the appellants allege that the trial court erred in granting the defendants a total of twenty peremptory challenges when they were only allowed eight jury challenges. The law regarding peremptory challenges is controlled by Rule 221 of the Pennsylvania Rules of Criminal Procedure which reads:

Each party shall be entitled to four peremptory challenges, which shall be exercised in turn beginning with the plaintiff and following in the order in which the party was named or became a party to the action. In order to achieve a fair distribution of challenges, the court in any case may
(a) allow additional peremptory challenges and allocate them among the parties;
(b) where there is more than one plaintiff or more than one defendant or more than one additional defendant, consider any one or more of such groups as a single party.

There is little case law interpreting and applying Rule 221. However, this is not to say we are without guidance. The explanatory note for Rule 221 clearly delineates how to apply the rule. The note explains: “The trial judge can best determine what is fair in a particular case by the circumstances that appear at the time of jury selection.” Thus, only when the trial court’s allocation of strikes failed to result in “a fair distribution of challenges,” will we find an abuse of discretion and, consequently, reversible error.

Further insight is found in Bell v. City of Philadelphia, 341 Pa.Super. 534, 540, 491 A.2d 1386, 1389 (1985), where we were presented with a similar allegation of error arising when two defendants received a total of six challenges while the plaintiffs were allowed a total of only four peremptory challenges. Therein, we ruled that such an allocation of challenges was not an abuse of discretion.

Guidance is also found in the Pennsylvania cases decided under the previous peremptory challenge rule, 17 P.S. § 1171. In Lenkiewicz v. Lange, 242 Pa.Super. 87, 93, 363 A.2d 1172, 1175-1176 (1976), we stated:

The Act of March 29, 19860, P.L. 344, § 1 (17 P.S. § 1171) [repealed], allots four peremptory challenges to the plaintiff and four challenges to the defendant. Pennsylvania appellate courts have consistently interpreted that statute as allowing four challenges to each class of litigants with an antagonistic interest. Additional defendants have interest antagonistic to each other, (citations omitted)

While we recognize that Lenkiewicz provides limited guidance due to the repeal of 17 P.S. § 1171 and the adoption of Rule 221, we do not believe Rule 221 was intended to abrogate completely the notion that each class of antagonistic defendants is entitled to four challenges. See Rule 221, explanatory note. Rather, the new rule allows the trial court great discretion in formulating an equitable distribution of challenges. Instantly, the trial court, applying Lenkiewicz and Rule 221(b), found that all five defendants had competing interest and, accordingly, awarded each four challenges. Then, in order to achieve a “fair distribution of challenges,” the court, applying Rule 221(a), granted the appellants an additional four challenges, for a total of eight peremptory challenges. To be sure, the defendants’ did have more challenges than the appellants. However, aside from sheer numbers, the appellants have failed to allege how they were prejudiced by the distribution of challenges. In fact, the voir dire was not transcribed. Consequently, we do not know the character of the jury or the number of challenges actually used. Unable to discern an unjust result presently, we find that the trial court’s ruling was not an abuse of discretion.

Third, the appellant alleges that the trial court erred by refusing to allow them to cross-examine a defense expert witness as to bias, interest and compensation. Specifically, the trial court sustained defense objections to the following questions:

Q. Now, incidentally, sir, you get hired by parties in litigation all the time?
Q. Have you ever testified for another defendant in a case like this?
Q. Isn’t it a fact that the majority of your time is spent testifying in these cases?
Q. So the majority of your time is spent rendering assistance to lawyers in case in court?
Q. So far, you have gotten $6,000.00 from Mr. Marcel-lo, is that correct?
Q. Do you ever get a bonus if your side wins in these cases?
Q. Can you tell us how many times you have testified this year in cases like this?
Appellants’ brief, p. 20.

While objections were sustained to the above-quoted questions, the appellants were allowed to ask numerous similar questions. Those questions and the answers follow:

Q. Now, the conclusions and opinions that you have reached in this matter, were they fair and impartial?
A. Yes, sir.
Q. The fact that you were hired by Mr. Marcello, that didn’t in any way affect your impartiality?
A. No, sir. I do about half defense work and about half plaintiff work____ It does not affect my objectivity.
Sj< }{< * S¡« >r¡ SÍ«
Q. You say that you are associated with Spring Garden College. Isn’t it a fact that the majority of your time is spent testifying in these cases?
A. Currently, yes, sir, it is____
* * # * * sis
Q. Do you work more than 40 hours a week on these types of case?
A. I try not to, sir.
$ , * * $ $ $
Q. Can you give us an idea of how many weeks you spend your time doing this kind of work?
A. I’d say 48 weeks.
* * * * # *
Q. And your hourly charge to Mr. Marcello is what amount of money?
A. Oh, I’m sorry. The amount per hour for my services, regardless of what I’m doing, including now, is $150 an hour.
* * * * * %
The Court: Let me ask the question. What is your best estimate of up to now the time you spent working on this case? Your best estimate.
A. My best estimate up to today would be probably five days.
Q. Five days.
A. Assuming they were eight hour days.
Q. So that is 40 hours. Is that correct?
A. Yeah.

Trial Transcript, pp. 723-730.

A review of the questions which the appellants were permitted to ask reveals that, with the sole exception of the question on a possible victory bonus, the appellants did elicit upon cross-examination the very information which the disallowed questions were designed to elicit. Since it is well within the trial court’s discretion to exclude evidence which is merely cumulative in nature, Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 455, 467 A.2d 615, 621 (1983); Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978), we find no error occurred when the questions were disallowed.

In regard to the question, “Do you ever get a bonus if your side wins in these cases?,” the trial court correctly stated, “The question of whether he ever received a bonus was too broad because whether he received a bonus in any other case, was not relevant.” Pennsylvania law is clear that questions of admission and exclusion of evidence, including the scope and limits of cross-examination, are within the sound discretion of the trial court. Kemp v. Qualls, 326 Pa.Super. 319, 323, 473 A.2d 1369, 1371 (1984); Burch, 467 A.2d at 621; Lems, 393 A.2d at 944. Bias or interest of a witness in a dispute which may affect his or her credibility is a proper subject for impeachment. Price v. Yellow Cab Co., 443 Pa. 56, 278 A.2d 161 (1971). However, the question of whether the expert witness has received bonuses in cases other than the dispute at issue simply is not relevant to an attack on the witness’s credibility in the present case. Thus, the question was correctly disallowed. See Mohn v. Hahnemann Medical College and Hospital, 357 Pa.Super. 173, 179, 515 A.2d 920, 924 (1986).

Fourth, the appellant complains that the trial court erred in admitting evidence of industry standards against the appellants in this strict liability case. It is undisputed that admission of industry standards in a strict liability case would constitute reversible error. Lewis v. Coffing Hoist Division, 515 Pa. 334, 344, 528 A.2d 590, 595 (1987); Majdic v. Cincinnati Machine Company, 370 Pa. Super. 611, 620, 537 A.2d 334, 339 (1988). However, the appellants first offered evidence of industry standards through the testimony of their expert, A. Richard Klashak, and, at the time the testimony was offered, the appellants were pursuing both negligence and strict liability claims against Whiting and Controlled Motions. Trial Transcript, pp. 75-82. Only after evidence of industry standard was proffered by the appellants and rebutted by defendant, Whiting, did the appellants withdraw the negligence counts of their complaints. Thus, we find that, in a strict liability case in which negligence is also alleged, admission of evidence of industry standards does not constitute reversible error. Moreover, even if the evidence was if fact inadmissible, the appellants, having introduced the evidence in their case in chief, cannot later deprive their opposition of the privilege of denying it. See e.g., Ryan v. Furey, 225 Pa.Super. 294, 297, 303 A.2d 221, 224 (1973); Shoup v. Mannino, 188 Pa.Super. 457, 149 A.2d 678 (1959); Helmick v. South Union Township, 323 Pa. 433, 185 A. 609 (1936).

Fifth, the appellant alleges the trial court erred in permitting additional defendant, Harvey Hubbell, Inc., to call a witness, George Parr, who had not been previously identified. Following William Leaphart’s accident, George Parr, a licensed private investigator, was hired by Hubbell and interviewed William C. DeWalt, an employee of Frog Switch, concerning the allegedly defective ballast resistor. Parr prepared a written report concerning his investigation.

Hubbell, having no plans to call George Parr, did not list him as a prospective witness. However, on the third day of trial, the appellants requested a copy of the report which, by order of court, was supplied to them. The following day, the appellants called DeWalt as a witness. He testified that no jumper cables were installed on the resistor when he examined it after the accident and that he could not remember whether the side of the cover was removed. Several days later, Hubbell called George Parr to impeach William DeWalt’s testimony. Parr testified that the statements made during his interview of DeWalt were inconsistent with the statements made by DeWalt at trial.

In support of their argument, the appellants cite Pa.R. C.P. Rule 4019(i) and Clark v. Hoerner, 362 Pa.Super. 588, 525 A.2d 377 (1987). Rule 4019(i) reads:

(i) A witness whose identity has not been revealed as provided in this chapter shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

In Clark, we applied Rule 4019(i) and reversed the decision of the trial court to allow expert rebuttal testimony following the conclusion of all parties’ case in chief. However, in Clark, 525 A.2d at 382, we recognized that “The rules must be interpreted to prevent surprise and unfairness and not as devices for excluding relevant, rebuttal evidence.” Instantly, we have no element of surprise. The appellants had a copy of Parr’s report prior to DeWalt’s testimony and, consequently, knew of the testimonial conflict. In addition, it is hornbook law that the credibility of a witness may be impeached through the use of prior inconsistent statements. Jenkins, Pennsylvania Trial Evidence Handbook, § 17.12. The testimony of George Parr was offered for the purposes of impeachment only and did not go beyond the inconsistent trial testimony of William DeWalt. Thus, we find no error was committed when the court allowed George Parr to testify.

Sixth, the appellants allege that the trial court erred in allowing a certain Harvey Hubbell, Inc.’s exhibit when they were advised through discovery that the exhibit was unavailable. This issue is wrought with confusion. The appellants objected to admission of an exhibit, the resistor box. The appellants then proceeded to argue that the ballast resistor itself should not be admitted due to discovery violations. Trial Transcript, p. 831. This is the argument they continue on appeal. However, if the appellants’ actual objection was to the admission of a ballast resistor similar in design to the allegedly defective one, then their objection is waived. When the resistor was actually-admitted into evidence, the appellants specifically stated, “No objection.” Trial Transcript, p. 903. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

In either event, by the appellants’ own admission, Hubbell did, in fact, inform them via a pre-trial memorandum that Hubbell “might possibly use a resistor of the type allegedly involved in this accident as an aid in demonstrating the testimony of [Hubbell’s expert].” Thus, Hubbell complied with discovery rules. See Pa.R.C.P., Rule 4003.1 and 4019. The appellants never requested an opportunity to view the resistor or its cover and did not request a continuance to allow their experts an opportunity to view the exhibit. Accordingly, their allegation of error is meritless.

Finally, the appellants allege that the trial court erred in barring evidence of post-accident modification of the crane made by a non-party, Frog Switch, the appellant’s employer at the time of the accident. In Pennsylvania, the subsequent repair rule, forbidding admission of evidence of subsequent repair in a negligence action, is inapplicable in a strict liability case. Matsko v. Harley Davidson Motor Co., Inc., 325 Pa.Super. 452, 454-462, 473 A.2d 155, 156-159 (1984); Wilkes-Barre Iron v. Pargas of Wilkes-Barre, 348 Pa.Super. 285, 293 n. 2, 502 A.2d 210, 214 n. 2 (1985); Gottfried v. The American Can Co., 339 Pa.Super. 403, 403, 489 A.2d 222, 222 (1985).

However, this case is clearly distinguishable on its facts from Matsko. In Matsko, the party against whom the evidence of subsequent remedial repair was offered was not only the party who made the repairs but also was the defendant-manufacturer. Instantly, the alterations were performed by the employer of the injured party. We must remember, as did the trial court, that “The decision [in Matsko ] did not alter the general rule that post accident conduct must nevertheless be shown to be relevant in order to be admissible.” Gottfried, 489 A.2d at 226. The fact that a third party alters a product after an accident is not necessarily probative or relevant to the issue of whether the product was in fact defective. The third party repairer may make repairs or improvements for reasons completely independent of the product’s safety. For example, repairs may be made because of pressure from a union, or simply because of a desire to conduct business more efficiently. Those types of changes say nothing about the allegedly defective nature of a product. Thus, the court was correct in finding that the evidence was irrelevant.

Instantly, the appellants did not offer evidence of post-accident design change by the defendant-manufacturers; evidence of that type certainly would have been admissible. Rather, the appellants sought to admit evidence of remedial change by the employer of the injured appellant (we note, to a great extent, they were successful). Admission of evidence of remedial changes by the employer would have amounted to admission of opinion on a matter exclusively within the realm of experts. Since this would be an opinion of an “expert” whose qualifications were unknown and who would have been impossible to cross-examine, the court was correct in excluding the evidence. See generally Dambacher v. Mallis, 336 Pa.Super. 22, 35-39, 485 A.2d 408, 415-416 (1984).

In conclusion, we find that appellants’ assertions of error are without merit. Accordingly, the court correctly denied appellants’ motion for a new trial. Judgment affirmed.

Judgment affirmed at 333 Harrisburg 1988, appeal dismissed at 346 Harrisburg 1988.

HESTER, J., files a dissenting opinion.

HESTER, Judge,

dissenting:

The majority concludes that appellants failed to demonstrate that the trial court’s erroneous charge concerning the applicability of the defense of comparative negligence prejudiced their case. In support of this decision the court relies upon an instruction given during the course of closing arguments that correctly set forth the law on the subject. Since I would find that the conflict between the two instructions regarding this vital matter established the requisite prejudice, I dissent.

It is clear that in this commonwealth, the defense of comparative negligence is not available in strict liability actions. Staymates v. ITT Holub Industries, 364 Pa.Super. 37, 527 A.2d 140 (1987). Thus, during the course of closing arguments, when counsel for Controlled Motion, Inc. allegedly brought this issue before the jury by referring to Mr. Leaphart’s conduct, appellants objected. See Trial court opinion, at 11. In response to that objection the court correctly instructed the jury:

Counsel can comment on what he feels the facts show as to what caused this accident. I will ultimately charge you that any wrong-doing or negligence that you may find Mr. Leaphart did that resulted in his accident is not a defense in this case with any of these defendants and I’ll explain that to you when I charge you.

Id. Later, during the course of the charge, the trial court erroneously stated that “even wrongful or negligent conduct by a defendant is not a defense.” Notes of Testimony (“N.T.”), 10/1/87, at 946 (emphasis added). When apprised of this glaring mistake, the court refused to correct it.

In Smith v. Chardak, 291 Pa.Super. 173, 435 A.2d 624 (1981), this court considered an analogous situation. In that case, the trial court initially gave a proper charge concerning the issue contributory negligence. Later, however, in the course of answering a question propounded by the jury, it gave an erroneous instruction on the matter. Holding that this isolated error required reversal, we stated:

[W]e are unable to ascertain, under the circumstances, whether the jury was misled by the erroneous instruction on such a vital matter as appellant’s negligence. Our Supreme Court in Pedretti v. Pittsburgh Railways Co., 417 Pa. 581, 209 A.2d 289 (1965) made some observations regarding erroneous instructions which are equally applicable here, viz.:
“ ‘Where an erroneous instruction consists of a palpable misstatement of the law, it is not cured by a conflicting or contradictory one which correctly states the law on the point involved, for the jury, assuming, as is their duty, that the instructions are all correct, may as readily have followed the incorrect as the correct one and it is impossible to know which they accepted, [citing cases]. See also: Stegmuller v. Davis, 408 Pa. 267, 182 A.2d 745 [ (1962) ]; Lieberman v. Philadelphia Transp. Co., 410 Pa. 179, 186, 188 A.2d 719 [(1963)].” Id. [417 Pa.] at 586, 209 A.2d at 292, quoting Hisak v. Lehigh Valley Transit Co., 360 Pa. 1, 6, 59 A.2d 900, 903 (1948).

Smith v. Chardak, supra, 291 Pa.Super. at 181-82, 435 A.2d at 629 (emphasis in original).

In the present case, the trial court’s charge contains a palpable misstatement of the law. The court refused to correct that misstatement. This error is not cured by the court’s previous instruction on the matter since it is impossible to ascertain which instruction the jury actually followed.

As the above discussion clearly demonstrates, the principles enumerated in Smith are dispositive of this issue. Consequently, I would reverse and remand for a new trial.

      . At side bar, the following exchange took place:
      Mr. Lurie: Your honor, in your charge there was a sentence or paragraph you began with focus, you should focus on the product itself, if there was wrongful or negligence used and I think Your Honor may have mis-spoke because you said defendants instead of plaintiff.
      The Court: I said defendants?

        Mr. Lurie: Yes.
      Mr. Thomas: That is not my recollection.
      Mr. Lurie: Well, if Your Honor could look at your notes and—
      The Court: Well, I know what my notes say. If I mis-spoke, I mis-spoke. Okay. Next?

      . We note that, after ruling no abuse of discretion occurred, the court stated: “Moreover, the appellants failed to argue this issue in the brief filed in the trial court in support of their motion for a new trial. The issue, therefore, has not been preserved for appellate review.” Bell, 491 A.2d at 1389.

      . When questioning about the bonus occurred, the following exchange took place:
      Q. Do you ever get a bonus if your side wins in these cases?
      A. No, sir.
      Mr. Marcello: Objection.
      The Court: Sustain the—
      Mr. Marcello: Your honor, if this has something to do with—
      The Court: I sustained the objection. We’re talking about this case. Trial transcript, pp. 729-730.
      Clearly, the court opened the door for the appellants to ask a relevant question: Whether the witness would receive a bonus from Mr. Marcello if the defendants won the present case. However, the appellants did not ask that question. Moreover, we note that the witness did, in fact, answer the question in the negative before the objection to the question was sustained.

      . Moreover, we note that the appellants’ objection to allowing George Parr to testify was made on the basis that Parr’s testimony would be hearsay, not on the grounds of undue surprise. Consequently, the appellant cannot now claim he was surprised by the testimony and invoke the protection of Rule 4019(i). Appellants should have objected on the basis of surprise and moved for a continuance since the inconsistent testimony of their witness was the "extenuating circumstance” beyond the control of the defendant. See generally, Steffy v. Carson, 422 Pa. 548, 551, 222 A.2d 894, 896 (1966).

      . The appellants, in their case in chief, introduced a part of the resistor cover as plaintiff’s exhibit 28. Trial Transcript, p. 340. They cannot therefore complain of Hubbell’s expert’s use of a similar resistor cover to illustrate his testimony.

      . Moreover, as has already been stated, the appellant initially brought both strict liability and negligence claims against Whiting and Controlled Motions. Thus, Matsko may not even apply since it did not invalidate the traditional rule that, in negligence cases, post-injury repairs or improvements are inadmissible to show a lack of due care at the time of the injury. Gottfried, 489 A.2d at 226.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    564 A.2d 174
    COMMONWEALTH of Pennsylvania, Appellee, v. Joanne RODRIQUEZ, Appellant.
    Superior Court of Pennsylvania.
    Argued April 19, 1989.
    Filed July 24, 1989.
    Reargument Denied Sept. 29, 1989.

      Robert B. Evanick, Public Defender, York, for appellant.

      Janice M. Gottshall, Asst. Dist. Atty., York, for Com., appellee.
    Before ROWLEY, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This case involves an appeal from the judgment of sentence (eight to twenty-three months imprisonment) for possession with intent to deliver cocaine by the appellant, Joanne Rodriquez.

On appeal, the appellant’s argument centers upon the lower court’s denial of her motion to suppress evidence removed from her purse during a drug raid of her apartment by police.

In such a context, we are required to consider only the evidence of the appellee (herein, the Commonwealth), and so much of the evidence of the appellant (herein, the defendant) which, as read in the context of the record as a whole, remains uncontradicted. Commonwealth v. White, 358 Pa. Super. 120, 516 A.2d 1211, 1212 (1986). So viewed, the record indicates that on July 14, 1987, a confidential informant advised York City Police Lieutenant G. Edward Flanagan that a “drug vending operation” was taking place at 405 South George Street, and that it was being carried on by a Puerto Rican female.

The police’s efforts to make a controlled buy on July 14th proved unsuccessful. However, the following evening, at approximately 1:00-1:15 a.m., the same informant told the police: “... they were again selling drugs at that location.”

The police drove the informant to 405 South George Street to make a drug purchase with $25.00 advanced by the authorities. When the informant returned from the exchange, he gave police a packet which was field-tested (using the Cobalt Thiocyanate kit) and found to be cocaine. He also proceeded to give the police a detailed physical description of the male individual who sold him the drug and that there were six to seven people in the apartment. It was at this point that the informant stated to the police that the group at 405 South George Street was leaving “to go to a speakeasy ... to get rid of the solid drugs.”

Lieutenant Flanagan gathered other officers “as quickly as possible” and told them about the drug purchase from a Puerto Rican male (by the name of “Cheeco”) and that there was a Puerto Rican female living at the apartment who also might have been selling drugs.

Once at the scene, Lieutenant Flanagan and another officer stationed themselves at the back door of the apartment, while Officers Ronald Mehring and James MacBride were to approach the apartment from the front. According to Officer Mehring, as he walked toward the apartment, he saw three Hispanic females standing on the steps of the apartment entrance. No sooner had the two officers reached the steps than Officer MacBride caught a packet (containing what appeared to be a drug) thrown from the apartment window. As told by Officer Mehring:

Then [he] asked if anyone lived there. [The appellant] indicated that she did. And [he] ushered the three Hispanic females into the house. It wasn’t until after [they] had walked over where the door would shut that [he] saw a pocketbook laying [sic] on the steps there. Since [he] was ushering the three Hispanic females inside, [he] figured it belonged to one of them. [He] picked it up.
Once inside the house, [he] asked whose pocketbook it was. [The appellant] indicated it was her pocketbook.
He searched it for possible weapons. [His] intention was to return the pocketbook to [the appellant]. There were no weapons in it, but [he] found the drugs.
Specifically, [he] found a plastic bottle which had the [appellant’s] name and a pharmacy on it and contained four aluminum packets with a white substance in each packet.
The content of the plastics tested positive for cocaine, and various denominations of money were also in the pocketbook.

The police gained entry into the apartment, both through the rear and front doors, by kicking the doors. This was preceded by a knock and announcement of the police’s identity.

At the suppression hearing, it was the appellant’s recollection that she was not asked if she lived at 405 South George Street until well after her arrest while she was at the police station. Further, she claimed that the police forced her into the apartment at gun point, a matter about which both Officers Mehring and MacBride stated they could not recall if such were the case. However, at trial, Officer Mehring testified he picked up the appellant’s purse with his right hand and in his left hand he had a flashlight. As he stated: “So on that basis alone, I would state that my gun was not drawn.”

Following the denial of the appellant’s motion to suppress, a non-jury trial took place wherein the preceding information was presented. Additionally, the Commonwealth’s expert (York City Police Officer John Daryman) testified that, in his opinion, the nine individually wrapped glassine packets of cocaine seized from the appellant’s purse were consistent with the selling of drugs and not merely possession for one’s use. This was buttressed by the seizure of a letter from the appellant’s purse containing names on the back, which were recognizable to the witness as individuals involved with drugs from the South George Street area and whose names were kept, in his opinion, by one to whom money was owed for the sale of drugs.

A verdict was returned finding the appellant guilty as charged. A sentence was imposed, post-trial motions were denied and an appeal to this Court was perfected.

The issues raised by the appellant, when synthesized, challenge her “seizure” and the subsequent “search” of her purse incident to a warrantless search of her apartment.

As a starting point, we note that the warrant requirement is an important check upon the power of the State to subject individuals to unreasonable searches and seizures and is not to be highly disregarded. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). The exceptions to the Fourth Amendment requirement have been oft-stated and consist of a consensual search, a search incident to an arrest and exigent circumstances. United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).

In Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the Supreme Court discussed the Fourth Amendment and exceptions to its warrant requirements:

These [exceptions to the warrant requirement] have been established where it was concluded that the public interest required some flexibility in the application of the general rule that a valid warrant is a prerequisite for a search. Thus a few “jealously and carefully drawn” exceptions provide for those cases where the societal costs of obtaining a warrant, such as a danger to law officers or the risk of loss or destruction of evidence, out-weigh the reasons for prior recourse to a neutral magistrate____ But because each exception to the warrant requirement invariably impinges to some extent on the protective purpose of the Fourth Amendment, the few situations in which a search may be conducted in the absence of a warrant have been carefully delineated and “the burden is on those seeking the exemption to show the need for it.” Moreover, we have limited the reach of each exception to that which is necessary to accommodate the identified needs of society.

442 U.S. at 759, 760, 99 S.Ct. at 2590, 2591 (Citations omitted).

In the instant case, the police had their informant make a controlled buy of cocaine from the South George Street address. At the completion of the transaction, the police were advised by the informant that the group at the stated address was leaving the premises for another location with the intention of getting “rid of the solid drugs”.

The police, with no time to secure a warrant, gathered the necessary uniformed officers to make a warrantless entry of the premises, the obvious objective being to secure evidence before it was removed and lost to them. Thus, given the immediacy of the situation, the police were justified in effectuating entry without a warrant.

The legality of the actions of Officer Mehring subsequent thereto in “seizing” the person of Rodriquez and the search of her purse are one of first impression in this Commonwealth in that they were accomplished without the use of a warrant and during the course of a drug raid on property from which a Puerto Rican male was the known distributor of the cocaine sought.

We look for guidance from the United States Supreme Court’s ruling in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), where in the police had obtained a warrant to search a home for narcotics. Once at the location, the police saw the defendant exit the front door of the home and proceed across the porch and down the steps. They requested his assistance in gaining entry and detained him while they searched the premises. After finding narcotics in the basement and ascertaining that the defendant was the owner of the home, he was arrested. A search of his person by police produced an envelope containing 8.5 grams of heroin.

The suppression court’s grant of the defendant’s motion, and its affirmance by the appellate courts of Michigan, was reversed by the United States Supreme Court.

The Summers Court, albeit assuming that the pre-arrest “seizure” of the defendant was unsupported by probable cause, acknowledged a body of law which “demonstrate[d] that the exception for limited intrusions that may be justified by special law enforcement interests is not confined to the momentary, on-the-street detention accompanied by a frisk for weapons involved in Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] and Adams [v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) ].” Id., 452 U.S. at 700, 101 S.Ct. at 2593; United States v. Whitehead, 849 F.2d 849, 856 (4th Cir.1988); United States v. Quinn, 815 F.2d 153, 156 (1st Cir.1987).

The Court held that, for Fourth Amendment purposes, a warrant to search for contraband founded on probable cause implicitly carries .with it the limited authority to detain the occupant of the premises while a proper search is conducted.

In assessing the justification for the detention of an occupant of premises being search for contraband pursuant to a valid warrant, the Summers Court felt that both the law enforcement interest and the nature of the “articulable facts” supporting the detention are relevant. As it stated the matter:

Most obvious is the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found. Less obvious, but sometimes of greater importance, is the interest in minimizing the risk of harm to the officers. * * * [T]he execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence.17 The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.
17 The fact that our holding today deals with a case in which the police had a warrant does not, of course, preclude the possibility that comparable police conduct may be justified by exigent circumstances in the absence of a warrant. No such question, however, is presented by this case.

452 U.S. at 702-703 & n. 17, 101 S.Ct. at 2594 & n. 17 (Citations omitted).

The question left open by the Summers Court in footnote 17, i.e., detention of an occupant (interpreted by some courts to mean an owner rather than merely a visitor) of a home during a warrantless search for drugs, is presently before this Court. Before deciding the matter, we find it appropriate to examine the conduct of the police prior to entering the South George Street apartment.

To the appellant’s complaint that the officers’ directing her into the apartment at gun point and advising her of Miranda rights constituted a formal arrest, which, because there was a lack of probable cause to believe that she was engaged in criminal activity, tainted the drugs found in her purse, we find the claim to be unsupported by the law when applied to the facts.

To begin with, because of the exigencies of the situation (i.e., the removal of drugs from the apartment and the presence of numerous people in and about the apartment at 1:00 a.m.), a potentially volatile situation confronted the officers. See Summers, supra; Williams v. Com., 4 Va. App. 53, 354 S.E.2d 79, 87 (1987); Allen v. Com., 3 Va.App. 657, 353 S.E.2d 162, 165 (1987). As such, Officer Mehring’s escorting of the appellant into the apartment at gun point (so found the suppression court), once she admitted that she lived there, was sound police practice in maintaining order during the initial moments of the search to avoid surprises and minimizing the risk of injury to those present. Additionally, the appellant’s presence might have proved useful in facilitating the search. See Summers, supra; United States v. Rowe, 694 F.Supp. 1420, 1424 (N.D.Cal.1988).

We refuse to interpret the police’s use of a weapon, in directing the appellant into the apartment, and the rendition of Miranda rights to be the equal of a formal arrest. Rather, given the circumstances confronting the officers, we find the situation to rise no higher than a justifiable “detention” of the appellant during the search of her apartment. See Summers, supra; see also United States v. Winsor, 816 F.2d 1394, 1400 (9th Cir.1987) (Forceful entry with guns drawn not equal to arrest where circumstances existed justifying the police’s fear for safety); United States v. Quinn, supra (While handcuffing is relevant to issue of custody, it would not necessarily elevate an investigative stop into a de facto arrest); People v. Zuccarini, 172 Mich.App. 11, 431 N.W.2d 446, 448 (1988) (Handcuffing of defendant did not constitute arrest; it was reasonable, limited intrusion of his liberty under the circumstances then present); State v. Banks, 720 P.2d 1380, 1382-1383 (Utah 1986) (Although defendant was handcuffed, frisked and read his Miranda rights, this was not an arrest but done to insure the officers’ safety); Dissenting Opinion by Popovich, J. in Commonwealth v. Hook, 313 Pa.Super. 1, 459 A.2d 379 (1983) (Directing defendant outside of 7-Eleven convenience establishment was not an arrest, but done for the safety of the two individuals in the store).

We find that the safety of the officers was served by the governmental intrusion of the appellant’s person and purse, Officer Mehring admitting as much when he recounted that it was common practice in the department to open purses during drug raids for the safety of the police. Also, the intrusion is held to have been minimal. See New York v. Class, 475 U.S. 106, 118, 106 S.Ct. 960, 968, 89 L.Ed.2d 81 (1986). The justification for such conduct has its roots in the seriousness with which drug curtailment has been approached by our society. The needless loss of life attendant to the illegal drug industry is all too well documented in the newspapers as a virus which reeks havoc on users, distributors and law enforcers. As noted by one court on this ever increasing scourge that plagues our society:

Although the suspicion of narcotics possession and distribution is not universally recognized as a circumstance which, standing alone, gives rise to an inference of dangerousness, we believe that the better view is that it does. See [United States v. ] Post, 607 F.2d [847] at 851 [9th Cir.1979]. The Supreme Court implied as much in Summers when it stated: “[T]he execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence.” 452 U.S. at 702, 101 S.Ct. at 2594.
We hold, therefore, even though the officers who detained [the defendant] had no information that he was armed or that he had a past history of violence, they acted reasonably when conducting a protective patdown search for weapons in light of the fact that they had a reasonable suspicion that Williams was presently engaged in narcotics distribution. To hold otherwise would be an invitation to violence in what is always a potentially explosive situation.

Williams v. Com., supra, 354 S.E.2d at 87 (Citations omitted).

Likewise, in the case at bar, the police were participating in a drug investigation (covering two days and emanating from the same address) reportedly involving a Puerto Rican male and female, who were in the company of several individuals at the apartment, and action had to be taken soon to preclude the intended disposal of the drugs by the South George Street “group” at a “speakeasy”. Drugs had been sold to the informant from the stated apartment the day before the raid by a Puerto Rican female, while the sale on the day of the raid was made by a Puerto Rican male. Thus, because of the information regarding the removal of the drugs from the premises, from which drugs were purchased by an informant a short time before, the police were confronted with a quickly developing situation requiring prompt action.

With the police’s arrival at the apartment, and the appellant admitting her residence as the apartment in question, the police’s forcible entry was a proper response to the situation. See Summers, supra; Williams, supra. No less appropriate was Officer Mehring’s search of the appellant’s purse. As noted by Chief Justice Burger in his dissenting opinion in Ybarra v. Illinois, 444 U.S. 85, 97, 100 S.Ct. 338, 345, 62 L.Ed.2d 238 (1979) (it was joined by Justices Black-mun and Rehnquist), which dealt with a frisk of a patron present in a tavern for which the police had a warrant to search:

Were they [the police] to ignore these individuals [9-13 patrons in the tavern] and assume that all were unarmed and uninvolved? Given the setting and the reputation of those who trade in narcotics it does not go too far to suggest that they might pay for such an easy assumption with their lives. The law does not require that those executing a search warrant must be so foolhardy.

The suppression court here was of the same mind when it wrote on this that the police did not want to return the appellant’s purse to her without checking its contents first for a weapon.

Given the facts presently before us, we have no hesitancy in concluding that the police acted properly (where the appellant admitted being an “occupant” of an abode about to be rqj£led for drugs recently sold). Compare Ybarra v. Illinois, supra; United States v. Robertson, 833 F.2d 777 (9th Cir.1987); Bragg v. State, 536 So.2d 965 (Ala.Cr.App.1988); Julian v. State, 528 So.2d 427 (Fla.App.1988); Martin v. State, 761 S.W.2d 26 (Tex.App.1988).

We tread on virgin ground in our holding this day, but we act confidently, knowing that the principles enunciated by the United States Supreme Court in Summers and its progeny, i.e., warrant situations, are just as applicable to the case sub judice so as to justify the warrantless detention of the appellant and the subsequent search of her purse for safety purposes before returning it to her.

Judgment of sentence affirmed.

      . The appellant remains on bail pending the outcome of this appeal.

      . We note that the trial court, in its opinion to us, recounts the facts with the officers having their guns drawn when directing the appellant into the apartment from the porch steps. Since it is for the finder of fact to make credibility determinations, and because the evidence (albeit garnered from the appellant’s testimony) is supportive of such a finding, we cannot fault the court below or hold that it is not supported by record evidence. See Commonwealth v. Carelli, 377 Pa.Super. 117, 129 n. 1, 546 A.2d 1185, 1191 n. 1 (1988).

      . The police obtained entrance to the premises by forcing open the front door. Once admittance had been gained, one officer instructed another officer to bring the defendant, who was still on the porch, into the house.

      . See Martin v. State, 761 S.W.2d 26, 29 (Tex.App.1988) (“It is ... clear that the word 'occupant’ as used by the Supreme Court in Summers does not include a mere visitor.” (Citation omitted)).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Compare Commonwealth v. Carr, 334 Pa.Super. 459, 483 A.2d 542 (1984) and Commonwealth v. Reicherter, 317 Pa.Super. 256, 463 A.2d 1183 (1983).


author: ROWLEY, Judge: DEL SOLE, Judge,

text:
    564 A.2d 180
    Terri L. CALLENDER, Administratrix of the Estate of Gary Callender, and Terri L. Callender, in her Own Right v. GOODYEAR TIRE AND RUBBER CO., an Ohio Corporation, and Port Authority of Allegheny County, a Municipal Authority. Appeal of GOODYEAR TIRE AND RUBBER CO.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1988.
    Filed Aug. 18, 1989.
    Reargument Denied Sept. 25, 1989.

      John W. Jordan, IV, Pittsburgh, for Goodyear Tire, appellant.
    Louis M. Tarasí, Jr., Pittsburgh, for Callender, appellee. Michael J. Manzo, Pittsburgh, for Port Authority, appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   ROWLEY, Judge:

This is an interlocutory appeal by permission by Goodyear Tire and Rubber Company (Goodyear), from an order denying the cross-summary judgment motions of Goodyear and appellee, Terri Callender (Callender) , in a wrongful death and survival action brought by Callender against both Goodyear and the Port Authority of Allegheny County (PAT) after her husband, Gary Callender, was killed by the explosion of a Goodyear bus tire while he was working in the Goodyear tire workroom at PAT’s Ross Township bus maintenance garage. This appeal presents the issue of whether an employer, who is also a manufacturer of a product sold to the general public, may be liable under the dual capacity doctrine for a tort claim in the nature of a products liability action brought by an employee whose job is to maintain the manufacturer’s product for the consumer, when the employee is injured by the product in the course of his employment. We hold that the dual capacity doctrine is inapplicable, and that the plaintiff’s exclusive remedy is under the Workmen’s Compensation Act. 77 P.S. § 1 et seq.

The facts of this case are as follows. Pursuant to the terms of a lease agreement between Goodyear and PAT, Goodyear provides PAT with all of its bus tires and maintains them. The maintenance of the tires is performed by a “tire changer” employed by Goodyear who works full time in each of the PAT maintenance garages.

At the PAT maintenance garage involved in this case, PAT maintained a separate room within the garage dedicated for the exclusive use of Goodyear. Goodyear’s tire changer, the Decedent, worked alone in this room which was set off from the remainder of the garage by floor-to-ceiling walls of cinder block and one double door. Inside the room were the machines/tools supplied to the Decedent by Goodyear which were necessary for separating tires from wheel rims, re-grooving tires and other maintenance which would regularly be performed on the tires.

PAT had an employee, called a “wheel changer,” whose sole job was to remove tires from the buses and put the tires back on the buses. When the PAT wheel changer removed a flat tire, or upon his inspection noticed that a tire was worn unevenly or scuffed on the side, he would remove the tire from the bus and roll it to the outside of the Goodyear tire room. The Decedent then decided on-his own whether and/or how to repair the tire. If a repair were to be performed or if the tire needed to be mounted on or dismounted from the rim, the Decedent would roll the tire into the Goodyear tire room.

New tires, tires which were about to be worked on by the Decedent, and tires which the Decedent had just finished working on were the only tires which ordinarily would be in the Goodyear tire room at any time. Most tires which were awaiting repair were kept along the wall outside of the door into the Goodyear tire room. Most repaired tires or tires brought out of storage and placed on wheels ready to be put on the busses by the PAT wheel changer were kept in an area outside the Goodyear tire room but inside the PAT garage. Two several-inch-diameter pipes no higher than waist high contained the area where most of these tires were kept. The number of tires in this pen outside the Goodyear tire room at the time of the accident was between 20-30. In addition, over 100 tires, not yet ready to be used, were stored adjacent to the penned area in the maintenance garage but outside of the Goodyear tire room. New tires were often kept inside the Goodyear tire room for security reasons.

Decedent was hired as a Goodyear tire changer by a Goodyear field manager who was responsible for supervising each of the Goodyear employees at the various PAT maintenance garages. The field manager trained the Decedent how to maintain the tires, how to remove tires from and replace tires on the rims, how to maintain the inventory cards for each tire handled by the Goodyear employee, how to inflate the tires, and other similar tasks. The Goodyear field manager regularly, often as frequently as weekly, would stop into each of the garages where a Goodyear tire changer was employed to check on the work that was being performed by the Goodyear employee, to ensure that it was satisfactory by Goodyear’s standards, and to see if there were any complaints from the PAT garage supervisor. The Goodyear manager also had the authority to fire the Goodyear tire changers.

Callender admits that Goodyear was the Decedent’s employer (answer to interrogatory # 12 of PAT). The PAT employees, including the supervisor of the PAT garage, never told the Decedent what to do or how to do it. The PAT employees rarely, if ever, went into the Goodyear tire room, although some PAT painting and cleaning supplies were stored in the Goodyear tire room.

The specific tire which exploded in this case was a re-grooved one which PAT employees had trucked, along with numerous others, from PAT’s tire storage facility on the Southside, to the maintenance garage where Decedent worked so that it could be mounted on a rim and put back into use. Apparently the Decedent had remounted the tire in question and placed it, still in the Goodyear tire room, approximately three to four feet away from where he was working on another tire when the tire exploded.

Although receiving Workmen’s Compensation benefits, Callender brought the present products liability and negligence action against Goodyear and PAT. Goodyear sought summary judgment on the basis that Gary Callender was its employee at the time of the accident, he was killed while performing his responsibilities as an employee, and therefore, the Workmen’s Compensation Act’s exclusivity provision, Act of June 2, 1915, P.L. 736, No. 338, Section 303, as amended 1974, December 5, P.L. 782, No. 263, Section 6, 77 P.S. § 481, precludes Goodyear from any tort liability. Cal-lender sought summary judgment as to Goodyear’s liability on the theory that there was no material question of fact that Goodyear was the manufacturer of the tire which killed Gary Callender. Both motions were denied, and the trial court certified its order denying the summary judgment motions as involving a controlling question of the applicability of the exclusivity provision of the Workmen’s Compensation Act, and the judicial doctrine of “dual capacity.”

Two issues are raised on appeal: 1) is there a material question of fact as to whether the Decedent was under the control and direction of Goodyear or PAT at the time of his death; and 2) if the Decedent was an employee of Goodyear and under its control at the time of his death, does the dual capacity doctrine preclude Goodyear from avoiding liability on the basis of the exclusivity provision of the Workmen’s Compensation Act. For the reasons set forth below, we conclude that there is no material question of fact that the Decedent was ah employee of Goodyear and under its control at the time of his death, and that Callender’s exclusive remedy is that provided in the Workmen’s Compensation Act.

The scope of review of a motion for summary judgment is well established:

“A motion for summary judgment may properly be granted only “if 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(b). See also Rybas v. Wapner, 311 Pa.Super. 50, 52, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 123, 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa.Super. 479, 480-482, 460 A.2d 288, 289-290 (1983). It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1971).” Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984). Accord Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 203-204, 412 A.2d 466, 468-469 (1979); Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 231, 464 A.2d 1313, 1316 (1983); Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109-110 (1983). However, parties seeking to avoid the entry of summary judgment against them may not rest upon the averments contained in their pleadings. On the contrary, they are required to show, by depositions, answers to interrogatories, admissions or affidavits, that there is a genuine issue for trial. Pa.R.C.P. 1035(d). The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973); Younginger v. Heckler, 269 Pa.Super. 445, 410 A.2d 340 (1979). The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted. Phaff v. Gerner, supra.

Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 288-290, 515 A.2d 980, 981 (1986).

Although the only issue raised by the appellant is whether or not the dual capacity doctrine applies to the facts of this case, this argument assumes, as Callender asserts, that Decedent was the employee of Goodyear. Therefore, preliminarily, we must address Callender’s argument that whether the Decedent was under the control and supervision of Goodyear or PAT at the time of his death is a . material question of fact which must be determined by a fact finder. Callender does not deny that her husband was employed by Goodyear, (see Callender’s answer to Goodyear’s New Matter and Callender’s Answer to PAT’s interrogatories) but she contends that he was “loaned” to PAT, and therefore PAT, and not Goodyear, constitutes the Decedent’s employer for purposes of the Workmen’s Compensation Act. ,

When deciding whether a lending or borrowing employer is an employer for purposes of the Workmen’s Compensation Act, any factual discrepancies are to be resolved by the trier of fact; however, once the facts are determined, the court must determine as a matter of law which employer is the employer for purposes of the Act. Keller v. Old Lycoming Township, 286 Pa.Super. 339, 345, 428 A.2d 1358, 1361 (1981).

In the present case, despite Callender’s bald assertion in her brief that “there has yet to be a determination of fact of whether Goodyear or PAT controlled Gary Callender’s work ...” Callender has failed to point to anything in the answers to interrogatories, depositions, or affidavits demonstrating a factual dispute. On the contrary, the depositions unequivocally set forth the facts: William Fischer, Supervisor of the PAT garage in which the accident occurred stated that he never told Decedent what to do; James Sucky, Goodyear’s area field manager for the area including the PAT garage involved in this case, stated that the Decedent was not under the control and supervision of PAT, and that it was the complete responsibility of Goodyear to train and control someone holding Decedent’s position; Hank Audette, Goodyear’s field manager for tire changers in an area including the PAT garage in issue at the time of the accident, testified extensively about his regular supervision of Decedent and Decedent’s work, how he had trained the Decedent, and the procedures which he instructed him to follow. Because nothing contained in the interrogatories, depositions or affidavits contradicts these facts, Callender has failed to establish that there is a disputed factual issue.

In resolving the legal issue of whether Goodyear or PAT was the employer of the Decedent for purposes of the Workmen’s Compensation Act, we bear in mind that:

[ ]The crucial test in determining whether a servant furnished by one person to another becomes the employe of the person to whom he is loaned is whether he passes under the latter’s right of control with regard to not only the work to be done but also as to the manner of performing it....
[]A servant is the employe of the person who has the right of controlling the manner of his performance of the work, irrespective of whether he actually exercises that control or not.

Supp v. Erie Insurance Exchange, 330 Pa.Super. 542, 547-548, 479 A.2d 1037, 1039-1040 (1984), citing Mature v. Angelo, 373 Pa. 593, 595-596, 97 A.2d 59, 60 (1953) (citations omitted) (emphasis in original); Keller, supra. Because the undisputed facts in this case demonstrate that Goodyear hired the Decedent, trained him, supervised him, told him what to do and how to do it, and because there is no evidence in the depositions and no affidavit even suggesting that PAT had the right to control any aspect of the Decedent’s employment, we conclude as a matter of law, that Goodyear was the employer of the Decedent for purposes of the Workmen’s Compensation Act.

Finding no merit to Callender’s argument that there is a factual issue as to whether Goodyear was the Decedent’s employer, we turn now to appellant’s argument that the exclusivity provision of the Workmen’s Compensation Act bars the present action, and the judicially created dual capacity doctrine does not apply to the facts of this case.

The dual capacity doctrine has been defined in the following manner:

Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as an employer.

2A Larson, Workmen’s Compensation Law, § 72.80, p. 14-112 (1976). Although this is the initial definition given to the dual capacity doctrine by Professor Larson, since 1976 Professor Larson has revised his description of the doctrine. He now refers to it as the “dual-persona” doctrine, which he distinguishes from the “dual capacity” doctrine on the basis that it “corrects] the looseness and overextension attending the so-called ‘dual capacity’ doctrine.” 2A Larson, Workmen’s Compensation Law, § 72.81(a), p. 14-229 (1988). Professor Larson defines the dual persona doctrine as follows:

an employer may become a third person, vulnerable to tort suit by an employee, if — and only if — he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.

Id, § 72.80, p. 14-229.

The term “dual-persona” was chosen by Professor Larson because of the

“literal language of the typical third-party statute, which usually defines a third party, in the first instance, as ‘a person other than the employer.’ This is quite different from ‘a person acting in a capacity other than that of employer.’ The question is not one of activity, or relationship — it is one of identity.”

Id., § 72.81(a) p. 14-231.

Professor Larson also explains that the “dual capacity” doctrine only flourished in two jurisdictions — Ohio and California — and only from 1977 to 1983. By 1983, the California legislature had abolished the dual capacity doctrine and the Ohio Supreme Court had substituted the “dual persona” doctrine for the dual capacity doctrine. Id., at § 72.81(c), pp. 14-236 — 14-245. As further evidence of the decline of the acceptance of the “dual capacity” doctrine, “It is now held with virtual unanimity that an employer, who is also the manufacturer, modifier, installer, or distributor of a product used in the work, cannot be held liable in damages to his own employee on a theory of products liability.” Id., § 72.83, p. 14-252.

The dual capacity doctrine was first followed, in Pennsylvania, without express reference to the name of the doctrine, in the concurring (but majority) opinion of Justice Roberts in Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 255, 439 A.2d 1162, 1166 (1982), which was prior to the demise of the doctrine in the two jurisdictions in which it was most popular. In Tatrai, a Presbyterian University Hospital operating room technician became ill during her regular working hours. On her supervisor’s instructions, she went to the hospital’s own emergency room where she was injured when the x-ray table she was laying on collapsed. The injured worker sued the hospital for negligence and breach of warranty of the hospital’s services and equipment. A majority of the Supreme Court held that because the worker was injured while receiving emergency treatment in the hospital’s emergency room which serves the public, the employee at the time she was injured was in the same position as any other member of the public receiving treatment in the hospital’s emergency room. Thus, the same duty which the hospital owed general members of the public who used the services of the emergency room was also owed to the employee when she happened to use the services of the hospital’s emergency room.

In Budzichowski v. Bell Telephone Co. of PA, 503 Pa. 160, 469 A.2d 111 (1984), the Court refused to apply the dual capacity doctrine where the employee, injured while in the course of his employment, received allegedly negligent treatment for those injuries from the employer’s own doctors working in the employer’s Medical Dispensary. The asserted reason for the inapplicability of the doctrine was that the employer’s, Bell Telephone’s, Medical Dispensary did not provide services to the general public but only to Bell employees. Therefore, when the Medical Dispensary doctors allegedly negligently diagnosed the employee’s injuríes, the doctors, on behalf of Bell, were acting in the capacity of Bell as an employer and not as a provider of services or goods to the public. Consequently, the Court held that the employee’s exclusive remedy was provided by the Workmen's Compensation Act.

Subsequently, in Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988), the Supreme Court addressed the issue of whether the dual capacity doctrine applies to bar an employee from recovering uninsured motor vehicle insurance benefits from his employer, where the employer is self-insured, as compensation for injuries sustained by the employee in a motor vehicle while the employee was engaged in the performance of his employment duties. Lems involved three consolidated cases with similar factual circumstances. In one of the three cases, the plaintiff was a school bus driver who was injured when the school bus he was driving in the course of his employment was involved in an accident with an uninsured motorist. Although he received workmen’s compensation benefits, the school bus driver also sought uninsured motorist benefits from his employer who was self-insured. In the other two cases, Philadelphia police officers were injured when the cars they were riding in, in the course of their employment, were involved in accidents with uninsured motorists. Again, workmen’s compensation benefits were paid to the policemen, but uninsured motorist benefits were not paid by the employer. The Court held:

It is thus clear that the focus of the “dual capacity” exception is on the circumstances in which the worker’s injury occurs. But no such exception can exist where, as in the matters now before us, the employee’s compensable injury occurred while he was actually engaged in the performance of his job.

Id., 517 Pa. at 475, 538 A.2d at 869.

Most recently, the Supreme Court has discussed the dual capacity doctrine in the context of “whether a products liability claim can be asserted against an employer who is also the manufacturer of the equipment which caused the employee’s injury.” Heath v. Church’s Fried Chicken, Inc., 519 Pa. 274, 276, 546 A.2d 1120, 1121 (1988). In Heath, the employer manufactured, solely for the use of its own employees, a “chicken saw.” The plaintiff/employee was injured while operating the chicken saw, and, after receiving workmen’s compensation benefits for her injuries, brought a product’s liability action against her employer as the manufacturer of the chicken saw. In concluding that the dual capacity doctrine did not apply, the Court summarily referred to the above-quoted language from Lewis, stating that when the injury occurs while the employee is actually engaged in the performance of her job, the dual capacity doctrine, as judicially created in Pennsylvania does not apply. Id.

An examination of Tatrai, Budzichowski, Lewis and Heath reveals that the Supreme Court has used two distinct analyses in deciding whether the dual capacity doctrine applies to a particular situation. In its two earliest cases, Tatrai, and Budzichowski, it addressed the issue from the standpoint of whether there was a separate duty owed by the employer to the public, and whether the employee could be distinguished from a member of the public to whom that duty was owed. However, in its most recent cases, Lewis and Heath, it has retreated from application of the traditional dual capacity analysis of whether the employer was acting in a separate capacity, and instead has focussed exclusively on whether the employee was acting in the course of his or her employment. We find the change in the Court’s analysis significant particularly in light of the fact that the Court could have reached the same result in both Lewis and Heath had it applied its previously established Tatrai/Budzichowski analysis. We also note that the Court’s new analytical framework developed in Lewis and followed in Heath is distinguishable from the dual persona doctrine which is replacing the dual capacity doctrine: under Lewis and Heath, the status cr identity of the employer is entirely irrelevant; the only significant fact is what the employee was doing when the accident occurred.

In the present case, Callender seeks to recover from the Decedent’s employer on the theory that Goodyear defectively manufactured the tire which killed the Decedent. Factually, the case is indistinguishable from Lewis and Heath because the injury occurred while the employee was engaged in the course of his employment. However, the present case is distinguishable from any Pennsylvania products liability case in which the employee has sought to invoke the dual capacity doctrine because the allegedly defective product in the present case was not one manufactured by the employer for use by its employees and not for use by the general public. See Heath supra; Pavlek v. Forbes Steel & Wire Corp., 358 Pa.Super. 316, 517 A.2d 564 (1986). On the contrary, the allegedly defective product manufactured by Goodyear is made expressly for use by the general public. Thus, the narrow issue which we must resolve is whether, under the Pennsylvania Supreme Court’s development of the judicially created dual capacity doctrine, the single fact that a manufacturer’s product which injures one of its employees is a product available to the general public and is not one manufactured exclusively for use by its own employees, subjects the employer to tort liability for its employees.

At least two other jurisdictions have addressed this precise problem, and have concluded that under the dual persona doctrine, the employer is not liable to its employees for injuries sustained by the employee in the course of his or her employment as a result of an allegedly defective product manufactured by the employer for use by the general public.

In Wells v. Firestone Tire and Rubber Company, 421 Mich. 641, 364 N.W.2d 670 (1984), the plaintiff was employed by Firestone at one of its retail stores. The employee was injured when, in the course of his employment, he was changing a tube and tire on a truck rim, and the rim blew apart. The court rejected the dual capacity theory and adopted the dual persona theory described by Professor Larson. The Court stated:

the [dual capacity] doctrine is applicable only in those situations where the employer has a second identity which is completely distinct and removed from his status as employer.
* * * * * *
The great majority of American jurisdictions have held that an employer who manufactured the injury-causing device cannot be held liable to his employee under a products liability theory. Id., § 72.83, p. 14-239. Furthermore, the fact that the injury-causing product was also sold to the public is unimportant:
“What matters is that, as to this employee, the product was manufactured as an adjunct of the business, and furnished to him solely as an employee, not as a member of the consuming public. What the employer does with the rest of his output cannot change this central fact.” Id., § 72.83, p. 14-246 (emphasis in original).

Wells, supra., at 653, 364 N.W.2d at 675-676.

Similarly, in Toth v. Westinghouse Elevator Company, 114 Ill.App.3d 905, 70 Ill.Dec. 658, 449 N.E.2d 1005 (1983), a Westinghouse Elevator Company employee, whose job was to repair Westinghouse elevators, was injured as a result of allegedly defective Westinghouse elevator machinery and parts while he was trying to repair a Westinghouse elevator. The court refused to allow him to proceed against Westinghouse Elevator Company in a products liability action under the dual capacity theory. On the contrary, the court applied the dual persona doctrine, which the Illinois Supreme Court had previously adopted, and held that the issue was not whether the “employer occupied a second, independent role,” but “whether the controversy involved separate legal entities or persona.” Id., at 660, 440 N.E.2d at 1007.

Considering that the Pennsylvania Supreme Court has not found the dual capacity doctrine to be applicable since 1982, which was prior to the commencement of the trend to abandon the doctrine in favor of the dual persona doctrine; considering that the Supreme Court in 1982 and 1984, in Tatrai and Budzichowski, respectively, applied the traditional dual capacity analysis which focuses on the obligations of the employer rather than the employee to determine whether an employee’s remedies are limited to those provided in the Workmen’s Compensation Act, but abandoned this method of analysis in 1988 in Lewis and Heath, and instead adopted one which examines exclusively the nature of the employee’s actions at the time of the accident; and considering that the majority view from other jurisdictions is that an employer which is also a manufacturer of a product used by its employees cannot be held liable to its employee in tort, we hold that the dual capacity doctrine is inapplicable in the present case, and the exclusivity clause of the Workmen’s Compensation Act bars Callender’s action against Goodyear. Therefore, the trial court erred in denying Goodyear’s motion for summary judgment against Cal-lender.

Order denying Goodyear’s Motion for Summary Judgment is reversed. Case is remanded for entry of Summary Judgment in favor of Goodyear, and for any further appropriate proceedings concerning defendant PAT.

DEL SOLE, J., files a concurring statement.

DEL SOLE, Judge,

concurring.

I concur with the Majority’s decision in this case. I believe that the issue presented is controlled by the Supreme Court decisions in Heath v. Church’s Fried Chicken, 519 Pa. 274, 546 A.2d 1120 (1988) and Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988).

However, I join with the concern expressed by Mr. Justice Papadakos in his Concurring Opinion in the Heath case. Specifically, where an employer has placed into the stream of commerce a product which subsequently causes injury to an employee, a manufacturer of that defective product should not escape liability because of the employer/employee relationship. California has statutorily made this provision and I believe that Pennsylvania should consider such a change. However, under the existing law of the Commonwealth I believe that the majority is correct and, therefore, concur in the result.

      . Port Authority of Allegheny County (PAT) is also an appellee, but PAT does not address the dispositive issues. PAT’s participation in the appeal is limited to preserving its claim for indemnity and contribution from Goodyear in the event that PAT is subsequently found to be liable to Callender. See footnote 2 herein.

      . Insofar as Goodyear's motion for summary judgment did not address the question raised in appellee PAT’s brief regarding Goodyear’s contractual obligation to PAT for contribution and indemnity for any liability incurred by PAT in an action such as the present one, and insofar as the summary judgment in favor of Goodyear would not automatically terminate Callender’s suit against PAT, we make no decision concerning the contractual liability of Goodyear to PAT for contribution and indemnity.


author: WIEAND, Judge:

text:
    564 A.2d 188
    Cynthia L. SMITH v. Dale F. RENAUT, Richard Huff and Key Real Estate, Inc. Appeal of Richard HUFF and Key Real Estate, Inc.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1989.
    Filed Aug. 21, 1989.

      Stephen L. Banko, Harrisburg, for Huff and Key Real Estate, appellants.
    Daniel W. Shoemaker, York, for Smith, appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   WIEAND, Judge:

This appeal is from a judgment entered on the verdict of a jury awarding damages to a purchaser of real estate against the seller, the real estate brokering agency, and the real estate salesman who made the sale because of their failure to disclose (1) the full extent of termite damage and (2) the presence of chlordane, a carcinogen, in the well water. Although all defendants appealed, the seller’s appeal was dismissed for failure to file a brief. The appeals presently before this Court, therefore, are the appeals of the brokering agency and salesman. Their principal contentions are that the evidence failed to establish that they were guilty of fraud or otherwise liable to the purchaser for either compensatory or punitive damages.

It was in 1976 when Dale F. Renaut purchased a residence located at R.D. # 1, Route 30, Abbottstown, York County. It was then discovered that the property was infested with termites. Therefore, Renaut hired a professional exterminator to rid the property of the termites. The extermination was successful; and the exterminator returned annually thereafter to inspect the property for termites, but found none. Renaut resided in the home for ten years before deciding to sell.

In May, 1986, he listed the property for sale with Key Real Estate, Inc. Its agent, Donna Hurfel, inspected the premises, and Renaut pointed out to her the areas of the home which he knew to have been damaged by termites. These included small, visible perforations in the living room floor and damage to the joists beneath the first floor, which could be seen from the basement.

Cynthia Smith, who was accompanied by her mother and two sisters, was shown the property on May 21, 1986, by Richard Huff, a real estate salesman employed by Key Real Estate. At that time, Renaut told her that there had been termite damage. According to Smith’s testimony, however, Huff, the salesman, told her that “the property has minor termite damage, but it had been repaired, so you don’t need to worry about it.” After viewing the house, Smith agreed to purchase it for $45,000. Approximately a month later, Smith again visited the house with Huff, observed the perforations in the living room floor and was told that it was termite damage. Smith visited the premises a third time, three days before closing, when she spent several hours there. Although Renaut was at home on this occasion, Smith did not ask him about termite damage, and the matter of termite damage was not discussed.

Prior to the closing, Key Real Estate arranged for an inspection of the property and the issuance of a pest-free certificate as required by the bank which was financing a part of the transaction. At closing, the purchaser was given a copy of a termite certification which recited that there was no live infestation of termites, but she did not request or receive a copy of the pest-free certificate required by the bank. This certificate showed that the termite condition had been “treated with 1% chlordane” in 1976.

After taking title, Smith undertook renovations of the home. When paint was removed from woodwork, it disclosed termite damage which had been concealed by strips of tape covered by paint. Upon close examination, Smith found additional termite damage of which she had not previously been aware. In September, 1986, she obtained from the bank a copy of the termite inspection report and spoke with the exterminator who had treated the home. In this manner she learned that chlordane had been used by the exterminator. Upon the advice of her lawyer, Smith then had the well water tested and learned that it contained a dangerously high level of chlordane. Renaut testified at trial that he had not been aware that a carcinogen had been used to exterminate the termites; he said that he had been drinking the water during the ten years in which he had occupied the premises. Although the date is uncertain, the record suggests that chlordane was determined to be carcinogenic sometime between 1976 and 1986. After Smith learned of the high level of chlordane and the additional termite damage, she abandoned her effort to renovate the home and sold it for $39,000.

She filed an action against Renaut, Huff and Key Real Estate, alleging that they had fraudulently concealed or failed to disclose the full extent of the termite damage and/or the contamination of the well water by chlordane. The jury found that the defendants had been guilty of fraud, and Smith’s damages were assessed at $20,270. It apportioned these damages and directed payment thereof as follows: Renaut — $2,000; Huff — $4,000; and Key Real Estate — $14,270. In addition to compensatory damages, the jury directed Huff to pay punitive damages in the amount of $2,500 and Key Real Estate to pay punitive damages of $20,000.

A judgment n.o.v. may be entered only in a clear case where the facts are such that two reasonable persons cannot fail to agree that the plaintiff failed to make out a case and that the jury’s verdict was improper. Fleck v. Durawood, Inc., 365 Pa.Super. 123, 127, 529 A.2d 3, 5 (1987); Northwest Savings Ass’n v. Distler, 354 Pa.Super. 187, 191, 511 A.2d 824, 825 (1986). In reviewing a denial of a motion for judgment n.o.v., the evidence and all reasonable inferences which may be drawn therefrom must be considered in the light most favorable to the verdict winner. Vernon v. Stash, 367 Pa.Super. 36, 45-46, 532 A.2d 441, 445-446 (1987), quoting Maravich v. Aetna Life & Casualty Co., 350 Pa.Super. 392, 396, 504 A.2d 896, 898 (1986) and Kearns v. Clark, 343 Pa.Super 30, 34, 493 A.2d 1358, 1360 (1985). If there is any basis upon which the jury could have properly made its award, the denial of the motion for judgment n.o.v. must be affirmed. Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 269, 545 A.2d 926, 931 (1988).

Where a broker employed to sell real estate misrepresents or conceals a material fact, he may be found liable to the purchaser in damages. Shane v. Hoffmann, 227 Pa.Super. 176, 324 A.2d 532 (1974). In Shane, the Superior Court defined actionable fraud in the following manner:

It is well-settled that one who fraudulently makes a misrepresentation of fact or law for the purpose of inducing another to act or refrain from acting in reliance thereon in a business transaction is liable to the other for the harm caused him by his justifiable reliance upon the misrepresentation. Savitz v. Weinstein, 395 Pa. 173, 178, 149 A.2d 110 (1959). To be actionable, the misrepresentation need not be in the form of a positive assertion. As our Supreme Court said in McClellan Estate, 365 Pa. 401, 407, 75 A.2d 595 (1950): “... fraud consists in anything calculated to deceive, whether by single act or combination, or by suppression of truth, or a suggestion of what is false, whether it be direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture. It is any artifice by which a person is deceived to his disadvantage.” [Citing Reichert Estate, 356 Pa. 269, 274, 51 A.2d 615 (1947).]
The elements of a fraud and deceit action in trespass may be said to consist of: (1) a false representation of an existing fact, Fidurski v. Hammill, 328 Pa. 1, 195 A. 3 (1937); (2) if the misrepresentation is innocently made, then it is actionable only if it relates to a matter material to the transaction involved; while, if the misrepresentation is knowingly made or involves a non-privileged failure to disclose, materiality is not a requisite to the action, DeJoseph v. Zambelli, 392 Pa. 24, 139 A.2d 644, affirming 11 Pa.D. & C.2d 447 (1958); (3) scienter, which may be either actual knowledge of the truth or falsity of the representation, reckless ignorance of the falsity of the matter, or mere false information where a duty to know is imposed on a person by reason of special circumstances (16 P.L.E., Fraud §§ 7, [) (4) ] reliance, which must be justifiable, so that common prudence or diligence could not have ascertained the truth; and, (5) damage to the person relying thereon.

Id. 227 Pa.Super. at 181-182, 324 A.2d at 536. See also: De Joseph v. Zambelli, 11 D. & C.2d 447 (1957), aff'd per curiam, 392 Pa. 24, 139 A.2d 644 (1958). Thus, fraud arises where the misrepresentation is knowingly false, where there is an intentional concealment calculated to deceive, or where there is a nonprivileged failure to disclose. Quashnock v. Frost, 299 Pa.Super. 9, 16, 445 A.2d 121, 124 (1982), quoting from De Joseph v. Zambelli, supra 11 Pa.D. & C.2d at 452. While a concealment may constitute fraud, mere silence is not sufficient in the absence of a duty to speak. See generally: 37 C.J.S. Fraud § 15. Under Pennsylvania law, a seller has an affirmative duty to disclose a known termite infestation. See: Quashnock v. Frost, supra; Glanski v. Ervine, 269 Pa.Super. 182, 409 A.2d 425 (1979). See also: De Joseph v. Zambelli, supra.

The plaintiffs evidence in this case was sufficient, if believed, to show that the real estate salesman had misrepresented the extent of the termite damage. He told her that the property had only “minor” termite damage which had been “repaired” when, in fact, the damage was extensive and had not been repaired. Because he told the purchaser “not to worry” about it, moreover, the jury could have found that he acted intentionally to dissuade the purchaser from making a more careful inspection calculated to disclose the full extent of termite damage. Where a real estate salesman, despite knowledge of a material defect and intending to make a sale, causes the vendee to refrain from inspecting the premises or causes him to make only a cursory inspection, as a consequence of which the material defect is not discovered, the salesman and his agency are subject to liability. Restatement (Second) of Torts, § 353, comment d. See: Roberts v. Estate of Barbagallo, 366 Pa.Super. 559, 570, 531 A.2d 1125, 1131 (1987). Therefore, the trial court properly denied appellants’ motion for judgment n.o.v.

The evidence was insufficient, however, to submit to the jury the issue of appellants’ liability to appellee for fraudulent concealment of chlordane, a carcinogen, in the water supply. There is not one iota of evidence that any misrepresentation was made regarding the presence of chlordane in the water or that its presence was concealed in any way before the agreement of sale was signed. The agreement of sale was also silent with respect to the presence or absence of chlordane in the water. Appellee argues that the vendor and his agents had a duty to disclose the presence of chlordane in the water. We disagree.

It is true that in Quashnock v. Frost, supra, the Superior Court, in holding that a vendor had an affirmative duty to disclose a known termite infestation, advocated adoption of a modern rule “that where there is a serious and dangerous latent defect known to exist by the seller, then he must disclose such defect to the unknowing buyer or suffer liability for his failure to do so.” Id. 299 Pa.Super. at 17-19, 445 A.2d at 125. The proposed rule, however, was limited to defects known to the seller. There can be no liability upon the seller or his agent, even under such a rule, for failing to disclose an unknown condition or one whose risk is not realized. In the instant case, there is not a scintilla of evidence that the seller, his broker, or the real estate salesman knew that chlordane had been used to exterminate the termites and that a residue remained in the water supply prior to the execution of the agreement of sale. Thereafter the rights of the parties were determined by the terms of their contract. It was not enough to impose liability upon the seller or his agent that it was thereafter learned from the pest-free certificate delivered to the mortgagee at closing that chlordane had been used to exterminate termites. There also is no evidence that Renaut, or Huff, or Key Real Estate had realized at any time prior to the closing that chlordane was a carcinogen. Knowledge of the condition and appreciation of the risk prior to the time of the agreement were essential elements of proof in plaintiffs case; they were not to be presumed. In the absence of such evidence, the appellant brokering agency and salesman could have no liability to the purchaser because of chlordane found in the water after the property had been sold. See: Roberts v. Estate of Barbagallo, supra 366 Pa.Super. at 569, 531 A.2d at 1130 (where there was no evidence seller knew of the type of installation, seller could not have fraudulently concealed or misrepresented knowledge that the home was insulated with ureaformaldehyde foam). See also: In re Estate of Brojack, 321 Pa.Super. 154, 169, 467 A.2d 1175, 1183 (1983) (“hindsight will neither allow us to impose a duty to disclose what one is unaware of, nor allow us to find fraud in concealing what one does not know.”).

The termite and the chlordane issues were submitted to the jury on instructions which allowed plaintiff to recover damages for both. The jury returned a verdict which did not define or label the damages which it awarded. These damages may have included — they probably did— compensation for both the presence of chlordane in the water and the damage done by termites. We cannot know how much was awarded for each. Therefore, a new trial is required. See: Niles v. Fall Creek Hunting Club, Inc., supra. See also: Izzi v. Philadelphia Transportation Co., 412 Pa. 559, 195 A.2d 784 (1963); McGuire v. Schneider, Inc., 368 Pa.Super. 344, 534 A.2d 115 (1987), aff'd per curiam, 519 Pa. 439, 548 A.2d 1223 (1988).

The evidence was also inadequate to support an award of punitive damages. Generally, the plaintiff in an action for fraud may recover all actual losses caused by the defendant’s fraud. Neuman v. Corn Exchange National Bank & Trust Co., 356 Pa. 442, 455, 51 A.2d 759, 766 (1947); Lokay v. Lehigh Valley Cooperative Farmers, Inc., 342 Pa.Super. 89, 99, 492 A.2d 405, 410 (1985); Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 117, 464 A.2d 1243, 1257 (1983). The plaintiff may also recover punitive damages where there are aggravated circumstances. Long v. McAllister, 275 Pa. 34, 118 A. 506 (1922). However, it is fraud which is the basis for the recovery of compensatory damages, and the same fraud is not alone a sufficient basis upon which to premise an award of punitive damages. Golomb v. Korus, 261 Pa.Super. 344, 348, 396 A.2d 430, 432 (1978), citing People’s National Bank v. Kern, 193 Pa. 59, 44 A. 331 (1899). If the rule were otherwise, punitive damages could be awarded in all fraud cases. This is not the law. The rule, rather, is that for punitive damages to be awarded there must be acts of malice, vindictiveness and a wholly wanton disregard of the rights of others. See: Richette v. Pennsylvania R.R., 410 Pa. 6, 16-17, 187 A.2d 910, 916 (1963); Golomb v. Korus, supra.

In the instant case there was no evidence of malice, vindictiveness or wanton disregard of rights. Although appellants may have minimized the termite damage by misrepresenting its seriousness and the extent to which it had been remedied, they did disclose that the property had been infested with termites which had been exterminated. As we have already observed, moreover, there was no representation whatsoever which was made regarding the quality of the water supply or the presence of chlordane in the water. Under these circumstances, the evidence did not support an award of punitive damages.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . The defendants’ evidence was that Renaut had not done any interior painting or redecorating during the ten years in which he had occupied the premises.

      . The jury found that Renaut was vicariously liable for the fraud of his agents but was entitled to be indemnified by them.

      . In Aiello v. Ed Saxe Real Estate, Inc., 508 Pa. 553, 560, 499 A.2d 282, 286 (1985), the Supreme Court overruled Shane v. Hoffmann, supra, to the extent that it had held that scienter was required on the part of the principal where his agent made the misrepresentation.

      . We find no basis for awarding a new trial by virtue of the trial court’s failure to grant a requested instruction on mitigation of damages. Indeed, the record fails to contain a copy of the proposed instruction which was submitted to the trial court.