author: BECK, Judge: JOHNSON, Judge,

text:
    625 A.2d 650
    Russell N. BALL and Ethel F. Ball v. JOHNS-MANVILLE CORP., Johns-Manville Sales Corp., Raybestos Manhattan, Inc., Forty-Eight Insulation, Inc., Nicolet, Inc., Pittsburg Corning Corp., GAF Corp., Owens Illinois Glass Co., Unarco Industries, Inc., H.K. Porter Co., J.P. Stevens Co., Eagle Picher Industries, Garlock, Inc., U.S. Rubber Co. and Uni-Royal Inc., Celotex Corp., Pacor, Inc., Amatex Corp., Asbestos Textile Institute, Owens-Coming Fiberglas Corp., Asten Hill Manufacturing Co., Keasbey Mattison Co., and Keene Corp. Appeal of OWENS-ILLINOIS INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1992.
    Filed April 20, 1993.
    Reargument Denied June 18, 1993.

      Kimberly Waldron, NJ, for appellant.
    Faithe Moore, Philadelphia, for appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   BECK, Judge:

This appeal raises issues relating to the quantum of evidence necessary to establish product nexus in an asbestos case. These issues arise both in the context of the plaintiffs case against non-settled defendants and in the context of the non-settling defendants’ cross-claims against other defendants who either settled, filed for bankruptcy or were dismissed on summary judgment prior to trial.

Plaintiffs-appellees, Russell Ball and his wife Ethel, brought this action in the Court of Common Pleas of Philadelphia County claiming damages due to Mr. Ball’s occupational exposure to asbestos. Appellant Owens-Illinois Glass Company (“Owens”) was named as a defendant along with 21 other defendants who allegedly manufactured, distributed or supplied asbestos-containing products to which Mr. Ball was exposed. Owens asserted cross-claims against all other defendants.

The Balls’ case was consolidated for trial with three other cases in which damages for occupational exposure to asbestos were also sought. A jury trial commenced on January 28, 1991 before the Honorable Lawrence Prattis. Owens and Keene Corporation were the only defendants remaining at the time of trial, all others having either settled, declared bankruptcy or been dismissed on summary judgment.

At the close of plaintiffs’ case, the trial court denied Owens’ motion for nonsuit based on plaintiffs’ failure to establish a product nexus under the standard enunciated in Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50, alloc. denied, 520 Pa. 605, 553 A.2d 968 (1988). The trial court also denied Owens’ motion for nonsuit on Mrs. Ball’s loss of consortium claim. At the close of Owens’ case, Owens renewed these motions, which were again denied.

Owens also requested that the trial court pose special interrogatories to the jury in which the jury would be asked to find that all the originally named defendants and several other parties who had not been sued had contributed to Mr. Ball’s injuries and, further, would be asked to apportion liability among those entities. The trial court refused to submit these interrogatories to the jury. As to the bankrupt entities, the trial court decided that no findings could be made against them without violating the stay of proceedings imposed by the bankruptcy court. As to the others, the court found insufficient evidence to support the submission of their names to the jury and to permit apportionment of liability. Only Owens and Keene were placed on the verdict sheet.

The jury returned a verdict in favor of Mr. Ball in the amount of $100,000 and in favor of Mrs. Ball in the amount of $20,000 against both Owens and Keene. The trial court thereafter denied Owens’ and Keene’s post-trial motions and entered judgment on the verdict, after having added delay damages.

Mr. Ball’s claim for damages arose out of his employment at the Philadelphia Naval Shipyard. Mr. Ball was employed at the shipyard from 1951 to 1952 and from 1957 to 1982. In that period, he was employed as a pipe fitter and supervisor of other pipe fitters. Mr. Ball testified that while he was employed at the shipyard, he was continuously exposed to asbestos dust generated by a great variety of asbestos containing products, either through his own use of such products or through working in the same confined areas aboard ships, such as the fire or engine rooms, where other employees, such as pipe coverers, were using such products. Mr. Ball specifically identified six asbestos products, or their manufacturers, to which he was exposed: Unibestos, Owens-Illinois, Armstrong, Flexitallic, Consaleó and Garlock. He was able to identify these products because he saw them come into his work area in their original containers which bore the name of the product. Mr. Ball also stated that he was exposed to dust from many other such products, although he could not specifically identify them, and that none of the products he was exposed to contained warnings of the health hazards they posed.

In addition to Mr. Ball’s testimony, the trial court also heard the testimony of Mr. George Watts. Mr. Watts was employed at the Philadelphia Naval Shipyard from 1940 to 1974. He was initially employed as a pipe coverer and, beginning in 1961, was the supervisor of all pipe coverers at the shipyard. He confirmed Mr. Ball’s testimony that pipe coverers and pipe fitters worked in very close proximity, that they worked with asbestos containing materials and that their work generated large amounts of asbestos dust. He identified Mr. Ball as a friend and co-worker and confirmed that Mr. Ball had worked in the areas of various ships where dust-generating asbestos work was continuously performed.

Mr. Watts was able to identify a long list of manufacturers of dust producing asbestos products that were interchangeably used at the shipyard in the areas where Mr. Ball worked. Mr. Watts identified the following:

Armstrong
Baldwin-Ehret-Hill (later became Keene Corp.)
Carey (later became Celotex)
Keasbey-Mattison (later became Nicolet)
Johns-Manville Corp.
Philadelphia Asbestos
Unarco (later became Pittsburgh Corning; manufacturer of Unibestos)
Owens-Illinois Glass Co. (later became Owens-Corning)
Fibreboard
GAF
H. K. Porter
J.P. Stevens
Eagle Picher
Garlock
Flexitallic
Consalco
Raybestos-Manhattan
U.S. Rubber/Uniroyal
Asten Hill
Amatex
Forty-Eight Insulation, Inc.

Mr. Ball also presented the testimony of medical witnesses to establish that he suffered from asbestos-related pleural thickening which was a contributing factor in his shortness of breath.

Appellant Owens-Illinois raises the following issues:

I. Whether the trial court erred in denying defendant’s motions for non-suit and directed verdict based upon plaintiffs failure to prove the required product nexus.
2. Whether the trial court erred by resolving the factual issue of the joint tortfeasor status of other parties and denying defendant’s request to charge the jury to determine the comparative liability of all parties listed on defendant’s proposed verdict sheets.
3. Whether the trial court erred in submitting the loss of consortium claim to the jury because the record is devoid of any evidence to support the claim.

In reviewing these allegations of error, we note that we are bound by two different standards of review. Issues one and three obviously are directed at the trial court’s denial of judgment n.o.v. in favor of appellant on the ground of insufficient evidence. In reviewing a denial of judgment n.o.v. based on the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences. Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992); Cohen v. Albert Einstein Medical Center, 405 Pa.Super. 392, 398, 592 A.2d 720, 723 (1991). In contrast, issue two alleges error in the trial court’s failure to grant appellant a new trial at which the appellant’s proposed special interrogatories and charge on apportionment would be given to the jury. In reviewing a refusal to grant a new trial, we determine whether the trial court committed an error of law or abused its discretion in a manner that controlled the outcome of the case. Beary v. Container General Corp., 368 Pa.Super. 61, 68, 533 A.2d 716, 719 (1987), alloc. denied, 520 Pa. 586, 551 A.2d 213 (1988).

We begin with appellant’s challenge to the sufficiency of the evidence supporting Mr. Ball’s claim for injuries due to exposure to appellant’s products. Much has been written by this court and others regarding the quantum of evidence necessary to support a claim for injuries due to exposure to a specific asbestos containing product. An en banc panel of this court has most recently addressed the legal standard applicable to this question in Ottavio v. Fibreboard, 421 Pa.Super. 284, 617 A.2d 1296 (1992) (en banc), as follows:

In order for a defendant to be held liable in a products liability action, whether under a theory of negligence or strict liability, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 190-191, 544 A.2d 50, 52 (1988), allocatur denied 520 Pa. 605, 553 A.2d 968 (1988), citing Berkabile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). See also: Lilley v. Johns Manville Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991); Bushless v. GAF Corp., 401 Pa.Super. 351, 585 A.2d 496 (1990); Bilk v. Abbotts Dairies, Inc., 147 Pa.Super. 39, 23 A.2d 342 (1941). In an asbestos action this requires that a plaintiff establish more than the mere presence of asbestos in the workplace. Plaintiff must prove that he worked in the vicinity of the products’ use and that, hence, he inhaled asbestos fibers shed by the product of a specific manufacturer. Lilley v. Johns Manville Corp., supra; Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398 (1989); Eckenrod v. GAF Corp., supra, citing Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985).

Id. at 287, 617 A.2d at 1297-98.

Appellant contends that Mr. Ball did not meet this standard of proof and, therefore, did not establish that his injuries were the result of exposure to appellant’s asbestos products. Specifically, appellant argues that Mr. Ball failed to present evidence of how often he used or worked in the vicinity of appellant’s products and failed to establish that he breathed asbestos fiber or dust from appellant’s products to such an extent that they were a substantial contributing factor in his asbestos related disease.

We have carefully reviewed the evidence in this regard. Our review has led us to the conclusion that there was clearly sufficient evidence to support the jury’s verdict. As the summary of the testimony set forth above indicates, Mr. Ball specifically testified that he worked in the fire and engine rooms of numerous ships at the shipyard and that he and other workers in those rooms were engaged in work involving the cutting and shaping of asbestos containing pipe covering materials and involving the use of asbestos containing cement. He testified that this work caused the release of asbestos dust into the air, which he continuously breathed. Moreover, he specifically identified appellant as one of the manufacturers whose asbestos products he remembers being used in his workplace. He stated that he remembered seeing appellant’s products about one-half of the time he worked at the shipyard. Mr. Watts also testified that he knew that Mr. Ball worked in the fire and engine rooms where asbestos pipe covering materials and cement were in use, that the use of these products released asbestos dust into the air Mr. Ball was breathing, and that asbestos containing pipe covering manufactured by appellant was one of the pipe covering products used on the ships where Mr. Ball worked.

Somewhat less than this amount of evidence was specifically found to be sufficient in Ottavio, supra. Mr. Ottavio was also employed at the Philadelphia Naval Shipyard and worked in the fire and engine rooms aboard various ships. Mr. Ottavio testified that he had been exposed to asbestos dust generated by the work of other employees in those areas. Unlike Mr. Ball, Mr. Ottavio was unable to identify any products or manufacturers of the asbestos products that had been used in his presence. However, as in this case, Mr. Watts testified in the Ottavio case and confirmed that Mr. Ottavio had worked in the areas of various ships where the defendant Fibreboard’s asbestos products had been used. The Ottavio court held that this evidence was sufficient to support the jury’s verdict in favor of Mr. Ottavio and we reach the same conclusion here.

In the instant case, Mr. Ball himself was able to identify appellant as one of the manufacturers whose asbestos products he saw being used in the areas where he worked. He also was able to state that these products were present about one-half of the time he worked at the shipyard. His testimony was confirmed by Mr. Watts. Nothing further is required. The trial court did not err in refusing to grant judgment n.o.v. in appellant’s favor on this ground.

• [4] We next turn to appellant’s third issue, regarding Mrs. Ball’s loss of consortium claim, since we can summarily dispose of this allegation of error. Appellant contends that the trial court erred in denying judgment n.o.v. on Mrs. Ball’s loss of consortium claim since there was allegedly no evidence that Mrs. Ball suffered any loss as a result of Mr. Ball’s asbestos related disease. We recognize that Mrs. Ball did not testify because she is herself severely disabled by cancer. Nevertheless, we find that this jury could reasonably have concluded from the whole of the testimony of record that Mr. Ball did suffer from shortness of breath as a result of his pleural thickening and that this inhibited his normal activities, including his ability to provide companionship and services to his seriously ill wife. We find no error in the trial court’s refusal to grant judgment n.o.v. on this ground.

We now proceed to appellant’s second claim of error, regarding the trial court’s refusal to submit to the jury special interrogatories regarding the causal fault of all of the original defendants and of certain other entities who were never defendants. The trial court refused to ask the jury to determine whether these parties contributed to Mr. Ball’s injuries for a variety of reasons. As to the parties who had never been sued, the court determined that the jury had no authority to enter a finding against them. As to those original defendants who had entered bankruptcy prior to trial, the court found that to allow the jury to make a finding of causal responsibility against these parties would be a violation of the bankruptcy court’s stay of proceedings against them. As to the remaining original defendants, who had either settled with Mr. Ball prior to trial or who had been dismissed on summary judgment, the trial court determined that there was insufficient evidence to permit the jury to make any finding as to them.

We note at the outset that we have been greatly inhibited in our review of this issue by the failure of both parties to argue the issue with sufficient specificity. Neither party has classified the parties that appellant sought to have included in the jury’s verdict by indicating which of those parties are now bankrupt, which entered into settlements with appellee prior to trial and which were dismissed from the case prior to trial on summary judgment. Nor has either of the parties specifically analyzed the evidence of record pertinent to each of these parties. This failure to inform the court of the specific facts and procedural history pertinent to the issue presented has forced us to attempt to piece together the necessary information from a record which is far from clear. We caution these parties and others who appear before this court in future that it is their duty to provide this court with a complete record and with all of the information and analysis necessary to our decision-making process.

From our review of the record, it would appear that the following are the facts and procedural history pertinent to this issue. Mr. Ball originally sued the following parties:

Owens-Illinois Glass Co.
Keene Corp.
Johns Manville Corporation and Johns Manville Sales Corp.
Raybestos-Marihattan
Forty-Eight Insulation, Inc.
Nicolet, Inc.
Pittsburgh Corning Corp.
GAF Corp.
Unarco Industries, Inc.
H.K. Porter Co.
J.P. Stevens Co.
Eagle Picher Industries
Garlock, Inc.
U.S. Rubber Co. and Uni-Royal, Inc.
Celotex Corp.
Pacor, Inc.
Amatex Corp.
Asbestos Textile Institute
Owens-Corning Fiberglas Corp.
Asten Hill Manufacturing Co.
Keasbey Mattison Co.

Prior to trial, summary judgment appears to have been granted in favor of both J.P. Stevens and Asten Hill. Moreover, Mr. Ball severed Johns Manville Corp. and Johns Man-ville Sales Corp., Unarco, Amatex and Forty-Eight Insulation, stating that they had entered bankruptcy. It would also appear, although it is not entirely clear from the record before us, that Keasbey Mattison Co. and Nicolet, Inc. (apparently related or successor companies), Celotex, Raybestos-Manhattan, Pacor, and possibly. Eagle Picher and H.K. Porter, are also now in bankruptcy.

On the other hand, in Mr. Ball’s pre-trial statement, he represented that he had reached settlements with Raymark (apparently Raybestos-Manhattan), GAF, Garlock, Uniroyal/U.S. Rubber, Owens-Corning, and the “Manville Fund.” He also stated that the remaining defendants were appellant, i.e. Owens-Illinois, Keene Corp., Pittsburgh Corning, Eagle Picher and H.K. Porter. However, when the trial actually began counsel for Mr. Ball represented that the only remaining defendants were appellant, i.e. Owens-Illinois, and Keene Corp. Thus, it would appear that Pittsburgh Corning, Eagle Picher and H.K. Porter had either settled with Mr. Ball or entered, bankruptcy by that time.

We cannot ascertain why the one remaining original defendant, Asbestos Textile Institute, did not participate in the trial, because neither party has informed us as to the facts in this regard, and we cannot ascertain them with any certainty from the record. Finally, we note that after the verdict in this matter was entered, Mr. Ball also settled with Keene Corp.

At the close of the evidence, appellant Owens-Illinois submitted proposed special interrogatories for submission to the jury. Among these proposed interrogatories was the following:

5. Was occupational exposure to the asbestos-containing products of the companies listed below a substantial contributing factor in plaintiffs development of an asbestos-related disease or injury?
Amatex Corporation [bankrupt]
Asbestos Textile Institute [settled?]
Asten-Hill Manufacturing Co. [dismissed on summary judgment]
Celotex-Philip Carey [Celotex bankrupt; Philip-Carey not a defendant]
Eagle-Picher Industries [bankrupt?]
Forty-Eight Insulation [bankrupt]
GAF Corporation [settled]
Garlock, Inc. [settled]
H.K. Porter Co., Inc./So. Textile [H.K. Porter settled or bankrupt; So. Textile not a defendant]
Johns-Manville Corp. [bankrupt]
Keasby [sic] Mattison/Nicolet, Inc. [bankrupt?]
Keene Corp,/Ehret/Baldwin-EhreNHill [Keene participated at trial; Ehret/Baldwin-Ehret-Hill not a defendant]
Owens-Corning Fiberglas Corp. [settled]
Owens-Illinois, Inc. [participated at trial]
Pacor, Inc./Phila. Asbestos Corp. [Pacor bankrupt; Phila. Asbestos not a defendant]
Pittsburgh Corning Corp./Unarco [Pittsburgh-Corning settled?; Unarco bankrupt]
Raybestos-Manhattan/Raymark [Raybestos-Manhattan bankrupt; Raymark not a defendant]
U.S. Rubber Company/Uniroyal [settled]

As the bracketed material we have added to this list indicates, the list included numerous defendants who had settled, were dismissed on summary judgment or were bankrupt. Appellant also requested that the trial court submit another special interrogatory, listing the same parties, and requesting the jury to state the percentage of the total liability to Mr. Ball for which each party was responsible. In connection with this request, appellant also asked the trial court to charge the jury as follows:

If you find that some or all of the defendants are liable to the plaintiff, your award of damages should be divided between the defendants in proportion to their relative degrees of causal liability; that is, where recovery is allowed against more than one defendant, each defendant should be liable for that portion of the total dollar amount awarded as damages in the direct proportion to its causal responsibility. If you find that more than one defendant is liable, you should apportion the relative liability among those defendants you find liable. The liability of all of the defendants would, of course, total 100 percent (100%), and you should apportion a percentage of that liability to each defendant you find liable.

As we have indicated above, the trial court refused to submit the proposed interrogatories or to charge the jury on apportionment, and the jury ultimately returned a verdict only against appellant and Keene, who later settled with Mr. Ball.

Although we do not agree with appellant that all of the names listed on the proposed special interrogatories should have gone to the jury, and we do not agree that an apportionment charge should have been given, we do agree that the jury should have been permitted to decide if certain of the listed defendants had contributed to Mr. Ball’s injuries.

In analyzing these questions, we have divided the parties on the foregoing list into four categories: 1. parties who were not sued by Mr. Ball and who were never joined as additional defendants by any original defendant; 2. parties who are now bankrupt; 3. parties dismissed on summary judgment; and 4. parties who were original defendants who settled with Mr. Ball. We will first discuss the law generally applicable to the issue posed and then determine the propriety of submitting each category of parties to the jury.

The Pennsylvania Comparative Negligence Act, 42 Pa. C.S.A. § 7102 (1982), in subsection (b), states:

Recovery against joint defendant; contribution.—
Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

In addition, the Pennsylvania Uniform Contribution Among Tort-feasors Act, 42 Pa.C.S.A. § 8321 et seq. (1982), states, in pertinent part:

§ 8322. Definition
As used in this subchapter “joint tort-feasors” means two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them. § 8324. Right of contribution
(a) General rule. — The right of contribution exists among joint tort-feasors.
(b) Payment required. — A joint tort-feasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.
(c) Effect of settlement. — A joint tort-feasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not extinguished by the settlement.
§ 8326. Effect of release as to other tort-feasors
A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides, but reduces the claim against the other tort-feasors- in the amount of the consideration paid for the release or in any amount or proportion by which the release provides the total claim shall be reduced if greater than the consideration paid.

Disputes concerning the proper construction and application of these statutory provisions have engendered numerous opinions by both this court and the Supreme Court. Several overriding principles emerge from these decisions. First, it is clear that the Comparative Negligence Act requires apportionment of liability among defendants based on their relative degree of causal fault. See Ottavio, supra; Embrey v. Borough of West Mifflin, 257 Pa.Super. 168, 390 A.2d 765 (1978). Although the Comparative Negligence Act has been held to apply only to' actions exclusively grounded in negligence, the Uniform Contribution Act has been held to allow apportionment among joint tortfeasors in actions like the instant one where both strict liability and negligence are alleged. McMeekin v. Harry M. Stevens, Inc., 365 Pa.Super. 580, 530 A.2d 462 (1987), allo. denied, 518 Pa. 619, 541 A.2d 746 (1988); Svetz v. Land Tool Co., 355 Pa.Super. 230, 513 A.2d 403 (1986), alloc. denied, 515 Pa. 584, 527 A.2d 544 (1987). However, as the Supreme Court’s recent decision in Walton v. Avco Corp., 530 Pa. 568, 610 A.2d 454 (1992), makes clear, no apportionment of liability can be made between tortfeasors who are only found strictly liable. As the Walton Court stated:

The final issue to be resolved is a determination of the proper apportionment of damages between two strictly liable tort-feasors.... Both the plaintiffs and Avco [the settled defendant] argue that the Superior Court erred in holding that the principle of comparative fault should be employed in apportioning liability for damages between two strictly liable defendants, and claim instead that the apportionment should be made on a pro rata basis as held by the trial court.
In a case such as this, where neither defendant was found liable under the theory of negligence, we believe it is improper to introduce concepts of fault in the damage-apportionment process. Each defendant was found wholly liable for having caused the death of the victims. Avco [the settled defendant] was liable for manufacturing the defective engine, and Hughes, for failing to warn the victims of the defect. It is impossible to determine that one was more liable than the other.

Id. at 582-84, 610 A.2d at 462.

Although the Walton court did not go on expressly to state that apportionment among strictly liable defendants must be on a pro rata basis, i.e., divided proportionately in accordance with the number of joint tortfeasors, this is clearly a necessary corollary of the Walton decision. Justice Papadakos, concurring in Walton, specifically interpreted the majority opinion in this manner, stating:

I join the majority opinion because I believe it says the following:
III. As between and among strictly liable defendants, any defendant who has settled with plaintiffs prior to verdict has settled for its pro-rata share of the verdict and is not entitled to contribution from any other defendant found strictly liable, whether the verdict is for a greater or lesser amount than the settlement amount.
The non-settling strictly liable defendants are obligated to the plaintiffs for a pro-rata share of the verdict and are not entitled to contribution from the settling, strictly liable defendants.

Id. at 584-85, 610 A.2d at 463 (Papadakos, J., concurring).

The instant case was submitted to the jury on both negligence and strict liability theories. Thus, under the foregoing authorities, it would appear that apportionment among the defendants on the ground of causal fault would not be barred under that portion of Walton that holds that such apportionment is not permissible as between purely strictly liable defendants. See Walton, supra; McMeekin, supra. However, in the instant case we find that apportionment on the basis of causal fault is barred on another independent ground. Here apportionment on the basis of relative causal fault was impossible because there is absolutely no evidence on which the jury might base such an apportionment. There was no evidence as to the relative amounts of asbestos dust Mr. Ball inhaled from the various asbestos containing products to which he was allegedly exposed. Under such circumstances, clearly no apportionment charge can be given since, as a matter of law, there is insufficient evidence to support a jury determination of the relative causal fault of the tortfeasors. Thus, apportionment must be made on a pro rata basis, i.e. in relation to the total number of joint tortfeasors that the jury finds contributed to the injury to the plaintiff.

The decision of a panel of this court in Gross v. JohnsManville Corp., 410 Pa.Super. 486, 600 A.2d 558 (1991), appeal denied, 531 Pa. 654, 613 A.2d 559 (1992), confirms this principle. Gross also involved a claim for damages resulting from occupational exposure to asbestos against numerous defendants. Only a few defendants proceeded to the liability phase of the trial, the others having settled or been excluded due to their intervening bankruptcy. The verdict sheet apparently did include the names of the settled defendants, but the trial court refused to instruct the jury to apportion damages among them and the non-settled defendants. The trial court found that there was insufficient evidence for the jury to base an apportionment of causal fault and that instructing the jury to do so would force it to engage in speculation and conjecture. On appeal, two of the non-settled defendants challenged this conclusion.

This court affirmed this aspect of the trial court’s decision, stating:

We are presented with nothing which requires as a matter of law that a jury must be charged on the issue of comparative liability in every tort action involving more than one defendant. Had evidence been presented upon which a jury could have apportioned the comparative fault of the defendant companies such an instruction would have been appropriate.

Id. at 499-500, 600 A.2d at 565.

The Gross court went on to reject the appellants’ further contention that because the Eckenrod standard of evidence supporting their liability had been met by plaintiff, this alone meant that sufficient evidence to support apportionment had been produced:

Eckenrod requires only that the plaintiff establish the identity of the product and his exposure to the particular product before liability may be determined. That this was shown in the present case is in no way conclusive of the issue of comparative liability.

Id. at 503, 600 A.2d at 566-67.

In the instant case, the same principles apply with even greater force. In Gross, there was testimony concerning whether the presence of various asbestos products in plaintiffs workplace had been relatively large, medium or small. In contrast, in this case there was no testimony comparing the relative amounts of the various products to which Mr. Ball was exposed. Clearly, the trial court was correct in refusing to charge the jury on apportionment.

This, however, does not end our analysis. We are still left to decide whether the names of the defendants listed on appellant’s special interrogatories should have been submitted to the jury to allow the jury to decide if exposure to their products had been a substantial contributing factor in Mr. Ball’s development of asbestos related disease. In other words, even though the jury could not apportion on the basis of relative degrees of causal fault, should the jury have been permitted to find that these parties’ products had contributed to Mr. Ball’s disease so that liability against them could be assessed on a pro rata basis, thereby reducing the share for which Owens would ultimately be liable. See Walton, supra (where liability is not to be apportioned on the basis of relative causal fault, it should nevertheless be apportioned on a pro rata basis).

Since our determination of this question differs as to each category of parties indicated above, we address each category seriatim. First, as to those parties who Owens sought to have included in the jury’s verdict who had not been sued by Mr. Ball and who were never joined by any other defendant, we conclude that no finding of liability could be made against them. We are aware of no principle of Pennsylvania law that allows a jury to make a finding of liability against a party who has not been sued. In fact, as a panel of this court has recently observed:

While some states ... [permit] the apportionment of liability among all tortfeasors, even those who have not been made parties, Pennsylvania’s statute does not so provide.

Kemper National P & C Companies and American Motorists Ins. Co. v. Smith, 419 Pa.Super. 295, 309, 615 A.2d 372, 380 (1992).

Second, as to those parties who were in bankruptcy when this case was submitted to the jury, we need only refer once again to the recent en banc decision of this court in Ottavio v. Fibreboard Corp., supra, where we analyzed the selfsame issue. The Ottavio court concluded that bankrupt defendants did not have to participate in the trial, and their names should not be submitted to the jury for a finding of liability. The court opined:

Nothing precludes the solvent manufacturers in this case from obtaining contribution from the bankrupts when (and if) they emerge from reorganization proceedings. To hold otherwise would be to require an exercise in futility, for any finding of fault against the bankrupt manufacturers would be unenforceable under the automatic stay provisions of the Bankruptcy Code. In Simpson v. Pittsburgh Coming Corp., 901 F.2d 277 (2nd Cir.1990), cert. denied, 497. U.S. 1057, 111 S.Ct. 27, 111 L.Ed.2d 840 (1990), the evidence at trial established that asbestos products manufactured by Johns-Manville had been used extensively at the plaintiffs worksite. Defendant-Pittsburgh Corning argued that Johns-Manville should have been added to the list .in the verdict form of potential tortfeasors. The trial court denied the request, and the Court of Appeals affirmed. The court explained:
Pittsburgh Corning still retains the right to pursue the Manville Trust and, if it can establish liability, obtain contribution. The jury’s allocation of responsibility among the companies it was permitted to consider does not preclude a pro rata reduction of the shares the jury assigned, in the event that Manville is subsequently determined to bear responsibility for some proportionate share of plaintiffs damages.....
Id. at 284.
Finally, the bankruptcy rules seem to preclude an apportionment of liability for a party operating under the automatic stay provisions of the Bankruptcy Code.
The above authorities adequately support the trial court’s decision which refused to submit to the jury a verdict sheet including the bankrupt manufacturers of asbestos products.

Ottavio, 421 Pa.Super. at 294, 617 A.2d at 1301.

We reach the same conclusion here, and find that the trial court did not err in refusing to submit the names of bankrupt defendants to the jury.

The third category of parties whose names Owens sought to have included on the verdict sheet in this case are two defendants who were dismissed from the action pre-trial on summary judgment. The record does not reveal the grounds on which summary judgment was granted in these defendants’ favor. Nor does the record indicate that Owens ever opposed the grant of summary judgment in favor of these defendants or filed a timely appeal from those judgments.

A panel of this court was faced with a similar situation in Paparelli v. GAF Corp., 379 Pa.Super. 62, 549 A.2d 597 (1988). There, several defendants in an asbestos case were dismissed on summary judgment. The remaining defendants, who had never opposed entry of summary judgment in favor of the dismissed defendants, appealed the entry of summary judgment to this court. They contended that since they had filed cross-claims for contribution and indemnity against the dismissed defendants, the entry of summary judgment for those defendants improperly prevented the remaining defendants from having their cross-claims against the dismissed defendants resolved in one lawsuit. This court affirmed the grants of final summary judgment, finding that the appealing defendants had waived their right to contest those judgments by not opposing them prior to their entry. Id. at 68, 549 A.2d at 599-600.

Similarly, in the present case, Owens did not oppose the grant of summary judgment in favor of these two defendants. Moreover, unlike the appealing defendants in Paparelli, Owens did not file a timely appeal from those judgments in an attempt to preserve its right to have its contribution rights determined in this action. We, therefore, have no hesitation in deciding that Owens has foregone any right it had to include these defendants in this jury’s verdict by failing either to oppose or appeal the grants of summary judgment in these defendants’ favor.

Only one category of parties remains — that is, those original defendants who settled with Mr. Ball prior to trial and who were not bankrupt when the case was submitted to the jury. As to these defendants, the trial court determined that there was insufficient evidence to submit any of their names to the jury-

Based on our review of the record, the parties at issue are Asbestos Textile Institute, GAF Corp., Garlock, Inc., Owens-Corning Fiberglas Corp., Pittsburgh-Corning Corp. and U.S. Rubber/Uniroyal. As to certain of these parties, the trial court was clearly correct. For example, no evidence was produced at trial regarding Mr. Ball’s exposure to any product manufactured by Asbestos Textile Institute and Mr. Ball himself testified that he had never heard of this entity. Clearly, there was insufficient evidence to submit this entity’s name to the jury for a finding of liability. Equally, we find there was insufficient evidence to warrant the submission of U.S. Rubber/Uniroyal to the jury for a finding of liability. As to this defendant, Mr. Ball offered no testimony, and Mr. Watts could only say that he remembered that this manufacturer had supplied products to the shipyard, but he did not specify what products had been supplied. The trial court did not err in refusing to submit the names of these parties to the jury, since there was no evidence on which a jury could reasonably base a finding of liability as to them.

As to the remaining settled defendants, however, we must differ with the conclusion of the trial court. As to Pittsburgh Corning Corp., our review of the testimony reveals that Mr. Ball testified that he specifically recalled being exposed to Unibestos, which Mr. Watts later identified as being an asbestos containing product which was manufactured by Pittsburgh-Corning and which Mr. Watts also recalled being used at the shipyard. As to GAF, Mr. Watts testified that he was aware of GAF asbestos containing products, apparently pipe covering insulation, having been used on ships where Mr. Ball had continuously worked. As to Owens Corning Fiberglas, Mr. Watts testified that certain asbestos products earlier made by appellant Owens were later manufactured by Owens Corning. Both Mr. Ball and Mr. Watts identified Garlock as a manufacturer of asbestos containing gaskets that had been used in Mr. Ball’s proximity at the shipyard.

We see no relevant distinction between this evidence and that which the trial court accepted as sufficient as to Owens and as to Keene, the other defendant who participated at trial and whose name was submitted to the jury. This evidence established that these defendants manufactured asbestos containing products which were continuously and interchangeably used at the shipyard in the areas of various ships' where Mr. Ball worked. This is clearly sufficient under the Eckenrod standard to warrant submission of their names to the jury for a finding as to whether these defendants contributed to Mr. Ball’s asbestos disease.

The order of the trial court is affirmed in part and reversed in part. The case is remanded for a new trial limited to the issue of whether those defendants indicated above who settled with plaintiff pre-trial and as to whom there was sufficient evidence of plaintiffs exposure to their products to warrant submission of their names to the jury actually contributed to plaintiffs asbestos related disease.

JOHNSON, J., files a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting.

I join in the conclusion of my colleagues that there was clearly sufficient evidence to support the jury’s verdict. I also agree that the distinguished trial court, the Honorable Lawrence Prattis, committed no error in refusing to grant judgment notwithstanding the verdict on the loss of consortium claim of the plaintiffs wife.

I also agree that the appellant, Owens-Illinois Glass Company (Owens-Illinois), has completely failed to inform this court of the specific facts and procedural history pertinent to the only other issue on this appeal: whether Judge Prattis erred in denying Owens-Illinois’ request that the jury be charged on comparative liability.

The majority asserts that they cannot accept Owens-Illinois’ contention that all of the names of defendants listed on the special interrogatories should have gone to the jury. Majority at 657. The majority further declares that Judge Prattis was “clearly ... correct in refusing to charge the jury on apportionment.” Id. at 659. I agree with both of these conclusions of my colleagues. I part company from my colleagues as they “attempt to piece together the necessary information [to make Owens-Illinois’ argument] from a record which is far from clear.” Id. at 655.

The majority is correct when it asserts that it is the duty of the appellant to provide this court with a complete record and with all the information and analysis necessary to our decision-making process. Pennsylvania Rule of Appellate Procedure 2117(a)(4) requires that the Statement of the Case in appellant’s brief contain:

(4) A closely condensed chronological statement____of all the facts which are necessary to be known in order to determine the points in controversy, with an appropriate reference in each instance to the place in the record where the evidence substantiating the fact relied on may be found.

Owens-Illinois has not complied with this rule, in terms of their contention relating to apportionment of liability, and the majority concedes as much. Similarly, Pa.R.A.P. 2119(d) suggests that where Owens-Illinois seeks to persuade this court that the trial court erred in not charging the jury as to the liability of all those parties listed on Owens-Illinois’ proposed verdict sheets, the obligation is on Owens-Illinois, at its peril, to set forth a synopsis of all the evidence to support that request, with a reference to the place in the record where that evidence may be found. Owens-Illinois has not done that on this appeal.

In its Summary of Argument, Brief and Appendix for Appellant, page 10, Owens-Illinois argues that it “had a right to prove that a settled defendant was a joint tortfeasor in order to reduce its percentage of liability”. I cannot reach this contention because the record contains no evidence whatsoever that Owens-Illinois submitted any evidence which would tend to prove that other defendants were joint tortfeasors.

Russell Ball, as plaintiff, went to trial and submitted sufficient evidence to prove liability against both Owens-Illinois and Keene Corporation. I can locate nothing in the record where either of the defendants actively sought to prove the liability of other corporations during the trial. The majority points out in one of the footnotes to its Opinion that the only other defendant at trial, Keene Corporation, has settled with the plaintiffs and discontinued its appeal. I believe it is inappropriate for this court to fashion an argument for an appellant where that argument has not been properly developed by that appellant in its brief. Moreover, I am unpersuaded that Pennsylvania law requires that a jury be permitted to speculate as to apportionment of damages where no effort has been made by a defendant to particularize the requested relief. Certainly, a trial judge is not required to give a blunderbuss charge which would go well beyond all the evidence offered in a joint liability asbestos case.

I find no error in the denial of the Defendants’ Request(s) for Jury Instructions by Judge Prattis. Accordingly, I must dissent from so much of the decision of the majority as would reverse in part and remand for a new trial limited to certain defendants where the majority has found “sufficient evidence of plaintiffs exposure to their products.” I must also dissent from that portion of the decision of the majority placed in footnote 3 of its Opinion which would attempt to instruct the trial court on what it must do concerning matters which have arisen since this appeal was filed. Owens-Illinois does not refer this court to any authority to permit us to attempt such an instruction, and I know of none. I should affirm the judgment in favor of plaintiffs in all respects.

      . Although Keene originally appealed the judgment against it, it thereafter settled with the Balls and discontinued its appeal. Only Owens’ appeal remains before this court.

      . We recognize that as to appellant Owens, there was additional evidence of the presence of their asbestos products at the shipyard in the years Mr. Ball worked there and of the asbestos content of those products. This evidence was in the form of answers to interrogatories in which Owens identified its asbestos containing products and admitted that they were sold to the shipyard in certain of the relevant years. Appellees contend that the absence of similar evidence as to the settled defendants bars the submission of their names to the jury. We disagree. We note that in Ottavio, supra, this court determined that the plaintiff had sufficiently established his exposure to asbestos products made by certain manufacturers simply through his own testimony and that of Mr. Watts. There is no mention in the Ottavio opinion of other evidence in the form of answers to interrogatories or otherwise in which the defendants provided information concerning the asbestos content of their products. Thus, we can only conclude that such evidence is not a prerequisite to a finding of liability and that the testimony of the injured plaintiff himself, or of a co-worker like Mr. Watts, that the products in question contained asbestos and were present in the plaintiff’s work area, is sufficient to allow a jury to conclude that the plaintiff was exposed to and injured by that defendant's products.

      . As further relief, Owens requests that the trial court be instructed to mold the verdict to reflect plaintiffs' post-trial settlement with Keene Corporation, as to whom the jury did make a finding of liability, and to reflect the consequent partial satisfaction of the judgment. We find this request entirely appropriate, and instruct the trial court to mold the verdict accordingly.


source: Caselaw Access Project

author: HESTER, Judge.

license: Public Domain

text:
    625 A.2d 663
    Lynn OKKERSE, an Incompetent by Douglas J. OKKERSE, her guardian, Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dee. 17, 1992.
    Filed May 4, 1993.

      David R. Black, Media, for appellant.
    David M. McCormick, Philadelphia, for appellee.
    Before McEWEN, BECK and HESTER, JJ.
   HESTER, Judge.

Douglas Okkerse, in his capacity as guardian of his wife, Lynn Okkerse, appeals from the April 27, 1992 order dismissing several counts of his multi-count complaint. The issues presented in this appeal relate to the propriety of the trial court’s dismissal of the count in the complaint premised upon the application of 42 Pa.C.S. § 8371, which provides for the imposition of interest, attorney’s fees, and punitive damages when an insurer, in bad faith, denies a claim. We conclude that because the insurer’s alleged bad faith conduct occurred after the effective date of section 8371, that section can be applied in this proceeding even though the insurance contract was issued prior to the date. We also rule that the section 8371 claim should not have been dismissed due to its potential conflict with the attorney’s fees and interest recoverable under sections 1009.106(a)(2) and 1009.107(3) of the former Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. §§ 1009.-101-1009.701 (repealed effective October 1, 1984) (“No-Fault Act”). We reverse.

Appellant instituted this declaratory judgment action on August 13, 1990, against Prudential Property and Casualty Insurance Company seeking a determination that he is entitled to a continuation of first party benefits on behalf of his incompetent wife under an insurance policy governed by the provisions of the No-fault Act. The complaint indicates the following. On June 3, 1983, Mrs. Okkerse sustained severe and disabling injuries in an automobile accident. At the time, she was insured under a policy issued in accordance with the provisions of the No-fault Act. As a result of the accident, appellant never will be able to care for herself again.

Since June 3,1983, Mrs. Okkerse has been receiving various medical and vocational rehabilitation services, which were paid by appellee until June 26, 1991, when it informed appellant that it would no longer pay for certain services, including certain physical, speech, equestrian, and occupational therapies. Appellant provided appellee with various opinions of medical providers that the described therapies continue to improve Mrs. Okkerse’s cognitive, social, and vocational functioning, her physical capabilities, her psychological well-being, and her quality of life. Appellee nonetheless stopped paying for those services. Appellant alleged that the denial of coverage was in bad faith.

Appellee filed preliminary objections to five counts of the seven-count complaint. The trial court sustained those objections, and this appeal followed. On appeal, appellant’s argument relates only to the propriety of the court’s decision to strike count four, which was premised upon the application of 42 Pa.C.S. § 8371. Accordingly, we consider only the propriety of the court’s decision striking count four. 42 Pa.C.S. § 8371 provides:

Actions on insurance policies
In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.

First, we examine whether the trial court correctly concluded that section 8371 could apply only to insurance policies issued after the effective date of section 8371. Statutes which affect substantive rights are not applied retroactively. The statute will be considered retroactive in its application only when it relates back to give a previous transaction a legal effect different from that which it had under the law in effect when the transaction occurred. McMahon v. McMahon, 417 Pa.Super. 592, 612 A.2d 1360 (1992). Further, a statute may be applied in a proceeding if it does not impair a contract, disturb a vested right, or vary existing obligations contrary to their situation when entered. Smith v. Fenner, 399 Pa. 633, 161 A.2d 150 (1960).

In Lynn v. Prudential Property and Casualty Insurance Co., 422 Pa.Super. 479, 619 A.2d 779 (1993), we held that a provision which does not impair an insurer’s obligations under a policy of insurance but merely imposes new procedures for the enforcement of those rights could be applied to insurance contracts entered prior to the effective date of the statute.

Herein, appellee’s obligations under the policy issued prior to the effective date of section 8371 have not been changed. Section 8371 also does not affect either the terms of the insurance contract or the vested rights thereunder. It merely prohibits an insurer from engaging in a bad faith refusal to pay benefits due under the policy. An insurer did not have a right to act in bad faith toward its insured prior to the statute’s enactment. Thus, it is clear the statute is not being applied retroactively in this case.

We find support for our conclusion in the well-reasoned opinion of Coyne v. Allstate Insurance Co., 771 F.Supp. 673 (E.D.Pa.1991). At issue in Coyne was whether section 8371 could be applied to an action where the insurer’s alleged bad faith conduct occurred after the effective date of section 8371, but the policy had been issued prior to that date. The district court observed that the insured’s bad faith claim was not premised upon the application of the insurance policy but on “the defendant’s alleged conduct-all of which occurred after the act’s effective date.” Id. at 675. The Court further noted that the “application of [section 8371] does not alter the insurance policy’s substantive requirements, interfere with the insurer’s contractual rights, or otherwise impair the parties’ obligations.” Id. The Court stated that while an insurer does have the right to rely upon the provisions of its policy, it “never had the right to act in bad faith toward the insured.” Id.

The Court therefore concluded that section 8371 was not being applied retroactively to the bad faith conduct occurring after its effective date, regardless of when the policy was issued. See also Seeger by Seeger v. Allstate Insurance Co., 776 F.Supp. 986 (M.D.Pa.1991) (section 8371 claim may be premised upon bad faith actions taken by insurers on or after its effective date even if policy was issued prior to that date because there is no contractual right to act in bad faith); American Franklin Life Insurance Co. v. Galati, 776 F.Supp. 1054, 1063 (E.D.Pa.1991) (same).

We next examine whether the trial court correctly dismissed the section 8371 claim due to its alleged conflict with No-fault Act provisions relating to payment of interest and attorney’s fees. Former section 1009.106(a)(2) of the No-fault Act provided that benefits are overdue and bear interest at eighteen percent per annum if not paid within thirty days after the insurer’s receipt of reasonable proof of the fact and amount of loss sustained. Section 1009.107 provided in relevant part, “(3) If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.” 40 P.S. § 1009.107(3) (repealed).

Appellee suggests that since the general provisions of section 8371 providing for payment of punitive damages, interest, and attorney’s fees conflict with these sections of the No-fault Act, the No-fault Act provisions should prevail, and appellant’s claim under section 8371 was dismissed properly. We disagree.

1 Pa.C.S. § 1933 contains the rule of construction to be applied whenever provisions in statutes allegedly conflict:

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.

We thus begin our analysis with the premise that the specific provisions in the No-fault Act allowing for interest and attorney’s fees shall be construed, if possible, so that both those provisions and the more general provision enacted in 42 Pa.C.S. § 8371 may be given effect. Only if the two are in irreconcilable conflict should the sections of the No-fault Act prevail, unless the general provision was enacted later, and it is the legislature’s intent that the latter, should prevail.

The two statutes do not conflict. Attorney’s fees are assessed under the No-fault Act if there is no foundation for a denial. Similarly, section 8371 provides for an award of attorney’s fees for a bad faith insurance denial. Both statutes provide for the payment of interest on overdue claims— section 8371 requires that the claim be denied in “bad faith” before interest accrues. Section 1009.107(3) requires the absence of reasonable foundation for the denial. The fact that both statutes provide the same remedy for similar actions can hardly be viewed as a conflict. Finally, the imposition of punitive damages in section 8371 does not conflict with any provision of the No-fault Act.

It is clear that at this point, appellee has the potential for recovering the same damages under two different standards. However, it is not clear that he actually will be able to recover under both since the standards under each statute differ. A potential for conflict may occur if appellee is entitled to the same damages under both provisions. However, dismissal was premature.

Once again, we find a federal case, Seeger by Seeger v. Allstate Insurance Co., 776 F.Supp. 986 (M.D.Pa.1991), instructive. There, the district court considered whether section 8371 conflicted with section 1716 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq. Section 1716 is a reenactment of the provisions of the No-fault Act at issue herein. The Seeger court saw no conflict between section 1716 and the allowance of punitive damages under section 8371.

It also observed that the two provisions may potentially conflict as to calculation of interest and attorney’s fees. The court noted, however, that the insured may not necessarily be entitled to attorney’s fees and interest under both provisions since different conduct by the insurer is required under each. The court noted further that although there is a potential conflict between the two, it is not a rationale for dismissing the section 8371 claim in its entirety since the insured may not necessarily be entitled to section 8371 damages.

We concur in this analysis. The allowance of punitive damages does not irreconcilably conflict with the allowance of attorney’s fees and interest under the relevant provisions of the No-fault Act. Furthermore, appellee may be determined to be entitled to interest and attorney’s fees under sections 1009.106 and 1009.107 of the No-fault Act since he supplied “reasonable proof’ of damages while not being entitled to damages under section 8371 if no bad faith conduct is present. The fact that appellee has the potential for recovering under both sections is not a reason for dismissing the count under section 8371.

However, to the extent that both provisions are determined to apply in this action and result in a different calculation of interest and attorney’s fees, the two statutes will be in conflict. In that case, however, the provisions of section 8371 must prevail. Section 8371 was enacted as part of Act 1990-6, P.L. 11 on February 7, 1990. Section 31(c) of Act 1990-6 provides, “All other acts and parts of acts are repealed insofar as they are inconsistent with the act.” Under 1 Pa.C.S. § 1933, the provision enacted later prevails if it is the manifest intent of the General Assembly that it should. Section 8371 was enacted later than the No-fault Act and this repealer section indicates that the General Assembly intended it to prevail over any inconsistent statutes.

In accordance with the foregoing, the order is reversed and case remanded. Jurisdiction relinquished.

      . Since the order dismissed separate and distinct counts of a multicount complaint, we consider it a final, appealable order under the doctrine discussed in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). In Gatten v. Merzi, 397 Pa.Super. 148, 579 A.2d 974 (1990), we held that when one count of a multi-count complaint is dismissed and that count sets forth a right to relief premised upon statutory law, the order is appealable. See also Jenkins v. Hospital of Medical College, 401 Pa.Super. 604, 585 A.2d 1091 (1991) (en banc). The present appeal involves the propriety of dismissal of a count premised upon application of a statutory provision. The appeal therefore is properly before us under the reasoning of Gatten v. Merzi.

      . We observe that in the present case, there is no question that all the alleged bad faith conduct of the insurer occurred after the effective date


author: BROSKY, Judge. McEWEN, Judge,

text:
    625 A.2d 668
    Mark JOHNSON, Glenn Johnson and Christine Johnson v. Father Robert CAPARELLI, Saint Vincent DePaul, R. C. Church and Diocese of Scranton. Appeal of Glenn JOHNSON and Christine Johnson.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1998.
    Filed May 13, 1993.

      Charles Kannebecker, Dingmans Ferry, for appellants.
    Stephen' A. McBride, Milford, for appellees.
    Before McEWEN, POPOVICH and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the order of the lower court which granted appellee’s preliminary objections in the nature of a demurrer to counts VI and VII of appellants’ amended complaint, relating to appellants’ claims for intentional infliction of emotional distress, and directed these counts to be stricken. Appellants present the following issues for review: (1) whether the tort of intentional infliction of emotional distress is a cognizable cause of action in Pennsylvania; and (2) whether Pennsylvania recognizes a cause of action for intentional infliction of emotional distress where the tortfeasor’s acts were directed at a third-party and the parties alleging such distress were not present when the outrageous acts were committed. For the reasons set forth below, we affirm the order of the lower court.

Before addressing the issues raised by appellants, we will briefly recount the relevant facts of this case. Glenn, Christine and Mark Johnson were parishioners of the Saint Vincent DePaul Roman Catholic Church, which is located within the Diocese of Scranton. In the course of their worship, the Johnson family became acquainted with appellee, Father Robert Caparelli, a priest at the church. Mark Johnson subsequently served as an altar boy at Saint Vincent DePaul and was also hired by Father Caparelli to perform occasional groundskeeping and maintenance at the .church. Father Caparelli developed a close relationship with the Johnson family and secured Mr. and Mrs. Johnson’s permission to take Mark to the movies, for food and on short trips. Unbeknownst to Mr. and Mrs. Johnson, Father Caparelli allegedly engaged in various sexual acts with Mark Johnson from approximately September 1985 through June 1986. Mr. and Mrs. Johnson apparently did not learn of these incidents until 1991, at which time they instituted suit against Father Caparelli, Saint Vincent DePaul Church and the Diocese of Scranton. Father Caparelli responded by filing preliminary objections to appellant’s complaint which, inter alia, challenged the counts pertaining to Glenn and Christine Johnson’s claims for intentional infliction of emotional distress. Before the trial court could rule on these objections, appellants filed an amended complaint in March, 1992. Father Caparelli again filed preliminary objections to the counts relating to Mr. and Mrs. Johnson’s actions for intentional infliction of emotional distress. On June 12, 1992, the trial court sustained the objections and dismissed these counts from the complaint. This timely appeal followed.

Although not addressed by either of the parties, we must first ascertain whether the order is properly appealable at this stage of the proceedings. Motheral v. Burkhart, 400 Pa.Super. 408, 414, 583 A.2d 1180, 1184 (1990) (en bane) (providing that because the question of appealability concerns the jurisdiction of the appellate court, we may raise such an issue sua sponte even where the parties have not done so). The order in this case, which dismissed two counts of a multiple count complaint involving multiple plaintiffs and defendants, is interlocutory and unappealable pursuant to the recent amendments to Rule 341 of the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P., Rule 341(b)(1), 42 Pa. C.S.A. (defining a final order as one which disposes of all claims or of all parties) and the Note thereto (providing that an order dismissing one of several causes of action pleaded in a complaint but leaving pending other causes of action is no longer appealable as of right unless the trial court makes an express determination that an immediate appeal would facilitate resolution of the entire case and expressly enters a final order pursuant to Rule 341(c)). However, the amendments to Rule 341 are only applicable to proceedings which originally commenced in a court after July 6, 1992, the effective date of the rule. See 210 Pa.Code Rule 341 (Order, dated May 6, 1992, by Chief Justice Nix following the text of prior Rule 341 and preceding the text of amended Rule 341). The rule, as amended, is inapplicable here because this action was originally commenced on December 26, 1991 before the effective date of the amendments. We must therefore turn elsewhere for guidance in ascertaining whether the order is appealable. With regard to this issue, this court has stated:

As a general rule, an order dismissing one but not all counts of a multi-count complaint is interlocutory and not appeal-able. However, this court has recognized that if the dismissed count states a cause of action that is separate and distinct from the remaining count, the order dismissing that count is final and appealable; if the dismissed count merely states an alternate theory of recovery, the order dismissing it is interlocutory and not appealable. Thus, a pivotal factor to consider in determining whether an order is final is whether the order has put the aggrieved plaintiff out of court on all theories of recovery asserted against a given defendant for a given loss.

Fink v. Delaware Valley HMO, 417 Pa.Super. 287, 292, 612 A.2d 485, 488 (1992) (citations and quotation marks omitted). Accord Kelly v. Resource Housing of America, Inc., 419 Pa.Super. 393, 395-400, 615 A.2d 423, 424-426 (1992) and Motheral v. Burkhart, 400 Pa.Super. at 415-416, 583 A.2d at 1184-1185. In applying these principles to claims for intentional infliction of emotional distress, this court has found orders dismissing such actions to be final and appealable. See, e.g., Kelly v. Resource Housing of America, Inc., 419 Pa.Super. at 397-400, 615 A.2d at 425-426 (order dismissing a claim for intentional infliction of emotional distress was appealable where it was the only claim asserted by the plaintiff, in her own right, against the defendant) and Fink v. Delaware Valley HMO, 417 Pa.Super. at 292, 612 A.2d at 488 (order dismissing a claim for intentional infliction of emotional distress was appealable because it was a separate cause of action from the remaining count relating to tortious interference with prospective contractual relations). See also Motheral v. Burkhart, 400 Pa.Super. at 423-424, 583 A.2d at 1187-1189 (intentional infliction of emotional distress claim against one defendant was not appealable as it sought' recovery for the same loss that was the subject of a remaining count; however, a separate claim for intentional infliction of emotional distress that was asserted against a different defendant was appealable where all of the counts against that defendant had been dismissed).

In this case, we observe that the causes of action contained in counts VI an VII of the complaint form the sole basis of recovery asserted by Glenn and Christine Johnson against appellee. Under these circumstances, the order dismissing these counts is final and appealable. See Kelly v. Resource Housing of America, Inc., Fink v. Delaware Valley HMO and Motheral v. Burkhart, supra. We -will therefore proceed to consider the merits of this appeal.

The scope of review applicable to a grant of preliminary objections in the nature of a demurrer has been enunciated by our Supreme Court as follows:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 526 Pa. 541, 547, 587 A.2d 1346, 1349 (1991), cert. denied, — U.S.-, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991) (citations omitted). Accord Kelly v. Resource Housing of America, Inc., 419 Pa.Super. at 399-400, 615 A.2d at 426 (1992), quoting Abadie v. Riddle Memorial Hospital, 404 Pa.Super. 8, 10-11, 589 A.2d 1143, 1144 (1991); Love v. Cramer, 414 Pa.Super. 231, 233, 606 A.2d 1175, 1177 (1992); Motheral v. Burkhart, 400 Pa.Super. at 424-425, 583 A.2d at 1189; Field v. Philadelphia Electric Company, 388 Pa.Super. 400, 405, 565 A.2d 1170, 1172 (1989). We will evaluate appellants’ claims and the decision of the lower court in accordance with this standard. Because the analysis of the questions presented by appellants is intertwined, these issues will be discussed together.

Appellants seek to hold appellee liable for the tort of intentional infliction of emotional distress. This tort, as defined in § 46 of the Restatement of Torts (Second) (1965), has been acknowledged by the Pennsylvania appellate courts, but has not been specifically adopted by our Supreme Court. See, e.g., Kazatsky v. King David Memorial Park, 515 Pa. 183, 185, 527 A.2d 988, 988 (1987); Hackney v. Woodring, 424 Pa.Super. 96,---, 622 A.2d 286, 288-289 (1993) (dissenting opinion by Tamilia, J.); Kelly v. Resource Housing of America, Inc., 419 Pa.Super. at 399-400, 615 A.2d at 426; Strain v. Ferroni, 405 Pa.Super. 349, 359, 592 A.2d 698, 703 (1991); Baker v. Morjon, Inc., 393 Pa.Super. 409, 413-414, 574 A.2d 676, 678 (1990); Ford v. Isdaner, 374 Pa.Super. 40, 44, 542 A.2d 137, 139 (1988), allocatur denied, 520 Pa. 617, 554 A.2d 509 (1988); Daughen v. Fox, 372 Pa.Super. 405, 411-412, 539 A.2d 858, 861 (1988), allocatur denied, 520 Pa. 605, 553 A.2d 967 (1988). But see Field v. Philadelphia Electric Company, 388 Pa.Super. at 429, 565 A.2d at 1184 (distinguishing Kazatsky on a procedural basis and proceeding to recognize a cause of action under § 46). See also Hackney v. Woodring, 424 Pa.Super. at-, 622 A.2d at 288-289 (majority opinion by Johnson, J.); Abadie v. Riddle Memorial Hospital, 404 Pa.Super. at 13-14, 589 A.2d at 1146; Motheral v. Burkhart, 400 Pa.Super. at 422-423, 583 A.2d at 1188 (all of which cite Field for the proposition that § 46 has been recognized in Pennsylvania). It is unnecessary for us to contribute to the confusion and conflict in the law by deciding whether to adopt § 46 of the Restatement in this case because we conclude that appellants have failed to establish the requisite elements of this tort.

The tort of outrageous conduct causing severe emotional distress is outlined in § 46 of the Restatement (Second) of Torts as follows:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress.
(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.

In reviewing the above language, it can be seen that § 46(1) applies to situations in which a person suffers severe emotional distress as a result of outrageous conduct which is directed at that individual. By way of contrast, subsection (2) applies to individuals who suffer severe emotional distress as a result of outrageous conduct which is directed at a third-party. As applied here, counts VI and VII respectively allege that Glenn and Christine Johnson sustained severe emotional distress as a result of the sexual acts perpetrated by appellee on their son. Consequently, the facts of this case fall squarely within § 46(2) rather than § 46(1) of the Restatement.

To establish a cause of action under subsection (2), appellants must demonstrate: (1) outrageous conduct by the actor and (2) that they were present at the time the conduct occurred. The Supreme Court has further added the requirement of physical injury or harm in the event that § 46 is to be adopted. See Kazatsky v. King David Memorial Park, 515 Pa. at 197, 527 A.2d at 995. With regard to the element of outrageousness, it is for the court to determine in the first instance whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous to permit recovery. Hackney v. Woodring, 424 Pa.Super. at-, 622 A.2d at 288-289 (majority opinion), citing Mothered v. Burkhart, 400 Pa.Super. at 423, 583 A.2d at 1188. Accord Abadie v. Riddle Memorial Hospital, 404 Pa.Super. at 13-14, 589 A.2d at 1146; Field v. Philadelphia Electric Company, 388 Pa.Super. at 427-428, 565 A.2d at 1183-1184; Ford v. Isdaner, 374 Pa.Super. at 44, 542 A.2d at 139; Daughen v. Fox, 372 Pa.Super. at 412, 539 A.2d at 861. Conduct which is extreme and outrageous is defined as conduct which is

so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

Comment d, Restatement (Second) of Torts § 46. Appellee’s conduct towards Mark Johnson, if accepted as true, may reasonably be regarded as so extreme and outrageous as to permit recovery. See Hackney v. Woodring, supra (majority opinion) (in which the defendant’s repeated intimidation, harassment and sexual abuse of the victim were found to be outrageous). Appellants have also established the third element since their complaint contains the requisite allegations of physical harm. See Amended Complaint at count VI, paragraph 53 and count VII, paragraph 57 (averring that Glenn and Christine Johnson have suffered physical harm, including but not limited to headaches, upset stomach, involuntary muscle tension, physical pain and nervousness).

Although appellants have adequately demonstrated the elements of physical harm and outrageous conduct, their cause of action nevertheless fails because the second element, ie., their presence at the time the acts were committed, has not been met. It is obvious from a reading of the numerous allegations in their complaint that neither Mr. Johnson nor Mrs. Johnson were present when their son was subjected to the alleged sexual abuse by appellee. Although appellants acknowledge their lack of observation of these acts, they urge us to reject this element and find that their presence was not required.

Notwithstanding appellants’ arguments to the contrary, this court has repeatedly indicated that the individual suffering the distress must be present when the outrageous conduct is directed at a third person. This we believe conforms to the present law in the Commonwealth. See Baker v. Morjon, Inc., 393 Pa.Super. at 415, 574 A.2d at 679; Daughen v. Fox, 372 Pa.Super. at 413 n. 2, 539 A.2d at 861-862 n. 2; Stoddard v. Davidson, 355 Pa.Super. 262, 268, 513 A.2d 419, 423 (1986). The majority of our sister states have likewise adopted either the element of presence or a modified version of this requirement. See, e.g., Christensen v. Superior Court of Los Angeles, 54 Cal.3d 868, 903, 2 Cal.Rptr.2d 79, 100, 820 P.2d 181, 202 (1992); Homer v. Long, 90 Md.App. 1, 13-15, 599 A.2d 1193, 1198-1200 (1992), cert. denied, 326 Md. 177, 604 A.2d 444 (1992); Maguire v. State of Montana, 254 Mont. 178, 187-88, 835 P.2d 755, 761 (1992); Carlson v. Chain, 490 N.W.2d 469, 478-474 (Neb.Ct.App.1992); M.M. v. M.P.S., 556 So.2d 1140, 1140-1141 (Fla.App.1989), review denied, 569 So.2d 1279 (Fla. 1990); H.L.O. by L.E.O. v. Hossle, 381 N.W.2d 641, 644 (Iowa 1986); Lund v. Caple, 100 Wash.2d 739, 741-742, 675 P.2d 226, 228-229 (1984); Lauver v. Cornelius, 85 A.D.2d 866, 867, 446 N.Y.S.2d 456, 457 (1981); Calliari v. Sugar, 180 N.J.Super. 423, 428-429 435 A.2d 139, 142 (1980); Miller v. Cook, 87 Mich.App. 6, 11, 273 N.W.2d 567, 569-570 (1978) (all of which denied recovery for emotional distress where the plaintiffs were not present at the time the alleged conduct was directed at their family members or other third parties). See also Father A v. Moran, 469 N.W.2d 503, 506 (Minn.App.1991) (disallowing recovery for emotional distress because the parents were not within the zone of danger when the sexual assaults occurred); Nancy P. v. D’Amato, 401 Mass. 516, 522, 517 N.E.2d 824, 828 (1988) (denying recovery for emotional distress where the plaintiffs did not have substantially contemporaneous knowledge of the outrageous conduct that was inflicted on the third-party); Briggs v. Rosenthal, 73 N.C.App. 672, 678, 327 S.E.2d 308, 312 (1985), cert. denied, 314 N.C. 114, 332 S.E.2d 479 (1985) (disallowing recovery for emotional distress because the alleged conduct was not directed at the parents); Courtney v. Courtney, 186 W.Va. 597, 601, 603, 413 S.E.2d 418, 422, 424 (1991) (allowing recovery for emotional distress where the individual observed the outrageous conduct inflicted on the third-party); Croft by Croft v. Wicker, 737 P.2d 789, 792-793 (Alaska 1987) (permitting recovery where the parents were in close proximity to the child at the time the alleged sexual acts were committed and observed the child’s distress immediately thereafter). But see Delia S. v. Torres, 134 Cal.App.3d 471, 484, 184 Cal.Rptr. 787, 795 (1982) (permitting a husband to maintain a cause of action for the intentional infliction of emotional distress resulting from the rape of his wife even though he did not witness the incident); Bishop v. Callais, 533 So.2d 121 (La.Ct.App.1988), cert. denied, 536 So.2d 1214 (La.1989) (allowing wife to maintain a cause of action for emotional distress sustained as a result of conduct directed at her husband even though she did not witness the incident); Schurk v. Christensen, 80 Wash.2d 652, 657, 497 P.2d 937, 940 (1972) (allowing recovery even though the parents were not present when the babysitter sexually abused their child). The comments to the Restatement justify the requirement of presence by the practical necessity of drawing the line somewhere. Comment 1, Restatement (Second of Torts) § 46. Legal commentators provide similar reasoning and explain:

Ordinarily, recovery in ... cases [where the outrageous conduct is directed at a third party] is limited to plaintiffs who are not only present at the time, but are known by the defendant to be present, so that the mental effect can reasonably be anticipated by the defendant. The distinction between the wife who sees her husband shot down before her eyes, and the one who hears about it five minutes later, may be a highly artificial one; but an argument in justification is the obvious necessity of drawing a line somewhere short of the widow who learns of the decease ten years afterward, when the genuineness and gravity of her distress may very reasonably be doubted.

Prosser and Keeton, The Law of Torts § 12, at 65-66 (5th ed. 1984). We find the reasoning set forth in the relevant commentary and the cases in which presence is required to be persuasive. Presence is a crucial element of the tort because an individual who witnesses outrageous or shocking conduct directed at a third-party has no time in which to prepare himself/herself for the immediate emotional impact of such conduct. Moreover, the actor can reasonably be expected to know of the emotional effect which his or her conduct is likely to produce where the person is present. By way of comparison, the emotional effects are generally lessened where the individual learns of the outrageous conduct long after its occurrence and by means other than through his or her own personal observations. Presence is therefore an essential element which must be established to successfully set forth a cause of action for intentional infliction of emotional distress.

Because appellants were not present when the alleged sexual conduct occurred, they have failed to set forth a cause of action for intentional infliction of emotional distress. Under these circumstances, the trial court properly granted the demurrer and dismissed the counts relating to this tort. We accordingly affirm the order of the lower court.

Order affirmed.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

The majority opinion provides a most perceptive expression of view, but I am obliged, nonetheless, to dissent, for I am of the mind that the claim of the parents for intentional infliction of emotional distress cannot properly be dismissed without affording the parents an opportunity to amend their complaint. See: Pittsburgh Coal and Coke Inc. v. Cuteri, 404 Pa.Super. 298, 590 A.2d 790 (1991). Moreover, I am convinced that this is THE case to which the caveat to Comment L of Section 46 of the Restatement (Second) of Torts is addressed, thus obviating, in view of the outrageous and despicable conduct of defendant Caparelli, the requirement of presence.

The vile depravity which the complaint asserts defendant Caparelli practiced upon young Mark has, to be sure, subjected young Mark to a lifetime of tortured existence, and — it is alleged in the amended complaint soon to be filed in the trial court — has hurled young Mark into the devil’s abyss of AIDS. When defendant Caparelli imposed his perversion upon the child, and thereby summoned the angel of living death, no one will doubt that he scorched the mind and seared the soul of each of the parents. As the majority opines, “the facts of this case fall squarely within [Restatement] 646(2)” and its requirement of extreme and outrageous conduct.

The issue is, however, whether the parents meet all of the prerequisites to a recovery for intentional infliction of emotional distress. These prerequisites, as quite aptly delineated by the majority, are:

That defendant Caparelli has engaged in extreme and outrageous conduct,
That the extreme and outrageous conduct has caused the parents severe emotional distress which resulted in bodily harm, and
That the parents have been present at the time of the commission of the extreme and outrageous conduct.

The majority has determined that the parents have met two of the three prerequisites, namely, the conduct of defendant Caparelli toward their son was extreme and outrageous, and the emotional distress they have suffered includes bodily harm. The majority concludes, however, that the parents have not stated a cause of action for intentional infliction of emotional distress due to the absence of an allegation that the outrageous acts were committed in their presence. It is my disagreement with this determination that causes my departure from the company of the majority and the conclusion that the preliminary objections in the form of a demurrer should have been denied and the parents enabled to proceed with their cause of action for intentional infliction of emotional distress.

I so conclude since the loathsome degeneracy which defendant Caparelli practiced upon the body of young Mark was but the culmination of his depravity since he commenced the pursuit of young Mark long before the culmination, specifically, when by word and deed over a period of time he deceived the parents into believing that he was a man of Holy Orders, a trustworthy confidant, and a kindly confessor. When young Mark, too terrified to tell of his fear of the pervert, expressed a reluctance to accompany defendant Caparelli, the parents— their faith defiled, their trust betrayed, because they too had been seduced and victimized — admonished him into continuing with the companionship of Father Caparelli. As a result, I am of the mind that the parents were more than present since defendant had made of the parents not simply witness but had impelled them into the role of accomplice.

The assertion will be made that it should not be presumed that, once defendant Caparelli met the parents, his interaction with them was solely to entice young Mark, for certainly some time elapsed between his first contact with them and the physical onset of his perversion with young Mark. Even if the validity of this contention is accepted, arguendo, once the loathsome perversion began, encounters and interaction with the parents had a sole, single despised purpose — the preservation of the trust of the parents so as to enable him to consume the body of the son he coveted. Surely, the parents thereby were more than witnesses. Certainly the man of God, who became the disciple of the devil, made the parents his accessories for, when the parents forced Mark to associate with defendant Caparelli, they aided him in his repugnant errands, they abetted him in his repulsive mission, they served to defile their son and to infect and destroy his body. No punishment can be sufficiently barbarous for defendant Caparelli, nor can the wealth of ancient kings be sufficient recompense for the child and each parent. The law is clearly inadequate to the task of either retribution or recompense, but the law must not be so inept as to deny that the hell defendant Caparelli has brought to earth for these parents affords to them a cause of action.

      . Appellants, Glenn and Christine Johnson, are the parents of Mark Johnson, who was a minor at the time the tortious acts allegedly occurred.

      . Neither the diocese nor the church filed preliminary objections to the complaint. Further, the dismissed counts of the complaint which form the basis of this appeal pertained solely to Father Caparelli. The church and the diocese thus were not affected by the trial court’s order and have not participated in this appeal.

      . After the objections were sustained, the parties entered into a stipulation relating to other counts of the complaint in which the parties agreed to the dismissal of other counts. As a result, a second amended complaint has been filed. The second amended complaint is not properly before us at this time.

      . Although Glenn and Christine Johnson also sought recovery from appellee in counts III, IV, IX and X of the complaint, the record contains a stipulation of counsel which indicates that these four counts were dismissed with prejudice. See Stipulation of Counsel, filed 9/20/92. Consequently, the dismissed counts cannot be construed as an alternate theory of recovery.

      . The decisions allowing recovery despite the lack of presence are not instructive as none of these cases cited or discussed the Restatement. Rather, these decisions treated the outrageous conduct as if it had been directed at the plaintiffs rather than the third-parties due to the husband-wife or parent-child relationships. Consequently, the element of presence was not required. Moreover, the continued precedential authority of Delia S. and Schurk is questionable in light of subsequent changes in the law. Delia S. was expressly disapproved by the California Supreme Court. See Christensen v. Superior Court of Los Angeles, 54 Cal.3d 868, 905 n. 28, 2 Cal.Rptr.2d 79, 102 n. 28, 820 P.2d 181, 204 n. 28. With regard to Schurk, the Washington Supreme Court has adopted § 46(2) of the Restatement and has denied recovery for emotional distress where the plaintiff was not present at the time of the outrageous conduct. See Lund v. Caple, 100 Wash.2d 739, 742, 675 P.2d 226, 228-229 (1984).

      . The Comment recites:

        Conduct directed at a third person. Where the extreme and outrageous conduct is directed at a third person, as where, for example, a husband is murdered in the presence of his wife, the actor may know that it is substantially certain, or at least highly probable, that it will cause severe emotional distress to the plaintiff. In such cases the rule of this Section applies. The cases thus far decided, however, have limited such liability to plaintiffs who were present at the time, as distinguished from those who discover later what has occurred. The limitation may be justified by the practical necessity of drawing the line somewhere, since the number of persons who may suffer emotional distress at the news of an assassination of the President is virtually unlimited, and the distress of a woman who is informed of her husband's murder ten years afterward may lack the guarantee of genuineness which her presence on the spot would afford. The Caveat is intended, however, to leave open the possibility of situations in which presence at the time may not be required, (emphasis supplied).

      . Since discovery has not commenced, there is no evidence to enable argument that officials of the defendant Archdiocese were aware of and concealed earlier such conduct by defendant Caparelli thereby enabling him to maintain pursuit of the perversion by which he consumed young Mark as prey.

      . Even an abandoned sinner is unable to urge mitigation of the sentence pronounced by the New Testament:
      It were better for him that a millstone were hanged about his neck, and he be cast into the sea, than that he should offend one of these little ones.
      Luke XVIL2.

      . It might even be argued that a clergyman who, for so vile and despicable a purpose, enters upon a course of deceit of members of his flock — in this instance, the parents — engages in conduct so extreme and outrageous that the deceit of the parents itself affords basis for an action by the parents for intentional infliction of emotional distress.

      . Since social commentary may distract from proposal of jurisprudential revision, particularly when submitted from the intermediate rank and especially when in dissent, expression of personal conviction must be but terse. So mindful, we observe that while the crimes of defendant Caparelli have thrust the victim's family into an existence of torture which cries for vengeance, defendant Caparelli has, as well, impugned the legions of women and men who presently labor selflessly to serve mankind, as did, through the centuries, their dedicated, even saintly, predecessors. Defendant Caparelli has, moreover, provided the bigots through the land with cause for celebration, as well as abundant feast to the creedless members of the media who condemn the institutions and traditions and beliefs of the people of the land.


author: BECK, Judge:

text:
    625 A.2d 676
    Edward Antonio DEPTULA and Dolores Deptula, v. OWENS-CORNING FIBERGLAS CO., Celotex Corporation, Nicolet Industries, Inc., H.K. Porter Company, Inc., Keene Corporation, Raymark, Inc., Pittsburgh Corning Corporation, GAF Corporation, Southern Asbestos Company, Fibreboard Corporation, Eagle-Picher Industries, Inc., Turner & Newall, Ltd., Pacor, 48 Insulation and Owens-Illinois, Inc. (a/k/a Owens-Illinois Glass Company). Appeal of KEENE CORPORATION. Edward Anthony DEPTULA and Dolores Deptula, v. OWENS-CORNING FIBERGLAS CO., Celotex Corp., Nicolet Industries, Inc., H.K. Porter Co., Inc., Keene Corp., Raymark, Inc., Pittsburgh Corning Corporation, GAF Corporation, Southern Asbestos Company, Fibreboard Corp., Eagle-Picher Industries, Inc., Turner & Newell, Ltd., Pacor, 48 Insulation, and Owens-Illinois, Inc. (a/k/a Owens-Illinois Glass Company). Appeal of KEENE CORPORATION.
    Superior Court of Pennsylvania.
    Argued March 4, 1993.
    Filed May 20, 1993.

      Carol L. Widemon, Philadelphia, for Keene, appellant.
    Dolores M. Troiani, Jenkintown, for Deptula, appellees.
    Before CAVANAUGH, BECK and HUDOCK, JJ.
   BECK, Judge:

Appellees Edward and Dolores Deptula sued appellant Keene Corporation and numerous other defendants for injuries allegedly suffered by Mr. Deptula as a result of his exposure to asbestos containing products manufactured by defendants. The matter went to trial on October 9, 1991. The trial was reverse bifurcated, with trial of medical causation and damages issues preceding trial of liability issues. Initially represented at trial were defendants Owens-Corning Fiberglas Corporation, Pittsburgh Corning Corporation, Fibreboard Corporation, Owens-Illinois, Inc. and appellant Keene. All defendants except Keene settled prior to the return of the jury’s verdict in the first phase of the trial.

On October 18, 1991, the jury returned a verdict of $321,000 in the medical causation and damages phase of the trial. Trial of the liability phase commenced on October 21, 1991. Only appellant Keene was represented at this phase. Mr. Deptula testified that at various times between 1961 and 1967, he breathed asbestos dust generated by Thermasil, Thermabestos, Ruberoid, Unibestos, Armstrong and Kaylo pipecovering, Unibestos and Johns-Manville cement, Unibestos and Armstrong block and Flintkote shingles. Plaintiff also read into evidence certain answers to interrogatories submitted by Keene in another matter in which Keene confirmed its manufacture of one of the asbestos containing products Mr. Deptula had identified, namely Thermasil. Appellant Keene submitted similar evidence to the jury in the form of answers to interrogatories provided by settled defendants Armstrong, Pittsburgh Corning, GAF (Ruberoid), Johns-Manville, Owens-Corning Fiberglas and Owens-Illinois. These answers contained admissions regarding the manufacture of asbestos containing products to which Mr. Deptula had testified he had been exposed.

Prior to submission of the matter to the jury appellant requested that the names of the settled defendants, against whom appellant had cross-claimed, be submitted to the jury to enable the jury to determine whether plaintiffs exposure to their asbestos containing products constituted a substantial contributing cause of plaintiffs asbestos related disease. Appellant made this request so that if the jury found liability as to both appellant and the settled defendants, the ultimate verdict could be molded to reflect the shares of liability ultimately allocated to the settled defendants, thereby reducing appellant’s liability to plaintiff. The trial court refused to submit any defendant to the jury except for appellant itself. The jury then returned with a finding of liability and, after denial of post-trial motions, the court entered judgment against Keene alone in the full amount of the previously entered damages verdict, plus delay damages.

Appellant filed this timely appeal, alleging error in the refusal of the trial court to submit the names of the settled defendants to the jury. Several days after the filing of the appeal, but within thirty days of the entry of the initial judgment, the trial court entered an order stating that appellant’s cross-claims against the settled defendants were “deferred rather than dismissed”. However, the court left intact the judgment against appellant in the full amount of the jury’s damages verdict, plus delay damages, from which this appeal is taken.

Appellant states the issue presented on appeal as follows:

Whether or not the trial court committed reversible error and contravened appellant’s rights to due process and equal protection of the laws, pursuant to the Pennsylvania Constitution and the Fourteenth Amendment to the United States Constitution, and under the Uniform Contribution Among Tortfeasors Act, in denying appellant’s motion to have the jury decide its crossclaims against settled codefendants where the evidence presented by appellant upon its cross-claims was equal or superior to that presented by appellees against appellant, the latter having been held by the lower court to be sufficient to go to the jury?

We agree with appellant and find reversible error in the trial court’s entry of final judgment against appellant without first having submitted the issue of the settled defendants’ contribution to plaintiffs injuries to the jury.

Although appellant argues at some length that the trial court’s error lies in the denial or abridgment of appellant’s constitutional rights, we need not address those issues since we reach our conclusion that the trial court erred by a much more direct route. We agree with the trial court’s conclusion, evidenced by its July 1st order reinstating appellant’s cross-claims against the settled defendants, that the evidence presented by appellant as to those defendants warranted submission of their names to the jury. Our review of the record reveals that almost exactly the same quantum of evidence was offered by appellant as to the settled defendants as was offered by plaintiff as to appellant, the one non-settled defendant. This quantum of evidence clearly satisfied the standards established in our prior case law. See Ottavio v. Fibreboard Corp., 421 Pa.Super. 284, 617 A.2d 1296 (1992) (en banc); Ball v. Johns-Manville Corp., 425 Pa.Super. 369, 625 A.2d 650 (1993). The trial court clearly rendered an erroneous and inconsistent ruling when it effectively nonsuited the claims against the settled defendants and yet allowed plaintiffs claims against appellant to go to the jury.

Given this conclusion, and the fact that trial of the cross-claims was never severed, clearly no final judgment in this action should have been entered against appellant until all claims had been resolved. Once the jury had determined whether the settled defendants had contributed to plaintiffs injuries, then molding of the verdict in accordance with the jury’s findings and entry of appropriate judgment should have followed.

Appellant contends that given this error, it is entitled to a new trial on liability at which a jury would determine both appellant’s and the settled defendants’ liability. Alternatively, appellant seeks a new trial as to the settled defendants only. We do not concur in appellant’s argument that the correct relief to be given to remedy the trial court’s error is the reversal of the judgment and an order requiring a complete new trial, as to both appellant’s and the settled defendants’ liability. There has already been a determination by a jury that appellant contributed to plaintiffs injury. Appellant does not appeal this determination on any ground other than that it should not have been made in the absence of a determination of the responsibility of the settled defendants. The appropriate appellate relief is the vacation of the judgment against appellant and the ordering of a new trial as to the liability of the settled defendants only. Only after this has been accomplished can the final verdict be molded and appropriate judgment against appellant entered.

The judgment of the trial court is vacated. A new trial as to appellant’s crossclaims against the settled defendants only is ordered. Jurisdiction is relinquished.