author: BECK, Judge: CAVANAUGH, Judge,

text:
    596 A.2d 195
    COMMONWEALTH of Pennsylvania v. Gregory HAYES aka Nasir S. Nassardeen, Appellant.
    Superior Court of Pennsylvania.
    Argued April 9, 1991.
    Filed Aug. 21, 1991.
    Maryann F. Swift, Philadelphia, for appellant.

      Sheilann P. Hewitt, Asst. Dist. Atty., Philadelphia, for Com.
    Before ROWLEY, President Judge and CAVANAUGH, CIRILLO, OLSZEWSKI, MONTEMURO, BECK, TAMILIA, POPOVICH and HUDOCK, JJ.
   BECK, Judge:

The issue before the en banc court is whether the interpretation of the Post Conviction Relief Act (PCRA) announced by this court in Commonwealth v. Pierce, 397 Pa.Super. 126, 579 A.2d 963 (1990), should be overruled. Upon a complete review of the PCRA, we hold that under section 9543(a) of the PCRA the Pennsylvania legislature clearly provided that individuals must be presently serving a sentence of imprisonment, probation or parole at the time they file a PCRA petition in order to be eligible for relief. We therefore conclude Pierce was correctly decided. In the instant case we find that the trial court properly dismissed appellant’s petition because appellant had fully served his sentence of probation prior to filing for PCRA relief.

The factual background in this case is as follows. On July 18,1982, appellant Gregory Hayes a/k/a Errol Vincent McIntosh a/k/a Nasir Nasserdeen, was arrested and charged with Theft by Receiving Stolen Property and Unauthorized Use of an Automobile. Appellant was tried before a judge and found guilty on both charges. The judge thereafter sentenced appellant to concurrent probationary periods of three years and two years, for the two respective convictions. Appellant filed no direct appeal.

On October 6, 1989, while serving a sentence of imprisonment in New Jersey on an unrelated conviction, appellant filed a PCRA petition in Pennsylvania challenging the validity of his previous 1982 convictions. In his petition, appellant alleged that his counsel for the 1982 bench trial was ineffective. Appellant filed the PCRA petition more than six years after his conviction and more than three years after completing his sentence of probation. He asserted the PCRA challenge was proper because the New Jersey court took appellant’s 1982 Pennsylvania conviction into consideration and. as a result imposed an extended sentence.

The trial court dismissed appellant’s PCRA petition noting that appellant was ineligible for post conviction relief pursuant to 42 Pa.C.S.A. § 9543(a)(1), because appellant was not “currently serving a sentence of imprisonment, probation or parole.” Appellant appealed to this court and appellate counsel was appointed.

Appellant’s appointed counsel thereafter filed a Turner/Finley brief. After a thorough review of the record and the applicable law, appellant’s counsel concluded that appellant’s petition for post conviction relief wa/ without merit. She therefore requested leave to withdraw. As a result of counsel’s Turner/Finley brief, appellant filed a petition requesting the appointment of new appellate counsel. A three member panel of this court denied appellant’s request for new counsel, but granted appellant thirty days in which to file a pro se brief. The Superior Court panel then referred this matter en banc for consideration of the continued validity of Commonwealth v. Pierce, 397 Pa.Super. 126, 579 A.2d 963.

Our analysis is as follows. We begin with a consideration of the statutory language, and stress that our interpretation and construction of the PCRA is directed towards determining and properly effectuating the intention of the legislature. 1 Pa.C.S.A. § 1921(a) (1972).

Section 9543(a) of the PCRA establishes the requirements for eligibility for post conviction relief. The relevant language provides:

(a) General rule — To be eligible for relief under this sub-chapter, a person must plead and prove by a preponderance of the evidence ...:
(1) That the person has been convicted of a crime under the laws of this Commonwealth and is:
(i) currently serving a sentence of imprisonment, probation or parole for the crime.

42 Pa.C.S.A. § 9543(a)(1).

In this case, we are required to determine whether the language, “currently serving a sentence,” precludes relief for those persons who suffer collateral criminal consequences due to the prior conviction but who have completed their sentence for the prior conviction. The Pierce panel previously held that the words “currently serving” clearly express the legislature’s intent to “limit [post-conviction] relief [under the PCRA] to those petitioners whose sentences have not expired and to preclude relief for those whose sentences have expired, regardless of collateral consequences.” Pierce, 397 Pa.Super. at 131, 579 A.2d at 966 (emphasis added). Our research has revealed no other Pennsylvania appellate court decision that has addressed this issue.*

As noted by the Pierce panel, the legislative history explaining the background and intent of the PCRA is very limited. Pierce, 397 Pa.Super. at 129, 579 A.2d at 964; see also Legislative Journal — House, (February 24, 1988) at 324. Therefore, to aid in our interpretation and construction of the PCRA and to determine the legislature’s intent, we examine the prior statute and case law addressing this issue. 1 Pa.C.S.A. § 1921(c) (1972).

The PCRA, which became effective in 1988, is a complete amendment to the prior post conviction relief statute: the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. § 9541 et seq. (1982), amended by 42 Pa.C.S.A. § 9541 et seq. (1988). A review of the modifications and amendments to the PCHA shows that almost the entire statutory language of the PCHA was stricken and replaced by new language in the PCRA. See 1988 Pa.Legis.Serv. 229-232, Act 47 (June 1988).

As compared to the PCRA, the PCHA eligibility subsection required the petitioner to prove “[t]hat he is incarcerated in this Commonwealth under a sentence of death or imprisonment or on parole or probation.” 42 Pa.C.S.A. § 9543, amended by 42 Pa.C.S.A. § 9543 (1988). Our supreme court and this court interpreted this PCHA language as permitting a collateral attack upon a prior conviction where the prior criminal sentence may directly affect any subsequent criminal prosecution or conviction. Commonwealth v. Carter, 362 Pa.Super. 70, 73, 523 A.2d 779, 780 (1987) (citing Commonwealth v. Rohde, 485 Pa. 404, 402 A.2d 1025 (1979); Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976)); see also Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971); Commonwealth ex rel. Ulmer v. Rundle, 421 Pa. 40, 218 A.2d 233 (1966); Commonwealth v. Markley, 348 Pa.Super. 194, 501 A.2d 1137 (1985).

The development of this “collateral criminal consequences” rule was based upon an interpretation of habeas corpus law, the language of the PCHA, see Ulmer, 421 Pa. at 43-44, 218 A.2d at 234; Sheehan, 446 Pa. at 38-41, 285 A.2d at 466-67, and upon a series of United States Supreme Court decisions addressing the issue of mootness. See Sheehan, 446 Pa. at 42-43 n. 8 & 9, 285 A.2d at 469 n. 8 & 9. It was, however, in Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465, that the Pennsylvania Supreme Court first enunciated the “collateral criminal consequences” rule.

In Sheehan, the court addressed a PCHA challenge to a prior, but expired, criminal conviction and sentence. 446 Pa. at 37, 285 A.2d at 466. As an analytic framework the court inquired into whether the petitioner who had served his sentence was raising aquestion that was moot. The Sheehan court first noted that it had previously been held, in Ulmer, that a state habeas corpus challenge to a previously imposed and expired sentence was not moot, “where one could suffer the consequence of having sentences begin and end later than they normally would.” Id., 446 Pa. at 42, 285 A.2d at 468-69. In Ulmer, the defendant disputed the extension of his current incarceration because of a prior but expired criminal sentence. Ulmer, 421 Pa. at 42-43, 218 A.2d at 233-34. Stating that Ulmer was not to be limited to its facts, the Sheehan court held that a petitioner under the PCHA could “attack ... a satisfied sentence which is shown to affect directly any subsequent criminal prosecution or conviction.” Sheehan, 446 Pa. at 42, 285 A.2d at 469.

In addition to relying on Ulmer, the Sheehan court also interpreted several United States Supreme Court decisions as instructing that “the possibility of either civil or criminal collateral consequences forecloses application of the mootness doctrine.” Sheehan, 446 Pa. at 42-43 n. 9, 285 A.2d at 469 n. 9 (citing United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969)). Considering the court’s prior holding in Ulmer, and the above cited United States Supreme Court decisions, the Sheehan court enunciated the collateral criminal consequences rule as an exception to the general rule of mootness. Sheehan, 446 Pa. at 42-43, 285 A.2d at 468-69.

In Sheehan the court also addressed the specific language of the PCHA. Acknowledging that the petitioner in Sheehan, whose sentence had already expired, could not facially meet the PCHA eligibility requirement that he “is incarcerated in this Commonwealth,” the court nevertheless held that the petitioner was not per se precluded from other post conviction relief. Sheehan, 446 Pa. at 39, 285 A.2d at 467. The court reasoned that the legislature’s intent in enacting the PCHA “was not to abolish the common law remedies of habeas corpus and coram nobis, but rather to promulgate an exclusive, well-defined procedure for the presentation of those grievances set forth in the Act by an aggrieved person who is under the duress of punishment.” Id.

Referring to the PCHA subsection describing the intended scope of the PCHA, the court decided that because the enactment of the PCHA did not preclude the filing of post conviction relief via a common law writ, the petitioner’s PCHA challenge could be treated as a writ of coram nobis. Id., 446 Pa. at 39 n. 5, 41, 285 A.2d at 467 n. 5, 468. Moreover, the mere fact that a petitioner was “not now incarcerated” did not alone bar relief under coram nobis. Id., 446 Pa. at 41, 285 A.2d at 468. Therefore, as a result of the holding in Ulmer and the applicability of the common law writs, the Sheehan court held that an expired criminal sentence was not a bar to an action under the PCHA.

In cases subsequent to Sheehan, the supreme court further extended the applicability of the “collateral criminal consequences” rule under the PCHA. See, e.g., Commonwealth v. Doria, 468 Pa. at 537-42, 364 A.2d at 324-26 (applying the collateral criminal consequences rule where the appellant alleges actual civil consequences due to a prior, completed criminal sentence); Commonwealth v. Rohde, 485 Pa. at 408-09, 402 A.2d at 1027 (applying the collateral criminal consequences rule where the appellant alleges possible future civil consequences resulting from a prior, expired criminal sentence).

Subsequent to the decisions in Ulmer, Sheehan, Doria, and Rohde, the Pennsylvania legislature reconsidered the PCHA, essentially struck the language of the PCHA, and replaced it with the language of the PCRA. Therefore, we must now decide whether the judicially created collateral criminal consequences rule survived under the language of the PCRA. We reiterate that our decision is directly controlled by our determination of the legislature’s intent in enacting the PCRA. In the PCRA the legislature deliberately changed the PCHA language and provided that for individuals to be eligible for PCRA relief, they must be “currently serving a sentence of imprisonment, probation, or parole for the crime.” 42 Pa.C.S.A. § 9543(a)(l)(i) (1988) (emphasis added). In comparison, under the former PCHA, petitioners must be “incarcerated in this Commonwealth under a sentence of death or imprisonment or on parole or probation.” 42 Pa.C.S.A. § 9543(2) (1982), amended by 42 Pa.C.S.A. § 9543(a) (1988).

Since the legislature rewrote the eligibility requirements, our examination of the specific language, in particular the inclusion of the adverb “currently,” leads to the conclusion that the legislature intended to limit post conviction relief under the PCRA to individuals who at the time of filing for PCRA relief are serving a sentence of imprisonment, probation or parole for a conviction, regardless of the collateral criminal consequences from the conviction. We are mindful that when construing a statute, the judiciary must interpret general and plain words as having their common and accepted meaning. 1 Pa.C.S.A. § 1903(b); see also Commonwealth v. Mumma, 489 Pa. 547, 552-53, 414 A.2d 1026, 1029 (1980); Fireman’s Fund Ins. Co. v. Nationwide Mut. Ins. Co., 317 Pa.Super. 497, 502-03, 464 A.2d 431, 434 (1983). Moreover, “we must assume that the legislature intended] every word of the statute to have effect.” Commonwealth v. Driscoll, 485 Pa. 99, 106, 401 A.2d 312, 315 (1979) (citing 1 Pa.C.S.A. § 1922(2) (1978-79)) (emphasis added); Crusco v. Insurance Co. of North America, 292 Pa.Super. 293, 295-99, 437 A.2d 52, 53-54 (1981).

We conclude that the language changes in the PCRA were deliberately made to confront and alter the collateral criminal consequences rule. Therefore, we decline to interject the collateral criminal consequences rule into the PCRA. To do so ignores the legislative intent and the plain meaning of the word changes made in the PCRA.

In addition to narrowing the eligibility standard, as discussed above, the legislature’s intentions by enacting the PCRA are further expressed by a limiting of the scope of post conviction collateral relief available to defendants. Section 9542 illustrates this by providing, in part, that “[t]he action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis.” 42 Pa.C.S.A. § 9542 (1988) (emphasis added). This statutory language clearly evidences a legislative intent to change the prior decisional law and restrict the scope of collateral post conviction challenges.

In summary, we find that the legislature has clearly modified the eligibility requirements under the PCRA from those that previously existed under the PCHA. Because we find the enactment of the PCRA precludes post conviction relief under the PCRA where the petitioner’s sentence of imprisonment, probation or parole has expired prior to filing for relief, we need not address appellant’s substantive claims of ineffectiveness of counsel.

We affirm the PCRA court’s finding that appellant is not eligible for PCRA relief because appellant had already fully served his sentence of probation at the time he filed his PCRA petition.

Affirmed.

CAVANAUGH, J., files a dissenting opinion.

CIRILLO, J., joins dissenting opinion by CAVANAUGH, J.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent from the majority opinion which overrules the doctrine of collateral consequences where the petitioner seeks relief under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. and is not currently serving a sentence of imprisonment, probation or parole. The doctrine was first set forth in Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971) which dealt with the issue of mootness under the Post Conviction Hearing Act, 42 Pa.C.S. § 9541 et seq. then in effect. In Sheehan, the defendant entered a guilty plea to the charge of driving under the influence of intoxicating liquor. After the sentence of a fine was satisfied, he was charged with another similar offense. Subsequently, the defendant filed a PCHA petition with reference to his first conviction. The trial court and this court held that the defendant was ineligible for relief, as at the time he filed the petition he was not incarcerated in Pennsylvania or on parole or probation.

The Supreme Court reversed, holding that:

Merely because one is not incarcerated, on parole or probation does not per se preclude a collateral attack on his convictions.

446 Pa. at 39, 285 A.2d at 467.

The Supreme Court held that the petition was properly filed, even though the defendant’s sentence had already been satisfied and he was not incarcerated, as he would be classified as a second offender if his first conviction were allowed to remain in effect. “Such a result presents the possible collateral criminal consequences which preclude application of the general rule of mootness to the collateral attack on appellant’s initial conviction.” 446 Pa. at 42-43, 285 A.2d at 469.

The court reasoned that the intent of the PCHA was not to abolish the common law remedies of habeas corpus and coram nobis and treated the petition as one for a writ of error coram nobis and “the fact that he is not now incarcerated (or on parole or probation) is not, by itself, a bar to the relief he seeks.” 446 Pa. at 41, 285 A.2d at 468.

The collateral consequences rule was extended in Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976) to civil consequences where the petitioner alleged that he was forced to resign from his position as Dean of the Vermont Law School as a result of his conviction. The Supreme Court further extended the doctrine of collateral consequences to the situation where the petitioner established only the possibility and not the actuality of social and civil disabilities resulting from his conviction in Commonwealth v. Rohde, 485 Pa. 404, 402 A.2d 1025 (1979). In that case, the petitioner’s sentence had been fully served when he filed his PCHA petition. At the time the petition was filed, the petitioner was a law student and he alleged that he anticipated possible difficulties in being admitted to the practice of law in various states.

Under the Post Conviction Hearing Act it was firmly imbedded in our law that incarceration in Pennsylvania was not an essential requirement to a petition under the Act where collateral consequences could be shown. We stated in Commonwealth v. Bruce, 230 Pa.Super. 507, 326 A.2d 628, 629 n. 1 (1974): “The completion of a sentence does not render a case moot against miscellaneous grounds of attack where it appears that as a result of the conviction or sentence the accused continues to suffer legal disadvantages ...” In Commonwealth v. Fay, 294 Pa.Super. 332, 439 A.2d 1227 (1982) a petitioner who was incarcerated in federal court was deemed to have filed a valid petition because we treated the petition as a writ of coram nobis. The Supreme Court in Johnson v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Review, 505 Pa. 569, 482 A.2d 235 (1984) held that a petitioner who had been incarcerated for a parole violation and then reparoled when he filed the petition under the PCHA was eligible to file the petition as he alleged that his rights had been violated by the Pennsylvania Board of Probation & Parole.

In Commonwealth v. Markley, 348 Pa.Super. 194, 501 A.2d 1137 (1985) a petitioner who had completed his sentence alleged that his trial counsel was ineffective and that he had been denied a right to appeal. The petitioner identified various social and civil consequences that might attend his conviction for theft by deception and writing a bad check, including his inability to continue a construction business. We held that the appellant’s PCHA petition was not moot, and there could be possible adverse consequences to his business and family relationships, and he alleged “that he will suffer serious criminal consequences if he is subsequently convicted of another crime.” 348 Pa.Super. at 206, 501 A.2d at 1143. We went so far in Markley, supra, as to hold that a mere possibility that the petitioner might be convicted of another crime in the future raised an issue that was not moot.

Again, a PCHA petition was permitted in Commonwealth v. Berthesi, 350 Pa.Super. 383, 504 A.2d 891 (1986) eight years after the sentence was completed as the issue of the ineffectiveness of trial counsel in not informing the defendant of his right to appeal, was not moot. In Commonwealth v. Carter, 362 Pa.Super. 70, 523 A.2d 779 (1987) the petitioner’s sentence was served prior to filing the petition under the PCHA. Since the issue raised in the petition that the court erred when it summarily revoked probation without prior written notice was not moot, we found the petition to be appropriate.

In 1988, the Post Conviction Hearing Act was amended and replaced by the Post Conviction Relief Act. The eligibility requirement to file a petition under the PCRA was changed from “incarcerated in this Commonwealth under a sentence of death or imprisonment or on parole or probation” to “currently serving a sentence of imprisonment, probation or parole for the crime.” I am convinced that this change in wording did not have the effect of brushing aside the doctrine of collateral consequences established by the Supreme Court in Commonwealth v. Sheehan, supra, and further expanded by the Supreme Court and our own Court in subsequent decisions. The rule of the Supreme Court in Sheehan, supra, was that a petition under the PCHA could not be precluded per se because the petitioner was not incarcerated at the time the petition was filed when collateral issues were not moot.

History demonstrates that the legacy of a wrongful conviction may include consequences of substantial prejudice to the economic, social and liberty interests of the victim of an illicit conviction.

The present post-conviction act has, in my view, incorporated the Sheehan line of supreme court cases where it states in its provision explaining the scope of the Act, 42 Pa.C.S.A. § 9542, that the act is the sole means of collateral relief and “encompasses” all other common law and statutory remedies that existed when the statute took effect including habeas corpus and coram nobis.

I conclude that though the high incidence of post-conviction cases represents a somewhat onerous burden for our busy courts, that there was no intention in the new legislation to close the door of the courthouse to a victim who may be suffering grave consequences from an improperly obtained conviction.

The majority opinion has adopted a per se rule that the petitioner must be “currently” serving a sentence of imprisonment, probation or parole in order to seek relief, notwithstanding any collateral consequences from his sentence, and this is exactly the type of per se rule that was prohibited by Sheehan and its progeny.

Accordingly, I respectfully dissent.

CIRILLO, J., joins dissenting opinion by CAVANAUGH, J.

      . 42 Pa.C.S.A. § 9541 et seq. (1988).

      . 18 Pa.C.S.A. § 3925 (1972).

      . 18 Pa.C.S.A. § 3928 (1972).

      . A "Turner/Finley brief' refers to the brief counsel/is required to file pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988), when requesting leave to withdraw from collateral proceedings relating to a defendant’s case. As provided for by Turner and Finley, counsel will be permitted to withdraw if, after separate and independent review of the issues raised by defendant’s collateral petition, both counsel and the court conclude defendant’s issues are meritless. Counsel must first file a brief or "no-merit” letter describing in detail the nature and extent of the independent review undertaken by counsel, listing each issue the defendant is raising for collateral review, and explaining why the defendant’s issues are merit-less. The Turner/Finley brief may be filed with either the trial court or the appellate court. If it is filed in the trial court and the court determines that the issues raised are without merit, then counsel will usually be permitted to withdraw, and the defendant can appeal with privately retained counsel or pro se. Finley, 379 Pa.Super. at 393-94, 550 A.2d at 215.

      . By Per Curiam Order dated March 8, 1991, this en banc panel denied the request by appellant’s counsel for leave to withdraw.

      . In Commonwealth ex rel. Ulmer v. Rundle, 421 Pa. 40, 218 A.2d 233, a case decided five years before Sheehan and prior to the enactment of the PCHA, the Pennsylvania Supreme Court held that a habeas corpus petition challenging an expired prior sentence was not moot because the petitioner’s subsequent sentences could be extended as a result of the prior expired sentence.

      . The Sheehan court carved out an exception to the general doctrine of mootness. The mootness doctrine describes the general rule that a court will not adjudicate a matter where there is no subject matter upon which a judgment of the court can be effective. Commonwealth v. Gamer, 204 Pa.Super. 227, 230, 203 A.2d 333, 335 (1964). With respect to habeas corpus petitions, because the judicial relief requested in such a petition is release from imprisonment, if the petitioner is not restrained from liberty, then the court has no factual basis upon which to grant and enforce the writ. Commonwealth v. Smith, 336 Pa.Super. 636, 640-42, 486 A.2d 445, 448 (1984). The mootness doctrine has also been described as being based upon the well-settled rule that an actual case or controversy must exist at each stage of judicial review. In re Gross, 476 Pa. 203, 209, 382 A.2d 116, 119 (1978); Annotation, When Criminal Case Becomes Moot So As To Preclude Review of or Attack On Conviction or Sentence, 9 A.L.R.3d 462, 470 (1970).

      . In support of our position, we note that the Pennsylvania Supreme Court’s reliance on Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), in Sheehan, Doria, and Rohde has been undermined by Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). As noted supra, our supreme court cited Carafas for the proposition-that challenges to a prior expired sentence are not moot where possible collateral consequences may result. Sheehan, 446 Pa. at 42-43 n. 9, 285 A.2d at 469 n. 9. However, the United States Supreme Court in Maleng explained Carafas. Maleng, 490 U.S. at 489-90, 109 S.Ct. at 1924-25, 104 L.Ed.2d at 544. The Maleng Court emphasized that, "[w]e have never held ... that a habeas petitioner may be 'in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed. Indeed, our decision in Carafas v. LaVallee, ... strongly implies the contrary." Maleng, 490 U.S. at 491, 109 S.Ct. at 1925, 104 L.Ed.2d at 545 (emphasis in the original).
      We also note that appellant argues the Pierce court improperly relied on Maleng v. Cook, because the Pennsylvania legislature enacted the PCRA prior to Maleng, and therefore the legislature could not have known of the holding and analysis in Maleng. We find appellant’s argument unpersuasive. As described above, and in Pierce, the Pennsylvania legislature has clearly expressed its intent regarding eligibility for PCRA relief with the enactment of the PCRA. Reference to and reliance on federal habeas corpus case law, like Maleng, is unnecessary for our conclusion and was unnecessary for the conclusion in Pierce.

      . The Post Conviction Relief Act at § 9543(a) provides in relevant part:
      § 9543. Eligibility for relief
      (a) General rule. — To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:
      (1) That the person has been convicted of a crime under the laws of this Commonwealth and is:
      (i) is currently serving a sentence of imprisonment, probation or parole for the crime;

      . The Post Conviction Hearing Act was amended by the Post Conviction Relief Act in 1988, 42 Pa.C.S. § 9541 et seq.

      . The Post Conviction Hearing Act, 42 Pa.C.S. § 9543(2), then in effect, provided that in order to be eligible for relief, inter alia, the petitioner must be:
      incarcerated in this Commonwealth under a sentence of death or imprisonment or on parole or probation.

      . The general or traditional rule that the court referred to was that satisfaction of the contested sentence per se renders the case moot.

      . In the case sub judice, the petitioner alleged that there were collateral consequences resulting from his conviction in Pennsylvania, as a New Jersey Court took into consideration his prior conviction in Pennsylvania and imposed a more severe sentence as a result. We note also that counsel, on appeal, presented no arguments in the brief or at oral argument before the Court en banc at Westmoreland County on April 9, 1991 that would have assisted petitioner.

      . Post conviction relief is available in the federal system under 28 U.S.C. § 2255 where a person is in custody under sentence which is subject to “collateral attack.” United States v. Stimac, 684 F.Supp. 545 (N.D.Ill.1988). Since United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954) a writ of coram nobis has been available where the petitioner is not in custody and the sentence fully served if collateral consequences persist. See, United States v. Bruno, 903 F.2d 393 (5th Cir.1990); United States v. Dellinger, 657 F.2d 140 (7th Cir.1981).


source: Caselaw Access Project

author: CERCONE, Judge: CIRILLO, Judge, OLSZEWSKI, Judge,

license: Public Domain

text:
    596 A.2d 203
    Fred and Lorraine LILLEY, Appellants, v. JOHNS-MANVILLE CORP., Pacor, Inc., Eagle-Picher Ind., Unarco Ind., Inc., Keene Corp., Raybestos Manhattan, Inc., Celotex Corp., Southern Textile Co., J.P. Stevens Co., Garlock, Inc., Owens-Illinois, Inc., Fibreboard Corp., GAF Corp. Fred and Lorraine LILLEY v. JOHNS-MANVILLE CORP., Pacor, Inc., Eagle-Picher Ind., Unarco Industries, Inc., Keene Corp., Raybestos Manhattan, Inc., Celotex Corp., Southern Textile Co., J.P. Stevens Co., Garlock, Inc., Owens-Illinois Glass Co., Fibreboard Corp., GAF Corp. Appeal of FIBREBOARD CORPORATION. Fred and Lorraine LILLEY, h/w v. JOHNS-MANVILLE CORP., Pacor, Inc., Eagle-Picher Ind., Unarco Industries, Inc., Keene Corp., Raybestos Manhattan, Inc., Celotex Corp., Southern Textile Co., J.P. Stevens Co., Garlock, Inc., Owens-Illinois Glass Co., Fibreboard Corp., GAF Corp. Appeal of FIBREBOARD CORPORATION.
    Superior Court of Pennsylvania.
    Argued March 19, 1991.
    Filed Aug. 22, 1991.

      Robert A. Nicholas, Philadelphia, for appellants (at 372) and for Lilley, appellees (at 373 & 374).
    Steven J. Cooperstein, Philadelphia, for Fibreboard, appellant (at 373 & 374) and for Fibreboard, appellee (at 372).
    Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

This is a consolidated appeal from a final judgment entered by the lower court in favor of Fred and Lorraine Lilley, plaintiffs below, who initiated the underlying action to recover damages from several manufacturers of asbestos and asbestos containing products. The complaint filed by the Lilleys alleged that between 1959 and 1976, Mr. Lilley’s occupational duties brought him into daily contact with asbestos pipe insulation, asbestos packing material, and asbestos cement manufactured by the defendants. The Lilleys also alleged that as a result of his exposure to asbestos while working for the Sun Ship Company (now the Penn Ship Company), Mr. Lilley suffered extensive asbestos-related injuries attributable to the defendant corporations. Additionally, Mrs. Lilley alleged loss of consortium stemming from Mr. Lilley’s injuries.

The trial was “reverse bifurcated” in that the jury first determined that Mr. Lilley was entitled to two hundred fifty thousand dollars ($250,000) in compensatory damages and that Mrs. Lilley should receive an award of one hundred thousand dollars ($100,000) for her loss of consortium claim. The parties then litigated the question of liability before the same jury, which found in favor of the Lilleys. When the liability phase of the trial commenced, the other seven remaining defendants had entered into settlement agreements with Mr. and Mrs. Lilley which provided for the release of joint tortfeasors on a pro rata basis. Based on the jury’s determination of liability, the lower court entered a verdict against Fibreboard Corporation for one-eighth of the damages awarded by the jury.

Fibreboard Corporation timely filed post-trial motions seeking to overturn both the damage award and the finding of liability. Mr. and Mrs. Lilley also filed a post-trial motion which alleged that the evidence insufficiently established Mr. Lilley’s exposure to the products of Garlock, Inc. and Eagle-Picher Industries, two of the settling parties. This motion requested that Fibreboard Corporation be held responsible for one-sixth rather than one-eighth of the jury’s award. Additionally, the Lilleys lodged a separate request for delay damages. Although the Honorable Lawrence Prattis denied the motions for post-trial relief of both parties on November 30, 1989, he nevertheless ordered Fibreboard Corporation to pay delay damages to Mr. and Mrs. Lilley, and molded the jury verdict to reflect this award. Fibreboard Corporation’s proportionate share of the verdict, including the delay damage assessment, totalled seventy-seven thousand seventy-six dollars and three cents ($77,076.03). A judgment in that amount was subsequently entered in the lower court. For the reasons that follow, we affirm.

Fibreboard Corporation (hereinafter “Fibreboard” or “appellant”) timely appealed to the Superior Court at Numbers 373 and 374, Philadelphia 1990 while Mr. and Mrs. Lilley (hereinafter “appellees”) appealed at Number 372, Philadelphia 1990. Fibreboard filed its brief as the appellant on the consolidated appeals while the Lilleys prepared their brief as appellees/cross-appellants. Appellant has raised the following issues for our consideration: whether the lower court committed error of law in denying Fibreboard’s motion for judgment non obstante veredicto and motion for a new trial due to: (1) appellees' failure to present competent medical evidence that exposure to Fibreboard’s products was a substantial contributing factor to Mr. Lilley’s asbestosis; (2) the lower court’s refusal to charge the jury on the “de minimis ” rule as it related to the “law of substantial contributing factor”; (3) permitting appellees’ medical expert to testify that Mr. Lilley had a reasonable basis for a fear of cancer; (4) denying Fibreboard’s motion in limine to preclude Mr. Lilley from telling the jury that he would be laid off from his job at the Pennsylvania Shipyard on May 1, 1989; and (5) awarding delay damages to appellees. In addition to presenting counter-statements of the questions raised by appellant, appellees have requested us to consider a sixth question: whether the lower court erred in denying their motion for a directed verdict on Fibreboard’s cross-claims against defendants Garlock, Inc. and Eagle-Picher Industries. We shall address the parties’ claims seriatim.

Appellant initially argues that it was an error of law for the lower court to refuse to grant judgment non obstante veredicto because the evidence adduced at trial was insufficient to sustain appellees’ burden of proof regarding the necessary elements of a products liability claim. We note that appellant’s motion for post-trial relief correctly requested judgment n.o.v. as the motion contests the sufficiency of the evidence. Where the evidence is insufficient to sustain the verdict, the remedy granted in civil cases is a judgment notwithstanding the verdict. Butler v. Flo-Ron Vending Co., 383 Pa.Super. 633, 644 n. 6, 557 A.2d 730, 735 n. 6 (1989), allocatur denied, 523 Pa. 646, 567 A.2d 650 (1989). See also Solomon v. Baum, 126 Pa.Commw. 646, 652 n. 3, 560 A.2d 878, 881-82 n. 3 (1989), allocatur denied, 525 Pa. 636, 578 A.2d 930 (1990) (post-trial challenge to sufficiency of evidence provides no basis for new trial, but rather is a matter for judgment n.o.v.).

We agree with appellant that a judgment n.o.v. should be granted only in a clear case, and that all doubts should be resolved in favor of the verdict. Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980). This court has clarified the standard of review applicable to the instant appeal by ruling that judgment n.o.v. is an extreme remedy which is properly entered by the trial court only where the facts are so clear that no two reasonable minds could fail to agree that the verdict was improper. Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa.Super. 49, 58, 537 A.2d 814, 819 (1987), allocatur denied, 520 Pa. 590, 551 A.2d 216 (1988). In this context, only the evidence which supports the verdict will be considered, and the court must give the verdict winner the benefit of all doubt and of every fact and inference deducible from the evidence. Id., 371 Pa.Superior Ct. at 58-59, 537 A.2d at 819. Accord Atkins v. Urban Redevelopment Authority, supra. Judgment n.o.v. should not be entered in a case where the evidence is conflicting upon a material fact. Northwest Savings Association v. Distler, 354 Pa.Super. 187, 191, 511 A.2d 824, 825 (1986); Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985). Applying these standards, we find that appellees met their burden of proving liability on the part of appellant Fibreboard.

The essence of appellant’s argument is that appellees failed to demonstrate by competent medical testimony that Mr. Lilley inhaled asbestos fibers and that their source was a product manufactured by Fibreboard. We agree with appellant that in order for liability to attach in a products liability action, a plaintiff must establish that his or her injuries were caused by a particular product of a defendant manufacturer or supplier. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 190-91, 544 A.2d 50, 52 (1988), allocatur denied, 520 Pa. 605, 553 A.2d 968 (1988). As this pertains to an asbestos case, the plaintiff must demonstrate that he inhaled asbestos fibers shed by the specific product of the defendant. Id., 375 Pa.Superior Ct. at 191, 544 A.2d at 52. To this end, the plaintiff must prove that he worked in the vicinity of that product’s use. Id. However, contrary to appellant’s interpretation of that case, Eckenrod sets forth no requirement that causation be established solely by expert medical testimony.

It should be unnecessary for us to explain that the nexus between a specific asbestos product and a plaintiff’s medical condition may be supplied by a variety of direct and circumstantial evidence which must necessarily include, but is not limited to, competent medical testimony. The testimony of any witness with knowledge regarding the plaintiff’s work place and his or her exposure to a defendant’s asbestos-containing products is admissible where probative. See, e.g., Samarin v. GAF Corp., 391 Pa.Super. 340, 348, 571 A.2d 398, 402-03 (1989), allocatur denied, 524 Pa. 629, 574 A.2d 71 (1990). We see no reason why a plaintiff should be excluded from testifying regarding asbestic products used either by himself or by his co-workers in or about the work place. See also Taylor v. Celotex Corp., 393 Pa.Super. 566, 574 A.2d 1084 (1990) (in applying New Jersey law, Pennsylvania Superior Court concluded that although worker was unable to identify any of the products manufactured by the defendants, testimony of co-workers was admissible to establish that he had worked in close proximity to the products). Accord Richards v. Raymark Industries, 660 F.Supp. 599 (E.D.Pa.1987).

At trial, Mr. Lilley testified about the conditions under which he worked during his employment at Sun Ship. He explained his duties, first as a pipefitter, then as supervisor, assistant foreman, and finally as superintendent. His testimony included the facts that he and his co-workers labored in tightly confined areas utilizing asbestine products as pipe coverings, steam drum covers, and turbine casings as well as in the form of asbestos cement mortar. Mr. Lilley stated that he spent 90% of his working life from 1959 to 1976 under these conditions and that at the end of the work day, his clothes and body were so covered with asbestos fibers that he had to use an air line to blow away the asbestic dust. N.T. 4/17/89 at 45-53; 69-73; 79-81. Mr. Lilley also identified the following product and/or manufacturer names as being listed on the labels of products he and his co-workers used at Sun Ship: Unibestos, Caltemp, Careytemp, Kaylo, Manville, Portasite, Garlock and “Flexitali." N.T. 4/19/89 at 27-45.

Mr. Lilley’s testimony was corroborated by that of a coworker, Mr. Samuel Wasson, who identified Pabco, Kaylo, Unibestos, Raybestos, Amosite, and Caltemp as well as Superpowerhouse, Keene Products, Inc., Careytemp, Porter Amosite, Garlock asbestos gaskets, Calcil (or Calcilite) and Hy-Temp as names he remembered seeing on products in the vicinity in which Mr. Lilley worked. N.T. 4/19/89 at 63-74. Evidence was also presented to the jury that during the pertinent time, Fibreboard manufactured and sold asbestos products under the trade name “Pabco,” containing at various intervals, chrysotile asbestos, mixtures of chrysotile and amosite, and amosite asbestos. Id. at 75. This evidence additionally identified a Fibreboard product called Caltemp, originally Caltherm, which contained both calcium silicate and asbestos.

Regarding Mr. Lilley’s medical condition, Dr. Stanley L. Altschuler, a board certified specialist in internal medicine and pulmonary disease, explained the physical qualities of asbestos and the effect on human physiology of inhaling asbestos dust from products commonly used in shipyards. Basing his conclusion on a complete physical examination including a pulmonary function study and chest X-Rays, Dr. Altschuler stated unequivocally that Mr. Lilley suffered from asbestosis. N.T. 4/17/89 at 5-32; 70-71. Dr. Altschuler also stated that to a reasonable degree of medical certainty, the physical abnormalities present in Mr. Lilley resulted from asbestos inhalation and that even one day’s worth of such inhalation constituted a “substantial contributing factor” to his condition. Id. at 32; 40.

Mindful of the applicable scope of review outlined above, we conclude that this evidence, when viewed in the light most favorable to appellees, was sufficient to permit the jury to infer that Mr. Lilley contracted a disease caused by breathing, in his work place, asbestos fibers from products manufactured by appellant. The testimony adduced at trial established that Mr. Lilley had contracted asbestosis, a disease caused only by the inhalation of asbestos fibers. Witnesses testified that Mr. Lilley worked in close quarters, that asbestos dust was omnipresent in this area, and that Caltemp (Caltherm) and other asbestos products carrying the “Pabco” trade name manufactured by Fibreboard were used by Sun Ship Company during the pertinent timeframe. We perceive no basis on which the lower court could have granted judgment n.o.v., and therefore affirm on this issue.

Appellant next argues that it was an error of law for the lower court to refuse to charge the jury on the “de minim-is ” rule as it related to the “law of substantial contributing factor.” The thrust of this argument is that the instruction actually given failed to emphasize that each manufacturer’s liability must be separately evaluated. Thus, appellant contends that the trial court allowed the jury to attach liability simply upon proof that Mr. Lilley may have been minimally exposed to products sold by appellant. Appellant further argues that the lower court’s refusal to define the phrase “substantial contributing factor” and to charge regarding de minimis effect was error because it confused the jury as to the level of exposure necessary to support a finding that a particular product was a “substantial contributing factor” to Mr. Lilley’s injuries.

When assessing the denial of a motion for a new trial, the Superior Court will reverse only where the lower court has clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 453, 539 A.2d 880, 881-82 (1988). Where a motion for new trial is based on an allegedly erroneous jury charge, we must examine the charge against the background of the evidence. Id. Even if the charge is in error, a new trial will be awarded only where the jury instruction might have prejudiced the appellant. Id. Our law is clear that the primary duty of a trial judge in charging a jury is to clarify the issues so that the jury may comprehend the questions they are to decide. Rivera v. Philadelphia Theological Seminary, 398 Pa.Super. 264, 269, 580 A.2d 1341, 1344 (1990), quoting Brandimarti v. Caterpillar Tractor Co., 364 Pa.Super. 26, 29, 527 A.2d 134, 136, allocatur denied, 517 Pa. 629, 539 A.2d 810 (1987). So long as the trial judge chooses a form of expression which adequately and clearly covers the subject, he or she is not required to use the exact language of a requested point. Id.

As explained above, in order for liability to attach in a products liability action, a plaintiff must establish that his or her injuries were caused by a particular product of a defendant manufacturer. Eckenrod v. GAF Corp., 375 Pa.Super. at 190-91, 544 A.2d at 52. For an asbestos case, this means that the plaintiff must demonstrate that he worked in the vicinity of a particular product’s use and that he inhaled asbestos fibers shed by that product. Id. In the instant case, the lower court charged the jury as follows:

In order for the plaintiff to recover in this case, the defendant’s conduct must have been a legal cause of the accident. The defendant’s conduct is the legal cause of the accident or injury or harm whenever it appears that that defect was a substantial factor in bringing about the harm.
In order for liability to attach to a particular defendant, in this kind of products case, the plaintiff must prove that the injuries he sustained were caused by the products of that manufacturer’s supplier. To carry that burden of proof, the plaintiff must present evidence which establishes that he inhaled asbestos fibers which came from that manufacture’s [sic] product. It is not enough simply to show that the product was delivered to the work place. He must show that he actually worked in the vicinity of the product and that he inhaled asbestos fibers from that product and in that connection, again, you consider the testimony of Mr. Lilley, the testimony of Mr. Wasson, testimony of what products were delivered to the boiler rooms and engine rooms of the ship, Mr. Wasson’s testimony that sometimes it looked like a little snowstorm in there and he testified as to what happened to the products when you broke them open and put them on the pipes and then you hammer them.
You consider all of that testimony in making up your mind was the product defective because of failure to warn and was that defect if you find it present, a substantial factor in causing harm to Mr. Lilley.
Remember, there may be several substantial factors. There are no requirements there be a single substantial factor. As long as you find that there is a real factor that’s not something fanciful or something imaginary, but something that came about because of what happened. Then you will be finding it’s a substantial factor.
How do you make those determinations? You do it in the same way you determine the damages issue. You do it by careful consideration of the evidence in the case. The evidence you are considering on this is the evidence that you have heard today. You consider the evidence you heard prior in the case also as part of the judgment of whether there is a defect and so forth.

N.T. 4/19/89 at 125-127. We conclude that the above jury charge adequately comports with the mandate of Eckenrod, supra and that the trial court was not required to provide any more precise explanation than that actually given.

Appellant has conceded the correctness of this determination by stating, “The above charge satisfies [sic] the rule espoused in Eckenrod [v. GAF Corp., supra ] which requires that the jury be instructed that in order for liability to attach, a plaintiff must prove that he or she inhaled asbestos fibers shed by the particular named manufacturer’s product.” Appellant’s brief at 20. Nevertheless, appellant contends that the lower court’s charge must be viewed as inadequate when interpreted in the context of appellee’s failure to show that Mr. Lilley was exposed to appellant’s products and that they constituted a “substantial contributing factor” to his illness. We disagree with this assertion for two reasons.

First, we are unaware of any requirement of Pennsylvania law that the jury charge must include an instruction on de minimis exposure. Nor it appears, has appellant’s research uncovered such precedent in Pennsylvania. Instead, appellant has provided an interesting and instructive analysis of Maryland law as interpreted by the Fourth Circuit in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986). We are, however, not controlled by Lohrmann. Absent a ruling on a particular question by the United States Supreme Court, the decision of a federal intermediate appellate panel is not binding on Pennsylvania courts. Cianfrani v. Johns-Manville Corp., 334 Pa.Super. 1, 6, 482 A.2d 1049, 1051 (1984). Pennsylvania courts are not bound by the decisions of inferior federal courts even where the case specifically concerns Pennsylvania law. See, e.g., Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A.2d 199 (1962); Commonwealth v. Lacey, 344 Pa.Super. 576, 496 A.2d 1256 (1985). As we have already determined, the lower court correctly applied the law of this Commonwealth when charging the jury. See Smith v. Brooks, 394 Pa.Super. 327, 575 A.2d 926 (1990) (trial judge may properly refuse a litigant’s requested instruction where the substance thereof has been adequately covered).

Second, appellant’s argument focuses on the insufficiency claim which we have already determined to be meritless. The jury was entitled to give credence to the testimony of Mr. Lilley, Mr. Wasson and Dr. Altschuler, which we have already discussed in detail. When viewed in to to, this testimony established that Mr. Lilley had worked in confined quarters with asbestos products, that at least some of the asbestos products used by Sun Ship were manufactured by appellant, that Mr. Lilley suffered from a disease caused by inhaling asbestos fibers and that even one day’s exposure to asbestos dust constituted a “substantial contributing factor” to Mr. Lilley’s asbestosis. In light of the foregoing, we find no indication that the lower court has committed clear and palpable abuse of discretion nor that the jury instruction was in error under Pennsylvania law. Therefore, appellant is not entitled to relief on this claim.

Next, appellant contends that a new trial is in order because the lower court erred in denying its motion in limine to preclude Mr. Lilley from telling the jury that he was soon to be laid off from his job at the Pennsylvania Shipyard. Appellant argues that this testimony created sympathy in the minds of the jury and was irrelevant to the issues being tried. It is axiomatic that questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court. Gallegor by Gallegor v. Felder, 329 Pa.Super. 204, 211, 478 A.2d 34, 38 (1984). In reviewing a trial court’s admission of testimony, the Superi- or Court will reverse only if there has been an abuse of discretion or error of law. Smith v. Brooks, 394 Pa.Super. at 336, 575 A.2d at 930. Evidence is relevant and therefore admissible where it tends to establish facts in issue or in some degree to advance the inquiry at hand. Scullion v. EMECO Industries, Inc., 398 Pa.Super. 294, 301, 580 A.2d 1356, 1360 (1990). We have carefully scrutinized the trial transcript and find that appellant is incorrect in contending that the testimony in question was irrelevant. Clearly it was quite relevant to Mr. Lilley’s claim for loss of earning capacity. We do not find it dispositive that, for reasons entirely unconnected to the question before the panel, the trial court later precluded appellees from pursuing their loss of earning capacity claim. The testimony was relevant to the case at the time it was given. As we find no indication that the court has committed an abuse of discretion, we affirm on this issue.

Appellant also objects to the admission of testimony by Dr. Altschuler to the effect that, to a reasonable degree of medical certainty, Mr. Lilley could harbor a fear of cancer in response to his exposure to asbestos. Our scope of review remains the same for this issue as for the previous evidentiary claim: we will reverse only if the trial court has committed abuse of discretion or error of law. Smith v. Brooks, supra. Our inspection of the record has convinced us that the trial court committed neither type of error in admitting this testimony. Rather, we find that appellant has mischaracterized the nature of Dr. Altschuler’s testimony, the purpose for which it was elicited and the competence of the witness.

As appellees correctly argue, part of the basis on which they sought damages from appellant stemmed both from Mr. Lilley’s increased risk of lung cancer and mesothelioma and from his subjective fear of contracting cancer. Mr. Lilley testified in detail regarding his anxieties in this regard. N.T. 4/17/89 at 58-66. In order to sustain their burden of proving that such emotions could have some foundation in reason, counsel for appellees questioned Dr. Altschuler whether there was a “reasonable medical basis” for such fears.

Q. Doctor, I want you to assume that Mr. Lilley is afraid he is going to get cancer in his chest as a result of his exposure to asbestos.
Do you have an opinion to a reasonable degree of medical certainty as to whether there is a reasonable medical basis for such fear on behalf of Mr. Lilley?
A. Yes.

N.T. 4/17/89 (Vol. 2) at 41. While this question may not have been phrased precisely as Fibreboard would have preferred, it did not lead Dr. Altschuler to actually testify on any ultimate issue more properly left to the jury. Dr. Altschuler’s subsequent testimony neither usurped any jury function nor crossed into the area of psychological speculation. The ensuing testimony simply explained, in epidemiological terms, the nature and quality of the increased cancer risks borne by asbestosis sufferers in general and specifically by a person with Mr. Lilley’s type of symptoms. Id. at 41-46. Dr. Altschuler offered no testimony regarding Mr. Lilley’s psychological profile nor the general psychological characteristics of asbestosis patients.

Appellant also objects to this testimony as beyond the range of Dr. Altschuler’s expertise. We agree with appellees that this contention is frivolous. Dr. Altschuler established that he is a board certified specialist in internal medicine and pulmonary disease responsible for teaching medical students about lung diseases, and that he had taken courses in epidemiology. Id. at 6-13. We have carefully reviewed the entirety of Dr. Altschuler’s testimony regarding Mr. Lilley’s physical condition and statistical studies regarding cancer risks for a person in his position. Id. at 5-71. We find no indication that this testimony as transcribed went beyond the expertise of a specialist in lung disease who had taken special courses in epidemiology. Finding no error of law or abuse of discretion in the trial court’s evidentiary ruling, we affirm on this issue.

The final question raised by appellant is whether the lower court committed an error of law in awarding delay damages to appellees. The thrust of this contention is that Pa.R.C.P. No. 238, 42 Pa.C.S.A. unfairly and unconstitutionally punishes Fibreboard for exercising its right to due process. Appellant’s objections are twofold: (1) any award of delay damages is unconstitutional without a finding that the defendant is at fault for the delay; and (2) delay damages are inapplicable to that portion of the jury’s award attributable to Mr. Lilley’s future injuries. Neither contention has merit.

As an initial matter, it appears that appellant’s constitutionality claim has been waived because the record certified on appeal does not indicate that Fibreboard has raised this issue with the lower court or given written notice of its challenge to the Court Administrator of Pennsylvania as required by Pa.R.A.P., Rules 521 and 522, 42 Pa.C.S.A. See Jistarri v. Fentress, 390 Pa.Super. 209, 216, 568 A.2d 618, 622 (1989), allocatur denied, 525 Pa. 634, 635, 578 A.2d 929 (1990). See also Havelka v. Sheraskey, 295 Pa.Super. 326, 441 A.2d 1255 (1982) (challenge to previous formulation of Rule 238 was waived on appeal where issue was not raised before trial court and no notification was given to court administrator). Were we to consider these claims on their merits, however, we note that in Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 568 A.2d 1272 (1990), a panel of this court rejected both of the theories promulgated by Fibreboard. The majority in Dietrich affirmed the lower court’s grant of delay damages for future injuries holding that Rule 238 is neither unconstitutional absent a finding of fault on the part of the defendant nor inapplicable to future injuries. Moreover, as Dietrich also states, it would be inappropriate for this court to find a rule promulgated by our supreme court to be constitutionally infirm. Id., 390 Pa.Superior Ct. at 490, 568 A.2d at 1279-80. Any such determination must emanate from the Pennsylvania Supreme Court itself. Id. See Novelli v. Johns-Manville Corp., 395 Pa.Super. 144, 149 n. 6, 576 A.2d 1085, 1088 n. 6 (1990) (endorsing majority ruling in Dietrich).

Recently, in Schrock v. Albert Einstein Medical Center et al., 527 Pa. 191, 589 A.2d 1103 (1991), the Pennsylvania Supreme Court had occasion to consider the current formulation of Rule 238. The court found that the medical center had waived its claim regarding the constitutionality of that rule. However, speaking for the majority, Justice Larsen specifically stated that revised Rule 238 was drafted in compliance with the spirit of Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986). Schrock, supra, 527 Pa. at-n. 1, 589 A.2d at 1104-05 n. 1. Further, the court explicitly rejected the medical center’s contention that no delay damages can be awarded where a defendant is free from fault in the delay of trial. Id., 527 Pa. at-, 589 A.2d at 1106. As Justice Larsen explained, “Defendants can readily protect themselves from the assessment of delay damages by making a prompt settlement offer in writing that bears a substantial relationship to the actual damages in the case.” Id., 527 Pa. at -, 589 A.2d at 1106. At a minimum, we believe these pronouncements must be interpreted as indications that our supreme court views revised Rule 238 as constitutionally orthodox. In light of the foregoing, we can grant appellant no relief on this claim.

Finally, appellees question whether the lower court erred in failing to grant their motion for a directed verdict on Fibreboard’s cross-claims against co-defendant corporations Garlock, Inc. and Eagle-Picher Industries. Appellees contend that the evidence presented was insufficient to support any inference that products manufactured by these two defendants could have contributed to Mr. Lilley’s medical condition. As a result, appellees argue that the question of the liability of these corporations should, as a matter of law, never have been presented to the jury. We disagree.

A motion for a directed verdict admits as true all facts and proper inferences from testimony which tend to support the opposing party’s case, and rejects all testimony and inferences to the contrary. Morton v. Borough of Ambridge, 375 Pa. 630, 633, 101 A.2d 661, 662 (1954). Such a motion can properly be granted by a court only if the facts are clear and free from doubt. Person v. C.R. Baxter Realty Co., 340 Pa.Super. 537, 540, 490 A.2d 910, 911 (1985). On a motion for directed verdict, the trial court must consider the facts in the light most favorable to the party against whom the motion is being made. Cooke v. Travelers Insurance Co., 350 Pa.Super. 467, 471, 504 A.2d 935, 936 (1986). It is not within the province of the trial court to weigh conflicting evidence when ruling upon a motion for directed verdict as credibility is a jury question. Person v. C.R. Baxter Realty Co., supra, 340 Pa.Superior Ct. at 541 n. 2, 490 A.2d at 912 n. 2.

Considered in the light most favorable to Fibreboard, the evidence admitted at trial shows that Mr. Lilley specifically claimed to have utilized asbestic gaskets manufactured by Garlock. He also testified that he breathed dust from the asbestos containing products he used while working for Sun Ship Company. He never in any way implied that Garlock’s products failed to shed asbestos fibers while he was working with them. Insofar as the asbestos containing products manufactured by Eagle-Picher are concerned, a deposition taken from Jim Cardella and admitted into evidence at trial, explained that Mr. Cardella worked with these products in close proximity to Mr. Was-son while at Sun Ship Company. Mr. Wasson’s testimony included an averment that he worked on a daily basis in the vicinity of both Mr. Cardella and Mr. Lilley. Taken in conjunction, this testimony supports the inference that Mr. Lilley worked in close proximity to the location at which Mr. Cardella used Eagle-Picher asbestic products. Viewing the totality of this evidence in light of the above standards, we conclude that it was sufficient to take the question of liability to the jury. Thus, the lower court was correct in refusing to grant a directed verdict against Fibreboard, the non-moving party.

The judgment of the lower court is affirmed.

CIRILLO, J., files a concurring statement.

OLSZEWSKI, J., files a concurring opinion.

CIRILLO, Judge,

concurring:

Although I concur in the result reached by the majority in affirming the orders of the trial court, I write separately to once again express my disagreement with the assessment of Rule 238 delay damages against a defendant to whom fault for the delay in payment may not be attributed. See Pa.R.C.P. 238.

Revised Rule 238 permits delay damages to be assessed against a defendant if the verdict ultimately awarded to the plaintiff exceeds 125 percent of the amount offered in settlement to the plaintiff by the defendant. Pa.R.C.P. 238(b).

Rule 238 was created with the goal of fostering early settlements so as to “alleviate delay in the disposition of cases, thereby lessening congestion in the courts.” Lau denberger v. Port Authority of Allegheny County, 496 Pa. 52, 59, 436 A.2d 147, 151 (1981). Thus, the Rule is intended to encourage “reasonable written settlement offer[s] in a timely fashion.” Id.

While this is indeed a laudable goal, there exists a fatal flaw in this process. The application of Rule 238 results in penalizing defendants merely for exercising their right to due process of the law. See Dietrich et al. v. J.I. Case Co. et al., 390 Pa.Super. 475, 568 A.2d 1272 (1990) (Cirillo, P.J., concurring and dissenting); Schrock v. Albert Einstein Medical Center, 386 Pa.Super. 215, 562 A.2d 875 (1989) (Cirillo, P.J., dissenting), alloc, granted, 525 Pa. 619, 577 A.2d 891 (1990); Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1988) (en banc) (Cirillo, P.J., dissenting); see also Tindal v. Southeastern Pennsylvania Transportation Authority, 385 Pa.Super. 94, 560 A.2d 183 (1989) (en banc) (Cirillo, P.J., concurring and dissenting); Snelsire v. Moxon, 384 Pa.Super. 85, 557 A.2d 785 (1989) (en banc) (Cirillo, P.J. concurring); King v. Southeastern Pennsylvania Transportation Authority, 383 Pa.Super. 420, 557 A.2d 11 (1989) (en banc) (Cirillo, P.J., dissenting); Miller v. Wise Business Forms, Inc., 381 Pa.Super. 236, 553 A.2d 443 (1989) (en banc) (Cirillo, P.J., dissenting).

The Supreme Court of Pennsylvania has held that the assessment of Rule 238 delay damages is constitutional. See Laudenberger v. Port Auth. of Allegheny Co., 496 Pa. 52, 436 A.2d 147 (1981). However, since Laudenberger the rule has undergone much criticism and has not escaped unscathed. See, e.g., Craig v. MaGee Mem. Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986).

In Craig, the Supreme Court recognized that the system of assessing delay damages created by operation of Rule 238 could not pass constitutional muster. Justice McDermott, writing for the majority, recognized that:

“[E]xperience shows that the ends sought [by Rule 238] run too tight a gauntlet through Due Process, by denial of a forum to assess fault for the delay sought to be avoided. In short, Rule 238 has become an uncontesta ble presumption that all fault lies with a defendant. There are too many reasons why such is not always the case____”

Craig, 512 Pa. at 65, 515 A.2d at 1353.

Concerned with this “uncontestable presumption of fault” our Supreme Court suspended operation of the provisions of Rule 238 which assessed delay damages against a defendant without regard for fault. Id. The court further directed that all claims for delay damages must thereafter be made by petition to the judge who presided over the trial or by a panel of arbitrators, depending upon the route taken by the parties in resolving the dispute. Id.

Following the court’s holding in Craig, the Civil Procedure Rules Committee revised Rule 238 to exclude damages for the period of time:

(1) after which the defendant has made a written offer of
(i) settlement in a specified sum with prompt cash payment to the plaintiff, or
(ii) a structured settlement underwritten by a financially responsible entity,
and continued that offer in effect for at least ninety days or until commencement of trial, whichever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of either the specified sum or the actual cost of the structured settlement plus any cash cost to the plaintiff; or
(2) during which the plaintiff caused the delay of the trial.

Pa.R.C.P. 238(b).

Thus, the revised Rule 238 requires that the trial judge make a determination of entitlement to and amount of delay damages, taking into account (1) whether the requisite offer of settlement has been made and (2) whether the plaintiff was responsible for the specified periods of time during which the trial was delayed. Pa.R.C.P. 238, Explanatory Comment-1988.

However, revised Rule 238 has not completely alleviated the presumption of fault against the defendant. Damages may still be assessed against the defendant for that period of time which is not attributable to the plaintiff even though such delay is not directly attributable to the actions of the defendant. It is axiomatic that assessing liability without fault is contrary to the mandate of the due process clause of the United States Constitution and penalizes one for seeking out his constitutionally guaranteed right to a trial.

For this reason, I respectfully concur.

OLSZEWSKI, Judge,

concurring.

I agree with the majority’s ruling affirming each of the trial court’s orders. I write separately to further address appellant’s contention that the trial court’s failure to instruct the jury on a de minimis contact — relating to the law of substantial contributing factor — requires a new trial.

Under the circumstances of this case, as the majority explains, the trial court’s refusal to give appellant’s requested charge was not an error of law which could have been responsible for the verdict. Therefore, appellant’s motion for a new trial was properly denied. Smith v. Brooks, 394 Pa.Super. 327, 575 A.2d 926 (1990). Nevertheless, to remain faithful to the law of substantial contributing factor and to ensure that juries understand exactly what it involves, in future cases, where a defendant manufacturer presents evidence that a plaintiff’s exposure to its product was so minimal that it could not have caused or could not have combined with other defective products to have caused that plaintiff’s injuries, I am prepared to hold that a de minimis instruction, if requested, should be given.

As the majority opinion points out, for liability to attach in a products liability action, a plaintiff must establish that his or her injuries were caused by a particular product of a defendant manufacturer. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 190-91, 544 A.2d 50, 52 (1988). To prove that a particular product caused a harmful result, it must be shown that the defendant manufacturer’s defective product was a substantial factor in producing plaintiff’s injuries. Sheehan v. Cincinnati Shaper Co., 382 Pa.Super. 579, 555 A.2d 1352 (1989), appeal denied, 523 Pa. 633, 564 A.2d 1261. If the defective product is not a substantial factor in producing plaintiff’s injuries, then that product is not the legal or proximate cause of those injuries and liability will not lie. Cf. Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970).

Relying on the above principles, appellant requested that the jury be charged as follows:

If you are not satisfied, more probably than not, the plaintiff had nothing more than a purely incidental contact with the asbestos product of a particular defendant, then the absence of a warning on the defendant’s product could not have been a substantial factor in bringing about plaintiff’s injury, and hence that defendant could not be liable to that plaintiff.

(R. 132a.) Appellant was not entitled to have this instruction given since it misstates the law. Minimal, or incidental, contact is a substantial contributing factor in causing a harmful result if that contact produced or substantially contributed to producing such a result. Consequently, proving that exposure to a particular defendant’s product may have been minimal does not necessarily lead to the conclusion that it could not have been a substantial contributing factor to plaintiff’s injuries.

A defective product substantially contributes to a plaintiff’s injuries if it is sufficient to cause them or when combined with other contributing factors is sufficient to cause them, even though each alone would have been insufficient. A defendant will not be permitted to avoid responsibility for the injurious consequences of its defective product merely because a defective product of another would have independently caused the same result. The law on this type of substantial contributing factor is aptly set out in the Pennsylvania Suggested Standard Jury Instructions:

When negligent conduct of two or more persons contributes concurrently to an occurrence or incident, each of these persons is fully responsible for the harm suffered by the plaintiff regardless of the relative extent to which each contributed to the harm. A cause is concurrent if it was operative at the moment of the incident, and acted with another cause as a substantial contributive factor in bringing about the harm.

Pa. SSJI Civ. 3.26 Concurring Causes (Subcommittee Draft 1978). While this section applies to the negligent conduct of two or more persons, its reasoning applies just as forcibly to the defective products of two or more manufacturers.

Conversely, if a defendant introduces competent evidence that exposure to its product was so minimal, incidental, insignificant, or insubstantial that it could not have produced or substantially contributed to having produced plaintiffs injuries, then the jury should be instructed, when a defendant so requests, that, if they are persuaded by that evidence, then such exposure constitutes a de minimis contact which cannot be considered a substantial contributing factor. Such a charge would eliminate any possible uncertainty over when exposure to a defendant’s product was so minimal that it may not be found to have been a substantial contributing factor. A de minimis instruction, along the above lines, would reconcile the law of substantial contributing factor with the law of concurrent causes.

On the issue of delay damages and the constitutionality of Rule 238, we are, of course, duty bound to follow the dictates of our Supreme Court. The Court has recently reaffirmed the validity of revised Rule 238, allowing the imposition of delay damages upon a defendant despite a lack of fault. Schrock v. Albert Einstein Medical Center et al., 527 Pa. 191, 589 A.2d 1103 (1991).

For the preceding reasons, I respectfully concur.

      . The lower court signed two separate orders on November 30, 1989. The order granting delay damages and denying the Lilleys' post-trial motions was docketed on December 12, 1989. However, the order molding the verdict and requiring Fibreboard to pay the sum of $77,076.03 was not docketed until January 2, 1990.

      . Appellant’s brief states that appellees were required to prove three elements in order to sustain their burden of proof: (1) that Mr. Lilley inhaled asbestos fibers shed by an asbestos product manufactured by Fibreboard; (2) that such exposure caused damages; and (3) that Fibreboard’s products were "defective” within the meaning of § 402A of the Restatement (Second) Torts (1979). (Appellant’s brief at 11.) Although appellant has presented complete arguments relating to appellees’ failure to demonstrate the first and second elements, no such discussion has been provided regarding element three. Arguments not fully developed on appeal are deemed waived. See, e.g., Cosner v. United Penn Bank, 358 Pa.Super. 484, 493, 517 A.2d 1337, 1342 (1986). Accordingly, we will not consider whether appellees have met their burden of proof in this particular.

      . For a general discussion of evidentiary questions in asbestos cases, see Annot., Products Liability: Necessity and Sufficiency of Identification of Defendant as Manufacturer or Seller of Product Alleged to Have Caused Injury, 51 A.L.R.3d 1344 (1973).

      . The defense presented no expert testimony to refute this opinion.

      . Appellant cites the legal maxim res inter alia acta [sic] to support its contention that the testimony should be deemed inadmissible. However, we do not consider syntactically incorrect Latin incantations to be an appropriate shorthand substitute for authentic legal reasoning.

      . We are cognizant of appellant’s contention that Dr. Altschuler’s testimony went beyond the scope of a pre-trial report submitted to defense counsel on June 9, 1988. However, we are unable to address the merits of this argument because the evidence in question has not been made part of the record certified on appeal. An appellate court can only consider the certified record when reviewing a case. Barner v. Barner, 364 Pa.Super. 1, 9, 527 A.2d 122, 126 (1987). It makes no difference that the reproduced record submitted by appellant contains a purported copy of Dr. Altschuler’s report because a reproduced record should not include documents which are not part of the certified record and we may not consider such material on appeal. Mid-Island Properties, Inc. v. Manis, 391 Pa.Super. 236, 239, 570 A.2d 1070, 1071-72 (1990). See also Dorn v. Stanhope Steel, Inc., 368 Pa.Super. 557, 563 n. 1, 534 A.2d 798, 801 n. 1 (1987), allocatur denied, 518 Pa. 656, 544 A.2d 1342 (1988) (paper may not be made a part of the record on appeal simply by reproducing it).


author: FORD ELLIOTT, Judge:

text:
    596 A.2d 216
    William W. FLICK, Appellant, v. Elisabeth Mitchell FLICK.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1990.
    Filed Aug. 28, 1991.
    Chad F. Kenney, Media, for appellant.

      Joseph T. Flatley, Upper Darby, for appellee.
    Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from an order dismissing appellant’s complaint with prejudice. Appellant alleges that the trial court erred in failing to apply 23 P.S. § 401.1(b) of the Divorce Code retroactively to the parties’ property settlement agreement. As we believe that § 401.1(b) of the Divorce Code should not be applied retroactively in this instance, we affirm the trial court.

On April 27, 1974, the parties were married and two children were born of the marriage, Sharon Lynn, born September 3, 1976, and Lauren Elizabeth, born October 11, 1979. Following the parties’ separation, on July 10, 1987, they executed a property settlement agreement which imposed an obligation upon appellant to pay $100.00 per week per child. On August 18, 1987, the trial court entered a divorce decree incorporating the terms of the property settlement agreement.

On November 17, 1989, appellant filed a complaint in equity seeking a reduction of his support obligation from $100.00 per week per child to $40.00 per week per child. Appellant supported his claim for reduction based upon a material change in his financial circumstances due to his purchase of a new home. Also, appellant contended that appellee’s expenses had decreased substantially while her income increased. In response to appellant’s complaint, appellee filed a preliminary objection alleging that the trial court lacked subject matter jurisdiction and requested that appellant’s complaint be dismissed. The trial court sustained appellee’s preliminary objection on March 5, 1990, and dismissed appellant’s complaint with prejudice. This timely appeal followed.

Appellant raises the following issues for our review:

1) Whether an agreement relating to child support and custody is subject to modification upon a showing of changed circumstances?
2) Did the parties intend for the support provisions of their agreement to be modifiable?

Essentially, appellant is arguing for the retroactive application of 23 P.S. § 401.1 to modify the instant child support agreement. Appellant supports his argument for retroactive application by stating that since the agreement provides for court ordered enforcement of its provisions, it is therefore subject to the rules of civil procedure governing support modification as applied by the court.

Although 23 P.S. § 401.1 became effective on February 12, 1988, nearly six months after the parties’ divorce decree incorporating their settlement agreement was entered, appellant is requesting this court to apply the statute retroactively for the first time. The statute provides:

§ 401.1 Effect of agreement between parties
(a) A party to an agreement regarding matters within the jurisdiction of the court under this act, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this act to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.
(b) A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.
(c) In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of existing property rights and interests between the parties, alimony, alimony pendente lite, counsel fees or expenses shall not be subject to modification by the court.

23 P.S. § 401.1. Even though we have not applied the statute retroactively previously, we have discussed the validity of support provisions in a separation agreement and whether or not they are amenable to court modification.

In our most recent case on this issue we stated:

[i]t is settled that, if a property settlement agreement containing support provisions survives as an enforceable contract, it is governed by the law of contracts. See D’Huy v. D’Huy, 390 Pa.Super. 509, 518, 568 A.2d 1289, 1293 (1990) (en banc); Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988) (en banc); McGough v. McGough, 361 Pa.Super. 391, 522 A.2d 638 (1987), allocatur denied, 515 Pa. 623, 531 A.2d 431 (1987); see also Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981). Thus, in such an instance, ‘the enforcement remedies are not those pursuant to the support laws, therefore, attachment of the person and wage attachment are not permissible.’ Dechter v. Kaskey, 379 Pa.Super. 45, 49, 549 A.2d 588, 590 (1988) (en banc) (construing Sonder v. Sonder, supra ). If a property settlement agreement is merged into a divorce decree or court order, however, the agreement ‘take[s] on all of the attributes of support Orders for purposes of modification and enforcement’ Sonder v. Sonder, supra, 378 Pa.Super. at 512, 549 A.2d at 175. Such an agreement, therefore, ‘is no longer enforceable as a contract but is subject to the full range of modification and change permitted to court Orders under section 501(e) [of the Divorce Code, 23 Pa.Stat.Ann.]. It is also subject to enforcement provisions provided by section 503, Enforcement of arrearages.’ Id., 378 Pa.Superior Ct. at 491-92, 549 A.2d at 164 (footnote omitted).
The question whether a settlement agreement should survive the divorce decree or be considered merged into the decree and subject to modification as a court order depends upon the intention of the parties. See Lipschutz v. Lipschutz, 391 Pa.Super. 537, 541-43, 571 A.2d 1046, 1049 (1990); D’Huy v. D’Huy, supra; see also Bell v. Bell, 390 Pa.Super. 526, 568 A.2d 1297 (1990) (en banc) (plurality opinion); Sonder v. Sonder, supra. And, of course, the intention of the parties generally is determined by examining the terms of the agreement itself. See, e.g., Lipschutz v. Lipschutz, supra; McGough v. McGough, supra.

Ballestrino v. Ballestrino, 400 Pa.Super. 237, 243, 583 A.2d 474, 476 (1990). Instantly, the parties’ divorce decree explicitly incorporates but does not merge their property settlement agreement into the decree. Also, our review of the agreement reveals a comprehensive and exhaustive settlement of the parties economic rights including the settlement of all matters relating to the past, present and future support of their two children. Specifically, the agreement states:

2. EFFECT OF DIVORCE DECREE. The parties agree that unless otherwise specifically provided herein, this Agreement shall continue in full force and effect after such time as a final decree in divorce may be entered with respect to the parties.
3. AGREEMENT TO BE INCORPORATED IN DIVORCE DECREE. The parties agree that the terms of this Agreement shall be incorporated but not merged into any divorce decree which may be entered with respect to them. The parties further agree that the Court of Common Pleas which may enter such Divorce Decree shall retain continuing jurisdiction over the parties and the subject matter of the Agreement for the purpose of enforcement of any of the provisions thereof.

Property Settlement Agreement, 7/10/87 at 3. In regard to the support of the parties’ two children, the agreement provides:

14. SUPPORT
(a) Husband recognizes that he has a legal obligation of support imposed or incurred, because of the marital or family relationship. In discharge of this obligation, Husband agrees to pay to Wife for the use, benefit, support and maintenance of the children, the sum of Two Hundred Dollars ($200.00) per week, to be allocated One Hundred Dollars ($100.00) per child each week. Said payment shall continue until such child reaches the age of emancipation.
15. EMANCIPATION OF CHILDREN. For purposes of this Agreement “emancipation” shall be defined as having occurred upon the earliest to happen of any of the following:
(a) The child is graduating from high school, reaching age nineteen (19) years or completion of undergraduate college within five (5) years of the date of graduation from high school, whichever occurs last;
(b) The child’s marriage;
(c) The child’s having a permanent residence away from the permanent residence of Wife, provided, however, that a child’s residence at boarding school, camp, or college is not to be deemed a residence away from the permanent residence of Wife, unless the child’s permanent residence when not attending boarding school, camp, or college is not with Wife;
(d) Entry into the armed forces of the United States.
16. SCHOOL AND COLLEGE EXPENSES OF CHILDREN. Husband agrees to be solely responsible for the reasonable cost of schooling and undergraduate college education, then feasible under the circumstances, for the children including but not limited to the following: tuition, room, board, books, supplies, fees, reasonable transportation. Husband’s liability for schooling shall be the difference between the aforementioned and any monies received by way of scholarships and/or loans. The choice of school shall be mutually agreed upon by the parties and the children.
17. HEALTH INSURANCE — CHILDREN. Husband shall provide Blue Cross, Blue Shield, Major Medical or equivalent medical/health coverage for the benefit of the children for so long as he is obligated to contribute to their support pursuant to the provisions of this Agreement. Husband agrees to be solely responsible for any non-covered or extraordinary medical and/or dental expenses for the children.

Id. at 9-11. Finally, the agreement provides for enforcement of the support obligation and for modification of its terms.

26. ENFORCEMENT OF SUPPORT PROVISIONS. The parties hereby agree that all of the support provisions contained in this Agreement (including both direct and indirect contributions to support) may be enforceable by an action in support in accordance with Pennsylvania Rule of Civil Procedure 1910.1 et seq.
27. WAIVER OF MODIFICATION TO BE IN WRITING. No modification or waiver of any of the terms hereof shall be valid unless in writing and signed by both parties and no waiver of any breach hereof or default hereunder shall be deemed a waiver of any subsequent default of the same or similar nature.

Id. at 17-18.

Based upon our exhaustive review of the agreement, we believe that the terms of the parties’ agreement clearly establishes that said agreement does not merge into their divorce decree, but remains a valid, binding contract detailing the settlement of their financial affairs, particularly those involving the support of their two children. See Ballestrino v. Ballestrino, supra. Having concluded that the parties’ agreement is a viable independent contract, we must now decide if 23 P.S. § 401.1(b), which allows a provision of an agreement regarding child support to be modified by the court upon a showing of changed circumstances, to be applied retroactively.

A presumption exists in this Commonwealth that “[n]o statute shall construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S.A. § 1926. In fact, in the absence of clear language to the contrary, statutes must be construed to operate prospectively only. Gehris v. Department of Transportation, 471 Pa. 210, 369 A.2d 1271 (1977). “A retroactive law has been defined as one which relates back to and gives a previous transaction a legal effect different from that which it had under the law in effect when it transpired.” Department of Labor and Industry, Bureau of Employment Security v. Pennsylvania Engineering Corporation, 54 Pa.Cmwlth. 376, 380, 421 A.2d 521, 523 (1980). Also, “a law is given retroactive effect when it is used to impose new legal burdens on a past transaction or occurrence.” Id. Recently, in DeMatteis v. DeMatteis, 399 Pa.Super. 421, 434, 582 A.2d 666, 672 (1990), we stated that:

[w]here no vested right or contractual obligation is involved, an act or regulation is not impermissibly construed retroactively when applied to a condition existing on its effective date, even though the condition results from events which occurred prior to that date. Creighan v. City of Pittsburgh, 389 Pa. 569, 132 A.2d 867 (1957). Amendatory statutes are not to be construed as retroactive unless such a construction is so clear as to preclude all question as to the intention of the legislature, and such rule of statutory construction is particularly applicable when the legislation in question interferes with existing contractual obligations or antecedent rights. Rupert v. Policemen’s Relief and Pension Fund, 387 Pa. 627, 129 A.2d 487 (1957).

Application of the above principles clearly establishes that if we applied 23 P.S. § 401.1(b) to the instant agreement, we would be doing so retroactively in that new legal burdens would be imposed upon the parties. Not only would the application of § 401.1(b) interfere with existing contractual obligations and antecedent rights, but it would usurp the purpose and utility of the parties’ agreement. As we have stated previously, the parties entered into their agreement in order to settle fully their economic affairs, including those of child support. The agreement is very specific as to its terms concerning the parties’ past, present, and future economic rights and obligations. Moreover, the contract itself provides for modification of any of its terms upon written agreement by the parties. We find the language in the recent opinion of our supreme court, Simeone v. Simeone, 525 Pa. 392, 402, 581 A.2d 162, 166 (1990), instructive on whether or not the court should interfere with such agreements, even though it was addressing prenuptial agreements when it stated:

[a] court should not ignore the parties’ expressed intent by proceeding to determine whether a prenuptial agreement was, in the court’s view, reasonable at the time of its inception or the time of divorce. These are exactly the sorts of judicial determinations that such agreements are designed to avoid.

Consequently, as neither party is alleging that the instant post-nuptial agreement does not provide for them adequately or that a full and fair disclosure of assets has been made, we will not interfere with the agreement as it exists. Nitkiewicz v. Nitkiewicz, 369 Pa.Super. 504, 535 A.2d 664 (1988).

Given that the parties have spoken in regard to their economic rights and obligations through their agreement, which has survived the entry of their divorce decree, and must be given full force and effect as a valid, binding contract, we cannot apply 23 P.S. § 401.1(b) retroactively as it is clearly violative of this Commonwealth’s principle that all statutes must be construed prospectively, absent clear language to the contrary, coupled with the axiom that we must not interfere with existing contractual obligations and antecedent rights so as to invalidate the expressed intent of the parties. 1 Pa.C.S.A. § 1926; DeMatteis v. DeMatteis, supra. Accordingly, we will not apply 23 P.S. § 401.1(b) retroactively in order to permit appellant to modify his child support obligation. Appellant’s avenue for redress is to seek modification within the terms of the parties’ agreement.

We do not find our holding today to be inconsistent with our recent holding in DeMatteis v. DeMatteis, supra. In DeMatteis appellant was seeking to reverse the trial court’s modification of its property settlement agreement by invoking 23 P.S. § 401.1(c), which prohibits the trial court, in the absence of a specific provision to the contrary, from modifying a party’s property rights and interests as well as rights to alimony, alimony pendente lite, counsel fees and expenses, even though the parties had entered into their separation agreement more than a year prior to the effective date of the statute. Upon application of 23 P.S. § 401.-1(c), the DeMatteis court held that this section of the statute is not retroactive due to the fact that it does not interfere with the existing contractual obligations or antecedent rights of the parties, but rather preserves and protects the parties’ pre-existing rights and obligations under the contract by prohibiting modification by the trial court. DeMatteis v. DeMatteis, supra. We find this case to be consistent with our holding today in that we decline to impose new burdens upon the parties to a separation agreement so as to avoid an interruption of their existing contractual rights and obligations.

Finally, appellant argues that since the agreement allows for enforcement by the trial court, it has merged with the divorce decree thereby authorizing the court to enter orders in regard to the parties rights under the agreement. Upon our examination of the terms of the agreement, we have found it to be an exhaustive disposition of the parties rights and obligations in regard to their financial affairs. Based upon our belief that the terms of the agreement fully express the parties’ intentions of the settlement of their economic affairs, we have determined that the agreement is a viable binding contract between the parties. Although it provides for court enforcement in the event of a breach of one of its provisions, it does so with the express agreement of the parties. The general enforcement provision of the agreement affords a party an opportunity to be heard in court by filing an action in equity or at law in order to redress his rights under the contract. This is consistent with the principle that parties to a separation agreement may enforce their rights by suing on the contract. See Ballestrino v. Ballestrino, supra.

However, the instant agreement also provides for an enforcement of its support provisions in accordance with Pa.R.C.P. 1910.1 et seq. Appellant argues that since this provision authorizes the court to enforce the support obligations it also permits the court to modify the support provisions as well. Although we recognize that prior case law would prohibit the trial court from enforcing the support obligations under the support laws of this Commonwealth, we need not address the validity of this particular provision of the agreement as that issue is not specifically before us for review. See Ballestrino v. Ballestrino, supra. However, given the comprehensive nature of the agreement concerning the disposition of their property rights and interests as well as future obligations, we will not emasculate the intent of the parties to be bound contractually by the terms of their agreement, in light of this single enforcement provision. Moreover, the contract itself provides for severability of any term, condition, clause, or provision of the agreement which is determined to be void or invalid in law or otherwise without effecting the validity of the agreement as a whole. If the agreement’s support enforcement provision would be found to be invalid, the remainder of the contract would remain in full force and effect as a binding contract per the terms of the agreement. Accordingly, we will not invalidate the express intent of the parties to be bound contractually by an independent agreement even though the support enforcement provision may be invalid; therefore, we will not characterize the parties’ agreement as being subject to modification by the trial court.

Based upon the foregoing, we affirm the trial court’s dismissal of appellant’s complaint in equity.

Order affirmed.

      . We recognize that the Divorce Code, 23 P.S. § 101-801, was repealed by Act of December 19, 1990, and reenacted as Part IV of the Domestic Relations Code, 1990 December 19, P.L. 1240, No. 206, § 2. See 23 Pa.C.S.A. § 3101-3707 (Purdon Supp.1991). As the arguments before this court were premised on the former statute, we believe that our holding is unaffected by the statute’s repeal and reenactment. 1 Pa.C.S.A. § 1962 (Purdon Supp.1991).
      The issue of applying 23 P.S. § 401.1(b) of the Divorce Code retroactively has also recently been addressed by another panel of this Court in Brangs v. Brangs, 407 Pa.Super. 43, 595 A.2d 115 (1991). Today’s decision and that in Brangs both reject the idea of applying § 401.1(b) retroactively to modify child support agreements entered into prior to the enactment of the present Code.

      . The trial court dismissed appellant’s complaint on the basis that it lacked subject matter jurisdiction over the separation agreement. In light of DeMatteis v, DeMatteis, supra, and 23 P.S. § 301 of the Divorce Code, we find that the trial court had jurisdiction to hear the instant matter. However, given our holding today, the trial court was correct in refusing to modify the terms of appellant’s support obligation and on that basis we affirm. See McKenna v. Mooney, 388 Pa.Super. 298, 565 A.2d 495 (1989) (we may affirm the trial court on a basis other than that used by the trial court as long as the result is correct).