author: POPOVICH, Judge:

text:
    681 A.2d 201
    Sharon V. CHILDERS, Administratrix of the Estate of Willard E. Childers, Deceased v. POWER LINE EQUIPMENT RENTALS, INC., a Corporation; Kenneth W. Joseph, T/D/B/A Sunrise Equipment and Supply Company and Sunrise Equipment and Supply Company; Ohio Edison, a Corporation; General Motors Corporation; Pitman Manufacturing Company; A.B. Chance Company, a Corporation; and Emerson Electric Company, a Corporation; Dana Corporation; Sandra L. Simpson T/D/B/A E & S Service & Repair and E & S Service and Repair v. The HOWARD P. FOLEY COMPANY, INC. Appeal of PITMAN MANUFACTURING COMPANY; A.B. Chance Company, a Corporation; and Emerson Electric Company, a Corporation.
    Superior Court of Pennsylvania.
    Argued May 1, 1996.
    Filed July 24, 1996.

      Robert S. Grigsby, Pittsburgh, for appellants.
    Francis J. Carey, Pittsburgh, for Sharon V. Childers, appellee.
    Paul J. Malak, Pittsburgh, for Power Line Equipment, appellee.
    Kenneth S. Robb, McKeesport, for Kenneth W. Joseph, appellee.
    Joseph M. Ramirez, Pittsburgh, for General Motors, etc., appellees.
    Before POPOVICH, EAKIN and HESTER, JJ.
   POPOVICH, Judge:

Willard E. Childers was crushed to death while standing at the operator’s station of a Pitman Polecat digger-derrick truck. While Mr. Childers was operating the truck from behind, the truck jerked forward, then rolled back crushing him between the truck and a flatbed trailer. In subsequent death actions, the administratrix of his estate proceeded upon a theory of strict products liability contending that the digger-derrick truck had been defectively designed, manufactured, assembled and sold by the defendants. Defendants denied these allegations. The case was submitted to a jury which returned a verdict of $1.1 million in favor of Mr. Childers’ estate. Subsequent to the jury’s verdict, the trial court molded the verdict in favor of Mr. Childers’ estate and all other defendants, and against Pitman Manufacturing Company, A.B. Chance Company and Emerson Electric Company (appellants). Appellants’ timely filed post-trial motions were denied by the trial court and this appeal followed.

On appeal, appellants contend that a new trial is warranted for the following reasons: 1) The trial court improperly refused to admit evidence on the issue of causation as it related to decedent’s conduct; 2) The trial court improperly limited the testimony of John Frank, appellants’ expert witness; 3) The trial court improperly limited appellants’ cross-examination of Jo Ellis Davidson and Professor John W. Wiss, plaintiffs expert witnesses; 4) The trial court improperly granted General Motor Corporation’s (General Motors) motion for a directed verdict; 5) The trial court improperly denied Emerson Electric Company’s motion for a directed verdict. In the alternative, appellants argue that if a new trial is not warranted, this Court must determine that the trial court erred in refusing to submit to the jury the issue of contribution as it related to appellees Sunrise Equipment and Supply Company and Power Line Equipment Rentals, Inc. We affirm.

[At the outset of our analysis, we note that] [o]ur standard of review of the trial court’s denial of a new trial is to decide whether the trial court committed an error of law which controlled the outcome of the case or constituted an abuse of discretion. The appellants] bear a heavy burden in persuading this Court that such an error occurred. In considering all of the evidence in the light most favorable to app.ellee[s] we must, to reverse the trial court, conclude that the verdict would be changed if another trial were granted. [Moreover], when the basis of the request for a new trial is the lower court’s ruling[s] on evidence, to constitute reversible error, such ruling[s] must be shown not only to have been erroneous but harmful to the parties] complaining. Evidentiary ruling[s] which did not affect the verdict will not provide a basis for disturbing the jury’s judgment.

Dougherty v. Edward J. Meloney, Inc., 443 Pa.Super. 201, 661 A.2d 375, 387 (1995) (citations omitted).

Appellants’ first contention is that the trial court erred in refusing to admit evidence on the issue of causation as it related to decedent’s conduct. The law is clear that in order to recover in a strict products liability action decedent’s estate had to demonstrate that there was a defect in the truck and that the defect caused the accident. Dietrich v. J.I. Case Company, 390 Pa.Super. 475, 568 A.2d 1272 (1990). During trial, appellants repeatedly attempted to introduce evidence that Mr. Childers’ method of operating the truck, and not the design or manufacture of the truck, was the proximate cause of the accident. Appellants argued that the decedent’s failure to take the truck out of reverse, his failure to apply the parking brakes, his failure to chock the wheels and his act of parking the truck perpendicular to the flatbed trailer were relevant to show misuse or that his conduct was the cause of the accident. Because the administratrix was proceeding solely on the theory of strict products liability, the trial court concluded that such evidence was only relevant in showing contributory negligence, and, therefore, excluded it. Appellants contend that this was error. We disagree.

Throughout the development of strict products liability, our supreme court has been adamant that negligence concepts have no place in a strict liability action. Kimco Development v. Michael D’s Carpet, 536 Pa. 1, 637 A.2d 603 (1993); McCown v. International Harvester Company, 463 Pa. 13, 342 A.2d 381 (1975). In Kimco, our supreme court specifically addressed the issue of whether comparative negligence should constitute a defense to a strict products liability action. The court unequivocally held that it would not extend negligence concepts, and particularly the defense of comparative negligence, into the area of strict products liability. Kim-co, supra. The supreme court stated the following reasons for declining to extend negligence concepts to the area of strict products liability:

Our position is not based solely on the problem of the conceptual confusion that would ensue should negligence and strict liability concepts be commingled, although that concern is not negligible. Rather, we think that the underlying purpose of strict product liability is undermined by introducing negligence concepts into it. Strict product liability is premised on the concept of enterprise liability for casting a defective product into the stream of commerce.
The deterrent effect of imposing strict product liability standards would be weakened were we to allow actions based upon it to be defeated, or recoveries reduced by negligence concepts.

Kimco, 637 A.2d at 606-607.

In Smith v. Weissenfels, Inc., 441 Pa.Super. 328, 657 A.2d 949 (1995), this Court applied the rules enunciated in Kimco to a strict products liability claim. There, we specifically held that “[w]here a defendant is found liable to a plaintiff under principles of strict liability, the comparative negligence of the plaintiff is irrelevant and may not be used to reduce the responsibility of a strictly liable defendant for the entire damage award.” Smith, 657 A.2d at 953 (citations omitted).

While appellants acknowledge that evidence of a plaintiffs contributory negligence is ordinarily inadmissible in a strict products liability proceeding, they argue that it is admissible when, as is alleged here, the evidence is used to rebut the “causation prong” of a products liability claim. As appellants correctly argue, our supreme court has never held that evidence of a plaintiffs conduct is irrelevant or inadmissible in a strict products liability action for every purpose. Rather, our supreme court has permitted defendants to introduce evidence that a plaintiff voluntarily assumed the risk or misused a product in a strict products liability action. Moreover, this Court has held that defendants may introduce evidence that a plaintiff engaged in highly reckless conduct to defeat a strict products liability claim. Under these limited theories, the appellate courts of this Commonwealth have held that an inquiry as to a plaintiffs use of a product is relevant as it relates to causation. However, after a careful review of the record, we find that in this case there is insufficient evidence to show that decedent voluntarily assumed the risk of the truck’s defects, that he misused the truck, or that he engaged in highly reckless conduct. Rather, we find that the evidence which appellants wished to introduce tended to show that decedent was careless in his use of the truck, and, therefore, the evidence was properly excluded.

In Robinson v. B.F. Goodrich Tire Company, 444 Pa.Super. 640, 664 A.2d 616 (1995), we acknowledged the supreme court’s holding in Kimco and held that a plaintiff cannot be precluded from recovery in a strict products liability case because of his own negligence. However, we further held the following:

Voluntary assumption of the risk ... is an affirmative defense in a Lstrict] products liability case. Before the theory may be submitted to a jury, the defendant must produce evidence that the plaintiff fully understood the specific risk, and yet voluntarily chose to encounter it. Voluntary assumption of the risk involves a subjective awareness of the risk inherent in an activity and a willingness to accept it. A plaintiff has voluntarily assumed the risk where he fully understands it and voluntarily chooses to encounter it. A plaintiffs knowledge and understanding of the risk may be shown by circumstantial evidence.
It has been said that assumption of the risk and contributory negligence may sometimes overlap because certain conduct may exhibit the elements of both. In general, however, the concepts are distinguishable. Contributory negligence connotes carelessness; assumption of the risk connotes venturousness in voluntarily incurring a risk the nature and extent of which are fully appreciated. Assumption of risk involves the meeting of a subjectively known risk; whereas, contributory negligence may involve a plaintiff exposing himself to a danger of which he was subjectively unaware but which would have been apparent had he used due care.

Robinson, 664 A.2d at 618 (citations omitted).

In this case, the evidence proffered by appellants does not show that the decedent was subjectively aware of a specific defect in the truck. Appellants contend that decedent should have been aware of the danger at issue because he failed to apply the parking brakes, failed to chock the wheels, failed to take the truck out of reverse and parked the truck perpendicular to the flatbed trailer. Even if appellants are correct in these assertions, however, they have alleged only that decedent was guilty of contributory negligence. These allegations do not demonstrate that decedent knowingly and voluntarily assumed the risk of a specific defect in the truck. See Robinson, supra (holding that plaintiffs failure to utilize available safety measures, without more, was insufficient to demonstrate a voluntary assumption of a known risk). Accordingly, appellants’ contention must fail on this basis.

Next, we must address whether decedent’s alleged conduct constituted misuse of the truck. In order to demonstrate that decedent misused the truck, it was necessary for appellants to show that the use employed by decedent was either unforeseeable or outrageous. Brandimarti v. Caterpillar Tractor Company, 364 Pa.Super. 26, 527 A.2d 134 (1987). Based on the evidence proffered by appellants, we cannot conclude that decedent’s alleged conduct and use of the truck were either unforeseeable or outrageous.

Finally, we must address whether decedent’s alleged conduct was highly reckless. In order to demonstrate that decedent’s actions were highly reckless, it was necessary for appellants to show that decedent knew or had reason to know of facts which created a high degree of risk of physical harm to himself or that he deliberately proceeded to act, or failed to act, in conscious disregard of that risk. Brandimarti, supra. “[EJvidence that a plaintiff acted in a highly reckless fashion is akin to evidence that plaintiff misused a product____ The issue of causation is raised when the plaintiffs action is so reckless that the plaintiff would have been injured despite the curing of any alleged defect, or is so extraordinary and unforeseeable as to constitute a superseding cause.” Dillinger v. Caterpillar, Inc., 959 F.2d 430, 441 (3rd Cir.1992). See Burch v. Sears, Roebuck and Company, 320 Pa.Super. 444, 467 A.2d 615 (1983).

Here, there was no evidence that decedent knew or had reason to know of facts which created a high degree of risk of physical harm to himself or another, nor can it reasonably be maintained that decedent’s alleged conduct was “extraordinary and unforeseeable.” Rather, the evidence tended to show that decedent was careless in his use of the truck, and, therefore, contributorily negligent. Our conclusion in this regard is supported by the manner in which appellants have framed this issue on appeal. As discussed previously, appellants argue that decedent failed to apply the parking brakes, failed to chock the wheels, failed to take the truck out of reverse and parked the truck perpendicular to the flatbed trailer. The evidence demonstrates that decedent exposed himself to a danger of which he was subjectively unaware but which would have been apparent had he used due care. The evidence does not demonstrate that decedent’s actions were so reckless that he would have been killed even if the truck’s defects were cured. Accordingly, the trial court did not err in refusing to permit appellants to introduce evidence of decedent’s alleged negligence to rebut causation.

Appellants’ next contention is that the trial court improperly limited the testimony of appellants’ expert witness, John Frank. Specifically, appellants contend that the trial court should have permitted Mr. Frank to testify that in his opinion at the time of Mr. Childers’ death (1) there was a malfunction in the truck’s transmission, (2) that the rear operator’s station was “safe” and (3) there was a risk presented by the inadequate parking brake prior to the installation of the utility body.

At the outset, we note that “the admission of expert testimony is a matter left largely to the discretion of the trial court, and its rulings thereon will not be reversed absent an abuse of discretion [or an error of law].” Commonwealth v. Brown, 408 Pa.Super. 246, 596 A.2d 840, 842 (1991) (citation omitted). Moreover, expert testimony should be admitted when it can assist and enlighten the jury in understanding areas requiring special expertise. Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981).

In regard to appellants’ first contention, at trial, one of the appellants’ theories of causation was that the truck’s transmission malfunctioned resulting in the truck “jumping into” decedent. To prove this theory, appellants proffered the expert testimony of John Frank who was willing to testify that in his opinion the truck’s transmission malfunctioned, that the malfunction of the transmission was evidence of a defect and that this malfunction/defect caused the accident. The trial court refused to allow this testimony because it concluded that the expert’s testimony would be speculative, and, therefore, his opinion as to whether the transmission malfunctioned could not be rendered with the requisite degree of professional certainty. The court’s decision was based on the fact that the expert had failed to disassemble or examine the transmission at issue, and that the expert was unable to do more than describe the possibility of numerous causes for the alleged malfunction.

Our supreme court has held that “[n]o matter how skilled or experienced the witness may be, he will not be permitted to guess or to state a judgment based on mere conjecture.” Collins v. Hand, 431 Pa. 378, 246 A.2d 398, 404 (1968). “When a party must prove causation through expert testimony, the expert must testify with ‘reasonable certainty’ that ‘in his professional opinion,’ the result in question did come from the cause alleged.” Cohen v. Albert Einstein Medical Center, 405 Pa.Super. 392, 592 A.2d 720, 723 (1991) (citations omitted). “An expert fails this standard of certainty if he testifies that the alleged cause ‘possibly,’ or ‘could have’ led to the result, that it ‘could very properly account’ for the result, or even that it was ‘very highly probable’ that it caused the result.” Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349, 1356 (1979) (citations omitted). “This issue is not merely one of semantics. There is a logical reason for the rule. The opinion of an expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion.” Cohen, 592 A.2d at 723 (citation omitted). “[I]t is the intent of our law that if ... the expert cannot form an opinion with sufficient certainty so as to make a [professional] judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to make a legal judgment.” McMahon v. Young, 442 Pa. 484, 276 A.2d 534, 535 (1971).

As discussed previously, the trial court would not permit the expert to opine as to whether the transmission malfunctioned in this case. Counsel proffered that there were seven or eight possible explanations for the alleged malfunction of the transmission. The court reasoned that if it permitted the expert to opine that the transmission malfunctioned, based on the possibility that one of eight explanations may have accounted for the alleged malfunction, the expert’s opinion would not have been given with a reasonable degree of professional certainty. We agree. While it is clear that an expert’s opinion need not be based on an absolute certainty, an opinion based on mere possibilities is not competent evidence. Niggel v. Sears, Roebuck and Co., 219 Pa.Super. 353, 281 A.2d 718 (1971). Accordingly, the trial court did not err in excluding Mr. Frank’s opinion that the transmission malfunctioned at the time of the accident.

Appellants next argue that Mr. Frank should have been permitted to testify that in his opinion the rear operator’s station was “safe,” and, therefore, not the cause of Mr. Childers’ death. The trial court indicated that it would not allow Mr. Frank to testify that the operator’s station was “safe” because this was an ultimate issue for the jury to decide. We find no abuse of discretion in the trial court’s ruling.

An expert’s opinion as it relates to the cause of an injury comes dangerously close to improper testimonial opinion on the ultimate facts of causation. Kozak v. Struth, 515 Pa. 554, 531 A.2d 420 (1987).

Such expert testimony must be carefully scrutinized because issues of ultimate fact, ... are for the jury, not the expert. In Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978) (en banc), [this Court] approved the principles set out in Fed.R.Evid. 704, which allows a witness to testify to the ultimate issue to be decided by the trier of fact. The Lewis opinion involved a lay witness. Subsequent Superior Court panels have extended the holding to expert testimony. See e.g., Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc., 344 Pa.Super. 218, 496 A.2d 762 (1985). [This Court’s] rule, allowing a witness to testify to the ultimate issue, is limited to those instances where the admission will not confuse, mislead, or prejudice the jury.

Kozak, 531 A.2d at 424 (citations omitted). In establishing the aforementioned rales, we have also determined that “the trial court [will] not be reversed in ruling upon the admissibility of testimony to the ultimate issue in the case unless the trial court clearly abused its discretion and actual prejudice occurred.” Swartz v. General Electric Company, 327 Pa.Super. 58, 474 A.2d 1172, 1178 (1984) (citation omitted).

Here, appellants-contend that they were prejudiced by the trial court’s ruling preventing their expert from testifying that the operator’s station was “safe.” Specifically, they contend that without the expert’s opinion that the operator’s station was “safe” they were unable to rebut appellee’s claim that the rear operator’s station was defective. We disagree. The record clearly reflects that during direct examination, Mr. Frank expressly testified, without objection, that in his opinion the operator’s station was not defective. He further testified that the operator’s station was in a good, efficient location. Therefore, appellants were not prevented from rebutting appellee’s claim that the rear operator’s station was defective. As appellants have alleged no other prejudice, we find that the trial court did not abuse its discretion.

Appellants next argue that Mr. Frank should have been permitted to rebut appellee’s expert’s testimony regarding the risk presented by the track’s parking brake. The trial court precluded Mr. Frank’s testimony on this particular subject because his opinion would have been outside his pretrial report and would have been based on speculation and conjeeture. We find that the trial court did not abuse its discretion. Moreover, we note that appellants have failed to allege that they were prejudiced by the trial court’s ruling. See Dougherty, supra (appellants have the burden of showing that an evidentiary ruling was in error and prejudicial).

Appellants’ next contention is that the trial court improperly limited their cross-examination of Jo Ellis Davidson and Professor John W. Wiss, appellee’s expert witnesses. We find that appellants have waived this issue on appeal.

Appellants have failed to cite any authority in either the Summary of Argument or Argument portion of their brief to support the claim that the trial court improperly limited their cross-examination of Mr. Davidson and Professor Wiss. Pennsylvania Rule of Appellate Procedure 2119(a) specifically requires that issues identified on appeal must be supported by pertinent authority. We have held that issues identified on appeal but unsupported by citation to proper authorities are deemed to have been abandoned. Dougherty, supra. “Since appellants] failed to refer to any authority in support of their contention that the trial court erred, the claim is waived.” Dougherty, 661 A.2d at 388 (citation omitted).

We note that even if appellants’ claim was not waived, it would be meritless. As noted above, appellants have the burden of showing that an evidentiary ruling was in error and prejudicial. Dougherty, supra. While appellants have alleged that it was error for the trial court to preclude the cross-examination of Mr. Davidson and Professor Wiss concerning the “reverse-bleed” theory, they have failed to indicate in what specific way the cross-examination of these experts concerning the “reverse-bleed” theory was critical to their case or would have affected the outcome at trial. The only allegation of prejudice which can be gleaned from appellants’ appellate brief regarding this issue is that because of the trial court’s limitation on their cross-examination of Mr. Davidson, they allegedly were not given the opportunity to impeach his credibility. However, a careful review of the record reveals that appellants did in fact extensively impeach Mr. Davidson’s credibility. While appellants were not permitted expressly to question Mr. Davidson in depth about his “reverse-bleed” theory of causation, they were permitted to inquire as to whether he had changed his theories of causation during trial and the reasons for any alleged changes. Accordingly, we fail to see how appellants were prejudiced by the trial court’s evidentiary rulings regarding the cross-examination of Mr. Davidson and Professor Wiss.

Appellants next argue that the trial court erred in entering a directed verdict in favor of General Motors. Again, appellants have failed to cite any pertinent authority supporting their contention. Accordingly, this issue is deemed waived on appeal. Dougherty, supra.

Appellants next contention is that the trial court improperly denied Emerson Electric Company’s (Emerson) motion for a directed verdict. Specifically, appellants contend that Emerson’s motion for a directed verdict should have been granted because it did not manufacture or sell the digger-derrick truck at issue and successor liability was not proven at trial. We disagree.

Our standard of review when considering a motion for a directed verdict is well-settled. We may reverse the trial court’s denial of a directed verdict only if we find an abuse of discretion or an error of law which controlled the outcome of the case. Walker v. Grand Central Sanitation, Inc., 430 Pa.Super. 236, 634 A.2d 237 (1993). ‘We must also consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to [Mr. Childers’ estate], the verdict winner.” Id., 634 A.2d at 240 (citation omitted). Viewed in this light, the evidence regarding this issue can be summarized as follows: In 1951, Mr. Ray Pitman formed Pitman Manufacturing Company (Pitman) which manufactured cranes and hydraulic truck units, an earlier version of the digger-derrick truck. In 1961, A.B. Chance purchased a majority of Pitman’s stock and eventually purchased Pit-man’s entire assets. A.B. Chance continued to use the Pitman name and manufactured the same products. The digger-derrick truck at issue in this case was manufactured and sold by the Pitman division of A.B. Chance in 1970.

In May of 1975, A.B. Chance sold its assets, including the Pitman division, to Emerson. As a result of this deal, A.B. Chance became a wholly owned subsidiary of Emerson and Pitman remained a division of A.B. Chance. Emerson continued to use the Pitman name and manufactured the same products, including the digger-derrick truck. Mr. Stephen Paul Frauen, an Emerson representative, testified that Pit-man was known in the industry as a “major manufacturer,” and that Emerson maintained the Pitman name and Pitman’s product identification because of customer recognition. He also indicated that throughout his employment with Emerson he filled accessory orders for the digger-derrick truck. In 1983, Emerson’s Pitman division was sold to a Canadian company, and, therefore, Emerson ceased the manufacture of the digger-derrick truck.

“The general rule is that when one company sells or transfers all of its assets to a successor company, the successor does not acquire the liabilities of the transferor corporation merely because of its succession to the transferor’s assets.” Dawejko v. Jorgensen Steel Company, 290 Pa.Super. 15,434 A.2d 106, 107 (1981) (citations omitted).

However, the general rule does not apply and liability attaches to the successor when one of the following is shown: 1) The purchaser expressly or impliedly agrees to assume such obligation; 2) The transaction amounts to a consolidation or merger; 3) The purchasing corporation is merely a continuation of the selling corporation; 4) The transaction is fraudulently entered into to escape liability; 5) The transfer was not made for adequate consideration and provisions were not made for the creditors of the transferor; and, 6) The successor undertakes to conduct the same manufacturing operation of the transferor’s product lines in essentially an unchanged manner. The successor is then strictly liable for injuries caused by defects in the product line, even if previously manufactured and distributed by the transferor. [This has been labeled the “product-line” exception.]

Simmers v. American Cyanamid Corporation, 394 Pa.Super. 464, 576 A.2d 376, 386 (1990) (citations omitted).

The trial court held that Emerson was subject to strict liability for the alleged defects in the digger-derrick truck at issue under the “product-line” exception, and, therefore, denied its motion for a directed verdict. We agree with the trial court that Emerson was subject to successor liability under the “product-line” exception. Here, the evidence established that Emerson purchased all of A.B. Chance’s assets, including the Pitman division, continued to manufacture and sell the digger-derrick truck under the name of its predecessor (Pitman) and enjoyed the good will of its predecessor’s (Pitman’s) reputation. Under the “product-line” exception, this Court has held that where one corporation acquires all of the manufacturing assets of another corporation and undertakes essentially the same manufacturing operation as the selling corporation, as was the case here, the purchasing corporation is strictly liable for injuries caused by defects in units of the same product line, even if previously manufactured and distributed by the selling corporation or its predecessor. Dawejko, supra. Accordingly, the trial court did not err in denying Emerson’s motion for a directed verdict.

Appellants’ final contention is that the trial court erred in refusing to submit the issue of contribution to the jury. Appellants contend that Sunrise Equipment and Supply Company (Sunrise) and Power Line Equipment Rentals, Inc. (Power Line) negligently failed to install back-up alarms after the digger-derrick truck was sold by appellants. Appellants argue that because they filed an Amended Answer with New Matter they were entitled to have the jury consider the issue of contribution. We disagree.

Under the Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S.A. §§ 8321-27, there is a right to contribution among joint tortfeasors. Joint tortfeasors are defined as “two or more persons jointly or severally liable in tort for the same injury to persons or property....” 42 Pa.C.S.A. § 8322. “Under the Act, joint tortfeasors are entitled to contribution if they have paid more than their pro rata share of this common liability. Contribution is obtainable even if the two defendants are held liable upon different theories of recovery.” Mattia v. Sears, Roebuck & Company, 366 Pa.Super. 504, 531 A.2d 789, 791 (1987) (citations omitted). Therefore, the fact that appellants in this case were held liable based upon strict liability does not preclude contribution from negligent third parties. See Mattia, supra.

The right of contribution may be asserted during the original proceeding via joinder of third-party defendants or it may be pursued in a separate action brought by a tortfeasor who has previously been held liable to the original plaintiff. Mattia, supra.

[However,] [w]hether the third-party defendants [are] brought into the original action or later sued in a separate proceeding, a complaint based upon contribution must conform to the applicable Rules of Civil Procedure. In the complaint, the original defendant must plead sufficient facts to sustain a cause of action against the new defendant. They may not rely on bald assertions but must plead the material facts necessary to establish their claim. At trial, [defendants] are not entitled to insist on a jury instruction on any claim which has not been ... pleaded [properly].

Mattia, 581 A.2d at 792 (citations omitted).

Here, appellants’ Amended Answer with New Matter contains insufficient facts to hold appellees Sunrise and Power Line liable in negligence. Appellants have not alluded to any factual basis for a claim that Sunrise and Power Line were negligent. In fact, in this case, appellants have not even averred that Sunrise and Power Line were negligent. In their Amended Answer with New Matter, appellants stated the following:

29. If any of the allegations averred by plaintiff in her complaint or Amended Complaint which pertain to the other defendants herein are, in fact, proven at time of trial, these defendants, Pitman, Chance and Emerson, are entitled to and claim contribution and/or indemnity from such other defendants jointly or severally and for this purpose assert this New Matter pursuant to Pa.R.Civ.P. 2252(d) in the nature of a cross-claim.
30. If, in fact, the death of plaintiffs decedent was caused by any act of any other defendant herein, then, to that extent, these defendants, Pitman, Chance, and Emerson, file the within New Matter in the nature of a cross-claim to preserve their right to indemnity and/or contribution, jointly or severally against said parties.

As is evident from the face of appellants’ Amended Answer with New Matter, appellants did not expressly incorporate by reference the averments of negligence against Sunrise and Power Line made by plaintiff in her complaint. Rather, appellants simply stated that if plaintiff successfully proved negligence, they reserved their right to contribution. As discussed previously, prior to trial, plaintiff withdrew the negligence claims and proceeded to trial solely on the basis of strict liability. There is no question that plaintiff failed to prove that Sunrise and Power Line were negligent. Accordingly, because appellants failed to set forth sufficient facts for a claim of negligence, the trial court did not err in refusing to submit the issue of contribution to the jury.

For all of the foregoing reasons, the trial court’s judgment is affirmed.

Affirmed. Application for relief granted.

      . Defendants for whom the verdict was molded in their favor included Power Line Equipment, Inc., Kenneth W. Joseph, t/d/b/a Sunrise Equipment and Supply Company, General Motors Corporation, Dana Corporation, Sandra L. Simpson, t/d/b/a E & S Service & Repair, and The Howard P. Foley Company, Inc.

      . We note that the procedural history of this case is rather lengthy and complicated. Mr. Childers’ estate (plaintiff) instituted this action by Praecipe of Writ of Summons in the Court of Common Pleas of Allegheny County in May of 1984. At approximately the same time, plaintiff also brought an action in the United States District Court for the Western District of Pennsylvania which included all of the parties to the state court action. Subsequently, plaintiff elected to proceed in federal court, and trial by jury commenced in May of 1987. The jury returned a verdict in favor of all defendants and against plaintiff. Plaintiff appealed to the United States Court of Appeals for the Third Circuit. The Third Circuit affirmed the lower court in part, reversed the lower court in part and remanded for a new trial. See Childers v. Power Line Equipment Rentals, 842 F.2d 689 (3d Cir.1988). Thereafter, plaintiff elected to proceed in the state court action pending in the Court of Common Pleas of Allegheny County. Trial by jury commenced in the lower court on March 4, 1991, and concluded on May 31, 1991. Timely post-trial motions were filed on June 10, 1991. These motions were denied by the lower court on March 20, 1995. In lieu of an opinion, the lower court filed a statement on November 8, 1995. Appellants filed a timely appeal to this Court on April 11, 1995.

      . We note that the trial court indicated that another reason it excluded Mr. Frank’s opinion was the fact that he never disassembled or examined the transmission at issue. We find that this failure alone would not necessarily mandate the exclusion of the expert’s opinion. If the opinion of an expert is based upon an adequate factual foundation, it is neither speculative nor conjecture, but a legitimate inference. Albig v. Municipal Authority of Westmoreland County, 348 Pa.Super. 505, 502 A.2d 658 (1985). Accordingly, if the expert was able to opine with a reasonable degree of professional certainty that the transmission malfunctioned, and that this malfunction was caused by established facts and circumstances known or observed by him from which he could reasonably infer that the transmission malfunctioned, then his opinion would not be excluded merely because he failed to disassemble the transmission. See Albig, supra (holding that mere fact expert did not examine the subsurface earth under plaintiff’s home was not sufficient for excluding expert's testimony where his conclusion was drawn from established facts and circumstances).

      . During pre-trial proceedings, decedent's estate contended that General Motor's gear selector was defective because it failed to incorporate a lockout device which would prevent inadvertent shifting from neutral to reverse. The parties referred to this as the “reverse-bleed” theory. Prior to trial, decedent's estate narrowed its focus, withdrew its negligence claim and withdrew its "reverse-bleed” theory claim.

      . Assuming arguendo that this issue was not waived on appeal, we would find it to be meritless. As previously discussed, the law is clear that in order to recover in a strict products liability action plaintiff must prove that the product in question was defective and that the defect caused the injuries at issue. Dietrich, supra. Moreover, the plaintiff must demonstrate that the injury-causing defect existed at the time the product left the control of the defendant. Id. Here, on appeal, appellants, the parties opposing the directed verdict in favor of General Motors, were required to show that evidence introduced at trial demonstrated that the truck was defective at the time it left the control of General Motors. This they have failed to do. In its opinion, the trial court concluded that “there exists no evidence of record to suggest that the General Motors chassis at issue or any component thereof was defective." Because this finding is supported by the record, we will not reverse it on appeal. Thatcher’s Drug Store of West Goshen, Inc. v. Consolidated Supermarkets, Inc., 535 Pa. 469, 636 A.2d 156 (1994).

      . Pennsylvania Rule of Civil Procedure 2252(d) provides, in relevant part, that "If the person sought to be joined is a party the joining party shall, without moving for severance or the filing of a praecipe for a writ or a complaint, assert in his answer as new matter that such party is alone liable to the plaintiff or severally liable to the plaintiff or liable to the joining party directly setting forth the ground therefor." (emphasis added).

      . We note that in her appellate brief, appellee raised an additional argument which was neither discussed nor raised in appellants’ brief. Appellee’s additional argument was that a new trial is not warranted because appellants' witness, Stephen Frauen, admitted during trial that the digger-derrick truck's operator's station was not "safe.” In response to appellee's brief, appellants filed a reply brief. In their reply brief, appellants made two arguments. In Argument I, they denied appellee’s allegation that Mr. Frauen had admitted that the operator’s station was not "safe.” In Argument II, they essentially reargued that decedent’s conduct should have been admitted into evidence.
      In light of the fact that we have found all of appellants' arguments to be meritless, we conclude that it is unnecessary for us to address the appellee's additional argument or appellants’ response thereto in Argument I of their reply brief. As for Argument II of appellants' reply brief, we note that appellee filed an Application For Relief Pursuant to Appellate Rule 123(a) requesting that this Court strike the argument. Because Argument II of appellants’ reply brief merely reargues issues previously raised in appellants' brief, we grant appellee’s Application For Relief and strike Argument II of appellants’ reply brief. Park v. Chronister, 151 Pa.Cmwlth. 562, 617 A.2d 863 (1992). See Pa.R.A.P. 2113.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    681 A.2d 214
    Herbert M. STEWART and Sandra Cheley Co-Guardians on Behalf of Aretta Theresa Gray, a Minor and William R. Adams, Jr., Esquire Administrator on Behalf of the Estate of Vanetta Theresa Gray, a/k/a Vanetta Theresa Gray, Deceased v. James ROSSI, Individually and Philadelphia Newspapers, Inc. Appeal of William R. ADAMS, Jr., Esquire Administrator of the Estate of Vanetta Theresa Gray, Deceased and William R. Adams, Jr., Esquire as Trustee Ad Litem.
    Superior Court of Pennsylvania.
    Argued June 5, 1996.
    Filed Aug. 8, 1996.

      Carol A. Black, Philadelphia, for appellant. (Submitted)
    Kevin J. Ruane, Philadelphia, for appellees.

      Before CAVANAUGH, SAYLOR and HESTER, JJ.
   HESTER, Judge:

William R. Adams, Jr., in his capacity as administrator of the estate of Vanetta Theresa Gray, deceased, and in his capacity as trustee ad litem, appeals from the November 3, 1995 order granting summary judgment to appellees and dismissing this action. Dismissal was premised upon appellant’s failure to conduct discovery and his failure to provide the names of witnesses on the issues of liability and damages until the eve of trial. We affirm.

On June 4, 1990, Herbert M. Stewart and Sandra Cheley, in their capacities as co-guardians of Aretta Theresa Gray, decedent’s daughter, and appellant, solely in his capacity as administrator of the estate, instituted this wrongful death and survival action by writ of summons against appellees, William Rossi and Philadelphia Newspapers, Inc. After being ruled to do so, appellant filed a complaint with a changed caption, wherein appellant was designated as the sole plaintiff in both his capacity as trustee and as administrator. In the new caption, neither Mr. Stewart nor Ms. Cheley are mentioned. On November 16, 1990, the parties entered a stipulation that the caption would be changed to reflect that appellant, in his two capacities, would be the sole plaintiff. Nonetheless, in his notice of appeal, appellant uses the original caption.

Appellant’s complaint was filed on November 9, 1990, and appellees answered, raising new matter. Appellant responded to this on February 13, 1991. Appellee served interrogatories upon appellant, which were answered partially. Appellant conducted no discovery between the date the action was instituted and August 3, 1995, just prior to trial, when appellant filed a petition for extraordinary relief seeking an extension of the discovery period. In response, appellees filed two motions in limine seeking to prevent appellant from introducing evidence at trial of damages based upon appellant’s failure to provide an expert report and of liability based upon appellant’s failure to provide during discovery any information to appellees concerning how he intended to establish liability. The motions were granted, and summary judgment subsequently was entered. This appeal followed.

We have garnered the facts regarding the underlying accident from the record available to us. In his complaint, appellant alleges the following. At 2:15 a.m. on June 3, 1988, Mr. Rossi was operating a van owned by the Philadelphia Inquirer while -within the scope of his employment. He struck appellant’s decedent, killing her. Appellant alleged Mr. Rossi was negligent because he was driving at an excessive rate of speed and he failed to observe the roadway adequately.

Appellees’ version of the accident is set forth in their settlement memorandum, as follows. At 2:15 a.m. on June 3, 1988, Mr. Rossi was operating the delivery truck and approached the intersection of Market and Parsons Streets. He noticed a male punch a female on the sidewalk near Market Street. He passed the struggling couple, who disappeared from his view. Mr. Rossi was stopped by a pedestrian about one-half block from where he saw the man strike the woman and was told that he had run over the woman. The Philadelphia police determined that Mr. Rossi’s right rear wheel had struck Ms. Gray and that the van had not been in contact with the decedent before she fell under the rear wheel. An arrest warrant for criminal homicide was issued for the man who struck Ms. Gray.

Prior to deciding the merits of this appeal, we note the motions in limine at issue were granted both due to appellant’s failure to conduct discovery within the time frame for discovery imposed by local rules and also due to the trial court’s findings that appellant’s discovery violations were willful and prejudiced appellees. On appeal, appellant’s argument is that the grant of the motions, the practical effect of which was to dismiss this action, was improper under Pa.R.Civ.P. 239(f) which provides, “No civil action or proceeding shall be dismissed for failure to comply with a local rule other than one promulgated under Rule of Judicial Administration 1901.” Appellant contends that the trial court should not have precluded his evidence without conducting the four-pronged analysis required by Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986), and Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525 (1995), regarding when discovery sanctions may be imposed.

We acknowledge that this action was dismissed based upon appellant’s failure to conduct discovery within the time limits set by the local rule. However, we have reviewed the trial court’s reasons for granting the motions in limine, which include specific findings of willful discovery violations by appellant and prejudice to appellees. We conclude that these findings support dismissal under the case law regarding discovery sanctions which appellant has asked us to apply. We therefore affirm.

In so doing, we utilize the following maxim:

The order of a trial court may be affirmed on appeal if it is correct on any legal ground or theory, regardless of the reason or theory adopted by the trial court. See: In Be Benson, 419 Pa.Super. 582, 589-590, 615 A.2d 792, 795-796 (1992); Elder v. Nationwide Ins. Co., 410 Pa.Super. 290, 296, 599 A.2d 996, 999 (1991). Where a trial court has reached the correct result, its order will be sustained if it can be sustained for any reason. Turnway Corp. v. Soffer, 461 Pa. 447, 462, 336 A.2d 871, 878 (1975).

Al Hamilton Contracting Co. v. Cowder, 434 Pa.Super. 491, 644 A.2d 188, 190 (1994); see also Benee Beauty Salons, Inc. v. Blose-Venable, 438 Pa.Super. 601, 652 A.2d 1345, 1350 (1995).

Herein, the trial court granted two motions in limine which effectively precluded appellant from proving his case. These motions, as noted, were entered as discovery sanctions and ultimately led to summary judgment being entered against appellant. Since the orders in question were tantamount to dismissal, we will apply the case law applicable to when dismissal will be granted for discovery violations. Although appellant asks us to apply the case law regarding witness preclusion, we believe the cases which deal specifically with the sanction of dismissal, wherein a test more favorable to appellant is utilized, are applicable herein.

We note initially that dismissal of a complaint as a discovery sanction is authorized under Pa.R.Civ.P. 4019. Pride Contracting, Inc. v. Biehn Construction, Inc., 381 Pa.Super. 155, 553 A.2d 82 (1989); see also Lawrence v. General Medicine Ass’n, Ltd., 412 Pa.Super. 163, 602 A.2d 1360 (1992) (judgment of non pros entered against plaintiff for violation of discovery rules); Miller Oral Surgery, Inc. v. Dinello, 416 Pa.Super. 310, 611 A.2d 232 (1992) (default judgment entered against defendant for discovery violations). Furthermore, the sanction to be imposed for a discovery violation is left to the sound discretion of the trial court. Miller Oral Surgery, Inc. v. Dinello, supra. However, since dismissal is the most severe sanction, it should be imposed only in extreme circumstances, and a trial court is required to balance the equities carefully and dismiss only where the violation of the discovery rules is willful and the opposing party has been prejudiced. Pride Contracting, Inc. v. Biehn Construction, Inc., supra.

Under these cases, the following factors are to be weighed: the nature and severity of the discovery violation, the defaulting party’s willfulness or bad faith, prejudice to the opposing party, the ability to cure prejudice, and the importance of the precluded evidence in light of the failure to comply.

As noted, in the present case, the importance of the precluded evidence was crucial in establishing appellant’s case. However, the other factors to be applied all weigh heavily against appellant. Since application of the factors militate strongly in favor of the sanction of dismissal, we affirm the trial court’s exercise of its discretion.

First, as to the number and type of violations, they are simply the most egregious. In fact, to say that appellant committed discovery violations is a hyperbole. Appellant conducted no discovery. He failed to provide the name of any witnesses as to liability or damages to appellees, despite being requested to do so in two sets of interrogatories. He did not depose any witnesses. The first attempt to conduct discovery occurred in September, 1994, six years after the accident, when appellant asked to depose defendant Rossi. Even though informed that appellees would not permit the witness to be deposed, appellant did nothing for another year. Thus, the discovery violation was egregious, warranting the severe sanction of dismissal.

To determine whether bad faith on appellant’s part was established and whether appellees were prejudiced thereby, we examine the record. After the complaint and answer were filed, appellant filed a response to appellee’s new matter. This response was filed on February 13, 1991. The next docket entry is three years later, February 4, 1994, when defense counsel withdrew and new defense counsel entered his appearance. On May 27, 1994, appellant’s prior counsel withdrew his appearance and present counsel for appellant entered her appearance. Present counsel attempted to depose Mr. Rossi in September, 1994, but was informed by appellees that they would not make Mr. Rossi available due to appellant’s violation of the local time limits on conduct of discovery. Nonetheless, present counsel did nothing for one year. She did not file motions for extension of time to conduct discovery, did not ask the court for leave to depose Mr. Rossi, did not supplement the answers to the previously promulgated interrogatories, and did not secure an expert witness on liability or damages.

Two settlement conferences were scheduled in this case. At the first settlement conference on April 22, 1994, neither counsel appeared, but defense counsel had telephoned that he was ill. The master then scheduled a conference for June 26, 1995, where appellees appeared but appellant did not. Counsel for appellant telephoned the master two hours after the scheduled start of the conference and indicated that she had a scheduling conflict. On June 27, 1995, the settlement master filed a report with the court stating that according to appellees, no depositions had been taken of Mr. Rossi and no expert witness reports had been produced. The settlement master concluded that there had been no preparation of the case and recommended that it be dismissed.

On August 3, 1995, appellant finally filed a petition for extraordinary relief asking that he be permitted to depose Mr. Rossi and conduct additional discovery. Appellant’s motion for extraordinary relief was denied on October 3, 1995, on the grounds that discovery in the case had terminated on March 18, 1994, under the local rules and that to grant the request would be disruptive of the court’s calendar. More importantly, however, the order contains specific findings that the request for extraordinary relief would prejudice appellees on the eve of trial and that no compelling reason had been advanced by appellant to explain the delay in discovery.

A pretrial scheduling conference was held on September 19, 1995. At that conference, appellant identified for the first time David Bunin as his economic expert and Daniel Brown as his liability expert. Appellant further stated that he had received a report from Mr. Brown on September 17, 1995, but still had no report from Mr. Bunin. Appellant did not produce Mr. Brown’s report at that conference. At the conclusion of the conference, the case was scheduled for trial on November 6,1995.

Appellees then presented motions in limine to preclude the introduction of any reports of expert witnesses on the issues of liability and damages. The motions were granted based upon appellant’s violation of the discovery deadline applicable under the local rules but also on the fact that appellees had been prejudiced in that they had not been able to prepare a defense. Finally, the court determined that appellant’s counsel deserved the sanctions imposed because counsel had evidenced a “disdainful and contemptuous attitude” for the procedures designed to resolve the case, and this attitude underscored the pattern of “dilatory, vexatious and obdurate behavior” of counsel. Trial court opinion, 11/2/95, at 14. We also note that at the pretrial conference held November 3, 1995, appellant agreed to waive presentation of the funeral bill. . The expert report on damages is contained in the record but appellant has yet to place in the record a report indicating that the accident occurred in any manner other than the manner indicated by appellees.

In light of this record, we affirm the trial court’s finding that the discovery violation was in bad faith and willful. In appellant’s motion to allow for more discovery, he alleged that the reason he had conducted no discovery was the illness and disability of the counsel who represented appellant prior to present counsel’s assumption of the case.

The motion does not indicate the nature of prior counsel’s illness, the length of that illness, nor does it indicate why prior counsel would fail to refer a case for three years if he were too ill to handle it. Finally, in the motion, appellant fails to indicate why present counsel waited sixteen months to conduct discovery. There is no indication that she was ill or disabled. In fact, appellant is himself an attorney and should have inquired of prior counsel as to the delay. Appellant’s unsubstantiated, unspecific, and unconvincing “reason” for failing to conduct any discovery properly was rejected by the trial court. Thus, appellant’s discovery violations were found to be willful and in bad faith. '

We now examine the prejudice aspect of the test. Prejudice for purposes of discovery violation is “said to result any time there is ‘a substantial diminution of a party’s ability to properly present its case.’ ” McSloy v. Jeanes Hospital, 376 Pa.Super. 595, 546 A.2d 684, 687 (1988), quoting Metz Contracting, Inc. v. Riverwood Builders, Inc., 360 Pa.Super. 445, 451, 520 A.2d 891, 894 (1953).

Herein, the trial court found there was a substantial diminution of appellees’ ability to present its defense. We concur. Appellees promulgated two sets of interrogatories which were not answered in any meaningful manner. Appellees were not able to prepare for trial, had to wait for years for trial to be scheduled, and then were faced with a last minute request for discovery extension. At the time of the request, appellant still had no expert report on the liability phase of his case. Indeed, due to appellant’s violations, appellees had no ability to prepare their case for trial.

In fact, Dion v. Graduate Hospital, 360 Pa.Super. 416, 520 A.2d 876 (1987), is indistinguishable. There, the plaintiff failed without explanation to comply with discovery orders. Two weeks prior to trial the plaintiff submitted the report of an expert he proposed to have testify at trial. On the first day of trial, the plaintiff submitted the report of another expert. Although the preclusion of the evidence was a drastic sanction, it was upheld due to the egregious nature of the discovery violations. Also similar is Lawrence v. General Medicine Association, supra, where we upheld a judgment of non pros that was entered by the trial court as discovery sanction. There, the court determined that non pros was the appropriate sanction for a medical malpractice complainant who refused to respond to interrogatories or produce documents.

Since the trial court herein determined that the discovery violations were in bad faith and prejudiced appellees’ defense significantly, we affirm its sanction. Pride Contracting, Inc. v. Biehn Construction, Inc., supra (where plaintiff willfully violated discovery order and defendant was prejudiced, dismissal of complaint was approved); McSloy v. Jeanes Hospital, supra (same). Compare Steinfurth v. LaManna, 404 Pa.Super. 384, 590 A.2d 1286 (1991) (where there was slight, explicable delay in obtaining an expert witness report and there was no prejudice to defendants, trial court erred in dismissing action based on plaintiffs failure to forward expert witness report in exact conformity to deadlines set in discovery order).

Indeed, we note that this case could have been non prossed under the reasoning contained in Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992). In Penn Piping, our Supreme Court held that non pros will be granted for lack of docket activity for a two-year period unless the plaintiff can provide a reasonable explanation for failing to move the case forward. Furthermore, non pros will be granted under Penn Piping for lack of docket activity even if a defendant cannot demonstrate prejudice.

The record in this case reflects that a praecipe to issue a writ of summons was filed on June 4, 1990. A complaint was filed by appellant on November 9, 1990, and was answered by appellees with new matter on November 29,1990. A response to new matter was filed on February 13,1991. From this date until September 28, 1995, when a petition for extraordinary relief was requested by appellants, no meaningful activity was taken to advance the case except appellant’s woefully inadequate responses to interrogatories. In light of the above, the action of the trial court is affirmed.

Order affirmed.

      . In 1992, the Philadelphia Court of Common Pleas, in an effort to reduce the backlog of civil cases within the system initiated the day backward program. As part of that program, the court issued administrative orders which controlled discovery and motion practice in civil cases.


author: DEL SOLE, Judge:

text:
    681 A.2d 219
    COMMONWEALTH of Pennsylvania, v. Patrick Charles DUFFY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 9, 1996.
    Filed Aug. 2, 1996.

      Peter V. Marcoline, Jr., Pittsburgh, for appellant.
    Scott A. Bradley, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from an order which granted a Commonwealth motion to quash as untimely an appeal from a summary conviction. We reverse and remand this matter to the trial court.

On August 29, 1994, Appellant appeared before District Justice Boyle for a summary trial and was found guilty of public drunkenness and disorderly conduct. He was fined and ordered to serve ninety days incarceration, but the sentence was suspended and Appellant was directed to undergo court-ordered alcohol and drug counseling. The District Justice directed Appellant to appear before her on November 23, and December 16, 1994, for a review of the counseling. At the December 16th review the court determined that Appellant was “guilty of willful non-compliance of court-ordered counseling” and the ninety day sentence of incarceration was reimposed. On January 10, 1995, Appellant appealed to the Court of Common Pleas. The Commonwealth responded with a Motion to Quash. At the date scheduled for a hearing, the court entertained the Motion to Quash and argument was presented by counsel. The court thereafter granted the Commonwealth’s motion and accepted its argument that the appeal was not timely filed since it was not filed within thirty days of August 29, 1994.

Appellant maintains that the court erred in quashing the appeal because the suspended sentence of August 29, 1994 was not a final judgment of sentence. He asserts that he properly filed a timely appeal from the court’s December 16th imposition of a ninety day sentence. The Commonwealth maintains that Appellant’s conviction and sentence were entered by the district justice on August 29, 1994 and that this triggered the start of the thirty day appeal period.

While the court’s authority to impose an indefinitely suspended sentence has long been questioned by the courts of this Commonwealth, See Commonwealth v. Tessel, 347 Pa.Super. 37, 55, 500 A.2d 144 (1985) (Concurring Opinion by Tamilia, J.); Commonwealth v. Ferrier, 326 Pa.Super. 331, 473 A.2d 1375 (1984), it is important to note that this case does not involve an indefinitely suspended sentence. The district justice in this matter imposed a sentence for a stated term of ninety days and then suspended that sentence with the proviso that Appellant successfully complete certain counseling programs. Only after the court determined that Appellant did not comply with counseling did the court direct Appellant to serve a ninety day prison term. The action taken by the district justice in this case is akin to the imposition of a period of probation. “The use of the term suspended sentence, following conviction and sentence to prison (suspending confinement), is a common expression of probation and has so been construed and as such is an appealable judgment, and entitles a defendant to all due process rights.” Commonwealth v. Tessel, at 55, 500 A.2d at 153 (Concurring Opinion by Tamilia, J.) supra, (citing at Commonwealth v. Harrison, 264 Pa.Super. 62, 398 A.2d 1057 (1979)).

The Harrison case is instructive. Therein the appellant was sentenced to one and one-half to three years imprisonment for his burglary conviction. However, the court suspended the sentence on the condition that the appellant be accepted into an approved drug treatment program, that he make a bona fide effort in the programs offered by the drug treatment center and that he report regularly to a probation officer. The court directed that if any of the conditions were not met by the appellant he was to undergo imprisonment “for the term as herein before imposed.” Id. at 64, 398 A.2d at 1058. The appellant was terminated from the drug treatment program for disciplinary reasons and the court directed him to serve the original sentence imposed. The appellant then appealed. On appeal he argued that his “probation” was unlawfully revoked without a hearing and without other due process safeguards. This court found that “the lower court in effect placed appellant on probation” with its original sentencing order. Id. at 65, 398 A.2d at 1059. We then went on to hold that Appellant was entitled to certain due process safeguards which were not afforded to him prior to the revocation of the probation. The case was remanded to the trial court for a hearing in accordance with the Superior Court decision.

In this case, as in Harrison, a sentence for a set period of time was suspended by the court, conditioned upon certain requirements. When Appellant failed to satisfy these requirements the court, in effect, revoked probation and sentenced him to serve the period of incarceration. Therefore we find that there were two appealable orders in this case-the original August order, sentenced Appellant to a set term and then suspended that sentence and placed Appellant on “probation,” and the December order revoked the “probation” and sentencing Appellant to serve a term of incarceration. Appellant did not take an appeal from the first order, but did timely appeal the second. Thus, the trial court erred in quashing Appellant’s appeal from the December order.

While ordinarily on appeal of an order revoking probation, the only matter before the court would be the propriety of the revocation, in this case we cannot so limit the review. We are unable to ascertain from the state of the record when or whether Appellant was advised of his right to appeal. Pennsylvania Rule of Criminal Procedure, 83(e) provides:

At the time of sentencing, the issuing authority shall advise the defendant of the right to appeal and trial de novo, of the time within which to exercise that right, and that the defendant must appear for the de novo trial or the appeal must be dismissed.

Pa.R.Crim.P., Rule 83(e), 42. Pa.C.S.A.

In argument before the Court of Common Pleas, Appellant’s counsel advised the court that Appellant was apprised of his appellate rights at the December 16th proceeding. N.T. 8-29-95 at 8. The Commonwealth, on the other hand, stated differently and recounted that Appellant was advised of his right to appeal on August 29, 1994. Although the court was not presented with any transcript of the proceedings which occurred before the district justice, and despite the fact that no sworn witnesses testified as to what occurred during these proceedings, the court made a finding that Appellant was advised of his right to appeal back in August. There is no support for this finding from the record. In view of the fact that it is vital to advise a defendant of his appellate rights and that it is impossible to learn from the record whether Appellant was advised of his right to appeal the court’s August determination, as well as the sentence imposed in December, we cannot find that Appellant has waived all claims related to the court’s August ruling. Further, in an effort to save judicial resources we deem it wise on remand for the court to entertain any claims raised by Appellant which relate to the original finding of guilt and the imposition of the probationary sentence, as well as the court’s decision to “revoke” that probation and impose a jail term.

Accordingly, we reverse the trial court’s order quashing Appellant’s appeal from his summary conviction. We remand this matter to the trial court for full consideration of Appellant’s appeal.

POPOVICH, J., concurs in the result.