author: CAVANAUGH, Judge:

text:
    557 A.2d 421
    COMMONWEALTH of Pennsylvania, Appellee, v. Tyrone COOK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 14, 1988.
    Filed April 28, 1989.

      John Packel, Assistant Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, McEWEN and POPOVICH, JJ.
   CAVANAUGH, Judge:

This direct appeal from judgment of sentence comes before us following a jury conviction of two counts of robbery and one count of carrying firearms on public property.

On July 2,1987, appellant, Tyrone Cook, was convicted of the aforementioned charges. On July 3, 1987, boilerplate post-verdict motions were filed. Supplemental post-trial motions were filed on October 26, 1987. These motions were denied on February 3, 1988, and appellant was sentenced to an aggregate term of 12V2 to 25 years imprisonment. Privately retained counsel, Thomas W. Moore, Esquire, represented Mr. Cook from the inception of the trial through sentencing. Appellant then filed a pro se appeal. The Defender Association of Philadelphia was appointed to represent Mr. Cook on this direct appeal.

Appellant presents two claims for our review:

1. Did the trial court err in refusing to declare a mistrial and in giving supplemental instructions to a jury that had twice professed to be deadlocked, where those instructions had the effect of coercing jury members in the minority to surrender their position and join the numerical majority?
2. Was not trial counsel ineffective to the extent that he failed to properly preserve for appellate review the meritorious claims made in Question 1, supra?

After a careful review of these issues and the record, we affirm.

At the outset, appellant argues that the lower court gave an erroneous supplemental jury instruction which had the impermissible effect of coercing a minority juror into joining the majority. Following a trial which lasted less than a day and a half, the jury retired to deliberate at 12:08 P.M. on July 1, 1987. (N.T. 7/1/87, p. 45). At 3:55 P.M. on the same date, the jury sent the following note to the trial court:

“Your Honor, Judge Halbert, the jury is hopelessly deadlocked on the following two bills: Bill 1571 Robbery, the victim being Valerie Brown, and Bill 1574 Robbery, the victim Saketha Martin.”

(N.T. 7/1/87, p. 48).

The trial court then gave a supplemental jury instruction stating:

Mr. Higgins and Members of the Jury, let me instruct you again — and I know you are working hard and I appreciate the diligence that you have demonstrated — let me again charge you on the manner in which you should deliberate. Let me advise you as to the standards by which you must be guided as you deliberate. In order to return a verdict each juror must agree, your verdict must be unanimous, a majority vote is not permissible. You as jurors have a duty to consult with one another and to deliberate with a view to reaching a unanimous agreement if it can be done without violence to individual judgment. That is to say, each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with his and her fellow jurors. In the course of such deliberations a juror should not hesitate to re-examine his or her own views and to change his or her opinion if convinced that it is erroneous. But no juror should surrender his or her honest convictions as to the weight, or the effect of the evidence, or as to the guilt or innocence of the defendant, solely because of the opinion of his or her fellow jurors or for the mere purpose of returning a unanimous verdict. In deliberating on your verdict you must not be influenced by anything outside of the evidence presented in this case and the law as given by me.
Mr. Higgins and Members of the Jury, if you will retire again to continue with your deliberations. I thank you and I know that you will continue with the same diligence that you already have displayed. Thank you.

(N.T. 7/1/87, pp. 48-49).

Appellant finds no defect in this instruction. However, the jury deliberations continued until 2:00 P.M. the next day when the following note was sent to the trial court:

“July 2, 1987 — 2:00 P.M. — Your Honor, Judge Halbert, I am sorry to report that the jury is now hopelessly hung because a juror now refuses to negotiate any further.”

(N.T. 7/2/87, p. 5).

The lower court then gave further supplemental instructions, denying defense counsel’s motion for mistrial due to a hung jury. This charge encompassed the previous supplemental instructions with several additions including the following paragraph:

Again, Members of the Jury, I have no idea nor do I intend or want to know what juror that the foreman is referring to in this case. But I want to underscore that it would be a violation of your sworn duty. Again, you as jurors have a duty, a duty to consult with one another and to deliberate with a view to reaching a unanimous agreement, if it can be done without violence to individual judgment. Members of the Jury, you may retire to deliberate.

(N.T. 7/2/87, p. 7).

It is this paragraph with which Mr. Cook takes exception.

He argues, “This instruction places the obligation to re-examine positions exclusively on the minority juror, and clearly propels this minority juror to yield to the majority.” Appellant contends that such instruction is in contravention of Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971). In Spencer, our Supreme Court found it improper to instruct a jury that the minority should re-examine its position without requiring the majority to do the same. Appellant also notes, as further evidence of coercion, that the jury returned a guilty verdict IV3 hours after the instruction was given.

In reviewing this contention, we are guided by the standard recently set forth by this Court:

Where the grounds alleged as error are statements made by the trial judge in the charge to the jury, our scope of review is limited to a determination of whether the court committed a clear abuse of discretion or an error of law which controlled the outcome of the case.

Contrary to appellant’s contention, the trial court neither committed an error of law nor an abuse of discretion. In fact, the trial court did not instruct the minority juror to yield to the majority. Rather, the court merely reworded the instruction which directed all jurors to consult with one another with a view to reaching a unanimous decision without doing violence to individual judgment. Such a jury charge is legally correct This instruction is in conformity with both the American Bar Association Standards for Criminal Justice and the Pennsylvania Bar Institute Standard Jury Instruction. Our Supreme Court recognized the propriety of the ABA Standards in Spencer, saying, “We commend these Standards as guidelines for the courts to follow when juries are deadlocked.” Spencer, supra, 442 Pa. at pp. 337-338, 275 A.2d at pp. 304-305.

As we find that the lower court’s supplemental instruction was an accurate statement of the law, we perceive no abuse of discretion.

Appellant next alleges that the trial court committed error in refusing to grant a mistrial after the jury sent a second note asserting that it was deadlocked. Mr. Cook argues that given the simplicity and brevity of this case, which consisted of only 130 pages of testimony, it was error for the court to give a second supplemental charge when the jury had already deliberated for IIV2 hours. He maintains that as a result of the court’s refusal to grant a mistrial, the minority juror was worn down which had the effect of coercing a verdict. We disagree.

The trial court aptly assessed the situation in its opinion stating:

The length of time that a jury will be allowed to deliberate is within the discretion of the trial judge. Abuse of that discretion occurs only when it is evident that the ultimate verdict of the jury was the product of coericion [sic], or results from the jury being overworked or fatigued. See Commonwealth v. Gaitner, [Gartner] 475 Pa. 512, 381 A.2d 114 (1977). In the present case deliberations took place over a two-day period and totalled 11 hours, with appropriate allowances for meals and other breaks. Also, the jury was not sequestered, but was allowed to return home overnight. Therefore, this jury cannot be viewed as having been overworked or fatigued. Neither can it be said that the Court in any way coerced this jury, nor did the Court single out a particular juror and open that juror up to embarrassment or scorn form [sic] the other jurors, as defense has asserted.

(L.C.O. at pp. 4-5).

As the jury was not overworked, fatigued or coerced, we perceive no error on the part of the lower court.

Finally, appellant argues that trial counsel was ineffective for failing to properly preserve the foregoing arguments for appellate review.

In assessing claims of ineffective assistance of counsel, we are bound by the framework laid out in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Pursuant to Pierce, the reviewing court must determine that the underlying claim is of arguable merit, the particular course chosen by trial counsel had no reasonable basis designed to effectuate the client’s interest and the ineffectiveness worked to prejudice the appellant.

As we have already determined that appellant’s substantive claims are meritless, his trial counsel cannot be deemed ineffective for failing to preserve them. Commonwealth v. Silo, 509 Pa. 406, 502 A.2d 173 (1985).

Judgment of sentence affirmed.

      . Appellant readily admits that the substantive claims raised sub judice were not properly preserved for appellate review. We agree.
      Trial counsel failed to object to the supplemental jury instructions at trial. He also neglected to preserve this claim in his post-verdict motions; however, there is some question as to whether they were properly filed.
      Additionally, although trial counsel moved for a mistrial based on a deadlocked jury, he failed to include this claim in his post-verdict motions. It was, nonetheless, set forth in his supplemental post-verdict motions.
      Therefore, these substantive issues are waived. Commonwealth v. Hawthorne, 364 Pa.Super. 125, 527 A.2d 559 (1987) appeal denied, 517 Pa. 592, 535 A.2d 81 (1987); Pa.R.App.P. 302(a); Pa.R.Crim.P. 1123(a).
      However, as these claims must be analyzed in order to determine if trial counsel’s actions were tantamount to ineffectiveness, we will address them seriatim.

      . Standard 25-4A Length of deliberations; deadlocked jury
      (a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
      (i) that in order to return a verdict, each juror must agree thereto: [sic]
      (ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
      (iii) that each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with the other jurors;
      (iv) that in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change an opinion if the juror is convinced it is erroneous; and
      (v) that no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.
      (b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in paragraph (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
      (c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.

      . 7.0S (Criim) ROLE ©F JURY — DELIBERATIONS; VERDICT MUST BE UNANIMOUS
      (6) Your verdict must be unanimous. This means that in order to return a verdict each of you must agree to it. You have a duty to consult with each other and to deliberate with a view to reaching an agreement, if it can be done without doing any violence to your individual judgment Each of you must decide the case for him- or herself, but only after there has been impartial consideration with your fellow jurors. In the course of deliberations, each juror should not hesitate to re-examine his or her own views and change his or her opinion if convinced it is erroneous. However, no juror should surrender an honest conviction as to the weight or effect of the evidence solely because of the opinion of his or her fellow jurors, or for the mere purpose of returning a verdict.


source: Caselaw Access Project

author: PER CURIAM: ROWLEY, Judge,

license: Public Domain

text:
    557 A.2d 425
    Orlando A. FALCIONE, Appellant, v. CORNELL SCHOOL DISTRICT, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1988.
    Filed April 27, 1989.

      Lloyd F. Engle, Jr., Pittsburgh, for appellant.
    William F. Cercone, Jr., Pittsburgh, for appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   PER CURIAM:

This direct appeal follows the entry of judgment in favor of Defendant-Appellee, Cornell School District, hereinafter Cornell. For the reasons which follow, we vacate the judgment.

The simple factual background of this case is muddled considerably by the convoluted procedure surrounding it. The Plaintiff-Appellant, hereinafter Falcione, is employed by Cornell as a school principal and initiated the declaratory action below to settle a salary dispute with his employer. Falcione averred in his complaint that he was awarded a yearly salary increase commencing with the 1972-1973 school year, which he received for that school year. However, after the 1972-1973 school year, Falcione did not again receive the allegedly promised yearly increases until the 1986-1987 school year.

The case was submitted by the parties to the Honorable Bernard J. McGowan on November 17, 1986 as a case stated. The case was apparently reassigned to the Honorable Leonard C. Staisey who, on October 19, 1987, found the case was not properly a case stated because part of the stipulation of facts did not appear to be solidly based. Judge Staisey found the record before him in the form of a case stated was insufficient to enable him to render a judgment, and therefore, ordered the case placed on the trial list. In his opinion accompanying the order, Judge Staisey noted that Cornell failed to raise the statute of limitations as a defense. He also reviewed specific issues which were not addressed in the stipulation, but which he apparently thought were relevant to the resolution of Falcione’s claim.

Following Judge Staisey’s order, Cornell filed, without Falcione’s consent or leave of court, an amended answer and new matter raising the affirmative defense of statute of limitations as an absolute bar to Falcione’s claim. Falcione responded by filing preliminary objections averring that the amended answer and new matter should be stricken. Falcione argued the responsive pleading was filed twenty-three months late, without leave of court, after the case had been listed for trial as a case stated, and after Judge Staisey’s opinion had been filed. Falcione’s preliminary objections remained outstanding when trial commenced on November 20, 1988 before Judge McGowan. Additionally, the record reveals that these preliminary objections were never formally disposed of by Judge McGowan.

At the non-jury trial, the prior stipulation of facts which was earlier submitted to Judge Staisey was admitted into evidence. Falcione’s case consisted of the stipulation, and his own testimony as well as that of one other witness. At the close of the trial, the court invited the parties to submit briefs supporting their respective positions. Subsequently, on January 28,1988, the trial court entered an order stating that judgment was entered on behalf of Cornell. On February 5, 1988, Falcione filed post-trial motions, and on February 23, 1988, he filed amended post-trial motions. No post-verdict motions were filed by Cornell. The trial court denied all post-trial motions by order dated April 14, 1988. From that order, and the judgment entered by the trial court, Falcione appeals.

A case stated begins with the parties submitting an agreed statement of facts and requesting that the court enter a judgment based on the facts stated. Wertz v. Anderson, 352 Pa.Super. 572, 508 A.2d 1218 (1986). It is useful to promote judicial economy because there is not a dispute between the parties concerning the facts. But, an essential requirement of a case stated is that the facts are all agreed upon and do not have to be found based upon the evidence. The court must only have to pronounce judgment by applying the law to the stated facts. East Coast Properties v. The Hartford Mutual Insurance Co., 358 Pa.Super. 113, 516 A.2d 1207 (1986); Hagy v. Sharp, 117 Pa.Super. 187, 177 A. 578 (1935). However, the parties must reserve the right to appeal or that right is lost and the judgment of the court is final. Clearfield Bank & Trust Co. v. American Manufacturers Mutual Insurance Co., 344 Pa.Super. 588, 497 A.2d 247 (1985). If the parties have reserved the right to appeal, the judgment of the court may be appealed immediately; no post-verdict motions are necessary. East Coast Properties, supra; Clearfield Bank & Trust Co., supra.

The record in the instant matter reveals that when the case was first submitted to Judge Staisey as a case stated, neither party reserved the right to appeal the judgment of the court. As previously discussed, this is a prerequisite to appealing the judgment entered by the court in a case stated. Clearfield Bank & Trust Co., supra. However, because Judge Staisey refused to pronounce judgment in the case due to the inadequacy of the record, i.e. the stipulated facts, the case was placed on the trial list. Although the same stipulation of facts was offered by the parties when the case was heard by Judge McGowan, it is clear that the case ceased to be a case stated once Judge McGowan heard oral testimony. This testimony enabled Judge McGowan to determine facts which were not part of the stipulation admitted into evidence. Thus, because Faldone filed post-trial motions when Judge McGowan entered judgment, the issues now presented for our review may properly be reviewed.

Falcione first argues that the court erred by sua sponte raising and applying affirmative defenses which were not pleaded or raised by the defendant. We have carefully read the opinion of the court below where a contract between the parties was specifically found to exist. Cornell did not challenge this finding below by way of post-verdict motions, nor is it challenged here. The trial court also found, based on the evidence offered, that “[t]he parties, by their acts here, have worked a mutual recission [sic] of the. contract which this Court is powerless to change.” Trial Court Opinion, at 5. Affirmative defenses are governed by Pa.R.C.P. 1030 which provides:

All affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, assumption of the risk, consent, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading “New Matter”.[sic] A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading.

Rescission is not among the affirmative defenses specifically enumerated in Pa.R.C.P. 1030. However, the rule clearly indicates .that its listing of affirmative defenses is not exclusive. An affirmative defense is distinguished from a denial of facts which make up the plaintiffs cause of action in that a defense will require the averment of facts extrinsic to the plaintiffs claim for relief. Lewis v. Spitler, 266 Pa.Super. 201, 408 A.2d 994 (1979). Applying this principle, we hold that rescission is an affirmative defense which must be raised by the defendant under the heading new matter in its responsive pleading. Where the defendant is silent as to this defense, he cannot avail himself of its protection. Thus, if Cornell sought to avoid liability on the contract due to rescission, it had an obligation to raise this in its new matter since it is a fact which is clearly extrinsic to the plaintiffs claim for relief. We note that Cornell’s answer merely sets forth denials of the averments of Falcione’s complaint and fails to raise any affirmative defense. The conduct of the trial court in this case is similar to the conduct which was admonished in Wojciechowski v. Murray, 345 Pa.Super. 138, 497 A.2d 1342 (1985). Moreover, we note that this finding by the trial court is directly contrary to paragraph 14 of the stipulation of facts where the parties agreed that “Cornell has not taken any official action to rescind ...” the pay increase plan. For these reasons, we find the trial court erred when it granted judgment in favor of Cornell on the ground that the contract was mutually rescinded.

In a related argument, Falcione next argues that the trial court erred in finding, contrary to the stipulated facts, that he did not voice any objection to not receiving the pay increase subsequent to the 1972-1973 school year. We have reviewed the stipulation of facts accepted by the trial court. In paragraphs 12 and 16 of the stipulated facts, the parties agreed that Falcione made attempts to discuss Cornell’s non-compliance but was unsuccessful. Stipulated facts are, quite simply, a statement of facts to which the parties are in agreement. Because the parties are in agreement as to those facts contained in the stipulation, they are controlling. No further determination by the fact-finder is necessary since the parties have already agreed that those facts have occurred. Thus, “[t]he court will hold a party bound to his stipulation: concessions made in stipulations are judicial admissions, and accordingly[,] may not later in the proceeding be contradicted by the party who made them.” Tyler v. King, 344 Pa.Super. 78, 89, 496 A.2d 16, 21 (1985). We can only conclude that the trial court erred when its findings were contrary to the stipulated facts.

Falcione next argues that the court below abused its discretion when, after granting continuances to accommodate Cornell, it refused to grant Falcione’s requested continuance despite the fact that his attorney was engaged in a trial in federal court thus requiring a new attorney to try Falcione’s case with one day’s time to prepare. Although this issue was raised by Falcione in post-verdict motions, there is no evidence in the record to support his argument. Therefore, based on the record before us, we are simply unable to determine whether Judge McGowan abused his discretion in denying Falcione’s continuance.

Accordingly, for the foregoing reasons, the judgment is vacated. We direct judgment be entered for Plaintiff-Appellant Falcione in the amount of $34,041.00. The case is remanded to the trial court for the prompt calculation of prejudgment interest, which, if applicable, shall be added to the judgment. Jurisdiction is not retained.

ROWLEY, J., files a concurring statement.

ROWLEY, Judge,

concurring:

I concur in the majority’s conclusion that judgment should be entered in favor of appellant, Falcione, in the stipulated amount of $34,041.00. However, I do not join in that part of the majority’s analysis in which they conclude that the appellee, Cornell, has waived the issue of rescission. At least on the facts of this case, I do not think it was essential for Cornell to raise the issue of rescission in new matter in order to preserve it because Falcione had already introduced the issue in his complaint. Paragraph 6 of Falcione’s complaint specifically mentions rescission:

Thereafter, Defendant applied that schedule of compensation increase for the administrative staff, proportionate to the negotiated increases for the represented teachers, but subsequently failed to apply that schedule and, without any action taken to rescind or abrogate the May 1972 motion, reverted to the prior practice of giving the administrative staff, including Plaintiff, at will disproportionate increases in compensation.

Paragraph 9 of the complaint also states:

To the knowledge of Plaintiff, Defendant has not adopted any written compensation plan other than that comprised in the May 1972 motion of Defendant as set forth hereinbefore and that compensation plan of scheduled increases proportionate to the bargained for increases of the teachers has never been revoked or amended and remains in effect, though it has not been applied by Defendant as is more fully set forth hereinafter.

Cornell’s answer denied each of these paragraphs of the complaint. Therefore, in my opinion, the issue of rescission was properly raised in the pleadings, and it was not error for the trial court to address that issue.

Although in my opinion the issue of rescission was not waived, I agree with the majority that the trial court erred in entering judgment for Cornell because that determination was based on factual findings contrary to the express stipulations of the parties. The trial court’s finding of rescission rests on two facts: 1) that Cornell rescinded the contract when it failed to appropriate the necessary funds to implement the wage increases pursuant to the contract; and 2) Falcione rescinded the contract when he failed to object to Cornell’s refusal to pay him the increased salary pursuant to the contract. The parties stipulated, however, that

14. Cornell has not taken any official action to rescind or amend the May 1972 Motion (Exhibit “B”) or the plan inaugurated thereby.
******
12. Falcione made attempts to discuss Cornell’s noncompliance with the Cornell Board but was unsuccessful because the Public School Code of 1949 (citation omitted) did not require the Board to meet, discuss or negotiate with Falcione.
******
16. From and after Cornell’s adoption of the plan [] Falcione continued to perform all of his duties for Cornell in reliance upon Cornell’s promises and undertakings under said plan, and when Cornell did not comply with the plan, attempted to discuss the noncompliance but was not permitted to do so as set forth in Paragraph 12 herein-before.

Based on these stipulations by the parties, I find no basis in the record to support the trial court’s conclusions that Cornell took any action to rescind the agreement or that Falcione did not make any effort to object to Cornell when he did not receive the anticipated salary increases. Thus, I agree with the majority’s decision to enter judgment for Falcione.

      . Cornell has chosen to stand on the Opinion and Order of Judge McGowan rather than file a brief in this matter.

      . In his opinion, Judge Staisey specifically noted the fact that Cornell had not raised the statute of limitations defense in its new matter.

      . It was, of course, error for the court to have entered judgment before allowing the parties an opportunity to file post-verdict motions at the conclusion of the non-jury trial below.

      . As discussed earlier, Cornell did file, albeit untimely, an amended answer and new matter wherein the statute of limitations was raised as an affirmative defense.

      . In both the stipulated facts and his brief to this Court, Falcione explains that a provision of the Public School Code, repealed by the Legislature in 1984, did not require Cornell to respond to him. Our resolution of this issue does not involve any interpretation or construction of any section or provision of the Public School Code.

      . In their stipulation, the parties agreed that Falcione’s unpaid salary amounted to $34,041.00.


author: ROWLEY, Judge: McEWEN, Judge,

text:
    557 A.2d 730
    Gibson BUTLER, Appellant, v. FLO-RON VENDING COMPANY and Milton Friedberg and Estelle Friedberg and Lee Friedberg and Barry Friedberg, Appellees. Gibson BUTLER, Appellee, FLO-RON VENDING COMPANY and Milton Friedberg and Estelle Friedberg and Lee Friedberg and Barry Friedberg, Appellants.
    Superior Court of Pennsylvania.
    Argued May 26, 1988.
    Filed March 30, 1989.

      William A. Habib, Bala Cynwyd, for appellant in No. 3200 and appellee in No. 3252.
    Simon J. Rosen, Philadelphia, for appellees in No. 3200 and appellants in No. 3252.
    Before BROSKY, ROWLEY and McEWEN, JJ.
   ROWLEY, Judge:

These cross-appeals by all the parties are from a judgment entered on a jury verdict in favor of the plaintiff, Gibson Butler (Butler), in an action against Flo-Ron Vending Co., Inc. (Flo-Ron), Milton Friedberg, Estelle Friedberg, Lee Friedberg and Barry Friedberg, to recover compensatory and punitive damages for: (1) intentional infliction of emotional distress; (2) defamation; (3) invasion of privacy; (4) malicious prosecution; (5) malicious abuse of process; (6) injurious falsehood; and (7) false imprisonment.

The facts giving rise to this action are as follows. On April 20, 1981, it was discovered that the offices of Flo-Ron, Butler’s employer, had been burglarized. Approximately one week later, Butler received a job offer from AVM Vending Company (AVM), and gave Flo-Ron two weeks’ notice. Milton Friedberg, the owner of Flo-Ron, suspected Butler of complicity in the burglary and hired a “trouble shooter in the neighborhood” to try to recover from Butler some of the personal jewelry which had been taken during the burglary. Butler was followed by the “troubleshooter” for approximately one month and received from him numerous threats to his life and that of his girlfriend.

Milton Friedberg also asked Butler to submit to questioning by the police. While Butler was being questioned by the police, defendants Barry and Lee Friedberg, who were the sons of Milton Friedberg and employees of Flo-Ron, with the assistance of their secretary, Ann Marie Cusack McDowell (McDowell), searched the van that had been provided by Flo-Ron to Butler for use in his employment. The search was conducted by Barry Friedberg handing boxes from the van to McDowell who then inspected the contents of the boxes for “anything that looked like it didn’t belong there.” In one of the boxes, McDowell found a small gold ring which was identified by the Friedbergs as one which had been stolen from the Flo-Ron office. Butler was subsequently arrested, charged with receiving stolen property (the ring), and fired from his employment with Flo-Ron by Barry Friedberg. Following Butler’s arrest, Lee Friedberg contacted Joseph Valerio, Jr., then the Vice President of AVM Vending Company, and informed him of the criminal charge filed against Butler. As a result of Friedberg’s communication, AVM withdrew its previous offer of employment to Butler.

On June 8, 1981, approximately four days following Butler’s preliminary hearing on the criminal charges, Barry and Lee Friedberg told McDowell that they put the ring inside a box that was in Butler’s van because they felt that he was guilty of the burglary. McDowell reported this conversation to the police in September of 1981. Consequently, the charges against Butler were nol prossed in January of 1982.

Butler commenced the present action in April 1982. A jury trial resulted in a verdict in favor of Butler in the amount of $41,545 compensatory damages against all defendants, and in the amount of $10,000 and $5,000 punitive damages against Lee and Barry Friedberg, respectively. Butler filed a petition for delay damages which was denied, and all parties filed post-verdict motions requesting a new trial which were also denied. These cross-appeals from the judgment entered on the verdict followed.

In the appeal at No. 3252 Philadelphia 1987, defendants Milton, Barry, and Lee Friedberg, as well as Flo-Ron, request a new trial on liability on two related bases. First, they assert that the trial court erred in permitting Butler to introduce evidence of his character by means of his military record. Secondly, they argue that the first error was compounded when the trial court refused to permit the defendants to impeach Butler by means of a) specific bad acts collateral to the issues in the case, Le., whether he had been fired by prior employers for stealing and whether or not he had sold stolen property in the past, and b) evidence directly contradicting Butler’s assertions that he had been continuously employed. In addition, defendant Flo-Ron requests a new trial on the basis that there was insufficient evidence to establish the corporation’s liability for compensatory damages for the actions of any of the individual defendants, and on the basis that the verdict against the corporation for compensatory damages was against the weight of the evidence.

Butler, in his appeal at No. 8200 Philadelphia 1987, also argues that we should grant a new trial, but he argues that the new trial should be limited to the issue of damages. The bases of his request for a new trial limited to damages are that 1) the amount of the compensatory damages is inadequate; 2) the amount of the punitive damages is inadequate; 3) the punitive damages should have been assessed against Flo-Ron as well as Lee and Barry Fried-berg individually; 4) the trial court limited Butler’s opening argument to the jury; and 5) the trial court should have granted a mistrial or given a cautionary instruction when reference was made to a polygraph examination. Butler also argues that Pa.R.C.P. 288 regarding delay damages is applicable to the present case because the injuries to his reputation and ability to pursue employment were bodily injuries and property damage respectively.

For the reasons set forth below, we affirm the judgment.

APPEAL AT NO. 3252 PHILADELPHIA 1987

The defendants first argue that the trial court erred in permitting Butler to present evidence of his good military record because it was evidence of good character, and such evidence is inadmissible unless one’s good character has been attacked. We agree, but find the error to have been harmless.

In Greenberg v. Aetna Insurance Co., 427 Pa. 494, 235 A.2d 582 (1967), which involved a claim by an insured to recover fire loss damages payable under fire insurance policies issued to the insured, the Court remanded the case for a new trial because the jury had been improperly charged. Because the case was going to be retried, the Court also addressed the question of whether the trial court had erred in admitting evidence of the plaintiff’s military record. The Court re-stated the well-established rule that “in civil actions evidence of good character or reputation ‘is inadmissible unless directly in issue or involved in the nature of the proceedings, and even then evidence of good character is not admissible unless and until it is attacked by evidence to the contrary.’ ” Id., 427 Pa. at 498, 235 A.2d at 584. Moreover, the Court noted that for a party’s character to be an issue within the meaning of this rule, his or her “character must be of particular importance and therefore a material fact in the case.” Id. The Court concluded that Greenberg’s character was not in issue, and therefore on remand, evidence of his good military record should not be admitted.

Since its decision in Greenberg, the Supreme Court has continued to reiterate the rule regarding evidence of good character applied in Greenberg. Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 312, n. 1, 485 A.2d 374, 379, n. 1 (1984). In consideration of the continuing viability of the rule set forth in Greenberg, and in light of the failure of either the trial court or Butler to distinguish Greenberg from the present case, we find that Greenberg is applicable to the case before us.

The record certified to us in the present case does not disclose that Butler’s character was placed in issue. Furthermore, at the time that evidence of his military record was introduced, his good character had not been attacked. Therefore, it was error to permit Butler to admit evidence of his military record. However, because there was other evidence of the defendants’ liability, such as McDowell’s unimpeached and uncontradicted testimony that Lee and Barry Friedberg planted the ring in Butler’s truck, and the unofficial surveillance of Butler performed at the direction of Milton Friedberg, we find no prejudice to the defendants that warrant a new trial. Shaffer v. Torrens, 359 Pa. 187, 58 A.2d 439 (1948).

The defendants also argue that the trial court compounded its error in permitting Butler to testify concerning his military record when it refused to permit the defendants to impeach Butler by presenting 1) evidence that Butler had not been continuously employed as he had testified, and 2) evidence of specific bad acts such as his having been fired from previous jobs for stealing and his having sold stolen goods.

As to the first of these two arguments we find no merit because the defendants never offered at trial to present evidence which would contradict Butler’s testimony that he had been continuously employed, and they were not precluded from presenting such evidence. The defendants only offered to rebut Butler’s assertion that he had been continuously employed by evidence that he had been fired from previous jobs. Such evidence does not establish that Butler was not continuously employed because even if Butler had previously been fired from other jobs, he may have immediately found new work, and thereby have been continuously employed. The trial court expressly permitted the defendants to “put some witness on to say I know for a fact that he didn’t work from such a time to such a time.” Thus, we conclude that the defendants were not barred from presenting evidence that Butler was not continuously employed.

The defendants’ argument that the trial court erroneously prevented them from impeaching Butler by presenting evidence that he had been fired from previous jobs for stealing and that he had sold stolen goods is equally without merit. The defendants have cited no appellate authority to support their argument that one's good character can be impeached by evidence of specific bad acts, and in fact, the law is to the contrary.

Character can be proven by evidence of specific bad acts, by a witness’s opinion of a person’s character, or by testimony of a person’s general reputation in the community. McCormick on Evidence, 3rd Ed., § 186. Traditionally, however, the preferred method, where evidence of character is admissible, is through evidence of reputation. Id. In Pennsylvania, it is well established that with only one exception, evidence of specific bad acts may not be introduced in a civil case to impeach a witness. Berliner v. Schoenberg, 117 Pa.Super. 254, 178 A. 330 (1935).

Berliner involved execution proceedings, and the issue at trial was who had title to certain property. The appellant had attempted at trial to establish her ownership of the property by her own testimony and that of her husband. The appellee was permitted to present evidence that the husband, in an unrelated Orphans’ Court proceeding, had come into court with unclean hands. One of the reasons this evidence was admitted into evidence was to show a particular instance of misconduct from which the jury could infer that the appellant and her husband were not credible. In finding that this evidence of a collateral specific bad act should not have been admitted to impeach the husband’s credibility, the Court stated:

[W]e believe it to be equally well settled in Pennsylvania that a witness, subject to an exception hereafter referred to, may not be impeached by showing particular instances of misconduct disconnected with and collateral to the issue being tried, whether disclosed by cross-examination or extrinsic proofs.... It has long been the rule in Pennsylvania ... that a witness may not even be cross-examined as to such former acts of misconduct. (Stout v. Rassel, 2 Yeates, 334; Elliott v. Boyles, 31 Pa. 65; Commonwealth v. Williams, 209 Pa. 529, 58 A. 922; Commonwealth v. Payne, 205 Pa. 101, 54 A. 489; Marshall v. Carr, 271 Pa. 271, 114 A. 500). Perhaps the witness here should be placed in the category of a party rather than a witness for a party, but even so, his credibility may not be impeached by evidence involving collateral matters____ ‘A witness may be interrogated as to his conviction of such an offense as affects his credibility. Commonwealth v. Racco, 225 Pa. 113 [73 A. 1067, 138 Am.St.Rep. 872]. But it is not proper practice to ask him as to his guilt of some alleged crime not connected with the case on trial, and for which he was never convicted....’

Berliner, Id., 117 Pa.Super. at 260-261, 178 A. at 332. (See Carlson Mining Co. v. Titan Coal Co., 343 Pa.Super. 364, 494 A.2d 1127 (1985) for a more recent application of the prior conviction exception in a civil action.)

In the present case, the defendants sought to impeach the general credibility of Butler by evidence that he had been fired from previous jobs for theft and that he had sold stolen goods. Whether or not Butler had in fact previously been fired for theft or had sold stolen goods was collateral to the issues in the present case. There also was no suggestion that Butler had ever been convicted of theft or selling stolen goods. Therefore, the trial court properly refused to permit defendants to present evidence of alleged specific bad acts of Butler which were irrelevant to the present case and of which Butler had never been convicted.

Although the defendants argue that failure to allow rebuttal testimony constitutes reversible error, the cases relied upon by them to support this assertion are factually distinguishable from the present case. The defendants rely on Ransom v. City of Philadelphia, 129 Pa.Super. 351, 195 A. 922 (1938) and Foster v. McKeesport Hospital, 260 Pa.Super. 485, 394 A.2d 1031 (1978) to support their argument. In Ransom, the rebuttal testimony which was erroneously precluded was testimony of a witness which would have contradicted specific statements made by a prior witness. Similarly, in Foster, the court held that it was proper to allow rebuttal only if it refuted evidence which had been offered by the opposing party. In the present case, no evidence was admitted through the testimony of Butler or any other witness that Butler had never been fired for stealing previously or that Butler had never sold stolen goods. Therefore, under both Ransom and Foster, the evidence which defendants wanted to introduce showing that Butler had previously been fired for theft and that he had sold stolen goods would not have been admissible.

Finally, in this appeal, Flo-Ron alone argues that it is entitled to a new trial on the basis that the verdict against it is against the weight of the evidence. The standards for granting a request for a new trial on the basis that the verdict is against the weight of the evidence are well established.

“The grant of a new trial is within the sound discretion of the trial judge, who is present at the offering of all relevant testimony, but that discretion is not absolute; this Court will review the action of the court below and will reverse if it determines that it acted capriciously or palpably abused its discretion.” Austin v. Ridge, 435 Pa. 1, 4, 255 A.2d 123, 124, (1969) and cases there cited. “A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion: [citation omitted]. Neither should it ordinarily be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury might have found for either party.” Carroll v. City of Pittsburgh, 368 Pa. 436, 445-446, 84 A.2d 505, 509 (1951). A new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Jones v. Williams, 358 Pa. 559, 564, 58 A.2d 57; Carroll v. Pittsburgh, supra, 368 Pa. at 447, 84 A.2d 505; Brown v. McLean Trucking Co., 434 Pa. 427, 429-430, 256 A.2d 606 (1969).

Burrell v. Philadelphia Electric Company, 438 Pa. 286, 288-289, 265 A.2d 516, 517-518 (1970).

Flo-Ron argues that corporate liability must be proven, and in the present case, evidence of corporate involvement is “specious” at best. (Flo-Ron’s brief, at p. 10.) However, we cannot say that the trial court abused its discretion in denying Flo-Ron’s motion for a new trial because there was credible evidence from which the jury could have concluded that the corporation was liable for at least some of the individual defendants’ actions. The jury's verdict does not shock our sense of justice nor does it render a new trial imperative.

The conditions under which a corporation may be liable for the acts of its employees have been clearly set forth in Fitzgerald v. McCutcheon, 270 Pa.Super. 102, 106, 410 A.2d 1270, 1271 (1980), where the Court said:

A master is liable for the acts of his servant which are committed during the course of and within the scope of the servant’s employment. Lunn v. Yellow Cab Company, 403 Pa. 231, 169 A.2d 103 (1961); Potter Title and Trust Company v. Knox, 381 Pa. 202, 113 A.2d 549 (1955); Restatement (Second) of Agency § 219. This liability of the employer may extend even to intentional or criminal acts committed by the servant. Pilipovich v. Pittsburgh Coal Company, 314 Pa. 585, 172 A. 136 (1934); McMillen v. Steele, 275 Pa. 584, 119 A. 721 (1923); Restatement (Second) of Agency § 231. Whether a person acted within the scope of employment is ordinarily a question for the jury. Orr v. William J. Burns International Detective Agency, 337 Pa. 587, 12 A.2d 25 (1940); Straiton v. Rosinsky, 183 Pa.Super. 545, 133 A.2d 257 (1957).

Conduct within the scope of employment has been defined in the Restatement (Second) of Agency § 228 as:

(1) Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the servant against another, the use of the force is not unexpectable by the master. (2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

In the present case, Butler claims that the individual defendants performed a variety of objectionable acts which form the basis of the various counts sued upon in his complaint. To find the corporation liable for compensatory damages, the jury only had to find that one of the acts of one of the individual defendants was committed by an individual defendant within the scope of his employment. Included in the conduct which Butler alleges was improper is that Lee and Barry Friedberg planted in Butler’s truck a ring which allegedly had been stolen in the robbery and that they falsely reported to the police that Butler was responsible for the robbery.

The record here clearly supports the finding that the corporation was liable for the planting of the ring in the truck and the false report to the police. Barry and Lee Friedberg were supervisory employees of the corporation, and therefore it was within the nature of their employment that they should cooperate with official authorities in efforts to solve the burglary of the corporation and to provide the authorities with any information or suspicions that they might have. Likewise, it was also within the nature of their employment that they should turn over to the police any potential evidence concerning the burglary. The efforts by Lee and Barry Friedberg to assist in the investigation of the burglary occurred substantially within the time and space limits of their employment. Their efforts also were for the benefit of the corporation because if the police efforts in solving the burglary were successful, the corporation may be able to recover some restitution for the damage to its property. Although the methods used by Lee and Barry Friedberg to cooperate with the police and to “find” evidence of the burglary were improper, there was evidence from which the jury could conclude that their conduct nevertheless was within the scope of their employment.

APPEAL AT NO. 3200 PHILADELPHIA 1987

In his appeal, Butler first argues that he should be granted a new trial limited to damages because the amount of the compensatory and punitive damages is inadequate. Whether to grant a new trial because of the alleged inadequacy of the verdict is a matter within the discretion of the trial court and the trial court’s ruling will be sustained on appeal absent a finding of a clear abuse of discretion or error of law which controlled the verdict or outcome of the case. Stokan v. Turnbull, 480 Pa. 71, 389 A.2d 90 (1978); Krivijanski v. Union Railroad Co., 357 Pa.Super. 196, 515 A.2d 933 (1986).

Although Butler presented evidence which might support a higher award of compensatory damages, we cannot conclude that the trial court abused its discretion in refusing to grant a new trial where the jury returned a verdict in an amount which would compensate Butler at his claimed rate of pay for at least several years. Similarly, although Butler argues that Lee and Barry Friedberg have not been punished by the awards of punitive damages against them in the amount of $10,000 and $5,000 respectively, Butler has not alleged that the jury was improperly charged with regard to the factors to be considered in determining the amount of punitive damages, and we cannot say that the trial judge abused its discretion in not awarding a new trial on the basis of the inadequacy of the punitive damages.

Butler also complains that the corporation should have been liable for punitive damages. Butler asserts that the evidence at trial established that Lee and Barry Fried-berg were officers of Flo-Ron, and that telephone calls were placed by Lee Friedberg in which Lee Friedberg advised potential employers of Butler that Butler had been arrested for receiving stolen property. Butler also asserts that the jury found the conduct of Lee and Barry Friedberg and Flo-Ron to be outrageous. Based on these facts, Butler argues that the jury should have found the corporation to be liable for punitive damages.

Whether to award punitive damages is a question to be resolved by the jury. Dean Witter Reynolds, Inc. v. Genteel, 346 Pa.Super. 336, 499 A.2d 637 (1985). The record before us does not contain any jury instructions. Therefore the record does not show that the verdict was contrary to the instructions given to the jury, the record does not show that any objection was made to the jury instructions, and the record does not show that when the jury returned its verdict, any objection was made on the basis that the jury had failed to follow the instructions given to it. In addition, on appeal Butler has not argued that the the jury was improperly charged or that the jury failed to follow the instructions given to it. Because it is the responsibility of the appellant to ensure that the original record certified to this Court contains sufficient information for us to conduct meaningful appellate review, because on the record certified to us it appears that any objection to the jury’s decision not to award punitive damages was not timely raised, and because there is nothing in the record before us upon which we could decide whether the jury erred, in not awarding punitive damages against Flo-Ron, we hold that this issue has been waived. Thomas v. Duquesne Light Co., 376 Pa.Super. 1, 545 A.2d 289 (1988).

Butler also argues that a new trial limited to damages is necessary because the trial court unfairly limited the time for his counsel’s opening argument to the jury and because the court did not grant his request for a mistrial or curative instructions when Milton Friedberg mentioned a polygraph examination, all reference to which had been ordered, prior to trial, to be excluded. We find no merit to either of these issues.

Although the right to present an opening statement in a civil case is part of a party’s constitutional right to be represented by an attorney, and the court may not preclude counsel from making an opening statement to the jury, “there is discretion in the trial court to regulate addresses by counsel to the jury; and so long as no clear abuse of discretion appears and no right of due process has been violated, the court’s exercise of discretion will not be reversed.” Speer v. Barry, 349 Pa.Super. 365, 369, 503 A.2d 409, 411 (1985).

In the present case, the trial court advised counsel before the commencement of trial that each party would be permitted twenty minutes for opening argument. During Butler’s opening statement, three objections were made by defense counsel. The first one was sustained, but the second two were overruled. Because of the lengthy discussions concerning these objections, the time for presenting his opening statement was substantially diminished. Butler argues that this caused the jury to be unable to understand his view of the case.

Butler does not argue that the first objection was improperly sustained. Therefore, any time required to discuss the objection to it was Butler’s counsel’s fault for making an inappropriate remark. Although the second two objections to counsel’s opening statement were overruled, the trial court erred in overruling the objections because counsel’s remarks were attempts to discuss Butler’s good character prior to his character being attacked. See Greenberg, supra. However, the error in overruling these objections redounded to Butler’s benefit because information about his good character was given to the jury at the commencement of the trial. Because both of these second two objections were properly made by defense counsel, any delay caused thereby was also Butler’s counsel’s fault.

We do not find the trial court’s limit of twenty minutes for an opening statement to have been an abuse of discretion. Since Butler’s counsel’s own improper comments in the opening statement caused the objections thereto and the subsequent discussions, any diminution of the twenty minutes allotted to Butler was not the fault of the trial court but of Butler’s own counsel. Consequently, he is not entitled to relief.

Butler’s argument that the trial court should have granted his request for a mistrial or given a cautionary instruction when Milton Friedberg mentioned the polygraph examination is equally without merit. Butler’s motion in limine to suppress all testimony concerning a polygraph examination of Butler was granted. However, Milton Friedberg, in an unresponsive answer to a question, mentioned that he had asked Butler to submit to a polygraph examination.

The decision to grant or deny a motion for a mistrial lies in the discretion of the trial court. Narciso v. Mauch Chunk Township, 369 Pa. 549, 87 A.2d 233 (1952). We will disturb the trial court’s decision only where there has been a clear abuse of discretion as determined by the circumstances under which the objectionable statement was made and in consideration of the steps taken to prevent a prejudicial effect on the jury. Clark v. Hoerner, 362 Pa.Super. 588, 525 A.2d 377 (1987).

In the present case, no mention was made to the jury of the fact that Butler in fact took the polygraph examination or what the results were. The trial judge not only refused the request for a mistrial, but also declined to give a cautionary instruction to the jury because in his opinion such an instruction would only have emphasized the statement in the minds of the jurors. Based on these facts we cannot say that the trial court abused its discretion. Moreover, there has been no prejudice to Butler since the jury returned a verdict in his favor.

Finally, Butler argues that delay damages under Pa.R.C.P. 238 should have been awarded to him because his action involved personal injury and property damage. Rule 238 provides for the assessment of delay damages in certain circumstances where a plaintiff seeks “monetary relief for bodily injury, death or property damage....” Without citing any authority directly applicable or even applicable by analogy, Butler contends that his emotional distress, anguish and humiliation caused by the actions of the defendants, and the damage to his reputation, must be construed to constitute “bodily injury” within the meaning of Rule 238. He also argues that the interference with his ability to obtain employment must be perceived as “property damage” within the meaning of the Rule. We do not agree.

In Wainauskis v. Howard Johnson Co., 339 Pa.Super. 266, 488 A.2d 1117 (1985), the plaintiff sued the defendant for, inter alia, malicious prosecution because it had fired her and pressed criminal charges of theft against her of which she was acquitted. On appeal, the plaintiff argued that Rule 238 delay damages should have been added to the verdict in her favor on the claim for malicious prosecution because she had sought compensation for, among other things, past and future medical expenses, mental anguish, humiliation, and injury to her reputation. The Court held that an action for malicious prosecution does not constitute a claim for “bodily injury” under Rule 238. Therefore the refusal to award her delay damages was upheld.

In concurring with the conclusion of the majority in Wainauskis, Judge Brosky elaborated on the issue of what constitutes “bodily injury” within the meaning of Rule 238. He stated the following:

As noted by the majority, damages for malicious prosecution “may include compensation for mental anguish, humiliation, and injury to feelings.” Shelton v. Evans, 292 Pa.Super. 228, 233, 437 A.2d 18, 21 (1981). Instantly, appellant sought damages for such injuries. Certainly a broad construction of the terms “bodily injury” could encompass these types of injuries. The question, however, is whether we should construe the term so broadly. For the reasons that follow, I conclude that we should not do so.
The primary purpose of Rule 238 is to encourage pretrial settlement of civil actions for bodily injury, death or property damages in order to alleviate the judicial congestion and delay caused by these types of actions. Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981). I believe that the number of malicious prosecution actions is so small relative to the number of actions for bodily injury (of a less broadly defined type), death, or property damage that I do not believe they contribute significantly to judicial congestion and delay. Also, I believe the difficulty in computing the proper amount of compensation for the type of injuries involved instantly tends to make pre-trial settlement so difficult that it would make the encouragement of Rule 238 of little value.

Wainauskis, Id., 339 Pa.Super. at 283, 488 A.2d at 1125.

In the present case, Butler claims that he is entitled to Rule 238 delay damages because his claims for emotional injury, loss of reputation, humiliation and mental anguish constitute claims for “bodily injury” under Rule 238. We find his claim for these damages in the present case to be indistinguishable from the plaintiffs claim in Wainauskis for medical expenses, mental anguish, humiliation and injury to her reputation as a result of malicious prosecution. In both Wainauskis and the present case, the plaintiffs successfully sued their former employers for the same types of damages resulting from the employer wrongly accusing them of committing a crime and pressing unfounded criminal charges against them. We therefore conclude that, as with the plaintiffs claims in Wainauskis, Butler’s allegations in the present action do not constitute claims for “bodily injury” within the meaning of Rule 238.

We also are unpersuaded that interference with one’s right to pursue an occupation, is the type of property to which Rule 238 applies. Our research has revealed no case law expressly delineating what types of property come within the meaning of the rule. However, for the following reasons, we conclude that Rule 238 applies only to damage to tangible personal property.

We begin our analysis be echoing Judge Brosky’s comments in his concurring opinion in Wainauskis quoted above. While the right to pursue an occupation of one’s own choosing may be a right akin to a property right, see Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975), the question here is whether we should construe the term “property” in Rule 238 so broadly as to encompass not only tangible property such as automobiles or homes, but also intangible property such as the right to pursue an occupation. Just as Judge Brosky noted in Wainauskis that the number of malicious prosecution cases is quite small in comparison to the number of actions for bodily injury (as narrowly defined in Wainauskis), death, or property damage, so too are the number of claims for interference with the right to pursue an occupation of one’s own choosing small in comparison to the number of suits for bodily injury, death, or property damage (to tangible property). Also, the difficulty in computing the appropriate amount of damages in a claim for damages to intangible property would also make pre-trial settlement difficult. Therefore, the word “property” in Rule 238 should not be construed so broadly as to encompass damage to intangible property as well as damage to tangible property.

We find support for this conclusion in Contractor Utility Sales Co. v. Certain-Teed Corp., 748 F.2d 1151 (7th Cir. 1984). In Contractor Utility Sales, the plaintiff sued the defendant to recover its lost profits as a result of the defendant’s improper machinations to obtain the plaintiff’s customers. Although the plaintiff obtained a judgment in its favor, the court held that Rule 238 delay damages should not be awarded because the phrase “property damage” in Rule 238 did not include a decline in profits. The court stated, “We consider it more probable that the rule contemplates motor vehicle collisions, where ‘bodily injury, death or property damage’ are often likely to occur in the same tort litigation.” Id., at 1157.

Although Contractor Utility Sales is not directly applicable to the present case because it involved a breach of contract and fraud action rather than a tort action, the nature of the damages sought is similar, lost profits as compared with lost income. We also are inclined to agree with the conclusion that Rule 238 was intended to apply to actions involving physical bodily injury, or death, or damage to tangible property as in automobile accidents.

We also find support for our interpretation of Rule 238 in Wescoat v. Northwest Savings Association, 378 Pa.Super. 295, 548 A.2d 619 (1988) wherein the Court held that the phrase “injury to property,” in a statute meant damage to tangible property only. In Wescoat, the plaintiffs sued their mortgagee for failure to obtain a credit-life insurance policy for them, and for failure to notify them when the insurance policy was not issued. One of the issues which had to be resolved was the applicability of the Comparative Negligence Statute, 42 Pa.C.S. § 7102. This statute expressly provides that it applies to all actions for negligence resulting in “death or injury to person or property.” In finding that the statute did not apply to the facts in Wescoat, the court stated:

The statute does not apply to all actions for negligence, but only to those resulting in death or injury to person or property. Clearly, the plaintiffs suffered no injury to their person. We are also of the opinion that they suffered no damage to their property. There was no tortious episode that caused damage to their tangible property, real or personal, and we hold that such is required to bring the provision of the Act into play.

Wescoat, Id., 378 Pa.Superior Ct. at 300, 548 A.2d at 621 (Emphasis added).

Just as with the Comparative Negligence Act, it is clear that Rule 238 does not apply to all civil actions seeking monetary relief, but only to those seeking monetary relief for bodily injury, death, or property damage. Therefore, as the court in Wescoat interpreted the unembellished phrase “injury to property” to require injury to tangible property, so too we interpret the plain phrase “property damage” in Rule 238 to require injury to tangible property. Because Butler has suffered no loss to tangible property, we conclude that the trial court did not err in refusing to award delay damages under Rule 238.

Judgment affirmed.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting:

I have such admiration for the careful analysis and fine expression of conclusion provided by the author of the majority view, that I am hesitant to take a different position. However, I am so repulsed by the vile and inhuman conduct of Barry Friedberg and Lee Friedberg that I am compelled to opine that whatever the procedural deficiency in the record before us, the punitive damage awards are so inadequate that the jury must have miscomprehended its role.

The esteemed Judge Gwilym A. Price, Jr. stated for this Court:

When a jury reaches an ambiguous or improper verdict, one proper remedy is to permit them to correct the mistake or ambiguity. Moreover, when a verdict shows confusion and lack of understanding of the issues involved, a new trial may be granted.

Rusidoff v. DeBolt Transfer, Inc., 251 Pa.Super. 208, 211-212, 380 A.2d 451, 453 (1977) (citations omitted). This Court subsequently stated, in an opinion authored by the distinguished Judge Frank J. Montemuro, Jr.:

The jury’s verdict was so inconsistent with the determination of liability that we can only conclude that it was premised upon some mistake or misapprehension. Under these circumstances we find the verdict inconsistent with the determination of liability that we can only conclude that it was premised upon some mistake or misapprehension. Under these circumstances we find the verdict to be shocking and the refusal of the trial court to grant a new trial to be an abuse of discretion. Consequently, that decision must be reversed.

McIntyre v. Clark, 314 Pa.Super. 552, 558, 461 A.2d 295, 298 (1983).

While I must concede that these holdings addressed compensatory damage verdicts, there appears no reason why the same rationale should not apply when a jury has determined that the behavior of a party has been so abhorrent that punitive damages should be awarded, but then proceeds to an award of an amount which is totally inconsistent with the repugnance of the wrongful behavior and the damage wrought.

Section 908(1) of the Restatement (Second) of Torts states that punitive damages are damages “awarded against a person to punish him for his outrageous conduct”, (emphasis added). In assessing punitive damages, the trier of fact may consider the character of the tortfeasor’s act, the nature and extent of his victim’s harm, and the wealth of the tortfeasor.

Kirkbride v. Lisbon Contractors, Inc., 521 Pa. ——, ——, 555 A.2d 800, 802 (1989) (emphasis supplied).

First, it was not enough for the Friedberg brothers to enjoy the enhanced station in life, affluence, and social advantage attendant the preferred role of employer which the fates had bestowed upon them, while imposing upon Gibson Butler the rank of their employee. Instead, the brothers engaged in the perfidious undertaking of snatching from Gibson Butler the sole characteristic which they all shared equally, reputation.

Second, no more sacred right is enjoyed by a citizen than the presumption of innocence. Moreover, the entire focus of our criminal justice system is to protect the innocent or, as the proverb, become principle, proclaims: it is better that ninety-nine guilty go free than that one innocent be convicted. But neither law, nor Constitution, nor even Commandment can protect the victim of false accusation, contrived evidence, and perjured testimony.

Third, the Constitution of Pennsylvania, since the very earliest days of this Commonwealth, has focused upon the intrinsic dignity of each of its citizens, and, in doing so, equated reputation as sacred as life and liberty, for as the very first section of Article I of the current Constitution of 1874 proclaims:

Inherent Rights of Mankind
Section 1. All men are born equally free and independent, and have certain inherent an indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of purusing their own happiness, (emphasis supplied).

Though one’s property passes to others, and one’s bones become dust, one’s reputation remains. The shadow of the man himself disappears in death, but the shadow upon his reputation survives and survives to become history and to be cast upon his children and on to their issue. Thus, reputation is a unique attribute and, once stained, so irretrievably blemished that even punitive damages are inadequate recompense for the harm. Clearly, such outrageous conduct merits imposition upon the transgressors of a far more punitive sanction than the jury delivered.

Thus it is that I would grant a new trial solely upon the issue of punitive damages.

      . By stipulation of the parties, all claims asserted against Estelle Friedberg were discontinued prior to trial.

        . Despite Butler’s assertion in his brief at p. 13 that the evidence presented at trial established that Lee and Barry Friedberg were and are officers of Flo-Ron, Butler did not indicate where in the record evidence of this fact appears, and our review of the record discloses no such evidence. The only evidence presented at trial concerning the relationship of Milton, Lee, and Barry Friedberg to Flo-Ron established that Milton was the owner of Flo-Ron, and Barry and Lee were employees who had some supervisory powers.

      . Two different trial court judges were involved in this case. Judge Julian King made all pre-trial determinations and presided at trial. However, before post-verdict motions were ruled upon, Judge Sandra Mazer Moss was assigned to the case. Therefore the claims of error committed at the trial are allegations that Judge King erred, while the allegations concerning disposition of all post-trial motions are addressed to the rulings of Judge Moss.

      . Neither the original record certified to us nor the reproduced record includes the court’s instructions to the jury, any indication of which counts were submitted to the jury, and any specific conclusions of the jury. We therefore presume that all of plaintiffs claimed causes of actions were submitted to the jury.

      . Although the defendants assert with regard to this argument that Butler’s “character was put in issue” once the trial court erroneously permitted Butler to testify concerning his good military record, we find it unnecessary to decide whether or not Butler’s character in fact was put in issue, as defined in Greenberg, supra, solely as a result of evidence of his good character being improperly introduced. See Carlson Mining Co. v. Titan Coal Co., 343 Pa.Super. 364, 494 A.2d 1127 (1985).

      . Flo-Ron also purports to argue that it should be granted a new trial because the evidence was insufficient to support the verdict against it in the absence of any evidence establishing that the individual defendants were acting on behalf of the corporation. Flo-Ron has cited no authority, and we have found none, which authorizes the remedy of a new trial where the evidence is found to be insufficient. On the contrary, where the evidence is insufficient, the remedy which is granted in civil cases is a judgment notwithstanding the verdict. See e.g., Kuhler v. Harrison Construction Co., 361 Pa. 100, 62 A.2d 853 (1949); Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980); Fitzgerald v. McCutcheon, 270 Pa.Super. 102, 410 A.2d 1270 (1979). Flo-Ron has not requested on appeal a judgment n.o.v., nor did Flo-Ron file any post-trial motion for judgment n.o.v. However, even if we were to apply the appropriate scope of review of an order denying a motion for judgment n.o.v., see Fitzgerald, supra, we would find the evidence sufficient to support the verdict against Flo-Ron.

      . Inasmuch as the original record certified to us does not include the charge to the jury, we would be unable to review such a claim even if it had been made.

      . The original record certified to us does not support Butler’s assertion of facts. There is no evidence in the record which was before the jury that Lee and Barry Friedberg were officers of the corporation. There also is no evidence that the jury found the conduct of Flo-Ron to be outrageous: the record does not show whether the jury was requested to decide whether Flo-Ron’s actions were outrageous, and the return of the verdict is not included in the record certified to this court.

      . Because of our disposition of these issues on the merits, it is unnecessary to decide whether the appropriate remedy for either of these alleged errors would be a new trial limited to damages, the only relief sought by Butler.

      . We note that after this case was argued, the Supreme Court amended Rule 238 on November 7, 1988. However, the language of Rule 238 pertinent to the issues raised in this case is identical in both the former and the present rule.


author: KELLY, Judge:

text:
    557 A.2d 743
    Christina LEONARD, a Minor, by Her Mother, and Natural Guardian, Sonja Leonard MEYERS, and Sonja Leonard Meyers, in Her own Right, Appellants, v. NICHOLS HOMESHIELD, INC. and Paul Newcomer and Suzanne Newcomer and Lewis Brothers Construction Co., Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1988.
    Filed April 13, 1989.
    Reargument Denied June 26, 1989.

      Marshall A. Bernstein, Philadelphia, for appellants.
    Michael E. McGilvery, Philadelphia, for Nichols, appellee.

      Richard A. Kraemer, Philadelphia, for Newcomer, appellees.
    Albert L. Bricklin, Philadelphia, for Lewis Brothers, appellee.
    Before McEWEN, MONTEMURO and KELLY, JJ.
   KELLY, Judge:

Appellants, Christina Leonard, a minor by her mother and natural guardian, Sonja Leonard Meyers, and Sonja Leonard Meyers, in her own right, appeal the judgment entered in favor of Nichols Homeshield, Inc. For the reasons which follow we reverse and remand for a new trial.

On May 19, 1980, Mrs. Meyers and her two year old daughter Christina arrived home at approximately 5:00 p.m. Shortly thereafter, Mrs. Alice Lindsey, Mrs. Meyers’ sister, and her five year old daughter Erica entered the apartment. Soon after their arrival, Erica and Christina began playing together by a window in the living room. Mrs. Meyers and Mrs. Lindsey were engaged in conversation when Mrs. Meyers glanced over at the children and noticed Christina sitting on the window sill. Mrs. Meyers instructed Christina to move away from the window and then turned her head towards Mrs. Lindsey to respond to a question. Within seconds, Mrs. Meyers returned her attention to the children and discovered that Christina was no longer seated on the windowsill and the screen was missing. Christina was found lying unconscious on the pavement outside the apartment building.

On December 22, 1981, Mrs. Meyers instituted this product liability action against appellee, the manufacturer and seller of an alleged defective window screen. Appellants’ claims were based upon strict liability under Section 402A of the Restatement Second of Torts and upon appellee’s negligence. Appellee joined as additional defendants Paul and Suzanne Newcomer, appellants' landlord, and Lewis Brothers Construction Company, the installer of the window screen assembly involved in the accident. Appellee alleged that the additional defendants were negligent in designing, installing, and constructing the window and creating and maintaining a hazardous condition.

The matter was tried from January 6, 1986 through January 17, 1986. The case was submitted to the jury by means of a series of interrogatories, whereby the jury found the screen was not defective and appellee was not negligent. Post-trial motions were filed, argued, and denied. This timely appeal followed.

On appeal, appellants raise the following issues for our review:

I. Whether the trial judge erred in denying plaintiff’s motion in Limine to preclude Nichols’ expert, Charles Dietrich from testifying when Nichols had failed to answer expert interrogatories or file pretrial memoranda and did not supply any expert report until long after plaintiffs’ expert had testified by way of videotape deposition, and after the trial had actually commenced and further in denying a Motion for a continuance based on these facts.
II. Whether the trial judge abused his discretion in permitting the jury to be shown videotaped testing involving a screen and in allowing testimony based on that experiment when the conditions of that testing were substantially dissimilar to those present on the day of the accident.
III. Whether the verdict was clearly against the weight of the evidence and perhaps indicative of improper influence in that the admissions of the defendant and its officers and the overwhelming quantum of credible evidence demonstrated defendant’s liability.

Appellants’ Brief at 3. Upon review of the record, the briefs, and the applicable authority, we find that appellants’ second issue has merit.

Appellants contend that the trial court committed reversible error when it permitted appellee’s expert, Mr. Charles Dietrich, to testify as to certain tests he conducted and to show a videotape of that testing. Appellants assert that the circumstances under which the demonstration was conducted were not similar to those involved in the accident. Therefore, appellants argue that the videotape tests were misleading and highly prejudicial, and it was reversible error for the trial court to allow its admittance into evidence. We agree.

Questions of admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Burch v. Sears, Roebuck and Company, 320 Pa.Super. 444, 467 A.2d 615 (1983). The basic requisite for the admissibility of any evidence in a case is that it be competent and relevant. Though “relevance” has not been precisely or universally defined, the courts of this Commonwealth have repeatedly stated that evidence is admissible if, and only if, the evidence logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact. See Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983).

As a general rule, demonstrative evidence is admissible if its probative value outweighs the likelihood of improperly influencing the jury. L. Packel and A. Poulin, Pennsylvania Evidence, § 416.1 at 226 (1987); Jackson v. Spagnola, 349 Pa.Super. 471, 503 A.2d 944 (1986). As noted in House of Pasta, Inc. v. Mayo, 303 Pa.Super. 298, 449 A.2d 697 (1982); “ ‘[Prejudice’ does not mean ‘detrimental to a party’s case’ but rather ‘an undue tendency to suggest a decision on an improper basis.’ ” Id., 308 Pa.Superior Ct. at 313 n. 6, 449 A.2d at 704 n. 6. See also Jackson v. Spagnola, supra. The problem presented by the use of experiments, however, is the danger of misleading the members of the jury who may attach exaggerated significance to the test results. See generally, McCormick on Evidence § 202 (3rd Ed.1984). As a result the courts have required that the conditions be sufficiently close to those involved in the accident at issue to make the probative value of the demonstration outweigh its prejudicial effect. See Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978). See also Gladhill v. Generals Motors Corp. 743 F.2d 1049 (4th Cir.1984); Barnes v. General Motors Corp. 547 F.2d 275 (5th Cir.1977); Ramseyer v. General Motors Corp. 417 F.2d 859 (8th Cir.1969); Hopkins v. E. I. Du Pont De Nemours & Co., 199 F.2d 930 (3rd Cir.1952). This is especially important where the demonstration is a physical representation of the event. Thus, the general rule regarding corroboration by experiments is that unless some other exclusionary rule is violated, the demonstration may be admitted into evidence when the circumstances under which the experiment was performed were sufficiently similar to the event in question to throw light on a material point in controversy and to assist the jury in arriving at the truth rather than to confuse the jury or prejudice the other party. See L. Packel and A. Poulin, Pennsylvania Evidence, § 709 at 538 (1987). Cf. Commonwealth v. Davis, 381 Pa.Super. 483, 554 A.2d 104 (1989).

Appellants argue that the prejudicial effect of the tests outweighed its probative value because the testing was done under conditions so dissimilar to the accident as to make the results and the demonstrations valueless. We agree.

In the instant case, Christina Leonard was seriously injured when she fell out of a second story window. The window opening was eleven inches from the floor with a deep sill. It contained a tall screen which had been manufactored in 1977 and had been placed in the window sometime in 1979. The screen was held in place by inserting the top bar of the screen into a channel at the top of the window and then latching it at the bottom. The latching mechanism consisted of two metal tongues, one on each of the left and right sides of the screen, which tongues were intended to fit into corresponding slots in the window frame.

At trial, appellants’ theory of liability against appellee was that the screen fit improperly into the frame and allowed accidental unlatching. To support their theory of liability appellants called to testify Dr. Maurice Brull, a Professor of Engineering and Mechanics at the University of Pennsylvania. Dr. Brull’s field of expertise was structural mechanics. Dr. Brull testified that the screen and latching mechanism did not conform to an accepted standard of engineering design and that the accident was directly related to the design defects. (N.T. 1/9/86 at 527). In Dr. Brull’s opinion the latching device as designed could be opened inadvertently by a single action of such force that a child could operate it, and the length of the insertion of the tongue was improper, such that under the typical force of a child leaning against the screen, the latch would disengage and the screen would open. Dr. Brull further stated that the locking device did not have enough penetration to avoid its popping out or disengaging. (N.T. 1/9/86 at 526, 527). Finally, Dr. Brull stated that in his opinion if the screen was not designed to guard against someone coming in contact with it, resulting in its popping out, the manufacturer should have provided a warning which indicated that the screen was not a structural item and should not be used in a window that opened below waist level. (N.T. 1/9/86 at 559).

Appellee’s defense was that the screen, as designed, was safe for its intended use. In support of its defense, appellee called Mr. Charles Dietrich, an engineering consultant, to testify on its behalf. During the course of his investigation, Mr. Dietrich had a model of the window constructed which was based upon his measurements of the window in Mrs. Meyers’ former apartment. A Nichols perma-clean insect screen which was designed to fit an Anderson narroline double-hung window was placed inside the model of the window. The screen was ordered from Nichols by Mr. Dietrich some time in the latter part of 1985. Using this model, Mr. Dietrich conducted two experiments the results of which formed the basis for his opinion.

The first experiment was known as a push-out test which consisted of pushing on the screen using a calibrated force gauge which measured the amount of force needed to pop the screen out of the window. (N.T. 1/15/86 at 1084). The second experiment involved the use of an anthropomorphic dummy which was a replica of a three year old child in the fifty percentile. Mr. Dietrich placed the dummy on the duplicate window sill with its back towards the screen and then he let the dummy fall backwards into the screen. The purpose of this experiment was to demonstrate that the screen, if latched, would remain in place. Both of these experiments were videotaped and admitted into evidence over appellants’ objection.

Appellants’ objected to the admission of these experiments because they were essentially a re-enactment of the accident but were under such conditions so dissimilar to the accident as to make the results and the demonstrations valueless. Specifically, appellants asserted that the following dissimilarities demonstrated that the results were misleading and irrelevant:

1. Dietrich used a dissimilar, newer, modified and improved screen # 2846, not the one nor even the type involved in the accident (RR 696-697a, 751-752a).
2. The window frame employed in the experiment had a different and improved latching receptacle (RR 751-752a, 789-790a). This is most significant since one of the allegations of defect was the design of the latching mechanism.
3. The force applied during the Dietrich testing was at a different location than occurred in the accident. He tested the screen at the center uppermost portion of the lower half of the window screen, directly below the fully raised sash (RR 739a). Admittedly the screen would withstand varying pressure depending on where it was applied.
4. In the test, both of the latches were fully engaged (RR 790a). It is unknown whether this was the actual fact at the time of the accident, but one of the key issues in dispute at the trial was the ability of the screen latch to become partially disengaged by accident or inadvertence.

(Appellants’ Brief at 32).

The purpose of the experiments was to demonstrate how much force was necessary to disengage the latched screen from the window in addition to determining whether the screen would pop out if a three year old child accidently fell back on it. Thus, the experiments constituted a re-enactment of the accident rather than a demonstration used to illustrate the general operation of the screen. The demonstration, however, involved a newly purchased screen which may or may not have included a latching mechanism similar in design to the latching mechanism attached to the screen in Mrs. Meyers’ apartment. As a result, the experiments did not logically or reasonably prove or disprove whether the screen involved in the accident would have performed in a similar manner. In other words, the results of the experiments were not probative. Thus, the experiments were not a fair comparison in respect to any contested issue in the case. The ultimate effect, however, was that +he jury viewed a videotape which illustrated that if the \»tcmng mechanism was properly in place and the child le; ned or fell into the screen, the screen remained secure. It is, jasy to understand why the jury may have been unable to visualize appellants’ version of the incident after viewing the videotape. Indeed, the conditions were dissimilar in such fundamental and important respects as to make the results largely irrelevant, if not misleading. Thus, we conclude that it was error to admit the results of the test. We also conclude that the risks of prejudice to appellants outweighed the probative value of the evidence and the admission constituted reversible error. Accordingly, we reverse and remand for a new trial.

Judgment reversed and the matter is remanded for a new trial. Jurisdiction is relinquished.

      . On May 29, 1988, appellants filed with the Prothonotary a copy of the entry of judgment. Therefore, we treat the notice of appeal previously filed in this case as filed after the entry of judgement. Pa.R.A.P. 905(a).

      . At the close of all the evidence, additional defendants, without opposition by any party, moved for and were granted a compulsory non-suit. Under the circumstances, appellants have not preserved a basis for challenging the propriety of the granting of the motion for non-suit. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). See also Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 507 A.2d 1 (1986) (Superior Court erred in sua sponte reversing a directed verdict in favor of defendant when none of the parties challenged his dismissal on appeal).

      . The window opening was thirty-two inches wide and fifty-four inches high and the Nichols screen measured thirty-one and seven eighth inches by fifty-four and seven eighth inches. Dr. Brull believed that the latching mechanism would not fully and securely latch because of the eighth of an inch difference between the width of the window and the width of the Nichols’ screen. (N.T. 1/9/86 at 518).

      . Although appellee had intended to introduce the model into evidence, it was not admitted because it was lost during the shipment from Massachusetts to Philadelphia. As a result the Court, opposing counsel, and the jury were unable to view the actual model used in conducting the experiments.

      . In connection with the push-out test, Mr. Dietrich also tested children ages two through four to determine the amount of force those children could exert. This particular experiment was necessary to explain the significance of the results from the push-out test.

      . Both the trial court and appellee rely upon this Court’s decision in Jackson v. Spagnola, supra, to support their position. We find such reliance misplaced because the demonstration in Spagnola involved general principles of physics universal in its application. In the instant case, however, the experiments were a re-enactment of the accident. Experiments showing general properties of materials are admitted without confining the experiments to conditions surrounding the litigated situation. McCormick supra, § 202 at 603 n. 25 and 26. Furthermore, in Spagnola the test was undertaken solely to obtain greater scientific knowledge of general principles of physics as opposed to an experiment commissioned for a specific law suit. The former has the added advantage of being untainted by an interest in the litigation. The process of exposing one’s work to the scrutiny of the scientific community through publication acts as an important check. McCormick supra, § 202 at 604. See also Harkins v. Ford Motor Co. 437 F.2d 276 (3rd Cir.1970).

      . Because we are directing that a new trial should be given to appellants, there is no need to pass on appellants’ remaining two issues.