text:
    632 A.2d 876
    COMMONWEALTH ex rel. Michelle BRENDEL, Appellee, v. John A. BRENDEL, Appellant.
    Superior Court of Pennsylvania.
    Argued June 23, 1993.
    Filed Sept. 16, 1993.
    Reargument Denied Nov. 29, 1993.

      Joseph M. Lamonaca, West Chester, for appellant.
    Paul J. Ryan, Lock Haven, for appellee.
    Before ROWLEY, President Judge, and TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

The appellant, John A. Brendel, appeals the December 15, 1992, order directing the payment of arrearages of $19,400 in child support. We affirm.

The facts are not in dispute and reveal that the appellant and the appellee/Michelle Brendel were married in 1968, a child was born of the marriage that same year (Erich) and the parties were divorced in Harris County, Texas in 1971. The divorce decree made provisions for the appellant to pay $100 in child support beginning on November 1, 1971. The 1971 support order was modified in 1973 to require the payment of $225 per month and provide insurance for the child until the age of 18. Following this, the appellee and child moved to Orange County, California, while the appellant moved to Pennsylvania.

On June 4, 1976, the appellee filed a petition under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). As a result thereof, a hearing was conducted by the Court of Common Pleas of Clinton County on November 4, 1976, whereby a child support order of $24.00 per week was entered. On July 17, 1986, the appellant filed a petition seeking to suspend his support obligation on the grounds that the child-Erich had reached the age of 18 and had graduated from high school. Next of record is an August 21,1986, order of court “suspending” the appellant’s support obligation and holding that “[n]o arrears [we]re due”. Thereafter, on July 26, 1991, the appellee filed a RURESA petition in Orange County, California claiming that the appellant had failed to comply with the Harris County, Texas support orders of 1971 and 1973 requiring payment of $225 per month.

More particularly, the appellee alleged that the child support payments owed in this matter ran for the period from November 1, 1971, through July 29, 1986. See Affidavit of Accrued Arrears dated July 26, 1991. The outstanding amount claimed due and owning was $19,400. This figure was verified by the Orange County Family Support Officer that the appellant’s “case ha[d] been opened [by the] District Attorney ... for collection of child support”, with copies of the appellant’s payment history attached to the RURESA petition.

Preliminary objections were filed by the appellant to the RURESA petition, wherein it was asserted that the 1973 Texas order had been modified by the 1976 Clinton County court order, that the 1986 Clinton County court order “suspended” his support obligations and held that no arrears were due. These objections were dismissed by the court. An evidentiary hearing followed on October 28,1992, at which the appellant testified that he was under the belief that the Texas support orders had been superseded by the Clinton County order of 1976. Thereafter, the court issued an opinion and order directing that the appellant pay $19,400 in support arrears. This appeal ensued.

We find that following the evidentiary hearing on the appellee’s RURESA petition, the court directed that briefs be filed by both sides in support of their respective positions. In the appellant’s case, several issues were briefed, e.g., that the 1976 order issued by the Common Pleas Court of Clinton County for the payment of $24 per week support “modified” the prior 1973 Harris County court order setting $225 per month in child support, and that the appellee was barred by the doctrine of laches from bringing her support action. These are reviewable.

The remaining issues appearing in the appellant’s appellate brief (numbered I, IV and V), having been raised for the first time in this appeal, are considered waived. Carney v. Dahlmann, 425 Pa.Super. 163, 624 A.2d 197, 200 (1993); see also Respondent’s [Appellant’s] Brief at 1-2 (Record No. 10).

In responding to the appellant’s contention that the 1976 order of a Pennsylvania court “superseded” and/or “overruled” the prior orders (1971 & 1973) from the State of Texas, we begin by observing that Pennsylvania and Texas, along with forty-eight states, have enacted some form of RURESA to improve and extend the enforcement of duties of support.

RURESA provides in pertinent part that:
A responding court shall not stay the proceeding or refuse a hearing ... because of any ... prior action or proceeding for divorce ... in this Commonwealth or any other state____ If the other action or proceeding ... and the judgment therein provides for the support demanded in a petition being heard, the court must take into account in placing its support order the amount allowed in the other action or proceeding.

The Act of October 30, 1985, P.L. 264, No. 66, § 1, 23 Pa.C.S.A. § 4530.

Similarly, Section 4531 provides:
A support order made by a court of this Commonwealth pursuant to this chapter does not nullify and is not nullified by a support order made by a court of this Commonwealth pursuant to any other law or by a support order made by a court of any other state ... regardless of priority of issuance, unless otherwise specifically provided by the court. Amounts paid for a particular period pursuant to any support order made by the court of another state shall be credited against the amounts accruing or accrued for the same period under any support order made by the court of this Commonwealth.

Id. at § 4531 (Emphasis added).

The predecessors to the above-quoted statutes were interpreted, which we find germane here, in the following fashion:

It seems clear from these sections [6770 & 6771, now located at 23 Pa.C.S.A. §§ 4530, 4531] that the Uniform Act did not intend an order of support entered in one state to act as a bar to the entry of an order in another state having jurisdiction. The courts of the other state, of course, must take into account the amount of the order entered by the initial state. However, the statute does not require parties who no longer reside in the state where the initial order was entered to return to the courts of that state in order to obtain enforcement of a parent’s duty to support a child.

Myers v. Young, 285 Pa.Super. 254, 427 A.2d 209, 211 (1981) (Emphasis added). Accord Carney, supra. It can thus be seen that the thrust of RURESA is not to permit the entry of an order in one state to bar the entry of an order in the state having jurisdiction. Oman v. Oman, 333 Pa.Super. 356, 482 A.2d 606, 611 n. 3 (1984).

In essence, RURESA does not bar the entry of multiple orders of support by more than one of the signators to the document. We hold, however, that considerations of comity among the states and fairness to the parties required that the trial court, in computing appellant’s arrearages, had to credit amounts paid by the appellant pursuant to the Pennsylvania support order ($96 per month) against amounts accruing for the same period under the 1973 Texas order ($225 per month). See Silverstein v. Silverstein, 246 Pa.Super. 503, 371 A.2d 948, 952 (1977). This did occur here from our review of the documents attached to the appellee’s RURESA package. Therefore, we do not find any merit to the first of the appellant’s claims.

In response to the appellant’s laches argument, we adopt as our own the remarks of the trial court; to-wit:

Defendant ... contends that the doctrine of laches applies in this case. Specifically, he argues that since Plaintiff waited until 1991 to endeavor to collect arrearages and medical benefits due between 1971 and 1986, she should be precluded from proceeding with her claims. Initially the Court would note that Defendant has not raised the defense of laches as New Matter in a responsive pleading to Plaintiffs Petition; therefore, he has effectively waived it. Pa. R.C.P. Nos. 1030, 1032. However, even if it was not waived by Defendant, laches would still be inapplicable to the case at bar.
As Defendant correctly notes, Pennsylvania law recognizes that the defense of laches may be invoked when there exists a delay in a plaintiffs pursuance of a claim due to his/her not “exercis[ing] due diligence” and prejudice is thereby caused to a defendant. Jackman v. Pelusi, 379 Pa.Super. 361, 369, 550 A.2d 199, 203 (1988). Courts, though, are “extremely cautious in applying” laches to cases “in which ... child support order[s] [have] not been enforced.” Id. at 367, 550 A.2d at 202. In the instant case, as Plaintiff states in her Brief, “[a]ll the Defendant showed was a mere passage of time” during which Plaintiff failed to pursue her claims. “Delay alone [though], no matter for how long, does not itself establish laches.” Jackman, 379 Pa.Super. at 369, 550 A.2d at 203. The essential element of prejudice caused by Plaintiffs delay in diligently pursuing her claims against Defendant is missing. Defendant states in his brief that he “will be significantly prejudiced by having to pay” the arrearages because he felt none existed. However, as has been stated, there is no indication from the copies of the Harris County records that the County’s file on this case has been purged. As Defendant himself admits in his Brief, “[i]f there were arrearages due and owing under the Harris County order[s], the case would not have been purged and terminated.” Thus, Defendant cannot claim prejudice based on non-knowledge of any arrearages.
Indeed, the Court would note that since Defendant endeavored to assert the defense of laches, it was for him to thoroughly investigate the significance of the copies of Harris County records to prove that they did not in fact indicate that the case had been purged, that no arrearages existed, and that he would be prejudiced if he were forced to pay the $19,400.00 amount Plaintiff demands from him. This he has failed to do, merely choosing to rely on his mistaken belief that the 1976 and 1986 Orders of this Court superseded the Harris County Orders and terminated his support obligation thereunder. I

Trial Court Opinion at 5-7.

Having reviewed those matters preserved for our consideration and determined that they are without merit, we affirm the order appealed.

Order affirmed.

      . The appellant’s wages were attached by order of court dated January 5, 1992, requiring that $93.27 be paid per week on the amount owed.

      . 23 Pa.C.S.A. § 4501 et seq. Specifically, Section 4509 authorities a proceeding to enforce the duty to pay arrearages. The Act of October 30, 1985, P.L. 264, No. 6,6, § 1, 23 Pa.C.S.A. § 4509.

      . In responding to the allegation that the Common Pleas Court’s 1976 and 1986 orders "superseded” the 1971 and 1973 Texas orders, the court remarked that it was never asked to alter the Texas orders. Also, its intention in issuing the 1986 order was merely to "suspend” the earlier 1976 order for child support, and it concluded under the 1986 order that there were no arrearages due under the 1976 order. See Trial Court’s Opinion and Order dated 3/13/92 at 3-4.
      Given that the Texas orders were final, and the amount claimed due thereunder had accrued, they were subject to full faith and credit in this Commonwealth by collection of the appellee. See Silverstein v. Silverstein, 246 Pa.Super. 503, 371 A.2d 948, 950-951 (1981) (“... the Full Faith and Credit Clause does protect the right to child support payments that have already accrued under the [foreign court] order and are not retroactively modifiable under the law of the foreign state.” (Citations omitted)).

      . The appellant below objected to the absence of a certified record of the delinquent payments to the Harris County, Texas court. N.T. 10/28/92 at 5. This matter was remedied, see Trial Court Opinion at 3, and not raised specifically in the appellant's present appeal.
      Also, Common Pleas Court could have obtained a certified statement of all payments made by the appellant to Harris County, Texas. See 23 Pa.C.S.A. § 4528(2).


source: Caselaw Access Project

author: CIRILLO, Judge. WIEAND, Judge, DEL SOLE, Judge,

license: Public Domain

text:
    632 A.2d 880
    William and Paula GIFFEAR, Appellants, v. JOHNS-MANVILLE CORPORATION, Pacor, Inc., Eagle-Picher Industries, Unarco Industries, Inc., Keene Corporation, Raybestos-Manhattan, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, GAF Corporation, v. 48 INSULATIONS, Nicolet, Inc., Pittsburgh Corning Corporation, Armstrong World Industries, Inc., H.K. Porter Company, Amatex, Inc., Owens-Corning Fiberglas Corporation.
    Superior Court of Pennsylvania.
    Argued June 7, 1993.
    Filed Sept. 16, 1993.

      Steven J. Cooperstein, Philadelphia, for appellants.
    Richard T. Wentley, Pittsburgh, for appellee Fibreboard.
    James F. Hammill, appellee, pro se.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, DEL SOLE, TAMILIA, KELLY, POPOVICH, HUDOCK and FORD ELLIOTT, JJ.
   CIRILLO, Judge.

William and Paula Giffear (the Giffears) appeal from an order entered in the Court of Common Pleas of Philadelphia County granting judgment notwithstanding the verdict (j.n.o.v.) in favor of appellees Keene Corporation and Fibreboard Corporation (Keene and Fibreboard). We affirm.

The Giffears instituted this action seeking damages for physical injuries and for fear and increased risk of cancer arising out of Mr. Giffear’s occupational exposure to asbestos. All but three of the non-bankrupt defendants settled with Mr. Giffear. Trial against the remaining defendants, Fibreboard, Keene and Owens-Corning Fiberglas Corporation (a third party defendant), was held in reverse bifurcated form; that is, the first phase of trial concerned solely the issue of damages.

The evidence at trial established that Mr. Giffear’s initial exposure to asbestos occurred in 1964, when Mr. Giffear began service in the United States Navy. Mr. Giffear testified that for the next four years, he was exposed to asbestos products virtually every day for a period of three to four hours. After serving in the military, Mr. Giffear spent approximately ten years working as a plumber and was exposed to asbestos two to three times per week. In 1980, Mr. Giffear began work as a pipefitter in the Philadelphia Naval Shipyard. While there, he received an annual medical checkup and, in 1982, was told that he had pleural disease. Mr. Giffear was thirty-five years old at the time of this diagnosis and was told that his asbestos exposure could lead to cancer.

At trial, Mr. Giffear’s medical expert, Dr. William Fineman, testified that Mr. Giffear’s chest x-rays revealed extensive pleural thickening and plaque formation. Dr. Fineman was unable, however, to identify any clinical physiologic impairment in Mr. Giffear as a result of this diagnosis. In other words, Dr. Fineman could not attribute any physical symptoms to the pleural thickening. Furthermore, Dr. Fineman observed no change in the extent of the pleural thickening in a series of Mr. Giffear’s x-rays spanning ten years. Dr. Fine-man opined that, based on Mr. Giffear’s asbestos exposure, Mr. Giffear is five times as likely to contract lung cancer as he would have been had he never been exposed to asbestos and, further, that his risk of mesothelioma had increased by a factor of three-hundred.

Keene and Fibreboard did not dispute that Mr. Giffear had some asbestos-related pleural thickening, although they did dispute the severity of such thickening. Specifically, Keene’s and Fibreboard’s expert, Dr. Alan Pope, testified that Mr. Giffear’s pleural thickening was mild and, while pleural changes had progressed in the period of 1980 through 1983, the thickening had since stabilized. Dr. Pope, like Dr. Fine-man, opined that the pleural thickening had no physical effect on Mr. Giffear. Finally, Dr. Pope disputed Dr. Fineman’s testimony that Mr. Giffear’s asbestos exposure left him with a five times increased risk of lung cancer. According to Dr. Pope, Mr. Giffear’s exposure made him only twice as likely to get lung cancer. Dr. Pope did not dispute Dr. Fineman’s testimony regarding Mr. Giffear’s increased risk of mesothelioma.

At the conclusion of the damages phase of trial, the court instructed the jury, at Keene’s and Fibreboard’s request, that the jury must determine whether Mr. Giffear had suffered a compensable injury. Additionally, the court instructed the jury that if it decided that Mr. Giffear had not sustained compensable injury, he would be entitled to bring another lawsuit should he develop an asbestos-related medical problem in the future. Because Mr. Giffear was also seeking recovery for increased risk and fear of cancer, the jury was additionally instructed that if it did find that Mr. Giffear had sustained a compensable injury, that is to say, a condition which caused him harm, the amount of damages must adequately compensate him for all harm he has sustained in the past and might sustain in the future; he would, in this case, not be entitled to start another lawsuit for future medical problems. In accordance with its instructions, the court submitted to the jury the following interrogatory on the verdict sheet:. “[I]s [Mr. Giffear’s] pleural thickening or pleural plaques an asbestos-related condition or disease allowing him to receive compensation?” The jury answered that question in the affirmative and awarded Mr. Giffear damages in the amount of $300,000.00.

Post-trial motions were filed and the trial court, after oral argument, granted Keene’s and Fibreboard’s motion for j.mo.v. Judge Hill’s opinion stated that there was “no medical testimony in either case linking any symptoms, illness or impairment of any sort to the pleural thickening allegedly suffered by [Mr. Giffear].” As a result, Judge Hill concluded that pleural thickening did not constitute a compensable injury.

The Giffears appealed and ask us to consider whether the trial court erred in granting the j.mo.v. Specifically, the Giffears assert that Mr. Giffear suffered compensable physical injury and an increased risk and fear of cancer as a result of his asbestos exposure.

A j.n.o.v. may be entered only in a clear case where the facts are such that no two reasonable persons can fail to agree that the verdict was improper. Mitzelfelt v. Kamrin, 526 Pa. 54, 61, 584 A.2d 888, 891 (1990); Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989), appeal denied, 527 Pa. 635, 592 A.2d 1302 (1990). A reviewing court must consider the evidence, as well as all reasonable inferences which may be drawn therefrom, in the light most favorable to the verdict winner, in this case the Giffears. Mitzelfelt, supra; Lira, supra.

In their appellate reply brief the Giffears argue that this court’s recent en banc decision in Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992) serves as an adequate basis for reversal of Keene’s and Fibreboard’s j.n.o.v. In making this assertion, the Giffears refer to the following language:

The physiologic changes evidenced by pleural thickening are a clear indication that damage which is objective and ascertainable has occurred to tissues in the thoracic cavity. Hence, we conclude that pleural thickening, even when asymptomatic, is an injury which gives rise to a cause of action.

Id., 417 Pa.Super. at 454, 612 A.2d at 1028 (emphasis added). Taken out of context, this passage appears to be the the holding of Marinari; it is not, however, and we are therefore not bound to follow such language. Rather, the sole issue presented in Marinari was whether Pennsylvania, in the context of asbestos actions, should adopt a “separate disease rule.” In deciding this question, this court considered the following facts. As a result of occupational asbestos exposure, Mr. Marinari discovered that he had pleural thickening. Since Marinari was not, however, experiencing any discernible impairment of his lung function, he chose not to pursue an action to recover damages for the pleural thickening. Years later, Marinari was diagnosed with lung cancer. The trial court was constrained to find that the cancer claim had been barred by the statute of limitations, in light of the fact that Marinari had discovered the pleural thickening years before. In deciding that Pennsylvania should observe a “separate disease rule,” this court specifically held that a “[plaintiffs discovery of a nonmalignant, asbestos related lung pathology, whether or not accompanied by clinical symptoms of impaired pulmonary function, does not trigger the statute of limitations with respect to an action for a later, separately diagnosed, disease of lung cancer.” Id. 417 Pa.Super. at 442, 612 A.2d at 1022. The question of whether to label asymptomatic pleural thickening as an “injury” constituting a “cause of action” was not before the court in Marinari; in fact, the action for asymptomatic pleural thickening was waived in that case. See id., 417 Pa.Super. at 454, 612 A.2d at 1028 (in failing to file an action for pleural thickening within the two year statute of limitations period, the decedent waived only the cause of action for pleural thickening; the action for cancer was not barred). In light of the foregoing, we conclude that we are not constrained to follow the Marinari court’s characterization, in dictum, of asymptomatic pleural thickening as an injury giving rise to a cause of action.

After careful consideration we hold, as a matter of law, that pleural thickening, absent disabling consequences or manifest physical symptoms, is a non-compensable injury and is therefore not a cognizable claim in the Commonwealth. In reaching this conclusion, we begin with a more thorough explanation of the pleural thickening condition itself. Asbestos-related pleural thickening is, basically, the formation of calcified tissue on the membranes surrounding the lungs; such condition may be objectively determined in the sense that it shows up on an x-ray. Doe v. Johns-Manville Corp., 324 Pa.Super. 469, 472, 471 A.2d 1252, 1253 (1984) (en banc). Pleural thickening may occur independent of or in conjunction with asbestosis. Marinari, supra, quoting Mansfield, Asbestos: The Cases and the Insurance Problem, 15 Forum 860, 861-64 (1980). When the pleural thickening is asymptomatic, as in Mr. Giffear’s case, plaintiffs are able to lead active, normal lives, with no pain or suffering, no loss of an organ function, and no disfigurement due to scarring. See Marinari, 417 Pa.Super. at 448, 612 A.2d at 1025; In re Hawaii Federal Asbestos Cases, 734 F.Supp. 1563, 1567 (D.Haw.1990).

While the Pennsylvania state appellate courts have recited much dictum regarding the subject of compensable injury in the context of asbestos litigation, there has not been an occasion, until now, to precisely confront the issue of whether asymptomatic pleural thickening constitutes a cognizable cause of action, i.e., a compensable injury under Pennsylvania law.

One of the most frequently cited cases by Pennsylvania courts attempting to define “injury” is Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). The Giffears point to the well recognized holding in Ayers in support of their position that Mr. Giffear’s pleural thickening is a compensable injury: “[I]njury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Id. at 290, 154 A.2d at 792. We initially point out that the Ayers holding refers to a determination of what triggers the statute of limitations. When the Ayers holding is read in its intended context, that is, defining “injury” for purposes of allowing the statutory period to run, it has been interpreted correctly. It is an entirely different and, we believe, incorrect interpretation to read the above-quoted Ayers passage to support the proposition that once an x-ray reveals pleural thickening, a plaintiff has automatically been “injured” in the legal sense, thus entitling him or her to bring an action for damages. While it is true that Mr. Giffear’s x-rays evidenced a physical and ascertainable change in the condition of his lung lining, to allow this alone to constitute a claim for a compensable injury simply does not conform to the established principles of Pennsylvania tort law. The legal and medical realities of a diagnosis of pleural thickening unaccompanied by discernible physical symptoms or functional impairment cannot justifiably give rise to an action for damages.

Before Pennsylvania’s adoption of the separate disease rule, cases that did indirectly address what constitutes “injury,” like the Ayers decision, did so within the confines of a statute of limitations issue under the strict “single disease rule.” Thus, in statute of limitations cases, pleural thickening, under the one disease rule, was considered an “injury” because it indicated a condition used for purposes of initiating the limitations period. Consequently, an “injury” for purposes of triggering the statute of limitations, and an “injury” for purposes of recovering damages for bodily harm can be distinguished. As Marinari has made clear, a plaintiffs discovery of pleural thickening no longer launches the running of the statute of limitations for all present and future asbestos-related injuries; rather, a claim for each asbestos-related injury may be brought separately. This being the case, plaintiffs no longer have a valid reason to bring a lawsuit for asymptomatic pleural thickening. Absent evidence of reduced physiological functions, we can find no basis on which to award damages to a plaintiff who has been diagnosed with pleural thickening, especially given the fact that, if the asymptomatic pleural thickening would lead to a clear asbestos-related injury (asbestosis, lung cancer or mesothelioma), the plaintiff could then bring an action at that time. Marinari, supra.

In reaching our determination that asymptomatic pleural thickening does not constitute an injury sufficient to bring about a legal cause of action, we are persuaded by the reasoning in other jurisdictions, along with our own trial courts, that have been faced with similar issues. In Wright v. Eagle-Picher Industries, Inc., 80 Md.App. 606, 565 A.2d 377 (1989), Maryland’s court of appeals was confronted with the issue of whether the trial court had invaded the province of the jury by its instruction that the medical condition of pleural plaques alone was a non-compensable injury. The court found no error in the pleural plaques instruction. Like Mr. Giffear, the appellants in Wright “failed to present any testimony indicating that pleural plaques caused any injury, symptom or functional impairment to any of the appellants.” Id., 80 Md.App. at 615, 565 A.2d at 381. See also Caterinicchio v. Pittsburgh Corning Corp., 127 N.J. 428, 605 A.2d 1092 (1992) (following reasoning in Wright).

Even more persuasive is a decision out of an Arizona state appellate court, Burns v. Jaquays Mining Corp., 156 Ariz. 375, 752 P.2d 28 (1987). The Bums court was asked to decide the very same issue confronting us today, that is, “whether subelinical asbestos-related injury is sufficient to constitute the actual loss or damage required to support a cause of action.” Id. at 376, 752 P.2d at 29. In answering this question in the negative, the Arizona state court relied upon federal law. Specifically, the court quoted at length from Schweitzer v. Consolidated Rail Corp., 758 F.2d 936 (3d Cir.1985), cert. denied, 474 U.S. 864, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985):

It is true that the possible existence of subelinical asbestos-related injury prior to manifestation may be of interest to a histologist, [citations omitted] Likewise, the existence of such injury may be of vital concern to insurers---- We believe, however, that subelinical injury resulting from Exposure to asbestos is insufficient to constitute the actual loss or damage to a plaintiffs interest required to sustain a cause of action under generally applicable principals of tori law.... Requiring manifest injury as a necessary element of an asbestos-related tort action ... best serves the underlying purpose of tort law: the compensation of victims who have suffered.

Burns, 156 Ariz. at 376-77, 752 P.2d at 29-30, quoting Schweitzer, supra, at 942 (emphasis added).

In another federal case, Hawaii Federal Asbestos Cases, 734 F.Supp. 1563 (D.Haw.1990), plaintiffs claimed damages for bodily harm and fear of cancer as a result of asbestos exposure. In framing the issues on appeal, the Hawaii Federal court mirrored the concerns we are faced with in Giffear.

Frequently, persons claiming damages from exposure to asbestos reflect no objectively observable disablement which is traditionally the basis of tort litigation____ While some of the lung diseases caused by asbestos, such as mesothelioma and asbestosis, typically involve some of these indicia of injury, mere lung scarring or pleural plaques or pleural thickening frequently do not involve these indicia.... All of the above indicates a need for some form of easily verifiable standard for determining whether an “injury” exists and when such injury warrants an award of compensation.

Id. at 1566. The court went on to determine that the mere presence of asbestos fibers, pleural thickening or pleural plaques in the lung, unaccompanied by an objectively verifiable functional impairment, is not enough to show compensable harm. Id. at 1567. As pointed out earlier, in reaching its conclusion, the court pointed to the widely accepted notion that “in virtually all pleural plaque and pleural thickening cases, plaintiffs continue to lead active, normal lives, with no pain or suffering, no loss of the use of an organ or disfigurement due to scarring.” Id. at 1566.

We are equally impressed with the Pennsylvania trial court decisions that have called for reform in asbestos litigation. For instance, it was suggested in Blue v. Johns-Manville Corp., 10 Phila. 23 (1983) that “there should be no cause of action [for pleural thickening] unless there is impairment (reduced physiological function)---- There must be a demonstrable change in bodily function before there can be recovery.” Id. at 38. Additionally, the court made the point that while a plaintiff diagnosed with asymptomatic pleural thickening “may have a scar on his lung or lung lining that is visible by x-ray, ... he would never know this without the help of a radiologist.” Id. at 45.

Finally, in deciding that a claim of asymptomatic pleural thickening does not rise to the level of a legally cognizable cause of action or, in other words, a legally compensable injury, we look favorably upon the Honorable Armand Della Porta’s reasoning in Czekaj v. Johns-Manville et al., 23 Phila. 278 (1991) (en banc). As recognized in the Czekaj case, what constitutes a cognizable cause of action is a legal question reserved for a court and not a factual question for a jury. Kosjer v. Commonwealth Dept. of Public Welfare, 76 Pa. Commw. 614, 464-A.2d 687 (1983); Framlau Corp. v. Delaware County, 223 Pa.Super. 272, 299 A.2d 335 (1972). In Kosjer, a cause of action was described as follows: “A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show---- The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear.” Kosjer, 76 Pa.Commw. at 616, 464 A.2d at 688, quoting Baltimore Steamship Co. v. Phillips, 274 U.S. 316, 321 (1927). Against this backdrop, the Czekaj court expressed the following:

A jury does not determine which rights are protected by law or what are the elements of a right, a claim, a tort, or a compensable injury. That is why a jury must be instructed by the Court as to what constitutes a right or the elements of a tort. After being so instructed, it is then the jury’s task to evaluate the evidence to determine whether it fulfills the requirements of the law, or satisfies the elements of the tort, or, in the words of the highest Court of the Land, shows the existence of the cause of action in that case, by making the tort appear. [Baltimore Steamship, supra.]
[I]t is for the law, as defined by either the Court or the Legislature, to determine whether pleural thickening without accompanying illness, impairment or disability, constitutes a compensable injury, or whether it must be accompanied by such symptoms before the law recognizes the combination of both as a compensable injury.

Czekaj, 23 Phila. at 284.

While we sympathize with Mr. Giffear’s disturbing discovery, his diagnosis does not warrant compensation. Where we cannot find that one has suffered a symptomatic injury, how is it possible to assess damages? Had Mr. Giffear suffered from discernible physical symptoms, a functional impairment or disability resulting from the pleural thickening, the law, supported by the Commonwealth’s public policy and economic reason, would clearly recognize that his injury would entitle him to an award of damages. It remains that, but for the fact that x-rays were taken revealing a pleural condition, Mr. Giffear would not have realized that such a condition even existed. It would hardly be fair to compensate him for something that has yet to manifest itself into a functional impairment. If and when such impairment does occur, Mr. Giffear may then bring an action for damages. Until that time, however, he is without a legally cognizable claim; there is, at this point, no legal injury. In light of our findings today, there is no reason for courts to entertain claims based on a discovery of asymptomatic pleural thickening. Without evidence that such a condition is causing ascertainable physical symptoms, impairment, or disability, pleural thickening is a non-eompensable injury and, therefore, does not give rise to a cause of action.

In reaching this decision, we must now modify two recent opinions of this court. Higginbotham v. Fibreboard Corp., 428 Pa.Super. 26, 630 A.2d 14 (1993) and Morrison v. Fibreboard Corp., 428 Pa.Super. 114, 630 A.2d 436 (1993) both confronted one of the issues here, namely, whether it was error to allow the jury to award damages based on a fear of cancer/asbestos related disease in the future. Citing Marinari, this court correctly concluded in both Higginbotham and Morrison that an award of damages based upon the fear of developing asbestos-related lung cancer or mesothelioma would not stand, given the introduction of the separate disease rule (discussed infra). Both cases, however, also cite Marinari for the proposition that pleural thickening, even when asymptomatic, is an injury which gives rise to a cause of action and both decisions remand for a new trial for injuries presently suffered by the appellees. Given our recent analysis of the pleural thickening issue, the appellees in Higginbotham and Morrison do not have a cause of action for, nor can they recover from, pleural thickening without accompanying physical symptoms. Thus, these decisions are overruled only to the extent that they cite Marinari to stand for the principle treating asymptomatic pleural thickening as a legally cognizable injury.

Regarding our disposition of the asymptomatic pleural thickening issue, questions have been raised about whether or not the separate disease rule is still necessary, given our decision to not allow a cause of action or recovery for asymptomatic pleural thickening. Our holding today in no way abolishes the need for the two disease rule, as it is restricted to apply only to pleural thickening not accompanied by physical symptoms. If, for example, Mr. Giffear’s pleural thickening was proven to be debilitating in a physical sense, he would then have a legally cognizable claim whereby damages could be recovered. Perhaps if it were shown that Mr. Giffear was restricted from physical activities that he had engaged in before the pleural thickening had set in, a claim and possible recovery could be made at that time. Any recovery awarded for such symptomatic pleural thickening would not préclude a later action if cancer were to develop as a result of the asbestos exposure. Marinari, supra. The important distinction here lies in the fact that Mr. Giffear was experiencing no discernible physical harm as a result of the pleural thickening.

The Giffears next argue that Mr. Giffear did indeed suffer impairment from the knowledge of his pleural thickening condition, that is, in the form of an increased risk and fear of cancer. In considering this second issue, we find, once again, that Mr. Giffear’s fear and increased risk of cancer is not something lor' which he can be compensated. We upheld the trial court’s j.n.o.v. on the basis that Mr. Giffear had not suffered a compensable injury; as such, and in accordance with the court’s jury instructions, supra, and Marinari, supra, Mr. Giffear is entitled to bring another lawsuit should he develop asbestos-related cancer in the future.

Quite clearly, because of our recent adoption of the “two disease rule” for asbestos actions, claims for risk and fear of cancer no longer form a basis for recovery in asbestos cases where cancer is not present. Part of the Marinari rationale provided:

The speculative nature of the prediction of future damages — that a person with asbestosis will someday contract cancer — may lead to several inequitable results. First, the plaintiff who does not contract cancer gets a windfall— cancer damages without cancer, [citation omitted]---[Also,] inequitable awards are more likely to result from a future damages action simply because the damages cannot be known. If the disease has ... come into existence — the actual financial needs of the plaintiff can obviously be more accurately assessed, [citation omitted].

Marinari, 417 Pa.Super. at 451, 612 A.2d at 1026-27, quoting Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517, 523-24 (Fla.Dist.Ct.App.1985) (footnotes omitted). Thus, pursuant to our newly adopted Marinari rule, “in an action for exposure to asbestos, a plaintiffs claim may encompass only the harm caused by the diseases which have become manifest and that a later separate action may be pursued if and when a separate disease occurs.” Ottavio v. Fibreboard, 421 Pa.Super. 284, 296, 617 A.2d 1296, 1302 (1992) (en banc); see also Altiere v. Fibreboard Corp., 421 Pa.Super. 297, 306-07, 617 A.2d 1302, 1304 (1992) (en banc). In Ottavio it was specifically held that in an action for asymptomatic pleural thickening, the plaintiffs could not recover monetary damages for the risk of a future disease such as cancer. Id., 421 Pa.Super. at 297, 617 A.2d at 1302.

Similar reasoning was recently espoused in Lubowitz v. Albert Einstein Med. Ctr., 424 Pa.Super. 468, 623 A.2d 3 (1993), where this court was called upon to decide whether the appellants stated a legally cognizable cause of action for their “fear of AIDS.” In concluding that there was no legally cognizable injury for appellants’ claim, we applied the rationale used in the asbestos cases involving “fear of cancer” claims.

It is undisputed that appellants have never tested positive for the AIDS antibody. Moreover, although Robyn Lubowitz alleges that she suffered physical manifestations of emotional distress, the actual injury at issue is the “fear of AIDS.” Whether such fear is a compensable injury is an issue of first impression in this Commonwealth. However, we are guided by the decisions which involve similar “risk of contracting disease” claims. See, e.g., Ottavio v. Fibreboard Corp., 421 Pa.Super. 284, 617 A.2d 1296 (1992); Altiere v. Fibreboard Corp., 421 Pa.Super. 297, 617 A.2d 1302 (1992); Marinari v. Asbestos Corp., 417 Pa.Super. 440, 612 A.2d 1021 (1992).
# # ‡ * # *
As in Ottavio, Robyn Lubowitz cannot recover, in her asymptomatic state, monetary damages for a risk or fear of developing AIDS in the future.

Lubowitz, 424 Pa.Super. at 471, 623 A.2d at 5 (footnote omitted) (emphasis added).

As is evident from the case law set forth above, the Commonwealth’s most recent decisions addressing claims for risk/ fear of contracting future diseases clearly have not allowed recovery. Applying the same rationale to the case at bar, we find that Mr. Giffear’s risk/fear of cancer is not a compensable or legally cognizable injury. Id. We believe that this result provides the most efficient and fair resolution of future disease claims. There is an obvious need in our judicial system to effect just results based on proof rather than upon pure speculation. “The adjudicative process must ultimately serve the principle that a fair and just resolution of disputes depends upon a search for the truth, based on factual, non-speculative evidence.” Marinan, 417 Pa.Super. at 451, 612 A.2d at 1027. Mr. Giffear, in his asymptomatic state, may never contract cancer or any other asbestos-related compensable disease. To allow recovery under these circumstances based on his fear alone would fly in the face of our recent adoption of the separate disease rule. Again, we remind Mr. Giffear that, should he develop cancer, he would then have a cause of action for a compensable injury and could bring a lawsuit at that time.

After consideration of the evidence and all reasonable inferences drawn from such evidence, in the light most favorable to the Giffears, we uphold the trial court’s grant of j.n.o.v. in favor of Keene and Fibreboard. Mitzelfelt, supra; Lira; supra. Because we find that the Giffears have not alleged legally cognizable causes of action, we affirm the trial court’s order.

Order affirmed.

WIEAND, J., files a concurring opinion.

DEL SOLE, J., files a concurring opinion, in which FORD ELLIOTT, J., joins.

WIEAND, Judge,

concurring.

I concur in the result. The plaintiff-appellant in this case showed that he had sustained an asymptomatic pleural thickening, but he was unable to show any loss or damages resulting from that condition. Under decisions in Marinari v. Asbestos Corp. Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), Ottavio v. Fibreboard Corp., 421 Pa.Super. 284, 617 A.2d 1296 (1992), and Altieri v. Fibreboard Corp., 421 Pa.Super. 297, 617 A.2d 1302 (1992), he was not entitled to recover damages because of a fear or risk that he might at some time in the future contract cancer. Therefore, the trial court could properly set aside the jury’s award of damages and enter judgment n.o.v. in favor of the defendant-appellees.

I would leave for another day whether under different circumstances recovery should be allowed for other damages, if any, flowing from asymptomatic pleural thickening.

DEL SOLE, Judge,

concurring.

To the extent the Majority holds that a person cannot recover damages for “fear of cancer” and “risk of future cancer” in asbestos cases where cancer is not present, I agree. However, I cannot agree with the conclusion that asymptomatic pleural thickening is not an injury, and, therefore, does not give rise to a cause of action. I suggest that the Majority is confusing a cause of action with damages that can be recovered given a certain medical condition.

I disagree with the Majority’s conclusion for three reasons. First, it is not necessary to discuss this question in order to decide the issue before us, namely what damages are recoverable where pleural thickening exists but there is no cancer.

Second, the holding in Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992) creating a “two disease” rule inherently recognizes that asymptomatic pleural thickening is an injury which gives rise to a cause of action. Otherwise there would have been no need to create such a rule. As recently as July 15, 1993 this court, in two separate opinions, repeated the rule that asymptomatic pleural thickening is sufficient to give rise to a cause of action. Morrison v. Fibreboard, 329 Phil. 1992; Higginbotham v. Fibreboard, 328 Phil. 1992.

Third, the majority wrongly assumes that a person with asymptomatic pleural thickening has no damages. This may not necessarily be the case. For example, once one is diagnosed with pleural thickening, there may be medically necessary reasons for increased medical monitoring of the lungs to provide early detection of cancer. The costs of this monitoring would be recoverable. Also, in a particular case, an individual may be able to establish that this condition resulted in lost employment opportunities or decreased earning capacity. In these events the claim should be permitted to be made, and if damages are established, recovery allowed.

I suggest that it is better to limit our decision to the issue before us and allow the law of recoverable damages in pleural thickening cases to develop on a case by case basis.

FORD ELLIOTT, J., joins.

      . Owens-Corning Fiberglas Corporation settled with the Giffears after the verdict.

      . The jury instruction rendered here was essentially identical to the jury instruction approved by the majority in Manzi v. H.K. Porter Co., 402 Pa.Super. 595, 587 A.2d 778 (1991), appeal denied, 530 Pa. 644, 607 A.2d 254 (1992). The instruction in Manzi, which provided for a second action if an asbestos injury was found to be non-compensable, significantly eroded the prior rigid rule limiting asbestos plaintiffs to a single lawsuit. Following the reasoning initiated in Manzi, this court en banc recently made the explicit statement that Pennsylvania has now joined the majority of jurisdictions which allow separate actions for separate asbestos-related injuries. See Marinari v. Asbestos Corp., Ltd., 417 Pa.Super 440, 612 A.2d 1021 (1992), discussed infra.

      . On the issue of liability, the matter was tried without a jury,, and the trial was conducted by stipulation. The trial court found Keene and Fibreboard liable for one-eighth (*/) of the verdict.

      . At this point we find it necessary to address the concern enunciated in the concurring opinions authored by Judges Del Sole and Wieand regarding the issue surrounding Mr. Giffear’s asymptomatic pleural thickening. Both concurring opinons conclude that the issue of whether asymptomatic pleural thickening is a compensable injury is not necessary to resolve the instant case (Del Sole, J., concurring) and/or should be left for another day (Wieand, J:, concurring). While the Giffears have stated their issue in the broadest of terms (i.e. Did the trial court err in granting j.n.o.v.?), it is clear from both their original appellate brief and their brief on reargument en banc that they raise two separate issues, one being whether asymptomatic pleural thickening, in and of itself, is a compensable injury.
      In their original appellate brief, the Giffears' first paragraph of the argument section squarely confronts this issue. Responding to the trial court’s decision, the Giffears begin their argument with the following: "According to the court, asymptomatic pleural disease is, as a matter of law, not a compensable injury. This ruling flies in the face of well-established Pennsylvania law.” The Giffears’ assertions in support of this statement follow. Similarly, in their reargument en banc brief, the Giffears have labeled the first portion of the argument section of the brief as follows: A. Pleural Thickening Is An Injury Giving Rise To A Cause Of Action. Clearly, this issue had to be addressed.
      Additionally, the issue was obviously a basis for the trial court’s decision to enter the j.n.o.v., as was unequivocally revealed in Judge Hill’s trial court opinion:
      The issue of whether asymptomatic pleural thickening constitutes a compensable injury under Pennsylvania law was recently addressed by a Common Pleas Court sitting en banc ... in the case of John Czekaj and Lorraine Czekaj v. Johns-Manville [citation omitted]. As the instant case is factually similar to Czekaj, this court feels it must be guided by the holding in Czekaj in which the undersigned participated as a member of the court en banc.
      The question of whether asymptomatic pleural thickening constitutes a compensable injury under Pennsylvania law is an issue that is clearly confronting this court under the facts of this case. In fact, we find it difficult to imagine a more appropriate set of circumstances in which to address the arguments surrounding this complicated question than those we are faced with today.

      . The holding in Marinari represents a sharp break from the previous law, which required plaintiffs in Pennsylvania, once informed of pleural thickening, to act within the applicable statute of limitations period to make a claim for an asymptomatic condition and also for any and all predictable later, diseases and/or injuries related to asbestos exposure. Marinari, 417 Pa.Super. at 448-49, 612 A.2d at 1025.

      . According to Black’s Law Dictionary, "dictum,” is generally used as an abbreviated form of "obiter dictum,” or "a remark by the way.” To elaborate, it is described as
      [A]n observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law, or the solution of a question suggested by the case at bar, but not necessarily involved in the case or essential to its determination.... Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand are obiter dicta, and lack the force of adjudication.

        Black’s Law Dictionary 409 (5th ed. 1979). See also Stellwagon v. Pyle, 390 Pa. 17, 133 A.2d 819 (1957) (language in judicial opinion going beyond issue decided is considered dictum); O’Neill v. Metropolitan Life Ins. Co., 345 Pa. 232, 26 A.2d 898 (1942) (statement of court on an issue not raised is dictum).

      . Mr! Giffear sought recovery against Fibreboard and Keene under several theories of liability; such theories allow recovery for physical harm to the user or consumer under certain conditions. See Restatement (Second) of Torts § 402A. The Restatement makes the following distinctions between "injuiy,” "harm,” and "physical harm:” ,
      § 7. Injury and Harm
      (1) The word “injury” is used throughout the Restatement of this Subject to denote the invasion of any legally protected interest of another.
      (2) The word “harm” is used throughout the Restatement of this Subject to denote the existence of loss or detriment in fact of any kind to a person resulting from any cause.
      (3) The words “physical harm” are used throughout the Restatement of this Subject to denote the physical impairment of the human body, or of land or chattels.

        Restatement (Second) of Torts, § 7. “Injury” denotes an invasion of a legally protected interest which, if it is the legal result of a tortious act, entitles one so injured to maintain an action in tort. Id., comment a. "Harm” is carefully distinguished from “injuiy.”
      "Harm” implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object, or thing. Physical changes or alterations may be either beneficial, detrimental, or of no consequence to a person. In so far as physical changes have a detrimental effect on a person, that person suffers harm.

        Id., comment b.
      These distinctions are important in understanding the Giffears’ failure to show a compensable harm suffered by Mr. Giffear. Mr. Giffear has suffered no detrimental effects as a result of his asbestos exposure and, therefore, no harm. While Mr. Giffear’s lungs may have been "injured” without being “harmed,” there is no rule of law that gives a person with an actionable injury the right to recover damages.

      . See Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) (en banc) (while acknowledging differences between pleural thickening and asbestosis, court nonetheless held that a second injury or complication arising from an original tortious act does not give rise to a separate cause of action); Doe v. Johns-Manville Corp., 324 Pa.Super. 469, 471 A.2d 1252 (1984) (en banc) (plaintiff diagnosed with pleural thickening seeking declaratory relief in the form of a declaration that statute of limitations does not begin to run until plaintiff is actually disabled, is something the law does not permit at this time); Howell v. Celotex Corp., 904 F.2d 3 (3d Cir.Pa.1990) (faced with issue of whether pleural thickening amounts to a compensable injury under Pennsylvania law, court recognizes that Pennsylvania has not yet ruled on this issue and states that such a question remains a factual one).

      . We wish to point out that proper analysis of this issue requires us to go beyond the semantics involved and, instead, reach the true heart of the matter: Has Mr. Giffear been harmed in a way which entitles him to recover compensatory damages? Throughout our analysis of this question, unlike the terms “harm” and "injury” in the Restatement, we have used “legal harm” and "legal injury” interchangeably. Thus, when we refer to a "compensable injury,” we aire equating this with a "legal injury.” The same is true when we use "compensable harm,” which we consider to have the same meaning as "legal harm.”

      . In view of the decision in Marinari v. Asbestos Corp., Ltd., supra, it may have been more correct to enter judgment n.o.v. in favor of the plaintiff-appellant for nominal damages of one ($1.00) dollar. ;


author: POPOVICH, Judge: HESTER, Judge, CIRILLO, Judge,

text:
    632 A.2d 890
    WEIS MARKETS, INC., Appellee, v. UNITED FOOD & COMMERCIAL WORKERS UNION, Local 23 Georgie McLaren, Organizer, and Any Other Individuals Acting in Concert, Appellants.
    Superior Court of Pennsylvania.
    Argued March 10, 1993.
    Filed Oct. 5, 1993.

      Mark F. Lovecchio, Williamsport, for appellants.
    Michael M. Apfelbaum, Sunbury, for appellee.
    Before CIRILLO, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This appeal challenges the order entered August 5, 1992, by the Court of Common Pleas of Lycoming County granting a preliminary injunction the effect of which was to restrain picketing by the defendants/appellants, United Food & Commercial Workers Union, Local 23. We reverse.

The record indicates that the plaintiff/appellee, Weis Markets, Inc., filed a complaint in equity seeking to enjoin the appellants’ picketing and distributing leaflets at the single-standing Weis’ store in Williamsport, Pennsylvania.

The complaint alleged, as herein relevant, that the union was engaged in unlawful acts, the purpose of which was to disrupt and interfere with the plaintiffs business so as to cause loss of good will of plaintiffs customers and a reduction in sales. Paragraph 9. Further, the appellants’ conduct (picketing and distributing leaflets) was alleged to be in violation of the “Trespass Notice” appearing in the plaintiffs store:

“Solicitation, distribution of literature or trespassing by non-employees on these premises is prohibited.” Paragraph 6. The appellants refused to heed the plaintiff’s request to desist, the effect of which caused the plaintiff to “suffer[ ] and ... continue to suffer great and irreparable damages, the amounts of which, [could] not be definitely ascertained____” Paragraph 14.

With the allegation that no adequate remedy at law existed to compensate for the irreparable loss and damage incurred, the plaintiff sought to enjoin the appellants’ placing more than two pickets in a designated location in front of the store, and engaging in conduct which interfered with the public, employees and deliverymen alike from ingress and egress of the store or parking facilities.

The complaint was verified by affidavit of Weis’ general manager and contained a Petition For A Preliminary Injunction premised upon the affidavits of Dennis Wagner and Douglas Nisbet, both employees of the plaintiff, in which the union’s conduct was recounted as follows: On August 4, 1992, at approximately 10:30 a.m., the union was on the plaintiff’s “porch” handing out literature that the public cease patronizing the plaintiff’s non-union store and shop at plaintiff’s union competitors. The six union members refused to leave the plaintiffs property, and when the State Police were called to the scene, they advised the plaintiff that no action would be taken without a court order.

The court, upon consideration of the complaint and petition of the plaintiff, issued a rule to show cause why the relief requested should not be granted against the defendants. In the second paragraph of the August 5, 1992, “Rule to Show Cause”, the court also directed that:

The defendants shall be immediately enjoined from activity throughout the parking lot and porch area of the plaintiff and their activities shall be limited to two (2) pickets at two (2) parking spaces in the parking lot of plaintiff immediately in front of the store entrance.[ ]

Bond was also set at $5,000.00. As a result of the entry of the August 5th order, the appellants filed a “Notice of Appeal” therefrom with this Court. Despite the filing of the appeal, the court conducted a hearing on August 10,1992, the result of which was the issuance of an order of even date making the “rule to show cause ... absolute, and ... the preliminary ex parte[] injunction granted on th[e 5th of August, 1992,] continuing] until trial and adjudication of the issues raised in the complaint in equity.” Bond was continued.

In response to the court’s request, the appellants filed a concise statement of reasons for appeal pursuant to Pa. R.App.P. 1925(b) averring that, inter alia, the court was without jurisdiction to enter an injunction for non-compliance with various provisions of Pennsylvania’s Labor Anti-Injunction Act, 43 P.S. § 206b, d, i, l & n. The court submitted an opinion in support of its preliminary injunction, which the court felt was interlocutory, and • the appellants appealed.

The appellants raise four issues for our consideration, the first three of which center upon the authority of the court to issue and the appealability of the August 5, 1992, ex parte preliminary injunction, while the last claim relates to the entitlement of the appellants to attorneys fees if it is found that the court acted improvidently.

Prior to doing so, however, we need to determine whether the case at bar involves a labor dispute (and, thus, regulated exclusively by Pennsylvania’s Labor Anti-Injunction Act) or is a trespass action involved so as to bring it within the ambit of equity procedure (allowing for ex parte injunctions under Pa.R.Civ.P. 1531).

Under the Act, “labor dispute” is defined as:
... any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment or concerning employment relations or any other controversy arising out of the respective interests of employer and employe, regardless of whether or not the disputants stand in the proximate relation of employer and employe, and regardless of whether or not the employes are on strike with the employer.

43 P.S. § 206c (Emphasis added). As is clearly evident from the description assigned by the Act to the phrase “labor dispute”, the conduct of the appellants against Weis Markets, Inc. falls within the perimeters of the Act. As such, the course to pursue in adjudicating the matter is restricted to the requirements recited in the Act and not equity procedure under Rule 1531. See, e.g., Indiana Cobra v. Local No. 23, 406 Pa.Super. 342, 594 A.2d 368 (1991); PHK-P, Inc. v. Local 23, 381 Pa.Super. 544, 554 A.2d 519 (1989).

This is evident from the stated policy of the Act against the issuance of an ex parte injunction; to-wit:

In. the interpretation of this act and in determining the jurisdiction and authority of the courts of this Commonwealth, as such jurisdiction and authority are defined and limited in this act, the public policy of this Commonwealth is hereby declared as follows:
5-S % ij* Í5* Jj! #
(b) Equity procedure that permits a complaining party to obtain sweeping injunctive relief that is not preceded by or conditioned upon notice to and hearing of the responding party or parties or that permits sweeping injunctions to issue after hearing based upon written affidavits alone and not wholly or in part upon examination, confrontation and cross-examination of witnesses in open court is peculiarly subject to abuse in labor litigation for the reasons that—
(1) The status quo cannot be maintained, but is necessarily altered by the injunction.
(2) Determination of issues of veracity and of probability of fact from affidavits of the opposing parties that are contradictory and under the circumstances untrustworthy rather than from oral examination in open court is subject to grave error.
(3) Error in issuing the injunctive relief is usually irreparable to the opposing party; and
(4) Delay incident to the normal course of appellate practice frequently makes ultimate correction of error in law or in fact unavailing in the particular case.

43 P.S. § 206b (Emphasis added).

The court, in failing to comply with the “strict” requirements of the Act divested itself of “jurisdiction” to issue a preliminary injunction. The Act provides for no less:

No court of this Commonwealth shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case included within this act, except in strict conformity with the provisions of this act, nor shall any such ... injunction be issued contrary to the public policy declared by this act.

43 P.S. § 206d. See Indiana Cobra, Inc., supra; PHK-P, Inc., supra.

When we examine the articulated “public policy” of the Act, we find that ex parte injunctions are prohibited where “not preceded by or conditioned upon notice to and hearing of the responding party or parties.... ” 43 P.S. § 206b(b). Further, in contrast to what occurred here, the Act does not “permit[] sweeping injunctions to issue after hearing upon written affidavits alone and not wholly or in part upon examination, confrontation and cross-examination of witnesses in open court .... Id.

Instantly, the court’s failure to conduct a hearing in open court, with notice to all parties to appear and proffer testimony subject to cross-examination, constituted a violation of the Act’s specific provisions necessitating a reversal of the order appealed. Id.; Indiana Cobra, Inc., supra; PHK-P, Inc., supra. Furthermore, the Act precludes the issuance of a preliminary injunction as was issued sub judice absent the previously mentioned hearing in open court and the issuance of findings-of-fact as to specific matters; namely:

§ 206i. Basis for labor injunctions.
No court of this Commonwealth shall issue any restraining order or a temporary or permanent injunction in any case involving or growing out of a labor dispute, except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court to the effect—
(a) That unlawful acts have been threatened and will be committed unless restrained, or have been committed and will be continued unless restrained, but no temporary or permanent injunction or temporary restraining order shall be issued on account of any threat or unlawful act, excepting against the person or persons, association or organization, making the threat or committing the unlawful act, or actually authorizing or ratifying the same after actual knowledge thereof.
(b) That substantial and irreparable injury to complainant’s property will follow unless the relief requested is granted.
(c) That, as to each item of relief granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by granting of relief.
(d) That no item of relief granted is relief which is prohibited under section six of this act.
(e) That complainant has no adequate remedy at law; and
(f) That the public officers charged with the duty to protect complainant’s property are unable to furnish adequate protection.
Such hearing shall be held only after a verified bill of complaint and verified bill of particulars specifying in detail the time, place, and the nature of the acts complained of, and the names of the persons alleged to have committed the same or participated therein, have been served, and after due and personal notice thereof has been given, in such manner as the court shall direct, to all known persons against whom relief is sought, and also to the chief of those public officials of the county and city, within which the unlawful acts have been threatened or committed, charged with the duty to protect complainant’s property. The hearing shall consist of the taking of testimony in open court with opportunity for cross-examination and testimony in opposition thereto, if offered, and no affidavits shall be received in support of any of the allegations of the complaint.
>]: ‡ ‡ $
Rules of Civil Procedure
This section is not deemed suspended or affected by the Rules of Civil Procedure, Rule 1501-1550, governing the Action in Equity. See Rule 1549.

43 P.S. § 206i. Accordingly, in light of the short-comings in the court’s manner of determining to issue the preliminary injunction, we are required, under the case law and statute, to reverse the actions of the court below.

Next, we respond to the second prong of the appellants’ relating to the appealability of the August 5, 1992, order.

We would observe that our Supreme Court has seen fit to provide for the appeal of an injunction by way of Pa. R.App.P. 311(a)(4):

(a) General Rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:

# sjs ij: # %

(4) Injunctions. An order granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions....

See also Note to Rule 311. Thus, based on the Note succeeding the Rule under scrutiny here, which aids us in ascertaining the intention of the drafters and our Supreme Court in promulgating such procedural requirements, we find that an order granting a preliminary injunction is appealable. See Indiana Cobra, Inc., supra; PHK-P, Inc., supra.

Lastly, we respond to the appellants’ request for counsel fees and costs in defending against the action. Under the Act:

Upon the denial by the court of any injunctive relief sought in an action involving or growing out of a labor dispute, the court shall order the complainant to pay reasonable costs and expenses of defending the suit and a reasonable counsel fee.

43 P.S. § 206q. This section of the Act has been interpreted to allow for the imposition of costs and counsel fees upon the party who was granted an injunction where, on appeal, it was decided to have ■ been “improvidently” issued by the court. See Indiana Cobra, Inc., supra; PHK-P, Inc., supra. Such is the case here.

Accordingly, for the reasons herein stated, the order appealed is reversed and the case is remanded for proceedings consistent with the law as set forth instantly.

Order reversed, case remanded and jurisdiction is relinquished.

HESTER, J., files a concurring statement.

CIRILLO, J., files a dissenting opinion.

HESTER, Judge,

concurring:

I join the opinion of the majority. I would merely add thereto Section 206b(a) of the Labor Anti-Injunction Act which provides as follows:

(a) Under prevailing economic condition developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, wherefore, though he should be free to decline to associate with his fellows, it is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint or coercion of employers of labor or their agents in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

42 P.S. § 206b(a).

The Chancellor’s basic error was interpreting the within matter as an action in trespass rather than a labor dispute.

CIRILLO, Judge,

dissenting:

I most respectfully dissent. While I do not dispute the majority’s findings on the merits of this case, I believe that the order in question is an unappealable interlocutory order. Thus, the appeal should be quashed.

The appealability of an order is a question of jurisdiction and may be raised sua sponte. Blackman v. Katz, 390 Pa.Super. 257, 261, 568 A.2d 642, 644 (1990); French v. United Parcel Service, 377 Pa.Super. 366, 369, 547 A.2d 411, 413 (1988). It is well established in Pennsylvania that an appeal to this court will lie only from a final order, unless a right to appeal is expressly granted by statute or rule of court. Fried v. Fried, 509 Pa. 89, 93, 501 A.2d 211, 213 (1985). A final order is one that ends the litigation or disposes of the entire case. Id. The final judgment rule promotes the fair and efficient administration of justice by discouraging multiple appeals in a single case and the consequent protraction of litigation. French, supra, 377 Pa.Super. at 369, 547 A.2d at 413.

Although Pa.R.A.P. 311(a)(4) grants a right to appeal from an “order granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions ...,” I believe that the order in this case is not an injunction within the meaning of Rule 311(a)(4). It has. been suggested that this rule applies only to orders affecting preliminary injunctions. See Darlington, et al, Pennsylvania Appellate Practice § 311:24 (1986) (“It is clear that the Rule applies to ... preliminary injunctions ... As the Official Note to the Rule indicates ... the Rule is based entirely on statutes and decisional law that pertain to the granting, continuing, modifying, refusing or dissolving of preliminary injunctions” [citations omitted, emphasis in original]). See also Humphreys v. Cain, 84 Pa.Commw. 222, 474 A.2d 353 (1984) (“It is apparent to the Court from the similarity of language [referring to to 28 U.S.C. § 1292(a)(1) ] that Rule 311(a)(4) was meant to apply only to preliminary injunctions ... Permanent injunctions in the Federal Court are entered by a chancellor and are not interlocutory but final orders”). Here, the order in question was in response to Weis Market’s complaint which requested a preliminary injunction until trial, and thereafter a permanent one. I believe that such a preliminary injunction that is intended to become permanent cannot properly be appealed as of right pursuant to Rule 311(a)(4).

Additionally, the federal courts have narrowly interpreted 28 U.S.C. § 1292(a)(1) to permit appeals of interlocutory orders only where the order causes serious, if not irreparable injury, and can be effectually challenged only by immediate appeal orders. Carson v. American Brands, Inc. 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981). Based on this, Pennsylvania courts have construed Rule 311 narrowly as well. Beckman v. Abramovitz, 344 Pa.Super. 149, 496 A.2d 53 (1985), appeal dismissed, 512 Pa. 377, 516 A.2d 1386 (1986). The order in this case does not cause serious or irreparable injury to the union. While it limits the union’s activities, it does not bar it from action altogether prior to trial.

I likewise believe the order is not final for purposes of appeal. In examining the order’s practical ramifications, it does not preclude the union from further action in the equity court, nor is it dispositive of the case. The issues raised on appeal may be raised at trial if and when the injunction becomes permanent. Thus, the order is not final for purposes of this appeal.

Our Supreme Court has recognized an exception to the final judgment rule, permitting review of an otherwise interlocutory order when “(1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.” Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978), citing Cohen v. Beneficial Industrial Loan Carp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). The order in question does not meet any of the prongs of this standard. The order is not separable or collateral to the main cause of action since it addresses a main issue in the case, whether the union’s conduct should be enjoined. As discussed above, postponement of review until final judgment will not result in irreparable loss of a claimed right. Lastly, after trial the union can appeal the trial court’s findings as to whether its conduct should be enjoined. Thus, it should not be reviewed at this stage of the litigation. In accordance with the trial court, I would quash this appeal as interlocutory. Therefore, I respectfully dissent.

      . The plaintiff asserted the commission of the following unlawful acts by the union members, none of whom was employed by the plaintiff nor did they represent any of the plaintiffs non-union employees:
      A. Trespassing on the private property of the plaintiff in direct violation of the notices posted on the premises and the warnings provided by plaintiff’s agents;
      B. Interrupting the business conducted by plaintiff by telling customers to shop elsewhere;
      C. Engaging in conduct which constituted harassment of the customers and employees;
      D. Interrupting the flow of traffic in the parking lots causing danger for the drivers and pedestrians in the lot; and
      E. Distributing leaflets which discouraged customers from shopping at plaintiff's store.
      Paragraph 8 A-E.

      . As described by the court below in its opinion at page 2:
      The store porch is approximately fifty-five feet long and thirteen feet deep. A canopy extending the length of the porch runs from the building line to the curb. It is supported at intervals by columns set in a few feet from the curb. Intermittent metal railings running around the edge of the porch prevent shopping carts left on the porch from rolling off the curb into the roadway____
      The roadway adjoining the store porch is a fire lane. It contains a parcel pick-up area for the convenience of customers. Beyond the roadway is the store’s parking lot.

      . The leaflets read:
      DANGER THIS IS A NON-UNION STORE PLEASE DO NOT SHOP HERE

        The pickets also wore signs reading:
      THIS STORE IS NON-UNION
      This Is To Inform The Public That This Employer Does Not Employ Members Of Or Have A Contract With UFCW Local 23, AFL-CIO-CLC PLEASE
      DO NOT PATRONIZE

      . The italicized portion of the August 5th order was handwritten by the court below.

      . Appellants were given neither notice of the August 5, 1992, order nor, as a result, did they appear before the court prior to the entry thereof.

      . The Act of June 2, 1937, P.L. 1198, § 1, 43 P.S. § 206a' et seq.


author: HOFFMAN, Judge:

text:
    632 A.2d 897
    Rose Ann RAFTER, Adm. of the Estate of Robert J. Rafter, Deceased, and Rose Ann Rafter, in Her Own Right v. RAYMARK INDUSTRIES, INC., GAF Corporation, H.K. Porter, Southern Textile Corp., Eagle-Picher Industries, Inc., Pacor, Inc., Keene Corporation, Garlock, Inc., Pittsburgh Coming Corp., Owens-Corning Fiberglas Corp., Armstrong World Industries, Fibreboard Corporation, Forty-Eight Insulations, Inc., and Nicolet Industries, Inc. Appeal of KEENE CORPORATION. Oliver TUZI and Alice Tuzi v. RAYMARK INDUSTRIES, INC., Owens-Corning Fiberglas Co., Pittsburgh Corning Corp., Celotex Corp., GAF Corp., Southern Textile Co., Eagle-Picher Industries, Keene Corporation, Owens-Illinois Glass Co., H.K. Porter Co., Inc., Garlock, Inc., Armstrong World Industries Inc., Fibreboard Corp., Forty-Eight Insulations, Inc., and Nicolet Industries, Inc. Appeal of KEENE CORPORATION.
    Superior Court of Pennsylvania.
    Submitted March 9, 1993.
    Filed Oct. 28, 1993.

      Bruce H. Bikin, Philadelphia, for appellant.
    Stephen W. Wilson, Philadelphia, for appellees.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is a consolidated appeal from the July 28 and August 21, 1992 orders denying appellant’s, Keene Corporation, motions for judgment n.o.v., new trial and/or remittitur and affirming the jury verdicts in favor of appellees, Rose Ann Rafter (deceased) and Alice Tuzi (deceased), and awarding appellees delay damages. Appellant presents the following questions for our review:

1. Did the lower court err in ruling on certain objections regarding expert medical .testimony which rulings were prejudicial to Keene Corporation?
2. Did the lower court err on charging the jury on the issue of substantial contributing factor and the role that plaintiff Tuzi’s tuberculosis played in causing his lung cancer?
3. Did the lower court err in failing to remit the amounts of the judgments for plaintiffs?

Appellant’s Brief at 3. For the reasons set forth below, we affirm.

Both appellee-Rafter (hereinafter “Rafter”) and appelleeTuzi (hereinafter “Tuzi”) filed separate complaints on April 19, 1983 and March 14, 1983 respectively, against appellant and other defendants seeking to recover for injuries arising out of their occupational exposure to asbestos. On January 6-14, 1992, a consolidated jury trial on damages was held. The jury found that Rafter suffered $181,000 in damages and that Tuzi suffered $605,000 in damages, as a result of their occupational asbestos exposure. Pursuant to its stipulation of liability, appellant was found liable to Rafter for % of the award of $181,000 or $30,166.07 and to Tuzi for lh of the award of $605,000 or $121,000. Additionally, the trial court awarded Rafter and Tuzi delay damages in the amount of $26,184.49 and $116,503.33, respectively, against appellant. Post-trial motions were filed and denied. This timely appeal followed.

I.

Appellant first claims that the trial court erred in permitting prejudicial hearsay medical testimony to be considered by the jury and to apply the rules regarding such testimony unevenly among the parties. Appellant points to several incidents of error which we will address in seriatim.

Appellant first objects to certain testimony of Rafter’s expert witness, Dr. Daniel DuPont. Specifically, appellant contends that Dr. DuPont’s testimony regarding a report made by a Dr. Atkinson was inadmissible hearsay. We disagree. Preliminarily, we point out that “[t]he admission of expert testimony is a matter for the discretion of the trial court and will not be remanded, overruled or disturbed unless there was a clear abuse of discretion.” Estate of Pew, 409 Pa.Super. 417, 424, 598 A.2d 65, 69 (1991) (citation omitted), appeal denied, 530 Pa. 645, 607 A.2d 255 (1992). As appellant correctly states in its brief, “[h]earsay evidence is defined as in-court evidence of an out-of-court declaration, whether oral or written, which is offered to show the truth of the out-of-court assertion.” Kemp v. Qualls, 326 Pa.Super. 319, 327, 473 A.2d 1369, 1373 (1984) (citation omitted).

In summarizing the materials reviewed in forming his opinion, Dr. DuPont stated that he examined an independent report issued by Dr. Atkinson. After a careful review of Dr. DuPont’s testimony, however, we can find no mention by Dr. DuPont of the contents of Dr. Atkinson’s report. See Videotaped Deposition of Dr. DuPont, 1-7-92, at 6-9, 11. Accordingly, we find no basis for appellant’s assertion of hearsay and appellant’s claim must fail.

Appellant next contends that the trial court erred in failing to allow appellant’s expert, Dr. Epstein, to state that certain x-rays taken of Tuzi were read by a Dr. Promisloff as exhibiting “scar tissue formation with calcium deposited in the scar tissue at the top of both sides of the chest.” Videotaped Deposition of Dr. Epstein, 1-8-92, at 31-32. Appellant argues that although this testimony was hearsay evidence, it should not have been excluded from evidence. We disagree.

In support of this claim, appellant points to this court’s holding in Primavera v. Celotex Corp., 415 Pa.Super. 41, 608 A.2d 515 (1992), appeal denied, 533 Pa. 641, 622 A.2d 1374 (1993), where we restated the long standing principal that “medical experts are permitted to express opinions which are based, in part, upon reports which are not in evidence, but which are customarily relied upon by experts in the profession.” Id. at 47, 608 A.2d at 518 (footnote omitted). However, this court also emphasized that “[a]n ‘expert’ should not be permitted simply to repeat another’s opinion or data without bringing to bear on it his own expertise and judgment.” Id. at 52, 608 A,2d at 521. Here, Dr. Epstein never stated that he relied upon the conclusions of Dr. Promisloff in forming his opinion. See Videotaped Deposition of Dr. Epstein at 34-35. Accordingly, the Primavera exception does not apply and this claim must also fail.

Appellant next contends that it was error for the trial court to allow counsel for Tuzi’s recitation of the out of court opinions of Dr. Hikon Chon, Dr. Elliott C. Schull and Dr. Sokolowski in cross-examining Dr. Epstein. We disagree.

Appellant first contends that the trial court erred in overruling its objection to counsel for Tuzi’s cross-examination of Dr. Epstein regarding an x-ray of Tuzi taken by a Dr. Chon. See Videotaped Deposition of Dr. Epstein at 57-58. We disagree.

Preliminarily, we point out that “the scope and limits of cross-examination are within the trial court’s discretion and the court’s ruling thereon will not be reversed in the absence of a clear abuse of discretion or an error of law.” Kemp 326 Pa.Super. at 324, 473 A.2d at 1371 (1984) (citation omitted). The right of cross-examination “includes the right to examine the witness on any facts tending to refute inferences or deductions arising from matters the witness testified to on direct examination.” Id. Moreover, where a medical expert is cross-examined concerning reports or records which have not been admitted into evidence but which would tend to refute that expert’s assertion, it is not an abuse of discretion for the trial court to allow this cross-examination. Id. at 324-25, 473 A.2d at 1371.

On direct examination, Dr. Epstein stated that he had reviewed “all of [Tuzi’s] x rays dating back almost 20 years and [he] saw no evidence of an asbestos-related change in his chest.” Videotaped Deposition of Dr. Epstein at 52. On cross-examination, counsel for Tuzi questioned Dr. Epstein about an x-ray of Tuzi taken by a radiologist, Dr. Chon, who reported that the x-ray showed bilateral pleural thickening on Tuzi’s lungs. Clearly, when a medical expert reviews an x-ray in preparation for his testimony at trial, any reports prepared by the radiologist who took the x-ray could be expected to have some bearing or impact on that expert’s findings. Here, however, Dr. Epstein failed to review Dr. Chon’s report which stated that at least one of Tuzi’s x-rays did show an asbestos-related change. Thus, Counsel’s cross-examination of Dr. Epstein regarding the x-ray and report of Dr. Chon was a legitimate attempt at diminishing the impact and reliability of Dr. Epstein’s opinion. Accordingly, we find that the trial court did not abuse its discretion in allowing Counsel’s questioning regarding Dr. Epstein’s report.

Appellant next contends that the trial court erred in failing to sustain appellant’s objection to the cross-examination of Dr. Epstein regarding a report of a Dr. Elliott C. Schull. This claim is spurious. Dr. Schull’s report indicated only that Tuzi may have had cancer in the lungs, a fact conceded by both appellant and Dr. Epstein.. As appellant has failed to demonstrate how it was prejudiced by this testimony, this claim is meritless.

Finally, appellant argues that the trial court erred in overruling appellant’s objection , to counsel for Tuzi’s cross-examination of Dr. Epstein regarding a letter written by a Dr. Sokolowski. As mentioned above, the right to cross-examination includes the right to question a witness on facts tending to refute inferences or deductions made by the witness on direct examination. Kemp at 324, 473 A.2d at 1371.

On direct examination, Dr. Epstein testified that after reviewing the records supplied to him, it was his opinion that Tuzi’s throat cancer was caused by his cigarette smoking and heavy use of alcohol and that Tuzi had not suffered from any asbestos-related disease. In cross-examining Dr. Epstein, counsel for Tuzi asked Dr. Epstein to read part of a letter written by a Dr. Sokolowski, a physician who had treated Tuzi for throat cancer. In the letter, Dr. Sokolowski stated that it was his opinion that Tuzi’s throat cancer was a result of his exposure to asbestos-related materials. Videotaped Deposition of Dr. Epstein at 76.

As this letter was written by a physician who was treating Tuzi for throat cancer and as it conveyed the physician’s conclusions regarding the cause of the cancer, we find it reasonable to expect it to have some bearing on a medical expert’s findings where that expert is rendering an opinion on the cause of the cancer. Here, although the letter was available to Dr. Epstein, it appears from the record that Dr. Epstein had not reviewed it. Hence, after observing Dr. Epstein’s unfamiliarity with the letter, Counsel asked Dr. Epstein to read Dr. Sokolowski’s conclusion aloud to establish that the diagnosis which Dr. Epstein failed to review contra-dieted his own findings. As this was a legitimate attempt at discrediting Dr. Epstein’s testimony, we find that the trial court did not abuse its discretion in denying appellant’s objection.

II.

Appellant next contends, on several grounds, that the trial court erred in giving a misleading and confusing charge to the jury. We disagree.

Appellant first objects to the trial court’s instruction on causation where the trial court stated, in pertinent part: Plaintiffs must prove it is more likely than not that they have been injured by asbestos exposure. Asbestos exposure need not be the only factor.

A substantial contributing factor is an actual, real factor. It is not an imaginary, fanciful or irrelevant factor having little or no connection with the disease. It is a cause which, in a continuous and unbroken sequence, produces harm that would not have occurred without it. Accordingly, the plaintiffs must establish more than asbestos presence in the workplace. They must prove they worked near the produce [sic] and inhaled the dust of this material called asbestos.

N.T., 1-14-92, at 102.

Appellant argues that this instruction led the jury to believe that if they found that appellees inhaled asbestos, then they must also conclude that asbestos was a substantial cause of their lung and throat cancer. We disagree. Preliminarily, we point out that “[w]hen reviewing a claim that the trial court erred in instructing the jury, the scope of appellate review is whether the court committed a clear abuse of discretion or an error of law which controlled the outcome of the case.” Butler v. Kiwi, S.A., 412 Pa.Super. 591, 596, 604 A.2d 270, 272 (1992) (citation omitted), appeal denied, 531 Pa. 650, 613 A.2d 556 (1992). Moreover, in reviewing the trial court’s instructions to the jury, “[t]his court will look at the charge in its entirety against the background of evidence in the case to determine whether error was made and whether it was prejudicial.” Id. (citations omitted).

In the instant action, the trial court never stated that inhalation of asbestos was sufficient but, rather, stated that it was necessary to establish that asbestos exposure was a substantial factor in causing Tuzi’s injuries. Moreover, the trial court’s instruction clearly provided that appellees were required to show that they had been injured by asbestos exposure and that this exposure was a substantial contributing factor to their injuries. See Dudley v. USX Corp., 414 Pa.Super. 160, 174, 606 A.2d 916, 923 (1992), appeal denied, 532 Pa. 663, 616 A.2d 985. After reviewing the instruction in its entirety, we find no abuse of discretion or error of law regarding the trial court’s charge on causation.

Appellant next points to the following instruction by the trial court on damages:

Damages may be awarded only if you find plaintiffs’ evidence provides sufficient data to assess them with reasonable certainty. While damages may not be awarded on the basis of speculation, conjecture or guesswork, the law does not require mathmatical [sic] exact proof. A damage award may not include these three items. Delay damages, attorneys [sic] fees and court costs. You may not award damages for injuries, symptoms, conditions or diseases which are not related to plaintiffs’ asbestos exposure.
I would say, from my recollection, the testimony, there was in one case, some mention of TB, tuberculosis. Damages of that sort is not in this case of itself. That is what I recollect. You, again, as a good illustration, your recollection will count when review everything.

N.T., 1-14-92, at 107.

Appellant argues that the trial court’s instruction influenced the jury to disregard appellant’s defense that Tuzi’s lung cancer was a result of tuberculosis scarring rather than asbestos exposure. We disagree. The trial court’s reference to tuberculosis was clearly within the context of its instruction to the jury on damages. The trial court properly pointed out that any damages to appellees from tuberculosis should not be considered as appellees’ claim was only for damages sustained from asbestos exposure. Accordingly, we find no abuse of discretion or error of law.

Appellant’s last objection to the trial court’s charge is that the trial court erred in failing to charge the jury that tuberculosis scars may have been a substantial contributing factor in causing Tuzi’s lung cancer. We disagree. As mentioned above, the trial court properly charged the jury on causation. The question before the jury was whether, after reviewing all of the evidence, they found that asbestos was a substantial factor in causing appellees’ injuries, regardless of other contributing factors. We find that the trial court’s charge was sufficient and appellant’s objection is without merit. See Cooper v. Burns, 376 Pa.Super. 276, 283, 545 A.2d 935, 938 (1988), appeal denied, 522 Pa. 619, 563 A.2d 888 (1989) . See also Noecker v. Johns-Manville Corp., 355 Pa.Super. 463, 472, 513 A.2d 1014, 1019 (1986).

III.

Appellant’s final contention is that the trial court erred in failing to grant its request for remittitur. We disagree.

We first point out that “[w]hen faced with a claim that the jury’s award of damages was excessive, we must be ‘ever-mindful that our standard of review is extremely narrow.’ ” Taylor v. Celotex, 393 Pa.Super. 566, 593, 574 A.2d 1084, 1098 (1990) (quoting Glomb v. Glomb, 366 Pa.Super. 206, 216, 530 A.2d 1362, 1368 (1987), appeal denied, 517 Pa. 623, 538 A.2d 876 (1988)). Accordingly, an order of remittitur is justified only where the verdict is unsupported by the evidence or it can be shown that the jury was guided by partiality, prejudice, mistake or corruption. Stoughton v. Kinzey, 299 Pa.Super. 499, 502, 445 A.2d 1240, 1242 (1982).

Appellant contends that as there is evidence showing that both appellees smoked and drank and that appelleeTuzi had scarring on his lungs from tuberculosis, the damages awarded appellees, $181,000 to Rafter and $605,000 to Tuzi, were excessive. We disagree. There was ample evidence at trial establishing that asbestos exposure was a substantial factor in appellees’ injuries and demonstrating the pain and suffering caused to appellees as a result of the injuries sustained. As the finder of fact, the jury is entitled to believe all, some.or none of the evidence presented. See Commonwealth v. Favinger, 358 Pa.Super. 245, 249-250, 516 A.2d 1386, 1388 (1986) (citation omitted), appeal denied, 516 Pa. 612, 531 A.2d 779 (1987). As we do not find that the jury’s verdict shocks our sense of justice, we hold that the trial court did not abuse its discretion in refusing to order remittitur. See Taylor, 393 Pa.Super. 566, 593, 574 A.2d 1084,1098 (1990) (“ ‘A verdict will stand unless its excessiveness shocks our sense of justice.’ ”) (quoting Glomb, 366 Pa.Super. at 216, 530 A.2d at 1368).

Accordingly, we affirm the order of the trial court.

Order affirmed.

CAVANAUGH, J., notes his dissent.

      . The trial was in reverse bifurcated form, meaning that the issue of damages was tried before the issue of liability. Appellant entered into a liability sharing agreement with the other defendants where it agreed to be liable for 'h of any verdict entered in favor of appellee-Rafter and if of any verdict entered in favor of appellee-Tuzi. Hence, the liability portion of the trial never occurred and appellant challenges only the verdict regarding damages.

      . Dr. Epstein argued that the calcium deposits were evidence that Tuzi’s cancer was caused by tuberculosis rather than asbestos exposure. See Videotaped Deposition of Dr. Epstein at 43.

      . Pleural thickening is evidence of an asbestos related alteration of the lung tissue.

      . We point out that there is no assertion by appellant nor is there any evidence in the record establishing that Dr. Chon's report was unavailable to Dr. Epstein.

      . Specifically, Dr. Epstein testified as follows:
      Doctor Sokolowski said — and this is certainly not my opinion but it’s what Doctor Sokolowski said — "it is my reasoned medical opinion that the evolution of carcinoma of the larynx in Mr. Tuzi occurred as a consequence of his exposure to asbestos-related materials.”
      Videotaped Deposition of Dr. Epstein at 76.

      . We point out that although Counsel could have questioned Dr. Epstein as to whether his conclusion was different from that of Dr. Sokolowski instead of having the contradicting diagnosis read by Dr. Epstein, as both methods of cross-examination would have elicited the same information, we find no resulting prejudice to appellant.