author: HESTER, Judge. DEL SOLE, Judge,

text:
    643 A.2d 1079
    Marilyn Kristofic ROBBINS in her own right and Marilyn Kristofic Robbins as parent and Natural Guardian of Kevin Kristofic, a minor and Brian Kristofic, a minor v. John D. KRISTOFIC and L. Stephen Kline. Appeal of John D. KRISTOFIC.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1993.
    Filed April 5, 1994.
    Reargument Denied June 17, 1994.

      JoAnne Ross Wilder, Pittsburgh, for appellant.
    Arthur Bloom, Pittsburgh, for appellee.
    Before DEL SOLE, TAMILIA and HESTER, JJ.
   HESTER, Judge.

Dr. John D. Kristofic appeals from the April 20, 1993 order entered by the Allegheny County Court of Common Pleas which granted a preliminary injunction and imposed a constructive trust in favor of Marilyn Kristofic Robbins in her capacity as guardian of her children, Kevin and Brian Kristofic, appellee and against appellant and L. Stephen Kline in this equity action. Marilyn and appellant previously were involved in a bitterly contested divorce. While they were married, they established a ten-year irrevocable Clifford trust (hereinafter the “trust”) to help pay for the education of their two minor children. The trust automatically was to expire by its own terms ten years and ninety days after its creation, or on April 1, 1993, and the funds were to revert to appellant in his own name. On March 23, 1993, appellee instituted this equity action in both her own name and as guardian for the children. On March 30, 1993, appellant transferred the trust funds to an account in his own name. The trial court then issued a preliminary injunction preventing appellant from using the funds and imposing a constructive trust. We affirm.

The record viewed in the light most favorable to appellee as the prevailing party in the equity action reveals the following facts. Two children were born during the marriage between Marilyn and appellant: Kevin Kristofic, born September 30, 1975, and Brian Kristofic, born March 3, 1977 (hereinafter the “children”). A divorce decree was entered on June 11, 1991. The trust created by Marilyn and appellant, with a current value of approximately $120,000, was excluded from the decree of equitable distribution. Without dispute, they excluded the trust from equitable distribution since they both regarded the trust as being exclusively for the benefit and use of the children rather than as marital property. Moreover, during the divorce proceedings, appellant repeatedly affirmed his . intent that the funds would be used solely and without restriction to finance the childrens’ higher education. In fact, appellant listed the trust in his inventory in the divorce as “1983 Trust Account funds held in trust for the parties’ children.” No appeal was filed by either party from the decree or from the equitable distribution.

Subsequently, appellee learned that appellant intended to impose conditions and use his sole discretion in distributing the trust funds once the trust expired and the funds reverted to him. Appellee regarded imposition of such conditions as negating appellant’s prior affirmations. Appellee thereupon requested the court to appoint an independent trustee to replace the current trustee, who was aligned closely with appellant. The divorce court, however, determined that this was an orphans’ court matter and denied this request. Subsequently, on March 16, 1992, appellee sought relief in orphans’ court where a conference was held, and the court determined that it lacked authority to appoint a trustee beyond April 1, 1993.

On March 23, 1993, appellee therefore instituted the present equity action in which she alleged that appellee, due to his prior affirmation that the trust helonged to the children, was estopped from altering that arrangement. Appellee suggested that appellant’s acknowledged intent to impose his own restrictions on distributing the trust funds effectively would allow him to control and virtually own the funds for all practical purposes. In an attempt to prevent appellant’s acquisition of these funds, appellee filed a motion for a preliminary injunction on March 30, 1993. On that same day, appellant transferred the funds out of the name of the trustee and into his own name at a different institution. On April 20, 1993, after conducting a hearing, the court determined that reversion of the funds to appellant alone, in view of his retraction of his prior unconditional affirmation that these funds belonged to the children, was improper. It issued the following order in which it granted a preliminary injunction and imposed a constructive trust, in pertinent part, stating:

AND NOW, this 20th day of April, 1993, after hearing on April 16, 1993, it is hereby ORDERED that a preliminary injunction issue requiring that Vanguard of Pennsylvania, tax-free # 77, V-Group Fund, Account No. 9867773241, in the name of John D. Kristofic, be imposed with a constructive trust in favor of Plaintiff and may not be withdrawn ■without further order of court.

Appellant first argues that appellee’s failure to raise any issue about reversion of the trust funds in the divorce waived her right to assert a claim now with regard to the trust. In support, he cites Fenstermaker v. Fenstermaker, 348 Pa.Super. 237, 502 A.2d 185 (1985). He further contends that as a result of her failure to appeal the decree of equitable distribution, appellee is collaterally estopped and cannot attack the finality of the divorce decree except in the instance of extrinsic fraud which he maintains does not exist in this case. See Kadel v. McMonigle, 425 Pa.Super. 253, 624 A.2d 1059 (1993) (decree cannot be attacked collaterally except on the basis of extrinsic fraud).

We reject both arguments. In order to be precluded by application of res judicata or collateral estoppel, there must be an identity of parties and issues. See City of Pittsburgh v. Zoning Board of Adjustment, 522 Pa. 44, 559 A.2d 896 (1989). In the equitable distribution proceedings, the court allocated marital property. In the present action, however, appellee is not seeking an interest in reversion of the trust as marital property but is acting as the guardian on behalf of the children. Further, the issue before us is not equitable distribution nor who should be trustee but the propriety of the imposition of a constructive trust. Thus, there is not an identity either of the parties or of the issues. Hence, we conclude appellee is not precluded from seeking equitable relief herein due to waiver.

Appellant next argues that the court’s decision to enter a preliminary injunction was improper since appellee had failed to establish the necessary requirements. He specifically asserts that appellant failed to prove either that an immediate harm already had occurred by the transfer of the money or that the alleged harm would be irreparable. He claims the money has not been spent for his own benefit. He thus avers that there is no present, irreparable harm as required to support imposition of a preliminary injunction. In support, appellant relies upon Cosner v. United Penn Bank, 358 Pa.Super. 484, 517 A.2d 1337 (1986) (an injury is irreparable when it cannot be compensated for with an award of monetary damages).

The court, in its order, granted a constructive trust over the funds at issue as well as an preliminary injunction to prevent appellant from gaining access to the money. Since appellee already has prevailed on the merits of the underlying issue, appellant’s objections to the issuance of the preliminary injunction are rendered moot by a decision on the merits that in essence imposes a permanent injunction through the imposition of a constructive trust. See Richards v. Trimbur, 374 Pa.Super. 352, 543 A.2d 116 (1988) (appellate court will not decide moot questions to which no effect can be given). See also Excellent Laundry Co. v. Szekeres, 382 Pa. 23, 114 A.2d 176 (1955) (law is not concerned with matters that have become moot, and the court will act only where a real controversy exists); Meyers v. Pennsylvania Public Utility Commission, 164 Pa.Super. 431, 65 A.2d 256 (1949) (it is not the province of the courts to give advisory opinions).

Therefore, we now address the propriety of the trial court’s imposition of a constructive trust. Our standard of review to determine the appropriateness of a decree in equity, irrespective of whether it relates to injunction proceedings, is well-established:

Appellate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion. The scope of review of a final decree in equity is limited and [the chancellor’s decision] will not be disturbed unless it is unsupported by the evidence or demonstrably capricious. The test employed is not whether the appellate court would have reached the same result as the trial judge, who heard and saw the evidence, but whether a judicial mind, on due consideration of the evidence, could have reached the conclusion of the trial judge.

Purdy v. Zaver, 398 Pa.Super. 190, 196-97, 580 A.2d 1127, 1130-31 (1990) (citations omitted). See also Brasile v. Estate of Brasile, 354 Pa.Super. 400, 512 A.2d 10 (1986). Furthermore, we note that a constructive trust is not reformation of trust documents but rather an equitable remedy to prevent unjust enrichment. See Partrick & Wilkins Co. v. Reliance Ins. Co., 500 Pa. 399, 404, 456 A.2d 1348, 1351 (1983) (citations omitted), where our Supreme Court stated:

As the Court has often stated, a constructive trust is not a trust in the ordinary sense of the term but simply an equitable remedy designed to prevent unjust enrichment. Unlike the duties of a traditional fiduciary, the sole responsibility of a constructive trustee is to surrender the property to the one on whose behalf the constructive trust is raised.

Bearing these standards in mind, we address appellant’s arguments.

First, we disagree with appellant’s claim that the children lack a basis to block his acquisition of these funds since there is no consideration to support their claim. In support, he cites Volkwein v. Volkwein, 146 Pa.Super. 265, 22 A.2d 81 (1941) (executor lacked an enforceable right to specific insurance proceeds to pay funeral expenses against surviving spouse where promise to pay them was backed only by sentiment and moral consideration). By making this argument, appellant ignores the fact that the funds already were given to the children in trust. The trust had not expired when appellant transferred the assets to the certificate of deposit in his own name. Consequently, the children still had an interest in the funds subject to the independent trustee’s discretion and without interference by appellant. Our Supreme Court long ago held that “no one can acquire rights in property antagonistic to the person whose interest he has committed himself to protect, nor hold any benefit acquired by fraud or breach of duty; this is one of the fundamental principles of equity jurisprudence.” Hamberg v. Barsky, 355 Pa 462, 467, 50 A.2d 345, 346 (1947). If appellant were to prevail, unjust enrichment would result from the placement of funds currently belonging to the children into his own name. There is no evidence that he placed the funds into an account in which he designated himself as trustee or custodian for the childrens’ benefit. Thus, his conduct in transferring the funds perpetrated fraud resulting in his unjust enrichment and justifies imposition of a constructive trust. Id; Roman Mosaic & Tile Co. v. Vollrath, 226 Pa.Super. 215, 313 A.2d 305 (1973) (constructive trust appropriate to prevent a wrongfully secured benefit and unjust enrichment).

Second, we find that the equity court properly prevented appellant from altering his affirmation made in the prior divorce proceedings that these funds solely were to benefit the children. Although neither party addressed the question of the reversion of the funds in the equitable distribution proceedings, appellant repeatedly affirmed his intent that the funds were for the sole use of assisting to pay for the childrens’ education without conditions or restrictions. Since appellant affirmed that the funds belonged to the children, the funds were not addressed or included in the equitable distribution of marital property. We conclude that appellant is bound by his prior affirmation in the divorce action and by promissory estoppel. Accordingly, he may not alter his prior affirmation to assert in a subsequent action that once the funds revert to him, he is entitled to impose conditions at his discretion regarding when or how much of the trust is distributed to the children. See Associated Hosp. Service v. Pustilnik, 497 Pa. 221, 439 A.2d 1149 (1981) (party to an action generally is estopped from assuming a position inconsistent with a position asserted in a prior proceeding).

Third, the court properly did not credit appellant’s pledge that the funds would be used by him to pay for the childrens’ education. The credibility determination of the equity court may not be disturbed on appeal. Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236 (1976). Appellee established that appellant was in debt to Medicare and Blue Cross in an original amount of $900,000 as the result of billing irregularities through his medical practice. Additionally, on November 13, 1991, he pled guilty to submitting a false financial statement to the United States Government by failing to disclose and include the trust as an asset as part of the settlement and repayment of liabilities to be paid to the government as reimbursement for the billing irregularities. He was sentenced to two years of probation and fined $100,-000. Therefore, we conclude that the trial court possessed a valid basis for not crediting appellant’s claim that he would disburse these funds only to benefit the children. A factual determination by the chancellor will not be reversed on appeal absent an error of law or lack of support in the record. Purdy v. Zaver, supra.

As a result, we find the trial court properly precluded further transfer or withdraw of the trust funds which appellant placed in his own name by application of the principles of promissory estoppel, fraud, and unjust enrichment. See Silver v. Silver, 421 Pa. 533, 219 A.2d 659 (1966) (imposition of a constructive trust is appropriate to preclude unjust enrichment); see also Denny v. Cavalieri, 297 Pa.Super. 129, 443 A.2d 333 (1982).

Finally, appellant argues that even if he diverted these funds, no harm occurred so as to require the grant of a preliminary injunction or the imposition of a constructive trust since the children can be made whole by bringing an action for support pursuant to 23 Pa.C.S. § 4327. That section now permits children to seek support for their higher education. Consequently, he argues that the court erred. We reject this argument. This issue is not whether the children can bring an action but whether a constructive trust was imposed properly.

Instantly, the court prevented appellant from altering his prior affirmations and possessing funds which equitably do not belong to him. It concluded that he already had shifted the funds for the benefit of his children to his own name, and there was a reasonable likelihood that he might use these funds for his own benefit. Consequently, a constructive trust was appropriate to ensure the trust funds remained available to the children as intended. See Roman Mosaic & Tile Co. v. Vollrath, supra (constructive trust is appropriate to prevent unjust enrichment by a fiduciary); Perloff Bros. v. Cardonick, 406 Pa. 137, 176 A.2d 413 (1962) (where there was evidence of fraud, an injunction should issue).

Further, the right of the children to seek future support from appellant for college does not alter this conclusion. If appellant were allowed to divert these funds, there is a reasonable likelihood in view of appellant’s circumstances that the funds may not be available for the childrens’ education. Moreover, this is not á mere matter of money damages. The children will need the funds at a specific time in their lives before they start careers and incur financial obligations, and it may not be possible for them to attend college at a later date. Support, even if paid by appellant, would not be as readily available as the trust corpus is for this purpose. See East Hills TV & Sporting v. Dibert, 366 Pa.Super. 455, 531 A.2d 507 (1987) (seller may be enjoined from using funds in seller’s bank so as to prevent potential loss of funds belonging to buyer and necessary to carry on its business). Finally, if, as appellant contends, he truly intends the funds exclusively to benefit the children, even though he is not in control of the investment or disbursement of the funds, he should have no objection to the funds being placed in trust with together with the appointment of an independent trustee. Accordingly, we conclude the trial court properly imposed a constructive trust.

Order affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

I disagree with the court’s imposition of a constructive trust. Here a trust was established for the education of the parties two minor children and was to automatically expire ten years and ninety days after its creation. The funds were then to revert solely to Appellant.

At the time of equitable distribution, both parties knew the terms of the trust. They were aware that although Appellant stated it was his intent that this money be used exclusively for their children’s education, the terms of the trust were obvious and did not require such a use after termination. No legal action was taken to extend the trust beyond the expiration date or to assure wife would receive a portion of the funds, if available, upon the expiration of the trust. The fact that distribution of the marital estate was made, knowing that these funds would revert to Appellant at a date certain, constitutes an agreement on their distribution. If the Appellee sought an interest in the fund, or wished to encumber it further for the children’s education, the matter should have been addressed at the time of distribution.

Also, the trial court’s action does not determine how long the trust should continue, or the conditions for payment of educational costs and it does not deal with the ultimate distribution of excess funds.

I note that the children have the ability to compel Appellant provide necessary post-secondary educational funding. By refusing to impose a trust in favor of Appellee, I do not conclude that the children are unable to seek a contractual determination of their status as beneficiaries of an agreement between their parents governing father’s payment of educational costs. These matters should await the appropriate case before being addressed.

Therefore, I must dissent from the Majority’s affirmance of the order imposing a constructive trust.

      . The caption incorrectly indicates that appellee is a party to this action in her individual capacity.

      . L. Stephen Kline, an accountant, was the sole remaining trustee after John D. Houston II, Esquire, resigned and was dismissed as a defendant by the consent of both parties.

      . While appellee originally was a plaintiff individually, the only relief she sought was as a guardian for her minor children. Hence, she abandoned any claim for relief in her own right at trial.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    643 A.2d 1085
    Eugene R. BUNTING and Danna M. Bunting, h/w v. SUN COMPANY, INC., Sun Transport, Inc. and Sun Refining and Marketing, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1993.
    Filed May 6, 1994.
    Reargument Denied July 14, 1994.

      Francis J. Deasey, Philadelphia, for appellants.
    Ronald L. Wolf, Philadelphia, for appellees.
    Before BECK, TAMILIA and HESTER, JJ.
   BECK, Judge:

This appeal involves a claim for personal injuries arising under the general maritime law and the Jones Act (46 U.S.C. § 688). The issue we decide, inter alia, is whether, under a comparative negligence scheme, the plaintiffs contributory negligence must be a substantial or featherweight factor in causing his own injuries in order to reduce his recovery. We hold that the plaintiffs contributory negligence need be only a feather-weight causative factor. Because the trial court’s charge to the jury on the question of comparative negligence was prejudicially erroneous, we grant a new trial.

Plaintiffs Eugene Bunting and Danna Bunting brought this action for personal injuries sustained by Eugene Bunting while he was employed as an assistant engineer of a cargo ship owned by defendant-appellants Sun Company, Inc., Sun Transport, Inc. and Sun Refining and Marketing, Inc. Before the day of Bunting’s accident, the vessel had been experiencing an oil leak from a fitting on an Inert Gas System (“IGS”) generator. Attempts to repair the fitting failed, and a drip can was-placed beneath the leak in order to keep the oil off the ship’s deck. Bunting himself had emptied and replaced this can on several occasions. At the time of the accident, Bunting was descending a ladder that led from the ship’s IGS deck to the engine room, when he slipped and fell, sustaining injury to his left knee. Upon returning to the area where he fell, Bunting discovered that the can beneath the leaking fitting had fallen over and oil had run onto the ladder steps.

Bunting brought this action against the shipowners, alleging unseaworthiness under federal maritime law and negligence under the Jones Act. Defendants argued that Bunting was contributorily negligent. After trial, the jury returned a verdict in favor of Bunting in the amount of $1,026,000 and in favor of his wife on her consortium claim in the amount of $31,000.

Although the action was brought in state court, liability is determined in such cases according to the federal maritime law. See Klineburger v. Maritrans, 404 Pa.Super. 490, 591 A.2d 314 (1991), cert. den., — U.S.-, 112 S.Ct. 1762, 118 L.Ed.2d 425 (1992). In order to prove a claim of unseaworthiness under federal maritime law, a plaintiff must show that the unseaworthy condition of the vessel was the proximate, or direct, and substantial cause .of his or her injuries. See, e.g., Brophy v. Lavigne, 801 F.2d 521, 524 (1st Cir.1986). In this case, the trial court properly instructed the jury that, in order for liability to attach on the issue of unseaworthiness, the unseaworthy condition of the S.S. TROPIC SUN must have been a “substantial factor” in causing Bunting’s injuries, and this instruction was confirmed in the jury’s verdict sheet interrogatories. As is indicated by the jury’s answers to these interrogatories, they found the vessel to be unseaworthy, and the unseaworthiness to have been a substantial factor in causing Bunting’s injuries.

Were it not for the additional theory of Jones Act negligence, we could affirm the jury’s verdict of liability against the defendant at this juncture and proceed no further. However, because this case also involves allegations of negligence, and the defense of contributory negligence under the Jones Act, we must review the propriety of the court’s charge on this issue. Traditionally, cases of this nature are brought both under the unseaworthiness doctrine of federal maritime law and under the Jones Act. Recovery, if any, is against the defendant-shipowner without separate allocation of damages to either the unseaworthiness or Jones Act negligence theory. The instant case was brought under both theories. Our specific inquiry relates to comparative negligence under the Jones Act.

The jury answered special interrogatories on a verdict sheet as follows:

IA. Was the S.S. TROPIC SUN unseaworthy at the time of Mr. Bunting’s accident? YES.
Only answer IB if your answer to 1A is “Yes”.
IB. Was the unseaworthiness of the S.S. TROPIC SUN a substantial factor in causing Mr. Bunting’s accident? YES
2A. Was [the defendant] negligent? YES.
Only answer 2B if your answer to 2A is “Yes”.
2B. Was [the defendant’s] negligence a substantial factor in causing Mr. Bunting’s accident? YES.
Go on to Question 3 only if you answered “Yes” to Question IB or 2B or both. Otherwise cease your deliberations and return to the courtroom.
3A. Was the plaintiff, Eugene Bunting, negligent? YES. '
Only answer 3B if your answer to 3A is “Yes”.
3B. Was Mr. Bunting’s negligence a substantial factor in causing his own accident? NO.

The verdict sheet also directed the jury to express the comparative degrees of negligence of Bunting and appellant as a percentage, if they found the plaintiffs negligence to have been a “substantial factor in causing his own accident.” Because the jury did not find that Bunting’s negligence was a substantial causative factor, they left this question blank.

The trial court denied appellants’ post trial motions, and granted the Buntings’ petition for delay damages. Judgment was entered on the molded verdict, and this timely appeal followed.

The appellant challenges, inter alia, the trial court’s comparative negligence instruction:

Did the trial court’s jury instruction on the applicable law of comparative negligence in a merchant seaman’s action constitute an erroneous statement of the law thereby warranting the grant of a new trial?

The question is whether a plaintiffs negligence must be a substantial causative factor or whether any negligence on the part of the plaintiff, even featherweight negligence, is sufficient as a causative factor to establish contributory negligence and reduce any recovery.

The Jones Act itself is silent on the question, and the case law addressing the issue is sparse. We initially sought guidance from a parallel act, the Federal Employers Liability Act (“FELA”) (45 U.S.C. § 51). FELA was enacted to offer special protection to railroad workers, and the Jones Act offers special protection to seamen. As a matter of fact, the Jones Act directly incorporates the negligence cause of action created earlier for railroad employees under FELA. The Jones Act provides in pertinent part:

(a) Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such actions all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply....

46 U.S.C. § 688 (emphasis supplied). The relevant section of the FELA provides, in pertinent part:

Every common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ..., for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment....

45 U.S.C. § 51 (emphasis supplied).

Under FELA, the employer is liable for injury or death “resulting in whole or in part” from its negligence. 45 U.S.C. § 51. Following the philosophy of FELA, the Jones Act has been interpreted to make the shipowner-employer liable upon a “featherweight” standard of causation — liability attaches if the defendant’s negligence played any part, no matter how slight, in causing the plaintiffs injury. See, e.g., Rogers v. Missouri Pacific R. Co., 852 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Joyce v. Atlantic Richfield Co., 651 F.2d 676 (10th Cir.1981) (application in Jones Act case); Heater v. Chesapeake & Ohio Railway Co., 497 F.2d 1243 (7th Cir.1974) (application in FELA case).

We now review the trial court’s instruction on the applicable standard of causation for determining whether a plaintiffs contributory negligence will reduce any recovery. First, we point out that a Jones Act plaintiffs contributory negligence is not a complete bar to recovery. See Rankin v. Iron City Sand & Gravel Corp., 356 Pa. 548, 52 A.2d 455 (1947) (contributory negligence in Jones Act case will not defeat recovery but only mitigate damages). A plaintiff will be prevented from recovering damages only if his own negligence constitutes the sole producing cause of his injury. See Peymann v. Perini Corp., 507 F.2d 1318 (1st Cir.1974), cert. den., 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1975). We also point out that the Jones Act comparative negligence scheme differs from the Comparative Negligence Act applicable in Pennsylvania. 42 Pa.C.S.A. § 7102(a) (Purdon 1982) (plaintiffs contributory negligence bars recovery where it is greater than the defendant’s causal negligence). Under the Jones Act, a plaintiff still may recover damages even if the jury finds him to have been up to 99% negligent. Any award of damages, however, will be diminished by the percentage of causal negligence attributed to plaintiff. See generally, Schoenbaum, Admiralty and Maritime Law § 4-9 (West 1987).

In this case, the jury found that Bunting was in fact negligent. Jury Interrogatory 3A. However, the court failed to instruct the jury that, under the Jones Act, in order for Bunting’s negligence to be a factor in reducing appellant’s liability, a featherweight causation standard applied. Instead, the court instructed the jury that the applicable standard was a substantial factor. Since the jury did not find that Bunting’s negligence was a “substantial factor” in causing his injuries, the jury did not assign to him a percentage of contributory negligence for the purpose of reducing appellants’ liability.

We hold that the applicable standard for assessing a plaintiffs negligence in Jones Act cases is a “featherweight” causation standard. This is the same standard applicable to the defendant’s conduct in Jones Act cases.

Our extensive research has yielded very few cases which address this precise issue. However, we find the following language from a FELA case to be most persuasive:

From a substantive point of view, we think that from the very nature of comparative negligence, the standard of causation should be single. Congress accorded valuable rights to injured employees in outlawing contributory negligence as a bar. It simultaneously subjected railroad [sic] to a more onerous burden. This was a legislative compromise to achieve recognized ends. But there is no indication that in making employee negligence a partial factor, there was ever a purpose to retain all of the common law traditional refinements of a doctrine then being rejected.
Indeed, the language of § 51 [of FELA] which is at the bottom of the Rogers [v. Missouri Pacific R. Co., supra ] test imposing liability for injuries or death “resulting in whole or in part from the negligence” of the railroad or its agents fits nearly [sic] into the structure of § 53 [of FELA] which bans contributory negligence as a bar. Thus the purpose is to accord damages where the injuries are caused wholly from the negligence of the railroad or where caused partly by its negligence and partly by acts of others. The others would, of course, include the injured worker too. The object was to free this new legislatively created right of the common law defenses and refinements and to supply in its stead a simplified structure in which damages would be borne by railroad and injured worker in proportion to their respective faults. Use of the terms “in proportion to” and “negligence attributable to” the injured worker inescapably calls for a comparison. Since it is clear that § 53 never contemplates a reduction in damages for negligent acts of the injured worker except to the extent such negligence brings about the injuries, it is obvious that for a system of comparative fault to work, the basis of comparison has to be the same.

Page v. St. Louis Southwestern Railway Co., 349 F.2d 820, 824 (5th Cir.1965) (emphasis in original). This line of reasoning also has been applied to Jones Act cases. See Alverez v. J. Ray McDermott & Co., 674 F.2d 1037 (5th Cir.1982); McBride v. Loffland Bros. Co., 422 F.2d 363 (5th Cir.1970). See also IB Benedict on Admiralty § 25, pp. 3-124-3-127 (7th Ed.1993).

The Jones Act properly places a high degree of responsibility on the shipowner for safety aboard ship. The law does this to encourage the shipowner to act responsibly in maintaining vessel conditions. In order to maintain these high standards aboard the ship it is necessary for personnel also to act with utmost care. Therefore, in situations requiring a comparison of negligence between the plaintiff and the defendant, the same causative standard must be imposed.

In our view, it makes no sense to analyze the defendant’s negligence using a “featherweight” causation standard, requiring only that such negligence play any part, no matter how slight, in causing the plaintiffs injuries, while at the same time analyzing the plaintiffs own fault by using a “substantial factor” causation test. In the instant case the trial court’s error may well have prejudiced the appellant-shipowners, since the jury did find that the plaintiff was negligent to some degree. Although they did not find this negligence to have been a “substantial factor” in causing the injury, they might have found that it “play[ed] any part, no matter how slight,” in causing it. If the jury had been instructed properly, and so found a causal connection between the plaintiffs own conduct and his injury, the percentage of causal negligence they would have attributed to him would have reduced his damages award. Therefore, a new trial is warranted. Smith v. Brooks, 394 Pa.Super. 327, 575 A.2d 926, 935 (1990) (erroneous instruction can justify a new trial if it was fundamentally in error and it may have been responsible for the verdict).

Reversed and remanded for a new trial in accordance with this opinion.

      . In his charge on Jones Act negligence, the trial judge properly instructed the jury that, in order to hold the defendant shipowner liable under the Jones Act, they must find that its negligence ‘‘played any part at all in causing the harm complained of.” R. 684a. However, the corresponding interrogatory on the jury verdict sheet required that the defendant's negligence must have been a "substantial factor” in causing Bunting's injury in order for liability under the Jones Act to attach. This clearly was error. The verdict sheet language imposed upon the plaintiff a greater causal burden than is required by the law. Nevertheless, this error was not prejudicial. The jury found “substantial factor” causation, and therefore they certainly would have found that the "featherweight” causation requirement was satisfied. We need not grant a new trial based on this error in the charge. See Richards v. Dravo Corp., 249 Pa.Super. 47, 375 A.2d 750 (1977) ("proximate cause” charge in Jones Act negligence case was highly prejudicial, but in appellant shipowner’s favor, so no new trial granted).

      . The relevant language in the FELA sets forth a comparative fault scheme which applies in the seaman’s action as well: “the fact that the employee may have been guilty of contributoiy negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee ...” 45 U.S.C. § 53.

      . We note that the trial judge in this case improperly illustrated his charge on comparative negligence with an example based upon Pennsylvania’s version of the rule:
      ... the plaintiff could recover even if he was as much as fifty percent negligent; however, the plaintiff could not recover if you say he was fifty-one percent negligent — in my example, because see then his negligence would be more than that of the defendant. So those two percentages would have to equal a hundred percent.
      R. 688a-689a (emphasis added).

      . Although the seaman traditionally has been viewed as a "ward of the admiralty,” and shipowners often have been held to be veritable insurers of their employees' health, we do not believe that this traditional notion is sufficiently compelling to hold the negligent shipowner and negligent plaintiff to different burdens of causation in a comparative fault scheme.

      . Appellant has raised other questions on appeal, including challenges to the trial court’s rulings on the order and admissibility of certain testimony, its charge to the jury on damages, and its award of delay damages.
      We find no error in the appellants’ first issue, regarding the trial court’s refusal to permit them to call an unlisted, unidentified witness. The appellants claim that they were surprised by certain testimony by Bunting, and that the new witness was necessary to rebut that testimony. After a review of the relevant portions of the record, we find no abuse by the trial court in precluding appellants’ witness from testifying.
      We also are unpersuaded by the appellants’ second argument, that the trial court erred in permitting the plaintiff's economist to testify out of turn. The conduct of trial and order of witnesses certainly is within the trial court’s discretion. Pa.R.Civ.P. 223. We find no prejudicial error where the appellants were aware of the scheduling of witnesses since the beginning of trial, and because the appellants could have presented their own economic expert testimony but chose not to do so.
      Appellants also claim that the trial court erred when it refused to give their requested instruction on damages, and that this error warrants the grant of a new trial. We note that the trial court is under no obligation to use the precise wording requested by a party, as long as the charge given, as a whole and in light of the evidence at trial, provides a correct statement of the applicable law. See, e.g., Butler v. Kiwi, S.A., 412 Pa.Super. 591, 604 A.2d 270 (1992); Bailey v. Pennsylvania Electric Co., 409 Pa.Super. 374, 598 A.2d 41 (1991). We note that the actual instruction on damages given by the trial court correctly set forth the applicable legal principles, even though it did not use the precise wording requested by the appellants. We find no error on this issue.
      Appellants finally complain that the jury’s verdict was excessive, and that a remittitur or new trial is warranted. Since we are awarding a new trial, we need not address this issue. For the same reason, we need not reach the issue of delay damages. However, we refer the parties and the court to our recent decision in Musumeci v. Penn’s Landing Corp., 433 Pa.Super. 146, 640 A.2d 416 (1994) in which we set forth the correct method for the assessment of delay damages in maritime cases.


author: TAMILIA, Judge: CERCONE, Judge,

text:
    643 A.2d 1090
    COMMONWEALTH of Pennsylvania, Appellant, v. Darryl RILEY. COMMONWEALTH of Pennsylvania v. Darryl RILEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1994.
    Filed May 9, 1994.
    Reargument Denied July 13, 1994.

      Peter J. Gardner and Kathy L. Echternach, Asst. Dist. Attys., Philadelphia, for the Com.
    Andrew G. Gay, Philadelphia, for Riley.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

These are cross-appeals from the Order of June 10, 1993 granting appellant, Darryl Riley, a new trial and denying his motion for arrest of judgment. Riley appeals from the denial of his motion for arrest of judgment, and the Commonwealth appeals the granting of a.new trial. On October 21, 1992, following a nonjury trial, Riley was convicted of rape and indecent assault. In his appeal (No. 02300 Philadelphia, 1993), Riley alleges the evidence presented at trial was insufficient to sustain a conviction. Specifically, he argues the Commonwealth failed to prove the element of forcible compulsion or threat thereof, which is a necessary requirement under 18 Pa.C.S. § 3121(1) or (2).

In reviewing a sufficiency of the evidence claim this Court must determine whether the evidence, and all reasonable inferences deducible therefrom, when viewed in a light most favorable to the Commonwealth, are sufficient to establish all the elements of the crime beyond a reasonable doubt. Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992). A person commits a rape when, inter alia, “he engages in sexual intercourse with another person not his spouse: (1) by forcible compulsion.” 18 Pa.C.S. § 3121(1). Forcible compulsion is an act, including physical force as well as moral, psychological or intellectual force, used to compel a person to engage in sexual intercourse against that person’s will. Commonwealth v. Rhodes, 510 Pa. 537, 554, 510 A.2d 1217, 1226 (1986). Moreover, the degree of that force is relative and depends on the totality of the facts and circumstances of the particular case. Id. The victim need not resist a person trying to force sexual intercourse against her will. Id. at 556, 510 A.2d at 1227; 18 Pa.C.S. 3107.

In the present case, the evidence, viewed in a light most favorable to the Commonwealth, clearly establishes the element of forcible compulsion necessary for a rape conviction. The victim and Riley met on a dinner date arranged by mutual friends. Two days after this date, they arranged to meet after the victim finished work at a Philadelphia restaurant. Riley picked up the victim at 2:20 a.m., however as they drove in his car the victim explained she was tired from eight hours of work and asked for a rain check. Riley, who also claimed to be tired, asked the victim if he could sleep in her one-room studio apartment. The victim agreed and both went into the apartment. While appellant lay on the bed watching television, the victim showered and changed into her nightwear, which consisted of underwear, a T-shirt, a knee-length nightshirt and a robe. Riley asked if he could remove his pants so he could be more comfortable and the victim said yes. She got into bed and removed her robe, whereas Riley got under the blankets and asked for and received a goodnight kiss.

The victim kissed Riley once, however, he rolled on top of her, with his body weight pinning her, and attempted to kiss her more forcefully. The victim resisted, ordering Riley to stop. She moved her head from side to side in an attempt to avoid his lips. He resisted her pleas, telling the victim to “relax, go with it.” The testimony revealed Riley was approximately seven inches taller and thirty pounds heavier than the victim, however, despite being pinioned, the victim grabbed Riley’s hips attempting to push him off her body. As he removed her underwear and penetrated her, the victim pleaded to stop and get off her. Riley kept moving about until he ejaculated.

Riley repeatedly apologized for his actions immediately after the incident and the following morning at which time the victim asked him to leave her apartment. That afternoon, the victim went to the hospital for an examination. Riley went to the hospital and again apologized to the victim, stating he “... didn’t mean to force her to have sex and rape her____” Furthermore, he assured the victim he was going to seek help from Naval authorities, as he was a Navy enlistee, and offered to pay her medical bills.

This evidence clearly demonstrated the victim did not consent to the act. Riley exerted enough force to overcome any resistance by the victim. The victim refused to have sexual intercourse, however, Riley forcibly compelled her to do so by laying on top of her, pinning her with his body weight. He thwarted her attempts to resist sexual contact and then penetrated her. This is plainly forcible compulsion. See Commonwealth v. Meadows, 381 Pa.Super. 354, 553 A.2d 1006 (1989). Moreover, Riley’s repeated apologies, subsequent admissions and promise to seek help confirm that he recognized the intercourse was forcible. Accordingly, we find appellant Darryl Riley’s argument without merit.

The Commonwealth, in its appeal (No. 02265 Philadelphia, 1993), argues the trial court erred in sua sponte granting a new trial on the grounds that the Rape Shield Law is unconstitutional. The Commonwealth alleges Riley never raised the claim and the record was wholly inadequate to make such a determination. Furthermore, the proposed inquiry into the victim’s sexual past was irrelevant to the defense at trial.

The trial court did not find the Rape Shield Law unconstitutional per se, but rather questioned whether it must yield to appellant Riley’s constitutional right of confrontation in this situation. Specifically, the Rape Shield Law was implicated when mention of the victim’s pregnancy (which she allegedly discovered shortly after the rape) was elicited by the Commonwealth on direct examination. According to the record, the victim intended to have an abortion and wanted Riley to pay for it. He agreed to pay and later sent part of the requested money to the victim. On cross-examination, Riley’s counsel attempted to explore the circumstances of the pregnancy and the fact the victim requested $500 for the abortion but received only $200. However, the Commonwealth objected to the questions, which were sustained by the trial court as being in violation of the Rape Shield Law.

During post-trial motions, the trial judge determined that the evidence excluded by sustaining the Commonwealth’s objections was obviously intended to show fabrication of the forcible rape charge in an attempt to compel Riley to pay for her abortion. Thus, by admitting evidence of the victim’s pregnancy, which might have been inadmissible without a Rape Shield motion if offered by Riley, the Commonwealth cannot object to him attempting to expand upon that evidence to show the victim’s bias. In other words, had the Commonwealth not “opened the door” on this point, Riley would not have been permitted to raise it without filing a proper motion. The Commonwealth alleges this cross-examination is exploration into prior sexual activity prohibited by the Rape Shield Law. However, the Commonwealth ignores its role in placing the matter in issue, which nullifies the Rape Shield Law requirement of a prior written motion and hearing on the issue. Accordingly, the court granted a new trial.

If a trial court determines that the process has been unfair or prejudicial, even where the prejudice arises as the result of actions by the court, it may, sua sponte, grant a new trial in the interest of justice. Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1991). However, the granting of a new trial in the interest of justice cannot be arbitrary, but must be supported by the record. Id. This Court will not disturb such a granting, absent an abuse of discretion. Id. In such a case the appropriate remedy is to grant a new trial and not dismissal.

The purpose of the Rape Shield Law is to prevent irrelevant testimony relating to the victim’s past involvement in sexual activities from being presented to the trier of fact in order to protect the victim from being prejudiced because of unwarranted perception as to her moral character rather than based on the facts of the case. The Rape Shield Law is not meant to prevent the admission of evidence that goes to bias or motive for testifying against the defendant when it might be exculpatory as to the defendant and establish a motive for the victim to color her testimony. The rationale supporting this concept is clearly spelled out as follows in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). “The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065 (1965).” Id. at 315, 94 S.Ct. at 1110, 39 L.Ed.2d at 353. Specifically, “[an] attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudice or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.... We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Id. at 316-17, 94 S.Ct. at 1110, 39 L.Ed.2d at 354 (emphasis added).

Contrary to the Commonwealth’s claim, the court need not treat the Rape Shield Law as being unconstitutional to resolve this issue and to grant a new trial. In fact, the court properly found, by not permitting cross-examination of the witness, it denied Riley protection of a constitutional right not implicated by the Rape Shield Law. The trial court was well within its discretion to grant a new trial when there existed prejudicial error in denying the defendant his right to cross-examination on an issue which dealt with motive or bias raised on direct examination by the Commonwealth. The Rape Shield Law does not abrogate constitutional rights but is simply a rule of evidence to deny the admission of irrelevant and prejudicial evidence as to character.

Order granting appellant Darryl Riley a new trial and denying his motion for arrest of judgment affirmed. Case remanded for trial in accordance with this Opinion.

Jurisdiction relinquished.

Dissenting opinion by CERCONE, J.

CERCONE, Judge,

dissenting:

I dissent from the majority’s decision to grant a new trial in the instant case. The Rape Shield Law is a bar to admission of testimony of prior sexual conduct of a victim, whether consensual or nonconsensual, unless it has probative value which is exculpatory to the defendant. Commonwealth v. Smith, 410 Pa.Super. 363, 599 A.2d 1340 (1991). Exceptions to the broad exclusion of the rape shield law will arise “when a specific proffer demonstrates that the proposed inquiry is intended to elicit relevant evidence, which is more probative than prejudicial, and which is not cumulative of other evidence available.” Id. at 368, 599 A.2d at 1342, quoting Commonwealth v. Nieves, 399 Pa.Super. 277, 288, 582 A.2d 341, 347 (1990). However, in order to invoke such an exception, there must be an adequate, specific, written offer of proof. Commonwealth v. Kunkle, 424 Pa.Super. 499, 623 A.2d 336 (1993).

In the instant case, the lower court awarded appellee a new trial on the basis that he had been precluded from cross-examining the complainant as to whether or not her pregnancy was caused by him. As the lower court notes, however, no specific proffer was made in regard to the proposed cross-examination. The nature of the questions posed by the defense on cross-examination indicate that the testimony sought would obviously have delved into areas prohibited by the Rape Shield Law. The majority would find the requirement of a specific proffer of evidence waived in this case. I must strongly disagree with this conclusion.

The rape shield laws as enacted by the various states “were intended to end the abuses fostered by the common law rule[] by limiting the harassing and embarrassing inquiries of defense counsel into irrelevant prior sexual conduct of sexual assault complainants.” Commonwealth v. Nieves, 399 Pa.Super. 277, 286, 582 A.2d 341, 346 (1990). The requirement of a specific proffer of evidence was designed to prevent “fishing expedition” types of intrusions into areas protected by the Rape Shield Law. Commonwealth v. Wall, 413 Pa.Super. 599, 606 A.2d 449 (1992), allocatur denied, 532 Pa. 645, 614 A.2d 1142 (1992).

The line of inquiry upon which the defense embarked on cross-examination of the victim herein was a fishing expedition of the precise type precluded by the Rape Shield Law. The defense made no specific proffer at trial, or at any time since then, of the evidence which he intended to elicit from such inquiry. On the other hand, the inquiry itself provided full opportunity for speculation and innuendo concerning the prior sexual history of the victim. The fact that the case was not tried before a jury seems to have had little effect in minimizing the prejudicial nature of the defense’ attempt to inquire into rape shield protected areas. Indeed, the trial court, who was the trier of fact in the instant case, granted appellee a new trial on the basis of the exclusion of the protected evidence, even though appellee did not raise a specific proffer of evidence at trial or in post-verdict motions. The trial court’s sua sponte granting of a new trial on this basis keenly demonstrates the powerful prejudicial nature of inquiries by the defense into the past sexual history of a female rape complainant. See Commonwealth v. Nieves, supra, 399 Pa.Super. at 286, 582 A.2d at 346 (admission of evidence of female rape complainants’ general reputation for morality and chastity resulted in notorious abuse of rape victims by defense attorneys, essentially putting the victim on trial).

As to the probative nature of the testimony which the defense sought to admit,1 acknowledge that the defense was interested in undermining the credibility of the complainant by attempting to establish some motive to testify falsely against the appellee. However, the testimony which the defense apparently sought on cross-examination (i.e., that appellee or someone other than him had impregnated the victim prior to the alleged rape incident) would have been incredibly weak in light of the other testimony of record. That testimony included evidence that the alleged rape occurred two days after the victim and appellee met, the victim verbally and physically resisted the advances of appellee, appellee repeatedly apologized to the complainant for his actions after the incident and admitted to her that he had “raped” her, as well as appellee’s payment of certain of the victim’s medical bills. In contrast with the enormously prejudicial nature of the testimony sought to be elicited, its probativeness of the issues before the court was clearly inferior and attenuated.

For these reasons, I would find that the trial court properly sustained the Commonwealth’s objections to the testimony sought to be introduced by the defense on cross examination. The basis of the trial court’s ruling, the prohibition of the testimony under the Rape Shield Law, was correct. It was error for the lower court to have awarded appellee a new trial on the basis of the exclusion of the evidence, and accordingly, I note my dissent.

      . Since the court granted appellant a new trial, judgment of sentence was not entered. As a general rule, a defendant may take an appeal only from the judgment of sentence. However, Pa.R.A.P. 311(b)(5) recognizes an exception to that rule: "[A]n appeal may be taken as of right from ... an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter •would be an absolute discharge....” See also Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977).

      . 18 Pa.C.S. § 3121.

      . Id., § 3126.

      . We note that appellant, Darryl Riley, did not file a brief in opposition to the Commonwealth’s appeal.

      . The common law rule required that evidence of a female rape complainant’s general reputation for morality and chastity was deemed admissible on the issue of consent. Commonwealth v. Nieves, supra, 399 Pa.Super. at 286, 582 A.2d at 346.

      . Appellee does not even present a specific proffer of evidence in the instant appeal.

      . Again, we must note we are engaging in speculation because of the absence of a specific proffer of evidence.


author: OLSZEWSKI, Judge: McEWEN, Judge, DEL SOLE, Judge,

text:
    643 A.2d 1095
    Alva BUSFIELD and Elaine Busfield, H/W, Appellants, v. A.C. & S., INC., John Crane Inc., Anchor Packing Co., Armstrong World Industries, Carey-Canada, Owens-Corning Fiberglas Corp., Owens-Illinois Inc., Pittsburgh-Corning Inc., H.K. Porter Co. Inc., Turner-Newell Ltd., Raymark Industries Inc., Rockwood Manufacturing Co., Southern Textile Co., Celotex Corp., Certain-Teed Corp., Combustion Engineering, Eagle-Picher Industries Inc., Fibreboard Corp., GAF Corp., Garlock Inc., Keene Corp., National Gypsum Co., U.S. Mineral Products, Crane Packing, Amchem Products Inc., Atlas Turner Ltd., Foster Wheeler Corp. Inc.
    Superior Court of Pennsylvania.
    Argued May 11, 1994.
    Filed June 23, 1994.

      Jeffrey G. Moyer, Philadelphia, for appellants.
    Robert T. Connor, Philadelphia, for Anchor Packing, Armstrong World Industries and Carey-Canada, appellees.
    Carol L. Widemon, Cherry Hill, NJ, for Owens-Illinois, appellee.
    Thomas R. Wright, Philadelphia, for Pittsburgh-Corning, H.K. Porter, Turner-Newell, Raymark, Rockwood, Southern Textile, Celotex, Certain-Teed, Combustion Engineering, Eagle-Picher, Fibreboard and GAF Corp., appellees.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.:
   OLSZEWSKI, Judge:

Plaintiff Alva Busfield suffers from asymptomatic asbestosis, a condition caused by exposure to defendants’ asbestos. The only question presented on this appeal is whether the trial court properly excluded evidence of Busfield’s fear that he might develop cancer in the future. We find that the evidence was properly excluded and affirm.

In Marinari v. Asbestos Corp., Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992), we joined a great number of jurisdictions which treat asbestos-related diseases as leading to distinct causes of action. A plaintiff who has been exposed to asbestos and develops thickening of the lungs or other non-malignant asbestos-related diseases may bring a first action upon discovering the condition, and may bring a second cause of action if and when he or she develops cancer. Marinari recognizes that since there is no medical connection between the nonmalignant and malignant conditions, it is unwise to require an asbestos plaintiff to recover speculative future damages in one lawsuit. Busfield developed a non-malignant disease as a result of his exposure to asbestos, and thus he properly brought this first lawsuit.

Busfield concedes that Marinari precludes any evidence with respect to the risk that he might develop cancer. He contends, however, that since Marinari allows an action for all present damages caused by pleural thickening, he should have been entitled to present evidence of his present fear that he might develop cancer. He posits that a present fear is distinct from a future risk, and that Marinari only meant to preclude the latter from the first lawsuit. While we understand this cogent distinction, this issue has already been decided against Busfield. Judge Tamilia, writing for the majority in Morrison v. Fireboard, 428 Pa.Super. 114, 117-18, 630 A.2d 436, 437-438 (1993), concluded that Marinari precludes recovery for “fear” damages as well as “risk” damages in the first suit:

Because the Marinari Court, however, found juries must now base their verdicts not upon sheer speculation as to possible future damages, but rather upon only empirical or physically objective evidence of present injury, should Mr. Morrison at some future date develop an asbestos related malignancy, he is not precluded from instituting a second . action. This, of course, rules out an award of damages based upon the fear of developing asbestos-related lung cancer or mesothelioma no matter how reasonable the basis for- such fear. By establishing the two disease rule for recovery and eliminating the bar of the statute of limitations preventing an action for a malignancy which developed after the onset of asbestosis or pleural thickening, the need to anticipate all possible consequences arising out of a single disease approach has been obviated. Just as all “past present and future asbestos-related mental anguish, inconvenience and distress” arising out of asbestosis or pleural thickening injuries may be fairly compensated in the initial asbestosis action, the same factors are relevant in establishing damages for the malignancy at the time it becomes actionable. No recovery may be had merely for the emotion and anguish arising from the possibility of the development of a malignancy.

Id. (emphasis added and internal citation omitted). Such is precisely the case here. Busfield was not permitted to present evidence that he might develop a future malignancy.

Furthermore, we recently held that there is no cause of action at all for asbestosis or pleural thickening which causes no physiological dysfunction in a plaintiff (asymptomatic pleural thickening). In Giffear v. Johns-Mansville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993) (en banc), we stated with unmistakable clarity, “[without evidence that [pleural thickening] is causing ascertainable physical symptoms, impairment, or disability, pleural thickening is a non-compensable injury, and therefore, does not give rise to a cause of action.” Id. at 341, 632 A.2d at 888. The special interrogatories in this case reveal that the jury found that although Busfield suffered an asbestos-related disease, it caused him no harm. In other words, his asbestos-related disease was asymptomatic. Under Giffear, not only was Busfield not permitted to prove emotional damages for fear of cancer, he actually had no cause of action. We therefore agree with the trial court’s decision to preclude evidence of Busfield’s fear of cancer.

Order affirmed.

Concurring opinion by McEWEN, J.

Concurring statement by DEL SOLE, J.

McEWEN, Judge,

concurring:

Since this Court, sitting en banc, in Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993), held that “[wjithout evidence that [pleura1 thickening] is causing ascertainable physical symptoms, impairment, or disability, pleural thickening is a non-compensable injury and, therefore, does not give rise to a cause of action,” id. at 341, 632 A.2d at 888, appellant cannot now recover damages for fear of cancer. Thus, our esteemed colleague Peter Paul Olszewski, in his lead Opinion, quite correctly concludes that the trial court did not commit reversible error when, in this case, it excluded evidence of that fear.

Moreover, I echo the insightful observation of Judge Olszewski-that the more difficult question — not presented in this appeal — is whether fear of cancer is compensable in those cases where a plaintiff has suffered some legally cognizable physical damage as a result of exposure to asbestos and, thus, by reason of that injury, has a cause of action. A review of the cases suggests that certain appellate expressions, upon occasion, have blurred two very distinct types of harm: (1) the risk of developing cancer which, it has been made clear, is not compensable in Pennsylvania, and (2) such loss of life’s pleasures as result from the fear of contracting cancer. While I personally can find no basis upon which to exclude evidence of damages flowing from the loss of life’s pleasures caused by a reasonable fear of contracting cancer, that issue is not presented by cases, such as this, where there is no cause of action.

DEL SOLE, Judge,

concurring:

While I remain of the view that a person with asymptomatic pleural thickening has a cause of action if damages have been experienced, I agree with the majority that “fear” of cancer is not recoverable.

      . Busfield seems to concede this point also, as he states in his brief that "[u]nfortunately, several recent Superior Court opinions have moved Pennsylvania towards being the only jurisdiction in the United States to not allow recovery for fear of cancer.” Busfield’s brief at 15. Even if this categorical statement is correct, the issue has been decided in this Court and Busfield's recourse is to our Supreme Court.

      . Morrison was modified by Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1994), to the extent that it allowed a new trial for present damages caused by plaintiff's asymptomatic condition. We discuss Giffear below and its modification of Morrison does not affect the reasoning cited above.

      . Our learned colleague, Judge Del Sole, would argue that where pleural thickening is asymptomatic, the proper holding would be that plaintiff has suffered no damage, instead of the majority's view that he has no cause of action. Giffear, 429 Pa.Super. at 345, 632 A.2d at 890 (Del Sole, J., concurring). Since the question here is only whether Busfield could present emotional damages in the absence of any physical injury, Judge Del Sole’s difference in Giffear is not implicated. See, id. ("To the extent that 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.”)

      . Busfield makes an argument in this case that does raise a concern. He claims that as long as there is a physical manifestation of a disease, all emotional damages that it reasonably causes should be parasitic to the physical manifestation. The flaw in Busfield’s argument as it pertains to him is simply that although he developed pleural thickening (a physical manifestation of asbestos exposure), he has not suffered, under Giffear, any legally cognizable injury to which emotional damages could attach. An interesting question, however, will be presented when an asbestos plaintiff does suffer legally cognizable physical damage as a result of a non-malignant disease, and then claims that the "fear” of cancer is a parasitic emotional damage. We will reserve resolution of this issue for another day.


author: WIEAND, Judge:

text:
    643 A.2d 1098
    CHRYSLER CREDIT CORPORATION, v. Harry G. SMITH, Kathy Alexander, Republic Leasing Co., and Pennsylvania National Mutual Casualty Insurance Co. Appeal of PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE CO.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1994.
    Filed June 24, 1994.

      Michael D. Pipa, Harrisburg, for appellant.
    John C. Sullivan, Jr., Harrisburg for appellee.
    Before WIEAND, McEWEN and SAYLOR, JJ.
   WIEAND, Judge:

The is.sue in this appeal is whether an automobile insurer, before paying a fire loss, must conduct a search of public records in order to avoid liability to a lienholder who has not been named as a loss-payee in the policy and whose interest has not otherwise been disclosed to the insurer. The trial court held that the insurer had a duty to search the public records before paying a routine loss, and entered summary judgment in favor of the lienholder and against the insurer. After careful review, we reverse.

On November 11, 1985, Harry G. Smith and Kathy Alexander, t/a Republic Leasing Company, a partnership (hereinafter “Republic Leasing”), purchased a 1986 Chrysler Fifth Avenue and entered into a retail installment contract for payment of the purchase price. This contract was assigned to Chrysler Credit Corporation, which perfected a security interest in the vehicle. A provision of the installment contract also granted Chrysler a security interest in any insurance proceeds of the collateral and required Republic Leasing to maintain insurance naming Chrysler as an additional loss-payee. Chrysler’s security interest was perfected and duly noted on the car’s certificate of title, and Chrysler has continually maintained possession of the title.

Subsequent to purchase, Republic Leasing purchased insurance coverage from Federal Kemper Insurance Company, and both Republic Leasing and Chrysler were named as loss-payees. On October 20, 1987, however, Republic Leasing terminated the insurance policy with Kemper and obtained coverage under a new policy issued by Pennsylvania National Mutual Casualty Insurance Company. On the application for insurance, Chrysler was not identified; and, therefore, it also was not named as a loss-payee in the policy.

On April 13, 1988, the automobile was destroyed by fire. In response to a claim under the policy, Pennsylvania National drew a check to Harry G. Smith and Republic Leasing in the amount of $11,666, representing the market value of the car, less the deductible feature of $100. Before the check was delivered, however, the insured advised Pennsylvania National that it wished to retain the vehicle. Instead of drafting a new check, it was agreed that the insurer would deliver the check for $11,666, and the insured would reimburse the insurer for the vehicle’s salvage value of $1,100. As a consequence, the insurer did not acquire title to the damaged vehicle. It also did not acquire possession of the certificate of title.

The insured thereafter applied the proceeds of the Pennsylvania National check to its own purposes and defaulted in paying the balance of $8,962 owed to Chrysler. Chrysler then filed an action against the partnership, as well as the individual partners, and also against Pennsylvania National to recover the moneys due it on account of the purchase price of the cgr. The partnership, as well as the individual partners, commenced bankruptcy proceedings, but Chrysler continued its action against Pennsylvania National. It contended that Pennsylvania National had unlawfully converted collateral when it paid the policy proceeds to the insured without protecting the interest of the lienholder. In response to cross-motions for summary judgment, the trial court entered judgment in favor of Chryslér and against Pennsylvania National. The insurer appealed.

In reviewing an order granting summary judgment, we view the record in the light most favorable to the non-moving party, with all doubts resolved against the moving party. Denlinger, Inc. v. Dendler, 415 Pa.Super. 164, 170, 608 A.2d 1061, 1064 (1992). Only where the interrogatories, affidavits and depositions of record disclose that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law will an order granting summary judgment be affirmed. Buckno v. Penn Linen & Uniform Service, Inc., 428 Pa.Super. 563, 565-566, 631 A.2d 674, 675 (1993). Summary judgment should be granted “only in cases where the right is clear and free of doubt.” Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989).

To determine whether a secured creditor may succeed in an action for conversion, we look to the common law. Bank of Landisburg v. Burruss, 362 Pa.Super. 317, 320 n. 1, 524 A.2d 896, 898 n. 1 (1987), allocatur denied, 516 Pa. 625, 532 A.2d 436 (1987). Conversion at common law is a tort by which the defendant deprives the plaintiff of his or her right to a chattel or interferes with the plaintiffs use or possession of a chattel without the plaintiffs consent and without lawful justification. See: Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 451, 197 A.2d 721, 726 (1964); Bank of Landisburg v. Bunruss, supra. A plaintiff has a cause of action in conversion if he or she had actual or constructive possession of a chattel or an immediate right to possession of a chattel at the time of the alleged conversion. Eisenhauer v. Clock Towers Associates, 399 Pa.Super. 238, 243, 582 A.2d 33, 36 (1990). A plaintiff who has perfected a security interest in collateral has a sufficient interest to maintain an action for conversion in appropriate circumstances. 13 Pa.C.S. § 9502(a).

When a debtor disposes of collateral which has been subjected to a perfected security interest, the secured party may bring an action against the debtor on the original debt or to collect the proceeds from a sale of the collateral, or he may proceed against the transferee of the collateral in replevin or in trespass for conversion. First Pennsylvania Banking & Trust Co. v. Liberati, 282 Pa.Super. 198, 206, 422 A.2d 1074, 1077 (1980). Before an action for conversion will lie against the transferee, however, there must have been a sale or transfer of the collateral. Tufts v. Park, 194 Pa. 79, 44 A. 1079 (1899). “Not every destruction or deprivation of property amounts to a conversion; there must be an actual appropriation of it by the offending party for his own use.” 37 P.L.E. Trespass § 81.

Here, it has been stipulated that the insurance company never took title to the damaged vehicle and never had possession of the certificate of title therefor. Although the insurer delivered a check to its insured in payment of the insured’s loss, ownership and possession of the collateral at all times remained in the insured. It is clear, therefore, that the insurer was not guilty of converting the vehicle.

However, insurance proceeds which are payable upon loss or damage to collateral are proceeds of collateral in which an insured may have a continuing interest. 13 Pa.C.S. § 9306. Thus, when named as a loss-payee on a contract of insurance covering collateral, a secured creditor acquires an action for conversion against an insurer who has wrongfully disbursed the insurance proceeds to the debtor without regard for the creditor’s interest therein. Burge v. Cohen, 705 S.W.2d 27, 29 (Mo.App.1985). The Uniform Commercial Code, however, does not permit a creditor who has not been named as a loss-payee in the policy to pursue an action for conversion against an insurer which has merely disbursed insurance proceeds in the manner required by the policy. The applicable law has been stated at 68A Am.Jur.2d, Secured Transactions § 92, as follows:

[Although the secured creditor has a security interest in insurance proceeds that have been received by the debtor, the creditor cannot sue the insurer to recover the proceeds when the policy did not name the creditor as an insured or as a loss payee.
An insurer that has no actual knowledge of the existence of a security interest in the insured property may pay the loss directly to the debtor and is not required to examine the filing index to see if there is any security interest. In such case, the insurer is not liable for conversion if it has acted in good faith. Even when an insurer who knows of the existence of the security interest pays the debtor an amount in settlement for the full value of the destroyed collateral, the secured creditor holding a perfected security interest therein cannot sue the insurer for conversion, as the act of the insurer in making payment does not constitute the exercise of dominion and control over property of another. (footnotes omitted).

The Pennsylvania courts have not spoken to this issue. In Terra Western Corp. v. Berry & Co., 207 Neb. 28, 295 N.W.2d 693 (1980), however, the Supreme Court of Nebraska addressed a similar issue. In that case, a secured creditor charged that an insurer had converted insurance proceeds by paying directly to the insured a claim for the destruction of collateral. The court acknowledged that the Uniform Commercial Code, section 9-306, provided that insurance proceeds from collateral were subject to a secured interest. It held, however, that the insurer had not committed a tort by paying benefits in the manner designated by the contract of insurance. Id., 295 N.W.2d at 696. The Uniform Commercial Code, the court held, did not provide otherwise.

An examination of the language of the statute shows that proceeds of an insurance policy covering destroyed property or other proceeds do not become “proceeds” within the meaning of the code until the money “is received.” Patently this means receiving by the owner. The insurer does not receive the proceeds; it pays them. This is made clear by the language of subsection (1) referring to acts by the mortgagor: “when collateral or proceeds is sold, exchanged, collected or otherwise disposed of.” These refer to acts of the mortgagor. This conclusion is further reinforced by the language of subsection (2) which refers to “sale, exchange or other disposition thereof by the debtor.” All this language makes it plain that the mortgagee’s lien extends to proceeds received by the debtor. It patently does not apply to an insurer who, in good faith and without actual notice or legal obligation arising from a loss payable clause, fulfills its contractual obligation to pay the owner.

Id. at 697-698. The mere payment of a loss claim by an insurer, the court said, could not support an action in conversion by a secured creditor who was not named as a loss-payee in the policy. Id. at 698. See also: Scholfield Bros., Inc. v. State Farm Mut. Automobile Ins. Co., 242 Kan. 848, 752 P.2d 661, 666 (1988). But see: Nationwide Ins. Co. v. Bank of Forest, 368 So.2d 1273 (Miss.1979); First Nat’l Bank of Bethany v. Amer. General Fire and Casualty Co., 927 F.2d 1126 (10th Cir.1991).

Notation of a lien on a vehicle’s certificate of title does not permit a creditor to bring an action in conversion against an insurer which did not receive possession of, or title to, the salvage. As the court in State Automobile Mutual Ins. Co. v. Chrysler Credit Corp., 792 S.W.2d 626 (Ky.App.1990) observed, while an insurer may convert a salvaged vehicle by taking possession of it and thereafter disposing of it, the disbursement of a settlement check should not, as a matter of public policy, subject the insurer to liability.

It seems to us that neither the [Uniform Commercial Code] nor sound public policy warrants an elevation of security interests above the good to be gained from quick settlement by wrongdoers for damage done to fellow citizens. A requirement that a wrongdoer or his insurance carrier become embroiled in satisfaction of security liens would, in our view, have a chilling effect on prompt settlements. Moreover, the UCC’s provision that proceeds become collateral and subject to the security lien is sufficient protection for the lienholder which, in the first instance, chose his debtor.

Id. at 629. If insurance carriers were saddled with the burden of conducting title searches prior to disbursing payments, prompt settlement of insurance claims would be hindered. Cf.: International Harvester Credit Corp. v. Valdez, 42 Wash. App. 189, 709 P.2d 1233 (1985).

Article nine of the Uniform Commercial Code was intended to define the rights of a secured creditor with respect to the debtor, purchasers of collateral and competing creditors. 13 Pa.C.S. § 9201. Cf: PPG Industries, Inc. v. Hartford Fire Ins. Co., 531 F.2d 58 (2d Cir.1976). When not named as a loss-payee, a secured creditor, under section 9-306, must bring an action against a debtor where the debtor has received insurance proceeds for the loss of collateral. See: Insurance Management Corp. v. Cable Servs. of Florida, Inc., 359 So.2d 572 (Fl.App.1978); Ettinger v. Central Pennsylvania Nat’l Bank, 2 B.R. 385 (E.D.Pa.1979), reversed on other grounds, 634 F.2d 120 (3d Cir.1980). The creditor may also claim priority over other creditors who seek to attach such proceeds or pursue an action in conversion against a purchaser or transferee of the collateral or its proceeds. Casterline v. General Motors Acceptance Corp., 195 Pa.Super. 344, 171 A.2d 813 (1961). Section 9-306 of the Uniform Commercial Code, however, does not allow a creditor to bring an action in conversion against an insurer after the proceeds of insurance have been disbursed as provided in the policy of insurance.

The question becomes whether an insurer, before paying a routine loss, must conduct a search of public records in order to avoid becoming liable to some secured but otherwise undisclosed creditor. Such' a startling — and expensive — requirement is certainly not required by the uniform commercial code. The act provides that insurance proceeds are subject to priority between lien holders. [Sections 9-104 and 9-306.] But these provisions would merely accord [a creditor] a prior right to the insurance proceeds against a third party who might assert a claim or lien against [the collateral].

Judah AMC & Jeep, Inc. v. Old Republic Ins. Co., 293 N.W.2d 212, 214 (Iowa 1980).

These decisions, although not binding, are persuasive. The considerations therein stated are determinative of our decision that the appellant-insurer, under the facts stipulated in the instant case, was not guilty of converting collateral or the proceeds thereof.

The order of the trial court entering judgment in favor of Chrysler Credit Corporation is reversed and is now entered in favor of Pennsylvania National Mutual Casualty Insurance Company.

      . Chrysler also alleged a cause of action for breach of contract to a • third party beneficiary and for professional negligence. These counts, however, were dismissed by the trial court and have not been separately appealed or argued in this appeal.


author: HUDOCK, Judge:

text:
    643 A.2d 1102
    Mary T. McDONNELL, individually and as Administratrix of the Estate of David J. McDonnell, deceased, and David J. McDonnell, Jr., Appellees, v. FORD MOTOR COMPANY and Springfield Ford, Inc. Appeal of SPRINGFIELD FORD, INC.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1994.
    Filed June 30, 1994.

      Robert M. Britton, Philadelphia, for appellant.
    Robert E. Slota, Bryn Mawr, for McDonnell, appellee.
    Before WIEAND, HUDOCK and SAYLOR, JJ.
   HUDOCK, Judge:

This is an appeal by Springfield Ford, Ine. (Appellant) from an order entered by the Court of Common Pleas of Philadelphia County approving a settlement agreement between Appellant and Mary T. McDonnell, individually, and as Administratrix of the Estate of David J. McDonnell, deceased, and David J. McDonnell, Jr. (Appellees). For the reasons which follow, we vacate the order and remand for proceedings consistent with this opinion.

The relevant facts and procedural history are ably summarized by the trial court as follows:

[Appellees] filed suit against defendants Ford Motor Company and [Appellant] for damages in the death of David McDonnell, Sr., and injuries to David McDonnell, Jr., resulting from a motor vehicle accident which occurred on July 25, 1984.
[Appellees] and [Appellant] began settlement negotiations in 1991. These negotiations included a private mediation by Judith P. Meyer on April 7, 1992, which was arranged and paid for by [Appellant].
On June 10, 1992, [Appellant] made a settlement offer of $350,000 to [Appellees], On August 24, 1992, [Appellees] made a demand for an additional $50,000.
Counsel for [Appellees] and [Appellant] orally settled the case on September 18, 1992, for $350,000 on a joint tortfeasor basis. This was confirmed in a letter dated September 23, 1992. Both parties then executed a Joint Tortfeasor Release on October 12, 1992.
On October 21, 1992, [Appellees] filed a Petition with the Court seeking Leave To Compromise Wrongful Death And Survival Action with [Appellant] and requesting that [Appellant] be dismissed. [Appellant] then filed an Answer to the Petition which opposed the approval of the settlement.
On November 9, 1992, [Appellant] filed a Petition To Rescind Or Vacate Settlement Agreement And Release. On February 25, 1993, [Appellees] filed a Petition For Approval Of Settlement Between [Appellees] And [Appellant].
On May 4, 1993, after due consideration of [Appellant’s] Petition To Rescind, [Appellees’] Petition For Approval, and the opposing parties’ responses to both motions, this Court granted [Appellees’] Petition For Approval Of Settlement Between [Appellees] And [Appellant].
On May 27, 1993, [Appellant] filed a Petition For Reconsideration.
On June 1, 1993, [Appellant] filed Notice of Appeal to the Superior Court.

Trial Court Opinion, 9/14/93, at pp. 1-2. As directed by the court, Appellant filed a statement of matters complained of on appeal. The trial court’s 1925(a) opinion followed. See Pa. R.A.P.1925, 42 Pa.C.S.

On appeal, Appellant presents the following issues for review:

1. Whether the trial court erred in approving the settlément and directing [Appellant] to pay to [Appellees] forthwith the settlement amount despite the evidence of mutual mistake of fact and fraud raised in [Appellant’s] Petition to Vacate or Rescind the Settlement Agreement.
2. Whether the trial court erred in denying the Petition to Vacate or Rescind the Settlement Agreement without first conducting an evidentiary hearing on the factual issues raised in the Petition.

Appellant’s Brief at p. 3.

Appellant, in support of its first issue, argues that mutual mistake existed as to the terms óf the settlement agreement and, as such, the agreement should be rescinded, or, in the alternative, that Appellant was induced by fraud to enter the agreement and that rescission should result. Specifically, Appellant contends that crucial to its entering the settlement agreement was the fact that Appellees had identified Carl Thelin, P.E., as their sole liability expert, and that Mr. Thelin had produced a report stating that improper maintenance and service of the subject vehicle by Appellant was the cause of the accident at issue. Appellant contends that it was primarily as a result of this report that its insurance carrier decided to settle the case. Appellant further alleges that Appellees’ counsel knew or should have known at the time of the settlement agreement that Mr. Thelin, after an inspection of the vehicle on March 12, 1992, and review of the depositions by Appellant’s employees, had changed his opinion and was issuing a separate report as to causation, namely that defective design or manufacture of the van’s steering and suspension system were solely responsible for the loss of control of the vehicle in question. Appellant concludes that this modification of the expert’s report amounts to mutual mistake of a material fact or, in the event Appellees or their counsel were aware of the revised opinion prior to execution of the settlement agreement, that the agreement was entered pursuant to fraudulent representations. Appellees counter that Appellant’s allegations of fraud and mutual mistake are, in fact, unsubstantiated claims used by Appellant, as a disgruntled party, to avoid the settlement agreement. Appellees also contend Appellant's assertions are mischaracterizations of the facts. Appellees further allege that Appellant was aware that their theories of liability would change subsequent to settlement with Appellant. In addition, Appellees assert that they were not aware of Mr. Thelin’s change of opinion until after final execution of the settlement agreement.

The record indicates that Appellees’ expert issued a report, dated January 4, 1991, which concluded:

It is our technical opinion, based on the evidence available to us, that defective design or manufacture of this van’s steering and suspension system, or negligent service and maintenance by Springfield Ford are responsible for the loss of control that lead to the death of Mr[.] McDonnell, Sr.

Report of Carl F. Thelin, P.E., 1/4/91, at p. 1. The evidence Mr. Thelin had available for analysis included: (1) a copy of the Pennsylvania State Police accident report; (2) color photographs of the scene of the collision, taken by the police; (3) black and white photographs of the scene of the collision; (4) the depositions of David McDonnell, Jr.; (5) the deposition of Trooper Reidenbach, who investigated the accident; (6) the deposition of Mr. and Mrs. Rozich, eyewitnesses to the collision; (7) portions of the service shop manuals for the 1983 Ford light truck front suspension and steering systems; (8) copies of the purchase order and service work order documents for the subject vehicle; (9) copies of selected pages of the owner’s manual for the subject vehicle; and (10) copies of pages from a booklet that contains service specifications for the 1983 F-100 — F-350 Ford light trucks. See Report of Carl F. Thelin, P.E., 1/4/91, at pp. 1-2. On October 9, 1992, subsequent to the settlement agreement (September 18, 1992) but prior to the execution of the formal agreement and the joint tortfeasor release (October 12, 1992), Mr. Thelin revised his report as follows:

It is our technical opinion, based on the evidence available to us, that defective design or manufacture of this van’s steering and suspension system are responsible for the loss of control that lead to the death of Mr[.] McDonnell, Sr.
* * * ^ * *
Because the van was only eleven months old, had been driven less than 20,000 miles, and had been serviced exclusively by Springfield Ford, and accepting the accuracy of the statements by David McDonnell, Jr., and the many eyewitnesses, the defects in the controllability and stability can only be attributable to a design and/or a manufacturing defect.
[Please note that in the original report, the above underlined word: manufacturing had been maintenance. That was not consistent with the paragraph, CONCLUSIONS. Now that I have had the opportunity to inspect the wrecked van and to review the transcripts of the depositions of the people from Springfield Ford, I believe that there is no evidence of their failure to adequately maintain this vehicle.]

Report of Carl E. Thelin, P.E., 10/9/92, at pp. 1, 4 (emphasis in original). In addition to the above listed materials used in reaching his January 4, 1992, conclusion, Mr. Thelin had available to him copies of the depositions of personnel from the Appellant’s dealership and he had conducted a personal inspection of the vehicle on March 30, 1992. See Report of Carl E. Thelin, 10/9/92, at p. 2.

The trial court, based on this evidence and the petitions of the parties, found that Appellant had proven neither fraud nor mutual mistake. The court reasoned that Appellant had failed to prove that there had been a fraudulent misrepresentation or, in the event there had been a misrepresentation, that Appellant had justifiably relied on the misrepresentation. The court also reasoned that the theory of mutual mistake failed because Appellees were proceeding under several theories of liability against Appellant, and Mr. Thelin’s modified report continued to support several theories of liability (liability for selling a defective product, breaching warranties of fitness and merchantability, and for violating section 402A of the Restatement of Torts) against Appellant even after dropping the negligent maintenance theory. Accordingly, the trial court concluded that Appellees were not mistaken as to whether they had a case against Appellant when the settlement agreement was executed and, as such, mutual mistake could not be asserted. In the alternative, the court found that if mutual mistake existed, the nature and effect of the mistake could not be considered material to the settlement agreement. Finally, the trial court stated that it saw no need for an evidentiary hearing after reviewing the pleadings. The court found that the parties thoroughly laid out the history of the case and clearly stated their respective positions on the facts and law, enabling the court to reach a decision without such a hearing. Because we disagree that an evidentiary hearing was unnecessary in this instance, we vacate the order at issue and remand for such a hearing.

It is well-established that “[t]he enforceability of settlement agreements is determined according to principles of contract law.” Century Inn, Inc. v. Century Inn Realty, Inc., 358 Pa.Super. 53, 58, 516 A.2d 765, 767 (1986). Our Court will enforce the settlement if all of the material terms of the bargain are agreed upon. Id. Moreover,

[i]f parties agree upon essential terms and intend them to be binding, “a contract is formed even though they intend to adopt a formal document with additional terms at a later date.” The intent of the parties is a question of fact which must be determined by the factfinder. A reviewing court must defer to the findings of the trier of the facts if they are supported by the evidence.

Johnston v. Johnston, 346 Pa.Super. 427, 431, 499 A.2d 1074, 1076 (1985) (citations omitted). See also, Compu Forms Control, Incorporated v. Altus Group, Incorporated, 393 Pa.Super. 294, 301-302, 574 A.2d 618, 622 (1990). “A settlement will not be set aside absent a clear showing of fraud, duress or mutual mistake.” Rago v. Nace, 313 Pa.Super. 575, 578, 460 A.2d 337, 339 (1983). However, it is equally true that an evidentiary hearing into the existence and binding effect of the settlement agreement is the appropriate procedure to be followed in matters of contested settlement agreements. Limmer v. Country Belle Cooperative Farmers, 220 Pa.Super. 171, 172-174, 286 A.2d 669, 670 (1971).

In Limmer, the plaintiff attempted to enforce a settlement agreement. The defendant, in its answer to the petition, denied that an agreement had been reached because its offer had not been timely accepted. Although the trial court did not conduct an evidentiary hearing, it specifically enforced the agreement and entered judgment for the amount of the settlement. On appeal, this Court reversed the judgment and remanded for an evidentiary hearing and findings of fact with regard to the alleged settlement agreement. This Court, in rendering its decision, reasoned:

Unfortunately, we cannot decide the issues thus presented to us on this appeal as no record was made in the court below on the factual issues involved. No evidentiary hearing was held in the matter by the court below wherein the facts relied upon by both sides were placed in evidence by testimony of the parties and their witnesses. The lower court’s order, though revealing personal knowledge of the defendants’ offer, contains no specific findings as to the date on which the offer was made to plaintiff, the exact content of the offer, the manner in which it was presented to plaintiff, and the circumstances surrounding the presentation.
... As much as this court, as well as the court below, favors the settlement of pending litigation, we must nevertheless be careful that in our efforts to clear the court calendar we do not omit the appropriate judicial procedures which not only safeguard the rights and interests of all the parties involved but which protect the court below and prepare the case for intelligent review by the appellate court.

Id. See also, Christian v. Allstate Insurance Company, 348 Pa.Super. 252, 502 A.2d 192 (1985) (in action by motorist for medical expenses under no-fault policy, this Court reversed trial court’s order granting petition to enforce settlement agreement, where trial court did not hold an evidentiary hearing and made findings of fact concerning date of offer and circumstances surrounding it); Houston-Starr Company v. Virginia Manor Apartments, Inc., 294 Pa.Super. 571, 440 A.2d 613 (1982) (where supplier filed a complaint in assumpsit against owner alleging that it had not been paid for approximately $70,000 worth of building materials, and thereafter entered into a settlement agreement which was reduced to a judgment, recitals in the order vacating the settlement were not a substitute for a full record, especially when the parties disputed the very circumstances under which the order was entered, and the trial court erred in entering the order without first conducting an evidentiary hearing and making findings of fact concerning the settlement agreement). Furthermore, a party’s failure to request an evidentiary hearing is not dispositive of the case, as it is for the trial court to hold a hearing on the existence of the settlement as a matter of judicial procedure. Christian v. Allstate Insurance Company, supra at 254-256, 502 A.2d at 194.

In this instance, although there was a precise date of offer and acceptance of record, as well as a formal execution of an agreement and joint tortfeasor release, we cannot determine from the record as to what the circumstances surrounding the agreement or the intent of the parties were in reaching the agreement. The trial court made factual findings as to the circumstances surrounding the agreement based solely on the facts set forth in the parties’ petitions, coupled with conjecture as to the intention of the parties in entering same. It is also not apparent from the record as to when Appellees became aware of Mr. Thelin’s revised opinion and conclusions. Because this information is not available by way of official record, and because, even though the negligent maintenance theory was not the only theory by which Appellees sought to recover from Appellant, the other theories asserted would have provided for indemnification by Ford Motor Company, we find that the intent and knowledge of' the parties at the time of the agreement are essential to a determination of whether fraud or mutual mistake existed in procurement of the settlement agreement. Since we cannot review the trial court’s actions due to lack of testimony by the parties, we must vacate the order of the trial court and remand for an evidentiary hearing.

Order vacated. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.