author: WIEAND, Judge:

text:
    637 A.2d 645
    Clara M. LUIZIAGA a/k/a Clara Psolka, v. John PSOLKA.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1993.
    Filed Feb. 18, 1994.

      Robert A. Zibmund, Pittston, for appellant.
    Erik N. Dingle, Forty Fort, for John Psolka, appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

This is an appeal from an order of the trial court which denied Irene C. Zigmund’s petition to intervene in a divorce action between Clara M. Luiziaga and John Psolka. Upon careful review, we conclude that the appeal must be quashed.

Clara Luiziaga (wife) and John Psolka (husband) were married on July 17,1970. By February, 1979, they had separated, and sometime later Mrs. Luiziaga moved to Bolivia. In July, 1991, an action for divorce was commenced. On August 13, 1991, a property settlement agreement was reached which provided, inter alia, that husband would receive ownership of the marital residence in exchange for a $10,000 cash payment to wife. A decree in divorce was entered on September 10, 1991.

A year later, in September of 1992, wife filed a petition to enforce the property settlement agreement. Before a hearing had been held on the petition, Irene Zigmund, the appellant, filed a petition to intervene in the enforcement proceeding pursuant to Pa.R.C.P. 2327. According to appellant’s petition, Luiziaga had attacked her with a pitch fork in 1980, and appellant had filed a civil suit for personal injuries in 1982. However, because wife subsequently left the country and could not be contacted, the suit remained dormant. In her petition for intervention, appellant requested that the trial court place all money and property payable to the alleged tortfeasor under the property settlement agreement into an escrow account pending disposition of appellant’s personal injury suit. A hearing was held on appellant’s petition, after which the trial court denied her request to intervene. This appeal followed.

Pa.R.App.P. 341 was amended on May 6, 1992, to become effective July 6, 1992, to “govern only actions ... originally commenced in a court ... after July 6, 1992.” Under the amended rule, an order denying a party the right to intervene is no longer appealable as a final order. See: Pa.R.App.P. 341, Note of Committee.

The divorce action between Clara Luiziaga and John Psolka was commenced in July, 1991; and with respect to such an action the amended rule could have no application. The appellant’s petition to intervene, however, was directed not to the entire divorce action but only to Clara Luiziaga’s proceeding to enforce the property settlement agreement. This proceeding was commenced by petition filed in September, 1992. To such a proceeding, the amended Pa.R.App.P. 341 is clearly applicable. Under this rule, as we have observed, the trial court’s order denying intervention is not appealable.

The trial court’s order is also not appealable under the prior practice. In Kelley v. Wolff Petroleum, Inc., 407 Pa.Super. 253, 595 A.2d 627 (1991), the Superior Court stated the prior practice as follows:

As a general rule, an appeal will not lie from an order denying intervention, because such an order is not a final determination of the claim made by the would-be intervenor. However, in some cases, the order denying intervention has the practical effect of denying relief to which the intervenor is entitled and which he can obtain in no other way. Such an order will be deemed final, and an appeal therefrom will be allowed. See: Van Den Heuval v. Wallace, 382 Pa.Super. 242, 555 A.2d 162 (1989); Maginley v. Robert J. Elliott, Inc., 345 Pa.Super. 582, 498 A.2d 977 (1985); Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa.Super. 279, 446 A.2d 614 (1982). In order to determine the appealability of an order denying intervention, therefore, one must examine the ramifications of the order to determine whether it constitutes a practical denial of relief to which the petitioner for intervention is entitled and which he can obtain in no other way.

Id. 407 Pa.Super. at 255, 595 A.2d at 628. See also: Pennsylvania Ass’n of Rural and Small Schools v. Casey, 531 Pa. 439, 442-443, 613 A.2d 1198, 1199 (1992); Egenrieder v. Ohio Casualty Group, 399 Pa.Super. 86, 93, 581 A.2d 937, 941 (1990), allocatur denied, 527 Pa. 624, 592 A.2d 44 (1991); Maginley v. Robert J. Elliott, Inc., 345 Pa.Super. 582, 584, 498 A.2d 977, 979 (1985). Often, “it is necessary to examine the merits of [an appellant’s] petition in order to determine whether the [court’s] order results in a practical denial of relief to which [the appellant is] entitled but which can be secured in no other way.” Pennsylvania Ass’n of Rural and Small Schools v. Casey, supra 531 Pa. at 443, 613 A.2d at 1200.

Here, the relief which appellant seeks has not been precluded finally by the order of the trial court. Appellant is still free to pursue her tort action against wife. If appellant desires collateral relief against wife, she may attempt to obtain injunctive relief in a separate action. See generally: Pa.R.C.P. 1531. It is not essential in order for her to protect her cause of action against the alleged tortfeasor that she intervene in the tortfeasor’s divorce action. Cf. Taub v. Merriam, 251 Pa.Super. 572, 580-582, 380 A.2d 1245, 1249-1250 (1977) (holding that petitioner’s first petition to intervene was properly denied where petitioner had alternate method of obtaining relief, but that second petition to intervene should have been granted where no other course of action was available). See also: Pennsylvania Ass’n of Rural and Small Schools v. Casey, supra. Appellant has had several years to reduce her cause of action to judgment which could then have been enforced against wife’s property by writ of execution. See generally: Pa.R.C.P. 3102, et seq. The same right to pursue her cause of action remains.

Appellant has no interest sufficient to entitle her to intervene in the divorce action of the alleged tortfeasor. She seeks merely to pre-attach assets owned by the alleged tortfeasor so that funds will be available to pay her if she should some day recover an award of damages in her long pending action. At the present time, however, she has no judgment against the alleged tortfeasor and no lien against her property. Appellant’s interest is nothing but an inchoate and unproven cause of action which has remained unlitigated for more than a decade. This is not an adequate basis on which to allow appellant to compel intervention. See: Weidner v. Weidner, 21 Pa.D. & C.3d 538 (Potter 1982). See also: Loftus v. Loftus, 26 Pa.D. & C.3d 69 (Bucks 1983).

Thus, whether the prior practice controls or whether the amended Appellate Rule 341 pertains, it is clear that the trial court’s order denying appellant’s petition to intervene is neither a final order nor appealable as a matter of right. The appeal, therefore, will be quashed.

Appeal quashed.

      . Appellant filed her suit by way of Praecipe for Summons on June 17, 1982. No further action was taken until August 28, 1990, when appellant was granted leave to reinstate her cause of action.

      . Speaking of the legally enforceable interest limitation of Pa.R.C.P. 2327(4), the Supreme Court has said:
      "the exact boundaries of the 'legally enforceable interest’ limitation [of Pa.R.Civ.P. 2327(4) ] are not clear. It owes its origin to the desire of the courts to prevent the curious and meddlesome from interfering with litigation not affecting their rights. The result is a flexible, although uncertain rule whose application in a given case calls for the careful exercise of discretion and a consideration of all the circumstances involved." 3 Goodrich-Amram § 2327-1 (1963).

        Pennsylvania Railroad Co. v. Hughart, 422 Pa. 615, 618, 222 A.2d 736, 738 (1966).

      . Appellant's claim that the trial court violated her constitutional rights is wholly without merit. Appellant received a fair and adequate opportunity to be heard on her petition to intervene. This is all that due process requires. As to appellant’s equal protection claim, appellant was not subjected to invidious discrimination merely because the trial court declined to accept her interpretation of the law.


source: Caselaw Access Project

author: BROSKY, Judge. FORD ELLIOTT, Judge,

license: Public Domain

text:
    637 A.2d 648
    Susan BODTKE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1993.
    Filed Feb. 18, 1994.

      Jeffrey A. Korostoff, Philadelphia, for appellant.
    Erik L. Olsen, Willow Grove, for appellee.
    Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the Order granting the Motion for summary judgment filed by appellee, State Farm Mutual Automobile Insurance Company.

Appellant queries whether the trial court erred in granting appellee’s Motion for summary judgment because the medical provider involved did not seek reconsideration of the determination by the Peer Review Organization (PRO) pursuant to Section 1797(b) of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1797(b), thus barring appellant’s cause of action. She also asserts that the determination of the PRO that her medical treatment was not related to the accident in question falls outside the scope of Section 1797(b)(1).

We find that the Opinion of the trial court written in support of its Order granting appellee’s Motion for summary judgment has properly addressed both issues before us. We also find that our decision in Terminato v. Pennsylvania National Insurance Company, 422 Pa.Super. 92, 618 A.2d 1032 (1993), upon which the trial court relies to dispose of the first issue, is controlling.

Appellant posits her argument that the trial court erred in granting appellee’s Motion on the basis that the provision in question, 75 Pa.C.S.A. § 1797(b)(2), reads that a provider may request reconsideration of a PRO determination. Thus, she argues, the provider’s failure to do so here does not bar her cause of action because the word “may ” in the statute is to be interpreted as permissive rather than mandatory. It is true that pursuant to Section 1797(b)(2) a provider may request reconsideration of a PRO determination. Notwithstanding this permissive language, however, appellant conveniently omits reference to other pertinent language in the statute which rebuffs her argument. Section 1797(b)(4) does provide a forum for judicial review, albeit in a narrowly defined circumstance which is not present here. This section reads in pertinent part:

A provider of medical treatment or rehabilitative services or merchandise or an insured may challenge before a court an insurer’s refusal to pay for past or future medical treatment or rehabilitative services or merchandise, the reasonableness or necessity of which the insurer has not challenged before a PRO.

Emphasis supplied.

The parties do not dispute that appellee has submitted the claim for services of appellant’s provider to a PRO. Therefore, pursuant to our holding in Terminato, supra, appellant’s or the provider’s only resort to a forum for judicial review of a matter submitted to a PRO for consideration is to first request reconsideration within the thirty day statutory period. From an unfavorable decision by the PRO upon reconsideration, the aggrieved party may then plead his/her/its case to the courts. Terminato, supra. An aggrieved party cannot resort to a court of record if the claim has been presented to a PRO for determination, as here, without first having requested reconsideration by the PRO. Thus, the trial court was correct in granting appellee’s Motion for summary judgment on this basis.

Having decided this issue against appellant, it is not necessary to entertain appellant’s second claim that the decision of the PRO was outside the scope of Section 1797(b). However, the trial court has addressed this issue in footnote two of its Opinion, and correctly so. See Opinion, p. 3. Appellee has attached as an exhibit to its Motion for summary judgment a copy of its letter to the medical provider in question which states that the provider’s claim for payment was denied by the PRO on the basis that “services rendered relating to the shoulder are not loss related and would not be covered under this accident.” We agree “that [the PRO’s determination that] certain injuries treated were not related to the accident is simply another way of stating that they were not medically necessary”. Id., note 2. Therefore, the PRO’s decision comports with, rather than overreaches, its statutory obligation here.

Appellant has failed to file any counter-exhibits or counter-affidavits with her Answer to the Motion for summary judgment which would dispute the scope of the PRO’s decision or the necessity of initially requesting reconsideration but, rather, has chosen to rest solely upon the allegations contained in her Answer to appellee’s Motion. Pennsylvania Rule of Civil Procedure 1035, which governs the filing and disposition of Motions for summary judgment, provides in subsection “(d)” in pertinent part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary kjlH judgment, if appropriate, shall be entered against him.

See also, e.g., Atkinson v. Haug, 424 Pa.Super. 406, 622 A.2d 983 (1993). Although the failure to submit counter-exhibits or counter-affidavits does not automatically insure the grant of summary judgment, the Motion will be granted if the moving party’s evidence dispels the existence of any genuine issue of material fact. Id. We find that appellee’s evidence of submission of the claim to the PRO, the PRO’s determination of the non-necessity of the medical procedure and the failure of appellant to request reconsideration as provided by the statute in question refutes the existence of any genuine issue of material fact, thus making the grant of summary judgment in this case proper.

Order affirmed.

FORD ELLIOTT, J., files a concurring opinion.

FORD ELLIOTT, Judge,

concurring.

While I join in the majority’s decision, I write separately to address the majority’s conclusion as to the proper scope of a Peer Review Organization’s (PRO) decision.

I agree with the majority in its analysis of appellant’s procedural missteps in failing to first request a reconsideration by the PRO before seeking redress in court. That issue is clearly controlled by this court’s recent decision Terminato v. Pennsylvania National Insurance Co., 422 Pa.Super. 92, 618 A.2d 1032 (1993). However, the majority chooses to further address the issue as to whether the PRO’s decision was outside the scope of Section 1797(b). Therefore, I feel compelled to offer a brief response.

I cannot agree “that [the PRO’s determination that] certain injuries treated were not related to the accident is simply another way of stating that they were not medically necessary.” Majority memorandum at 3. Section 1797(b)(1) specifically provides that the evaluation of a PRO “shall be for the purpose of confirming that such treatment, products, services or accommodations conform to. the professional standards of performance and are medically necessary.” I do not equate either of these functions with causation and coverage under an insurance policy. Whether treatment is medically necessary for a specified injury is an entirely different issue from whether that injury is causally related to the accident and therefore covered under the applicable policy of insurance. On this latter issue, I believe appellant is still entitled to her day in court.

Any further discussion of this issue would be premature at this stage, given that the matter was only addressed in dictum by the majority. The scope of the language of Section 1797(a) is certainly an issue that this court will soon have to address once the proper procedural steps are taken to bring the issue squarely before us.

      . The correct citation to the case of Lubowitz v. Albert Einstein Med. Center, Inc., cited by the trial court on page two of its Opinion is 424 Pa.Super. 468, 623 A.2d 3 (1993).


author: CIRILLO, Judge: FORD ELLIOTT, Judge,

text:
    637 A.2d 650
    Ronda BURKHOLDER v. GENWAY CORPORATION and Pollow Chevrolet, Inc., Formerly Known as Pollow Auto Leasing, Inc. Appeal of POLLOW CHEVROLET, INC., f/k/a Pollow Auto Leasing, Inc.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1993.
    Filed Feb. 22, 1994.

      William F. Sweeney, Philadelphia, for appellant.
    Frank J. Wesner, Jr., Media, for Burkholder, appellee.
    Michael R. Bradley, Media, for Genway, appellee.
    Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.
   CIRILLO, Judge:

Pollow Chevrolet, Inc. (“Pollow”) appeals from an order of the Court of Common Pleas of Delaware County denying Follow’s post-trial motions and entering judgment for plaintiff, Ronda Burkholder, in the amount of $1,342,089.62 and against defendants James J. Scanlon, Jr. (Scanlon), Harvco, Inc. (Harvco), and Pollow, jointly and severally. We reverse.

The facts adduced at trial are as follows: On November 20, 1985, Pollow entered into a written agreement to lease a 1986 Chevrolet El Camino (subject vehicle) to Harvco. The agreement was signed by Scanlon, as the President of Harvco, and was the third such lease entered into between Harvco and Pollow. At the time the first lease was entered into, Scanlon produced a valid Delaware driver’s license. At the time the third agreement was consummated, however, Pollow did not ask Scanlon to produce his license which, unbeknownst to Pollow, had been suspended.

On August 20, 1988, Scanlon, while operating the subject vehicle, drove through a red light and struck a car in which Ronda Burkholder was a passenger. As result of this accident, Burkholder sustained serious injuries. Burkholder initiated suit against Scanlon, Harvco, and Pollow. Prior to trial, the parties stipulated that: 1) Scanlon and Harvco admit liability for the accident in question; 2) on November 20,1985, Pollow and Harvco entered into a written lease for the subject vehicle, which was signed by Scanlon on behalf of Harvco; 3) when the November 20,1985 lease was signed, Scanlon did not have a valid driver’s license; and 4) at the time of the accident, Scanlon’s Pennsylvania driver’s license had been revoked and his Delaware license suspended.

On June 16, 1992, a non-jury trial was held before the Honorable Joseph F. Battle. The only issues considered at trial were whether Pollow, as lessor of the subject vehicle, was liable for the injuries caused to Burkholder and the amount of damages. At the close of trial, Judge Battle entered judgment in favor of Burkholder and against all defendants for $1,500,000.00. Judge Battle so ruled primarily because he found that 75 Pa.C.S.A. § 1574 imposed vicarious liability on anyone who authorizes an unlicensed individual to drive a vehicle owned or controlled by the authorizing party, and that, necessarily, Pollow authorized Scanlon to drive the subject vehicle. Post-trial motions were filed by Pollow and denied. On May 24, 1993, Judge Battle amended his opinion and order and entered judgment for Burkholder in the amount of the molded verdict, $1,342,089.62. This appeal followed.

Pollow raises the following issues for our review:

I. Whether 75 Pa.C.S.A. § 1574 requires that an owner “knowingly” allow an unlicensed driver to operate the owner’s motor vehicle in order to hold the owner vicariously liable for the torts of the unlicensed driver?
II. Whether it was erroneous for a franchisee of a leasing company to be held liable under 75 Pa.C.S.A. § 1574 when it had negotiated a lease with a corporation three years before the accident date and the lessee corporation thereafter permitted an employee whose license had been suspended to use the vehicle?
III. Whether the court sitting without a jury impermissibly received into evidence plaintiffs vocational rehabilitation expert’s report over the objection of appellant that the report was speculative and did not contain a proper factual predicate?
IV. Whether the application of 75 Pa.C.S.A. § 1574 to the franchisee of a lessor of a motor vehicle under a long term bailment lease is violative of the U.S. Constitution when there is no means by which lessor can verify the active status for an otherwise apparently valid driver’s license?

Pollow first argues that the trial court erred in concluding that 75 Pa.C.S.A. § 1574 holds a person, who permits a vehicle under his control to be driven by an unlicensed driver, vicariously liable for the negligent conduct of that driver. Specifically, Pollow claims that section 1574 requires that the authorizing party “know” or have “reason to know” that the other party is an unlicensed driver before the authorizing party can be held liable for the driver’s conduct. Our initial task, therefore, is to determine what culpability requirement, if any, the statute requires.

Section 1574 is silent as to its culpability requirement. The statute states:

(a) General rule: No person shall authorize or permit a vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized under this chapter or who is not licensed for the type or class of vehicle to be driven.
(b) Penalty: Any person violating the provisions of subsection (a) is guilty of a summary offense and shall be jointly and severally liable with the driver for any damages caused by the negligence of such driver in operating the vehicle.

75 Pa.C.S.A. § 1574.

When a statute does not prescribe the degree of culpability needed for a conviction under a summary offense, we will impose a culpability standard only if we determine “that [the standard’s] application is consistent with effective enforcement of the law defining the offense.” 18 Pa.C.S.A. § 305(a)(1). To facilitate such a determination in the case at hand, it is helpful to analyze case law reviewing section 1574 and its predecessors.

In In re Moyer, 359 Pa. 536, 59 A.2d 927 (1948), the Pennsylvania Supreme Court was asked to determine whether the Secretary of Revenue properly suspended Moyer’s motor vehicle license under Section 622 of Art. VI of the Vehicle Code of May 1, 1929, after Moyer had lent his vehicle to an unlicensed driver. This provision, the first version of section 1574 enacted in this Commonwealth, made it unlawful for one “to authorize or permit a motor vehicle owned by him or under his control to be operated by any person who has no legal right to do so.” Id.

In finding that the Secretary of Revenue did not properly suspend Moyer’s license, the Supreme Court imputed a “knowledge/reason to believe” requirement into the statute. Thus, the Supreme Court found that as Moyer “had no knowledge or reason to believe that the license [of the operator of his motor vehicle] had been revoked,” he did not violate any provision of the Vehicle Code. Id.

Similarly, in Jenks v. Commonwealth Dept. of Transp., Etc., 6 Pa.Commw. 546, 296 A.2d 526 (1972), the Commonwealth Court considered whether Joan Jenks properly had her license suspended under 75 P.S. § 626 (1959), after loaning her vehicle to an unlicensed driver. This provision, another predecessor of section 1574, provided: “No person shall authorize or permit a motor vehicle or tractor owned by him or under his control to be operated by any person who has no legal right to do so.... ” Id.

After discussing a split in authority regarding the “knowledge” requirement, the Commonwealth Court announced:

Certainly, a court must be willing to consider the element of knowledge when deciding a § 626 suspension case. If the court were to disregard substantial evidence that a vehicle owner had no knowledge that an individual was not legally capable of operating his vehicle, and had no reason to know that such might be the case, then to find him in violation of § 626 might result in both an injustice and an absurd result.

Id. (emphasis added). Thus, the court found that in such cases, the motor vehicle owner has the burden of proving that “he had no knowledge, and no reason to know, that the operator of his vehicle lacked an operator’s license.” Id. (emphasis added).

Next, in Commonwealth v. Hickey, 136 Pa.Commw. 223, 582 A.2d 734 (1990), the Commonwealth Court had occasion to examine section 1574 itself. Specifically, the Commonwealth Court considered whether the statute imposed strict liability, vicarious liability, or negligence per se. After examining the basic tenets of the three forms of liability, the court held that “section 1574 shows a legislative intent to make one who permits his or her auto to be used by an unlicensed driver vicariously liable for acts of the unlicensed driver.” Id. at 228, 582 A.2d at 736. Significantly, in reaching this conclusion, the court did not have pause to discuss whether the statute imposed a “knowledge” requirement concomitant to vicarious liability.

The concurrence in Hickey, however, did find that section 1574 includes a “knowledge” requirement. The concurrence stated:

It would still be necessary, however, for the owner to know or have some reason to know, that the unlicensed driver was indeed unlicensed. The statute, by legislative fiat, considers the unlicensed driver incapable of driving precisely because he does not have a license, and further considers that the person who allowed that unlicensed driver to drive, thus causing the injury to others, is negligent per se.

Id. at 232, 582 A.2d at 738.

Finally and most recently, in Gade v. Csomos, 8 F.3d 137 (3rd Cir.1993), the Third Circuit was asked to determine whether under section 1574 a leasing company, without knowing or having reason to know that the lessee of the vehicle had his license suspended, was nonetheless liable for the negligent driving of the lessee. After reviewing the relevant precedent, the Third Circuit concluded that the Pennsylvania Supreme Court would find that the lessor must “know” or “have reason to know” that the lessee was unlicensed in order to be liable under the statute.

After reviewing this precedent, we conclude that the legislature of this Commonwealth intended section 1574 to impose a “know” or “reason to know” culpability requirement. Thus, in order for one to be found liable under the statute, it must be shown that a person “knew” or had “reason to know” that the individual to whom he authorized to operate his vehicle did not have a valid driver’s license.

Presently, therefore, we must determine whether Pollow knew or had reason to know that Scanlon did not have a valid driver’s license when it entered into the third leasing agreement with Harveo. This task, although simple on its face, requires us to determine whether and to what extent section 1574. imposes a duty upon lessors in corporate leasing agreements to ascertain which employees will drive the vehicle and if these employees possess valid driver’s licenses. To make this decision, it is necessary to revisit the statute and deduce the intention of the legislature.

It is well settled that in determining the meaning of a statute, “we are required to consider the intent of the legislature and are permitted to examine the practical consequences of a particular interpretation.” Commonwealth v. Elliott, 410 Pa.Super. 354, 358, 599 A.2d 1335, 1337 (1991). When a statute’s intent or meaning is ambiguous or capable of multiple interpretations, the intention of the legislature may be ascertained by considering the object of the statute and the consequences of a particular interpretation; “the court must presume that the legislature does not intend a result that is absurd or unreasonable.” Estate of Osborne, 363 Pa.Super. 200, 210, 525 A.2d 788, 793 (1987).

In the case at hand, Burkholder invites us to conclude that because Pollow did not ask to see Scanlon’s driver’s license when it entered into the third leasing agreement with Harvco, Pollow had a “reason to know” that Scanlon did not possess a valid driver’s license. In essence, therefore, Burkholder asserts that in enacting section 1574 the legislature intended to impose a duty on leasing companies such as Pollow, to inquire of its corporate customers which employees will be driving the leased vehicle and then to investigate whether those employees are licensed drivers. We decline to accept this invitation.

The purpose of section 1574 is to effectuate the Commonwealth’s “vital interest in preventing drivers from operating motor vehicles when they have no legal right to do so.” Jenks, 6 Pa.Commw. at 550, 296 A.2d at 529. In pursuit of such interest, the legislature prohibits motor vehicle owners from authorizing persons to operate their vehicles, who they know or have reason to know do not possess valid driver’s licenses. Section 1574 does not, as Burkholder suggests, impose a duty upon lessors to divine who among the many employees of a company leasing the automobile possess valid driver’s licenses. To prescribe such a duty would produce absurd results and would strain the very limits of credulity.

Section 1574, on its face, decries such an interpretation. The statute states that “no person shall authorize or permit a motor vehicle owned by him or under his control to be driven” by any person who is an unlicensed driver. 75 Pa.C.S.A. § 1574(a). In leasing a vehicle to a corporation, a lessor simply transfers possession of the vehicle to the corporate lessee. From the moment the leasing agreement is consummated, it is the corporation, and not the lessor, who authorizes its employees to drive the vehicle, and it is the corporation, and not the lessor, therefore, who is potentially subject to section 1574 liability.

We will not countenance a result which imposes a duty on automobile leasing companies to predict which corporate employee will operate the vehicle and whether such employee has a valid driver’s license. We think the corporation is far better equipped to shoulder such a burden. We find that in the context of leasing agreements between lessors and corporate entities, section 1574 imposes no duty upon the lessor to discover whether or not the corporate employee who operates the vehicle has a valid driver’s license. As such, we find that the trial court committed reversible error in holding Pollow liable under section 1574. The trial court’s order is hereby reversed.

Order reversed.

FORD ELLIOTT, J., files a concurring statement.

FORD ELLIOTT, Judge,

concurring:

I write separately to note that I agree only in part with the rationale of the majority, and thus, will concur in part and join in part.

My specific disagreement is with the majority’s interpretation of 75 Pa.C.S.A. § 1574. The majority has chosen to insert a “know” or “reason to know” culpability requirement into the statute. While similar predecessor statutes have been interpreted by other courts of this Commonwealth to include such a “know” or “reason to know” culpability requirement, I am particularly, troubled by the majority’s decision to do so instantly. As noted by the parties, a review of the legislative history of § 1574 reveals that, as originally introduced, the legislature did, indeed, include this culpability requirement. However, and for whatever reason, the legislature chose to strike the word “knowingly” from the statute when the bill was reported from committee February 11, 1976. This is a clear indication to me that a “know” or “reason to know” culpability standard was considered and rejected.

I would additionally note, as a matter of policy, that to only attach liability to an owner or possessor of a vehicle who knowingly gives permission to an unlicensed driver is to relieve the responsible party under the statute of any obligation to make inquiry in the first instance. Clearly, the purpose of the statute was to protect the citizens of this Commonwealth from injuries caused by unlicensed drivers, and the obligation of determining the status of a driver must fall on the owner or possessor of the vehicle prior to authorization.

Still, I am nevertheless able to concur in the result and to join in the alternate holding of the majority. I agree with the interpretation that once the lessor has lawfully passed control of the vehicle to the lessee, the lessor is relieved of liability under the statute. Section 1574 was only intended to place liability upon one in control of the vehicle. Once the original owner-lessor has lawfully transferred possession, the owner-lessor can no longer be held hable for the action of those persons which the lessee improperly authorizes to operate the vehicle.

Instantly, the lessee is the corporate entity, Harvco, Inc., and it is Harvco which authorized Scanlon to operate the vehicle without a valid driver’s license. Pollow did not authorize Scanlon to operate the vehicle, and therefore no liability can be imposed upon Pollow under § 1574.

      . Scanlon's driver's license had been suspended for failure to pay fines related to moving violations.

      . In Hickey, we believe that the court did not reach the “knowledge" issue, because it found that as the victim could not recover from the unlicensed driver, the owner of the vehicle could not be held vicariously liable.

      . The court noted that the lessor had asked for and received the lessee’s driver’s license number and that it had verified the lessee’s insurance. The court concluded that since the lessee produced a driver's license, the lessor did not “know” or have "reason to know” that the lessee’s license had been suspended.

      . Because we find that Pollow is not subject to liability under section 1574, we do not reach Pollow's additional arguments.

      . Our judgment reversing the trial court’s order in no way affects the judgment entered against Harvco and Scanlon.


author: OLSZEWSKI, Judge.

text:
    637 A.2d 656
    COMMONWEALTH of Pennsylvania v. Blaine CAIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 7, 1994.
    Filed March 1, 1994.

      James R. Protasio, Williamsport, for appellant.
    Thomas A. Marino, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge.

Blaine Cain appeals a one-year sentence for criminal contempt of court. The genesis of Cain’s saga lies not in his own misdeeds, but in his refusal to testify in a Lycoming County drug case. Cain was serving a three and one-half to ten-year sentence for robbery at Camp Hill when he was brought back to Lycoming County to testify in the prosecution of William A. Smith. Cain had received a lenient sentence on his robbery conviction in exchange for his promise to aid the Commonwealth in other prosecutions; he had bought drugs from Smith as part of a sting operation, and now the Commonwealth needed Cain’s testimony to put Smith away.

To allay Cain’s self-incrimination concerns, the district attorney and court offered Cain use immunity, so that his testimony could only be used against him if he perjured himself. Despite the grant of immunity, Cain still refused to testify. The court threatened to try Cain for criminal contempt, but still Cain refused to divulge what he knew; he would remain Smith’s confidence keeper. After the briefest of jury waiver and guilty plea colloquies, the court smote Cain with a criminal contempt conviction. N.T. 5/19/93 at 2-16.

Cain argues on appeal that his contempt conviction is invalid because the court did not properly comply with the letter of 42 Pa.C.S.A. § 5947, governing immunity. This statute requires the court to issue an order granting immunity before a defendant can be held in contempt for refusing to testify. Cain contends that only the district attorney offered him immunity, and he refused to testify because of the lack of a court order confirming the offer.

The record reveals that the district attorney offered and the court explicitly granted Cain immunity. The court did in fact issue an immunity order, but Cain made it abundantly clear that he would not testify under any circumstances. The court thus did not err in directly convicting Cain of criminal contempt, having ordered Cain to testify under a properly issued grant of immunity, and having witnessed Cain’s steadfast refusal.

Cain also argues: My punishment is greater than I can bear. Specifically, Cain contends that his sentence to a full year for contempt is excessive, and constitutes an abuse of discretion. We agree that a full year of additional imprisonment, with its potential negative effect on Cain’s eligibility for parole, is a stiff sentence indeed. Cain’s claim is nonetheless meritless, since he specifically asked for this very sentence. To fully appreciate how unusual this claim is, we must review Cain’s sentencing hearing.

After steadfastly refusing to testify, waiving a jury trial, and acknowledging his contempt, Cain appeared in the Lycoming County court the next morning for sentencing. The district attorney argued that Cain had promised to testify in this particular case, for which he was given a light sentence on his robbery conviction; hence, the court should punish Cain with a long contempt sentence. Cain’s counsel countered that Cain had promised to cooperate with Lycoming County police generally, which he had done; Cain never promised to testify in the trial at hand. N.T. 5/20/93 at 6-16.

To settle the argument, the court asked that the untranscribed record of Cain’s original sentencing be located and read by a court reporter. When it became evident that this might take some time, and possibly require Cain to spend another night in the Lycoming County jail, Cain’s counsel surprised the district attorney and the court by volunteering to accept a full year sentence:

THE COURT: [TJake a moment to check with her [to] see when she would be available either for readback or, you know, whatever. If she’s not going to be able to do it today we’ll do it another time, but just see what her availability is if she’s in a proceeding now.
MR. PROTASIO [defense counsel]: Your Honor, we can resolve this matter. Go ahead and impose the one year sentence that’s acceptable with my client.
THE COURT: What do you mean one year?
MR. PROTASIO: I believe that would be the maximum under the contempt sentence.
MR. OSOKOW [D.A.]: I don’t know quite frankly, Your Honor, I haven’t cheeked.
MR. PROTASIO: Rather than continue to be held in Lycoming County Prison it’s his desire to resolve this matter. He’s willing to let the court go ahead and impose the maximum.
THE COURT: The Court does view that the one year sentence under all the circumstances, Mr. Osokow, is the maximum that—
MR. OSOKOW: I believe that’s probably correct, Your Honor.
THE COURT: Very well. We’ll proceed on the following basis.
(Whereupon, the Order was dictated.)

Id. at 16-17. And Cain went out of the presence of the court, and dwelt in the state correctional facility at Camp Hill, in the west of Harrisburg.

We need not even consider our well-developed standards for challenging the discretionary aspects of a sentence; a defendant cannot ask for a particular sentence, and then complain that the court abused its discretion for imposing it. Though it cost him an extra year, Cain got precisely what he asked for: a speedy end to his stay in Lycoming County.

The problem with Cain’s sentence lies not with its discretionary aspects, but with its legality: Cain’s sentence is technically illegal because the court imposed a flat one year of imprisonment without specifying any minimum sentence. See R.2, Sentencing Order. Although Cain does not challenge the legality of his sentence, we may consider the issue sua sponte. Commonwealth v. Aeschbacher, 276 Pa.Super. 554, 419 A.2d 596 (1980). Criminal contempt is a crime punishable by imprisonment, so sentences must be imposed according to the Sentencing Code, 42 Pa.C.S.A. § 9701 et seq. See Commonwealth v. Falkenhan, 306 Pa.Super. 330, 345, 452 A.2d 750, 758 (1982) , cert. denied, 464 U.S. 803, 104 S.Ct. 49, 78 L.Ed.2d 69 (1983) . The Code mandates that the sentencing court impose not only a maximum sentence, but also a minimum sentence which shall not exceed one-half the maximum. 42 Pa.C.S.A. § 9756(b). A flat one-year sentence does not satisfy this requirement. Commonwealth v. Pastorkovic, 390 Pa.Super. 1, 567 A.2d 1089 (1989).

Where a court neglects to mention a minimum sentence, appellate courts ordinarily will not fill in the missing element, but will vacate the sentence and remand for resentencing. Aeschbacher, supra, 276 Pa.Super. at 556, 419 A.2d at 598. In cases where the sentencing court clearly intended to impose the maximum sentence, we may amend the sentence by including a minimum term equal to one-half the maximum. Commonwealth v. Britton, 334 Pa.Super. 203, 221, 482 A.2d 1294, 1304 (1984), appeal dismissed, 509 Pa. 620, 506 A.2d 895 (1986).

In the present case, we are confident that the sentencing court would have imposed a minimum sentence of six months, and we therefore amend Cain’s sentence accordingly. We also note that Cain asked for the maximum sentence in order to get out of Lycoming County as soon as possible; were we to vacate and remand for resentencing, Cain would have to return there for another sentencing hearing. See Rules of Criminal Procedure 1117, 1405(C), 42 Pa.C.S.A. (requiring the presence of defendant at sentencing hearing). We would not condemn Cain to such an ironic fate, lest vengeance be taken upon us sevenfold.

Judgment of sentence is affirmed as amended.

      . The record reveals that Cain had made up his mind not to testify, and simply wanted to get the procedure over with and get out of Lycoming County as soon as possible. Hence Cain waived his jury trial rights and acknowledged his contempt in order to speed things along. See N.T. 5/19/93 at 11, 14.

      . The court said unto Cain, "I would direct and do direct you at this time that under the grant of use immunity, that you are required to give testimony in this case against William A. Smith. Do you understand my Order?” And Cain replied, "Yeah, I understand your order.” N.T. 5/19/93 at 9 (emphasis added). But Cain, eager to end his involvement with the Lycoming County criminal justice system, maintained his silence, even at the cost of prolonging his sentence with a criminal contempt conviction. "I got ten years, what do it matter. That’s all I’ve got to say. I refuse to testify.” Id. at 10.
      Before actually finding Cain guilty of contempt, the court went through the routine one more time:
      [The Court:] Now, I have given an Order, and so that the record is clear, I hereby ORDER and DIRECT Mr. Cain that you are to proceed with giving testimony in this case.
      [Cain:] And, my answer is still no.
      [The Court:] Are you stating if you were called to the witness stand and place[d] under oath to testify that you would refuse to testify?
      [Cain:] I'd still refuse.

        Id. at 11-12. Here the court did not mention immunity, but it was more than clear that the extensive promises of immunity had not suddenly evaporated. These exchanges leave us with no doubt that Cain did not refuse to testify because he feared the immunity offer might not stand up; rather, Cain’s refusal was categorical.

      . One year is the maximum permissible criminal contempt sentence for refusal to testify despite a grant of immunity. 42 Pa.C.S.A. § 5947(f).

      . We cannot help but wonder why Cain was so keen to get out of Lycoming County as soon as possible. Did he fear that whosoever findeth him in Lycoming County should harm him?


author: WIEAND, Judge. HUDOCK, Judge,

text:
    637 A.2d 659
    Andre ANDERSON, Appellant, v. PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN t/a Constitution State Service Co. and Randy Perrin, Appellees.
    Superior Court of Pennsylvania.
    Submitted Dec. 20, 1993.
    Filed March 2, 1994.

      Daniel M. Preminger, Philadelphia, for appellant.
    Susan R. Tabor, Philadelphia, for appellees.
    Before WIEAND, HUDOCK and MONTGOMERY, JJ.
   WIEAND, Judge.

This action was commenced by the filing of a complaint by Andre Anderson against Pennsylvania Financial Responsibility Assigned Claims Plan and Randy Perrin to recover damages when Anderson was struck by an uninsured vehicle owned and operated by Perrin. The case was submitted to compulsory arbitration and resulted in an award for defendants when plaintiff and his lawyer failed to appear for hearing. Plaintiff thereupon filed an appeal, requesting a trial de novo before a jury. A mandatory settlement conference was scheduled, and, for reasons not here relevant, a second settlement conference became necessary. When the second settlement conference was scheduled, notice was sent to plaintiffs counsel and received. When plaintiff and his counsel failed to appear at the second settlement conference and the trial court’s efforts to find counsel were unsuccessful, an order was entered which quashed the appeal and reinstated the award of arbitrators.

The prothonotary’s file contains a motion by plaintiffs counsel to vacate the trial court’s order quashing the appeal. Neither that copy nor the prothonotary’s docket contains a notation that the motion was ever filed, however, and neither the file nor the docket suggests that it was ever pursued. No evidence was offered in support of the motion, and the motion was never decided by the trial court. An appeal was taken by plaintiff from the order quashing the appeal and reinstating the award of arbitrators.

Counsel is under the same duty to appear at conciliatory or pre-trial conferences as he or she is to appear for trial. Lee v. Cel-Pek Industries, Inc., 251 Pa.Super. 568, 570, 380 A.2d 1243, 1244 (1977). See also: Stock v. Arnott, 415 Pa.Super. 113, 118, 608 A.2d 552, 554 (1992); Broglie v. Union Township, 319 Pa.Super. 141, 144, 465 A.2d 1269, 1271 (1983); 1 Goodrich-Amram 2d § 218:8 (1991 ed.). The consequences for failing to appear for trial appear in Pa.R.C.P. 218, which provides as follows:

Rule 218. Party Not Ready When Case is Called for Trial
(a) Where a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a nonsuit on motion of the defendant or a non pros on the court’s own motion.
(b) If without satisfactory excuse a defendant is not ready, the plaintiff may
(1) proceed to trial, or,
(2) if the case called for trial is an appeal from compulsory arbitration, either proceed to trial or request the court to dismiss the appeal and reinstate the arbitration award.
(c) A party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse.
Note: The mere failure to appear for trial is a ground for the entry of a nonsuit or a judgment of non pros or the reinstatement of a compulsory arbitration award.
A nonsuit is subject to the filing of a motion under Rule 227.1(a)(3) for post-trial relief to remove the nonsuit and a judgment of non pros is subject to the filing of a petition under Rule 3051 for relief from a judgment of non pros.

Appellant argues that the trial court’s order was improper under decisions of the Superior Court in Elcomp, Inc. v. Drolet, 398 Pa.Super. 421, 581 A.2d 203 (1990) and Christopher’s Auto Parts, Inc. v. Gilmore, 410 Pa.Super. 541, 600 A.2d 585 (1991). See also: Stock v. Arnott, supra. These cases, however, have been overruled by the Supreme Court’s adoption of Rule 218(c) which provides: “A party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse.” The purpose of the amendment was explained by the Explanatory Comment as follows:

Explanatory Comment—1993
Rule of Civil Procedure 218 provides certain procedural consequences when a party is not ready “without satisfactory excuse” when a case is called for trial. Two recent cases had interpreted the rule so that a failure to appear for trial was not sufficient to invoke the provisions of the rule unless the court made a determination that the failure to appear was without satisfactory excuse. See Elcomp, Inc. v. Drolet, 398 Pa.Superior Ct. 421, 581 A.2d 203 (1990) and Christopher’s Auto Parts v. Gilmore, 410 Pa.Superior Ct. 541, 600 A.2d 585 (1991).
These cases added a procedural step which was both absent from the rule and unnecessary. As stated in the dissent to the Christopher’s Auto Parts case, 410 Pa.Superi- or Ct. at 548, 600 A.2d at 589:
the trial court must first ascertain the absent party’s reason or reasons for failing to appear. How [this is] to be done without the presence of the absent party the court did not explain. Presumably, it would require an additional hearing, with full notice to the parties and findings of fact by the hearing court.
Consequently the rule has been amended by adding new subdivision (c) which provides that a “party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse.” The trial court may grant relief under the rule without a separate determination that the failure to appear was without satisfactory excuse.
Of course, if the court has before it information which demonstrates that the failure to appear is satisfactorily excused, then the presumption of subdivision (c) would not be warranted and the court would not exercise its powers under the rule.
If the court enters a nonsuit or a judgment of non pros or dismisses an appeal and there exists a sufficient excuse, the aggrieved party may present the excuse through a motion to remove the nonsuit or a petition to open the judgment or reinstate the appeal. The petition or post-trial procedure will result in a record which will enable an appellate court to review the trial court’s action to determine if there has been an abuse of discretion.
The revised procedure was characterized by the dissent in the Christopher’s Auto Parts case as follows, 410 Pa.Superi- or Ct. at 548, 600 A.2d at 589:
neither an innocent party who is present for trial nor the trial court will be prevented from proceeding at the time set for trial, and the burden will be placed upon the party who has failed to appear to show cause why the trial court should reopen the proceedings.

The trial court in this case gave appellant’s counsel ample opportunity to appear for the conference. When counsel failed to appear despite the receipt of sufficient notice, the trial judge attempted to reach him by calling his office. It was only after counsel’s whereabouts could not be determined that an order was entered which dismissed the appeal. Under these circumstances, it cannot be said that the trial court’s order constituted an abuse of discretion. In the absence of an abuse of discretion, the trial court’s order, according to the decided cases, should be affirmed. See: Narducci v. Mason’s Discount Store, 518 Pa. 94, 98, 541 A.2d 323, 325 (1988).

The plaintiff-appellant, who is now represented by new counsel, argues that prior counsel’s “absence from the settlement conference resulted from illness compounded by personal problems.” This assertion, however, is not supported by the record. Appellant should have pursued a formal motion to remove the trial court’s order. This would have resulted in a record which would have enabled this Court to conduct meaningful appellate review to determine whether the trial court committed an abuse of discretion. Because appellant failed to follow this procedure, the record before this Court discloses only that appellant’s counsel failed to appear for a mandatory conference of which he had notice and that he could not be located at the time of the conference despite the trial judge’s efforts to do so. Quite aside from the issue of waiver by failing to follow the correct procedure, therefore, we must affirm. The trial court’s order dismissing the appeal from compulsory arbitration cannot be deemed an abuse of discretion. It will, therefore, be affirmed.

Order affirmed.

HUDOCK, J., files a Concurring Statement.

HUDOCK, Judge,

concurring.

In view of the amendment to Pennsylvania R.C.P. 218(c), which now provides that a party who fails to appear for trial shall be deemed not ready without satisfactory excuse, I join the majority opinion. I disassociate myself, however, from its embrace of the Supreme Court Rules Committee Explanatory Comments which state that Elcomp, Inc. v. Drolet, 398 Pa.Super. 421, 581 A.2d 203 (1990) and Christopher’s Auto Parts v. Gilmore, 410 Pa.Super. 541, 600 A.2d 585 (1991) “added a procedural step which was both absent from the rule and unnecessary”. While I agree the prior rule was cumbersome and burdensome for trial judges, its language was clear: sanctions could only be imposed against a party who was not ready for trial if the party had “no satisfactory excuse”. A determination that there was no excuse for being unready was a precondition to the imposition of sanctions by the trial court. When the language of a rule is clear, it is not for us to distort it to achieve a result we think is more appropriate and workable.


author: CERCONE, Judge: BECK, Judge,

text:
    637 A.2d 983
    Nicholas John NIGRO v. REMINGTON ARMS COMPANY, INC., Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Argued July 22, 1993.
    Filed Dec. 22, 1993.
    Reargument Denied Feb. 25, 1994.

      Robert S. Garrett, Pittsburgh, John W. Shaw, Kansas City, MO, for appellant.
    Jerome W. Kiger, Pittsburgh, for appellee.
    Before CAVANAUGH, BECK and CERCONE, JJ.
   CERCONE, Judge:

These are the consolidated appeals from the orders of the trial court dated July 10,1992 and August 21,1992, respectively. For the reasons that follow, we reverse the order of the trial court dated July 10, 1992, and quash the appeal from the order dated August 21, 1992.

On prior appeal, this court aptly summarized the underlying history of this case as follows:

On December 11, 1980, [appellant] Nigro went to friend John Abrams’ residence to hunt deer. As Abrams stood near his friends unloading a Remington Model 700 30-06 BDL Bolt [rifle], the rifle accidently fired. The bullet struck Nigro in the right leg, seriously injuring him. Nigro brought an action against Remington alleging that, because the rifle was defective in design, Remington was liable for injuries under a strict liability theory pursuant to Restatement of Torts (Second) § 4202A. He claimed that the rifle was designed defectively because it had to be unloaded with the safety open, the same position as it is to be in when the rifle is fired.
Central to Nigro’s design defect case was Abrams’ testimony concerning how the rifle discharged as he was unloading. He testified that he opened the safety and twice fully cycled the rifle by opening and closing the bolt and ejecting two live cartridges "without incident. Abrams testified that when he repeated these actions a third time, the rifle discharged without his having pulled the trigger. N.T., 9/14/87-10/2/87, pp. 135-136. However, there was also evidence that could have supported a conclusion that Abrams was negligent. He himself testified that he unloaded the rifle in the presence of a group of people, that he failed to point it away from the group, and that he had borrowed the rifle and thus was not familiar with its operation. N.T., 9/14/87-10/2/87, pp. 180-187. His testimony revealed specific functions of the rifle of which he was unaware. N.T., 9/14/87-10/2/87, pp. 153-158, 193. The owner of the rifle testified that he had owned and used the rifle for several years without incident.
On October 5, 1987, the jury returned a general verdict in favor of Remington. Nigro filed post-trial motions asking for a Judgment N.O.V. and, in the alternative, for a new trial. By order filed on July 19, 1988, the trial court granted Nigro’s motion for a new trial on the basis that two of the trial court instructions to the jury were in error. On August 1, 1988, Remington appealed to this court at 1212 Pittsburgh 1988, and on August 12,1988 Nigro cross appealed at 1212 Pittsburgh 1988.

Nigro v. Remington Arms Company, Inc., 395 Pa.Super. 662, 570 A2d 595 (Nos. 1154 & 1212 Pgh. 1988 and No. 196 Pgh. 1989, filed October 10, 1989), slip opinion at 1-3 (Nigro I). A panel of this court reversed the order of the trial court and reinstated the verdict. The Supreme Court remanded the case for disposition of those issues raised in Nigro’s post-trial motions but not addressed by the trial court. Nigro v. Remington Arms Co., Inc., 528 Pa. 354, 598 A.2d 31 (No. 705 W.D.App.Dkt.1989, filed November 8, 1991).

Upon remand, however, this case became enmeshed in procedural difficulties. As expected, the trial court permitted the parties to submit additional briefs pertaining to the remaining post-trial motions. In addition, the trial court ordered parties to submit “a proposed Order and Opinion disposing of Plaintiffs remaining post trial issues which were not addressed by the trial court.” Trial Court Order dated 6/24/92. Interestingly, on July 10, 1992, trial court adopted both the proposed order and the proposed opinion of appellee Nigro without change. Even more disturbing, the opinion adopted by the trial court granted relief on the basis of issues which the Superior Court previously deemed to be without merit in Nigro I.

In the July 10, 1992 order, the trial court granted judgment notwithstanding the verdict in favor of Nigro. In the alternative, the trial court granted a new trial on the basis of all issues raised by Nigro in his post-verdict motions, including those previously resolved by the Superior Court. The trial court additionally found that Remington faded to comply with the pre-trial discovery orders of June 6, 1986, and May 22, 1987. Although no order to compel discovery was outstanding, the trial court ordered Remington to produce the documents requested in Nigro’s 1986 pre-trial discovery motions. Finally, the trial court stated that it would entertain an application from Nigro for sanctions against Remington on the basis of Remington’s failure to comply with the 1986 pre-trial discovery motions.

Remington timely filed a notice of appeal from the trial court’s order of July 10, 1992. Notwithstanding the pending appeal, on August 24, 1992, the trial court entered an order granting Nigro’s Motion to Enforce Discovery Orders and for Sanctions. Pursuant thereto, the trial court entered a default judgment against Remington on the question of liability. The trial court cited Remington’s failure to comply with its July 10, 1992, order as grounds for entering the default judgment. Remington’s appeal of the August 24, 1992 order and its earlier appeal of the July 10,1992 order were consolidated and both are before us for resolution.

Regarding its initial appeal of the July 10, 1992 order, Remington raises the following issues for our review:

I. Whether the trial court’s order upon remand from the Pennsylvania Supreme Court is entitled to deference by this court.
II. Whether it was error to grant plaintiffs motion for judgment notwithstanding the verdict.
III. Whether it was error to grant a new trial based on the admission of industry standards.
IV. Whether it was error to grant a new trial based on admission of the military’s use of the model 700.
V. Whether it was error to grant a new trial for the failure to issue a cautionary instruction.
VI. Whether it was error to grant a new trial based on the admission of passages of a treatise.
VII. & VIII. Whether it was error to grant a new trial based on two charges to the jury already found proper by this court.
IX. Whether it was error to direct a verdict for Remington on the issue of punitive damages.
X. Whether it was error to grant a new trial based on the [court’s] response to jury questions.
XI. Whether the verdict was against the evidence, the weight of the evidence, and the law.

We will address these issues in order.

Appellant Remington first argues that the order and opinion of the trial court should receive no deference by this court. In this regard, Remington contends that (1) the order and opinion violate the law of the case doctrine and exceeds the scope of the mandate from the Pennsylvania Supreme Court; and (2) the trial court, by its verbatim adoption of the proposed order and opinion prepared by Nigro, failed to exercise its own unfettered independent judgment. Certainly, we cannot comprehend or approve of the procedure utilized by the trial court. However, even affording the trial court opinion full weight, we find that Remington asserts meritorious claims in each of its allegations of error. In the interests of judicial economy, we will not discount the weight afforded to the trial court opinion, or remand for a new opinion.

In his second issue, appellant argues that the trial court erred in granting Nigro’s motion for judgment notwithstanding the verdict. It is well-settled that a trial court must strictly comply with the mandate of the appellate court. Roskwitalski v. Reiss, 338 Pa.Super. 85, 90, 487 A.2d 864, 866-67 (1985), allocatur denied, 514 Pa. 619, 521 A.2d 933 (1987). In its opinion dated January 9, 1989, the trial court specifically stated that “[i]t is the opinion of this Court that plaintiff should be granted a new trial, but that the request for [judgment] n.o.v. be denied.” Trial Court Opinion dated 1/9/89 at 9. Upon remand, our Supreme Court issued the following order:

This case is remanded to the Court of Common Pleas of Allegheny County, Civil Division at No. 82-20776 for disposition of plaintiff’s remaining post-trial issues which were not addressed by the trial court.

Supreme Court Order filed 11/8/91 (emphasis added). 528 Pa. 594, 599 A.2d 972. Contrary to the trial court’s analysis in this regard, we find that it had previously addressed the question of whether Nigro was entitled to judgment n.o.v. when it denied relief on this basis. Accordingly, the trial court could not consider this issue on remand.

If Nigro had been entitled to judgment n.o.v., it is inconceivable that the trial court would have denied his motion in favor of indefinitely delaying resolution of the liability question by granting a new trial. It strains all reasoning to believe that the trial court did not consider the merits of Nigro’s motion for judgment n.o.v. when it issued its opinion of January 9, 1989. The grant of judgment n.o.v. would establish the liability of Remington for Nigro’s injuries thus leaving only a question concerning the amount of damages. The grant of a new trial, on the other hand, would force the parties to relitigate the entire question of liability. We cannot envision that a trial court would ignore the merits of a motion for judgment n.o.v. in favor of granting a new trial.

It is clear from the trial court opinion of January 9, 1989 that the trial court considered and denied Nigro’s motion for judgment n.o.v. It is equally clear that by reconsidering this motion on remand, the trial court exceeded the scope of the Supreme Court’s remand order. Accordingly, we reverse that portion of the trial court’s July 10, 1992 order which granted judgment n.o.v. in favor of Nigro.

In its third allegation of error, Remington argues that the trial court improperly granted a new trial based on the admission of evidence of industry-wide use of a “two-position safety with bolt lock.” Remington contends that this evidence was properly admitted as evidence pertaining to Nigro’s claim for punitive damages. We agree.

The standard of review of the grant of a new trial is whether the trial court palpably and clearly abused its discretion or committed an error of law which controlled the outcome of the case. Thompson v. City of Philadelphia, 507 Pa. 592, 598, 498 A.2d 669, 672 (1985). Accord Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 256, 523 A.2d 723, 725 (1987). However, when it clearly appears from the opinion of the trial court that except for the reason relied upon by the court in granting a new trial, judgment would have been entered on the verdict, we may review the decision not for an abuse of discretion, but for the legal merit of the reason relied assigned for granting a new trial. Coker v. S.M. Flickinger Co. Inc., 533 Pa. 441, 444-46, 625 A.2d 1181, 1183-84 (1993). Although the trial court granted a new trial on the basis of each error listed by Nigro, it treated each issue as the sole basis for the grant of a new trial. Accordingly, we will address the validity of the trial court’s legal justifications for the grant of a new trial in each instance.

The fundamental consideration in determining the admissibility of any evidence is its relevance to the fact sought to be proved. Martin v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983). Any evidence which tends to establish facts in issue or in some degree advances the inquiry at hand is relevant. Scullion v. EMECO Industries, Inc., 398 Pa.Super. 294, 301, 580 A.2d 1356, 1360 (1990), allocatur denied, 527 Pa. 625, 592 A.2d 45 (1991). In Lewis v. Coffing Hoist Div., Duff-Norton Co., 515 Pa. 334, 528 A.2d 590 (1987), our Supreme Court held that evidence pertaining to industry standards is irrelevant and therefore inadmissible in the context of a strict liability action. The Supreme Court stated:

Having reached the conclusion that evidence of industry standards relating to the design of the control pendant involved in this case, and evidence of its widespread use in the industry, go to the reasonableness of the appellant’s conduct in making its design choice, we further conclude that such evidence would have improperly brought into the case concepts of negligence law. We also conclude that such evidence would have created a strong likelihood of diverting the jury’s attention from the appellant’s control box to the reasonableness of the appellant’s conduct in choosing its design. For those reasons we conclude that the trial court correctly ruled the evidence to be irrelevant and hence inadmissible.

Lewis v. Coffing Hoist Div., 515 Pa. at 343, 528 A.2d at 594 (emphasis added). Clearly, evidence supporting Remington’s compliance with the customs in its industry has no bearing on Nigro’s strict liability action. However, unlike the facts of the Lewis case, plaintiff Nigro also sought punitive damages.

The assessment of punitive damages is proper when a party’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct. SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 493, 587 A.2d 702, 704 (1991). Section 908(2) of the Restatement (Second) of Torts, adopted by our courts in Pennsylvania, permits an award of punitive damages for conduct that is outrageous either because of the defendant’s evil motive or because of his reckless indifference to the rights of others. Id. at 493, 587 A.2d at 704. Accord Ruffing v. 84 Lumber Co., 410 Pa.Super. 459, 472, 600 A.2d 545, 551 (1991), allocatur denied, 530 Pa. 666, 610 A.2d 46 (1992). While the element of knowledge or intention, which is irrelevant to a claim for strict liability, it is particularly relevant in the context of a claim for punitive damages.

It follows, therefore, that where the focus of attention is not the character of the product but the knowledge of the defendant, state of the art evidence, otherwise irrelevant to the proof of the basic product design cause of action, addresses a material issue in litigation. Compliance with industry standard and custom tends to support the defense that Remington acted with a nonculpable state of mind, and would negate an inference of wanton indifference to the rights of others. Accordingly, such evidence is material and admissible to refute Nigro’s claim for punitive damages.

It is clear that at trial, Remington sought to introduce testimony pertaining to industry customs and “state of art” to refute Nigro’s claim for punitive damages. Moreover, it is equally clear that the trial court admitted this testimony solely to support Remington’s defense of the punitive damages claim. The trial court stated:

If you [plaintiff] intend to pursue the punitive damages of this case, I would permit them to use this information in the defense of the punitive damage claim. Other than that, I would exclude it in accordance with any ruling on that case mentioned previously [Lewis v. Coffing Hoist Div.].
The thing is we are up against that fine line between the strict liability aspect of products liability and the punitive damage claim, and in order to try to handle this properly, I would think I would exclude the charges and let you demonstrate for the benefit of the jury. Your [plaintiffs] witness testified and demonstrated those different rifles and explained maybe in a general fashion as to how many were available at the time.

Id. at 989, 999. Because the trial court admitted this evidence to counter Nigro’s claim for punitive damages, and because such evidence was material to Remington’s defense of that claim, we find no error by the trial court in admitting such evidence. Accordingly, we find the trial court’s legal justification for granting a new trial on this basis to be insufficient and reverse the trial court’s grant of a new trial on this basis.

In its fourth allegation of error, Remington argues that the trial court improperly granted a new trial based on the admission of evidence regarding the military’s use of the Model 700 as a sniper rifle. In its opinion, the trial court concluded that such evidence is excludable as state of art evidence. As discussed supra, state of art evidence is proper where, as here, the question of punitive damages is at issue.

However, the trial court also held that the admission of evidence pertaining to the Model 700’s use by the military unfairly and prejudicially surprised Nigro at trial. In this regard, the trial court found that Remington violated two discovery orders by not producing any information concerning the military’s use of the Model 700 rifle. Interestingly, Remington explained its response to the discovery request at trial and the trial court and Nigro apparently accepted the explanation:

MR. GARRETT [Remington’s counsel]: Your Honor, we requested the opportunity on behalf of Remington to put something on the record yesterday afternoon. Mr. Davis was testifying that the trigger mechanism in the rifle designated by the government, the military service, as M-40, trigger mechanism in this rifle was identical to the trigger mechanism in the 700 and manufactured by Remington. Mr. Kiger had an objection on grounds that we had not answered with respect to the M-40 in responding to requests for discovery. We were served with interrogatories, we were served with requests for discovery. We were served with requests for production of documents, parts lists, design drawings, and design changes, and complaints, and that sort of thing, and I wanted to explain on the record that Remington, regardless of where this rifle—this fire control mechanism goes, designates this as the Model 700 rifle and Model 700 fire control mechanism. When Remington produces this, some of these fire control mechanisms wind up in civil use, sold commercially, and they are designated 700’s. Some wind up with the military service. They are also designated by Remington as Model 700’s. But when they get over here into the military side, and the military has them, they refer to it as an M-40, so I wanted to explain to the Court that our discovery included all the design features of this fire control mechanism. We were responding in terms of the fire control mechanism. Regardless of whether it was subsequently designated in its use as an M-40 or Model 700, our answers were for the Model 700, but that included—
THE COURT: Those answers also applied to the Model 40.
MR. GARRETT: On that basis, I am not sure what the record shows, but on that basis, if this testimony had been stricken by the Court, I would ask it be reinstated, and I ask we be given the opportunity later in the testimony or in closing, to refer to this identity of use of the fire control mechanism.
THE COURT: Very well. Mr. Kiger, do you have a response?
MR. KIGER [Nigro’s counsel]: Yes, Your Honor. I found nowhere in the discovery any reference to the fact this was also a military fire control system or sold to the military, and that is one of the reasons I objected at the time. We did ask specific question whether it was sold under any other brand name, and we were told no in answer to those interrogatories, very definitively no.
THE COURT: Do you have copies of that?
MR. KIGER: I have them here. One of the problems is the answers are not on the same pages as the questions, so I have got to look and find that for you, but they did—they were served such interrogatories.
MR. GARRETT: Point out we are simply dealing with different nomenclature. We have answered in terms of Remington’s nomenclature. The military has a separate designation for this rifle. We don’t use that designation. We have answered with respect to the M-40 in the terms in which we refer to that. We don’t sell it under the name of M-40. We sell it as a Remington Model 700, but if the purchaser wants to put a different name on it, that is up to them.
THE COURT: You understand, Mr. Kiger?
MR. KIGER: Yes, I understand that.
THE COURT: It is basically a matter of nomenclature.
MR. KIGER: I understand. The problem with answers to interrogatories, it doesn’t say that, and nothing that was produced relates to what problems they may or may not have had with this rifle, and that is, of course, one of the reasons why we asked the question. We make it, somebody else uses it and calls it something else, and that is what we asked in the interrogatories, and they said no.
THE COURT: It is still the same basic rifle. You want to know whether the military has problems with it.
MR. KIGER: That is what we didn’t find out. What I am really getting around to, Judge, and I believe on the record you didn’t strike anything. I believe on the record all you said was you will reserve judgment on whether Remington gets back whether it is the same fire control mechanism or only similar. That is what counsel wasn’t sure of at the time. You have made no ruling as to whether it is stricken. As far as I am concerned, you took it under advisement, my objection. The real issue is what the relevance is the military using the rifle and approved it. That is not relevant to any of the issues in the case. The fact the military may not like it, that seems to be what this is being offered for. We have two defenses. One is we are the only United States Manufacturer of these kinds of rifles left, and for some reason, that is important. And, number two, the military likes this rifle and used it in the war in Vietnam. That is the second thing I have heard. Now I don’t think either of those items have relevance to anything.

N.T. 9/14/87-10/2/87 at 1186-91 (emphasis added). When Remington’s counsel asked that it be reflected in the record that the testimony is admissible, the trial court deemed the testimony relevant and admissible. At that point, Nigro’s counsel responded by asking “I can cross-examine the witness on it” to which the court replied “Yes.” Id. at 1193-94.

It is clear from the record that counsel, although initially arguing that this evidence was not properly produced during discovery, abandoned this tact and reframed his objection as a challenge to the relevancy of the evidence. Although Nigro’s counsel searched for the subject interrogatory, there is no indication in the record that he, in fact, found the document or presented it to the court for its ruling. See id. at 1188, 1192 (counsel still searching for interrogatory). Any objection he had to the admission of this evidence was waived at trial. See Bell v. Philadelphia, 341 Pa.Super. 534, 542, 491 A.2d 1386, 1390 (1985) (to avoid waiver, party must make a specific objection at the proper stage in the questioning of a witness). Accordingly, we find the trial court’s grant of a new trial on this basis to be without sufficient legal justification.

In its fifth allegation of error, Remington argues that the trial court improperly granted a new trial based on its failure to issue an immediate cautionary instruction regarding the admission of evidence related to industry practice. The trial court found that its instruction several days removed from the actual testimony did not sufficiently mitigate the prejudicial effect of this evidence.

An erroneous jury instruction may provide the basis for a new trial if it is shown that the instruction was fundamentally in error and may have been responsible for the verdict. Soda v. Baird, 411 Pa.Super. 80, 87, 600 A.2d 1274, 1278 (1991). Moreover, if the charge has the tendency to mislead or confuse the jury, rather than to clarify a material issue, a new trial is warranted. Id. Where, as here, evidence is admissible for a limited purpose, the jury must be given a cautionary instruction limiting their use of the evidence if such an instruction is requested by the party against whom the evidence is being used. Carter by Carter v. U.S. Steel Corp., 390 Pa.Super. 265, 274-75, 568 A.2d 646, 650 (1990), affirmed in part and reversed in part (on other grounds), 529 Pa. 409, 604 A.2d 1010 (1992), cert. denied, — U.S. —, 113 S.Ct. 186, 121 L.Ed.2d 130 (1992). In the instant case, the trial court granted Nigro’s request for a cautionary instruction. However, the trial court delayed issuing the instruction until the close of all the evidence. The lower court granted a new trial on the basis of its delay in giving the instruction.

During the testimony of Remington’s expert, Nigro requested a limiting instruction regarding the jury’s consideration of evidence related to customs within the rifle industry and state of art evidence. The trial court denied the request indicating that such an instruction would be more appropriate if issued with all other instructions at the end of trial. N.T. 9/14/87-10/2/87 at 1356-57. Even if the delay in issuing a limiting instruction constituted error, we find this error harmless in the context of the trial.

First, a limiting instruction presented during trial and immediately following the admission of the evidence in question would have necessitated a full explanation of the law pertaining to punitive damages. This issue was not yet before the jury. Moreover, upon dismissal of the punitive damage claim, the trial court would again be required to explain not only that such evidence must not be considered in the context of the strict liability claim, but that the jury must disregard the trial court’s previous instruction related to the law of punitive damages. We find that this scenario would create greater confusion than the alleged confusion caused by delaying the instruction.

Further, at the close of trial, the lower court included the following instruction:

Now you have seen prepared charts and have heard other evidence presented by the defendant, Remington Arms Company, of use by other rifle manufacturers of the bolt lock feature and the 2-position safety. You are specifically instructed not to consider this evidence when determining whether the subject Remington Rifle Model 700, plaintiff’s Exhibit 1, was defective.

Id. at 1820. We fail to see how this instruction, in light of the trial court’s dismissal of the punitive damages claim, was erroneous and prejudicial to Nigro. Soda v. Baird, supra. Accordingly, we find the trial court’s legal justification for the grant of a new trial to be insufficient.

In its sixth issue, Remington argues that the trial court erred in granting a new trial on the grounds that expert William Davis read passages from a book entitled The Bolt Action Rifle. The trial court held that this evidence constituted inadmissible hearsay. In Pennsylvania, an expert witness may refer to published works on the matter which is the subject of his or her testimony. Cummings v. Nazareth Borough, 430 Pa. 255, 265, 242 A.2d 460, 466 (1968); Walheim v. Kirkpatrick, 305 Pa.Super. 590, 592-93, 451 A.2d 1033, 1034 (1982). However, such authorities may not be received into evidence to prove the truth of the matters contained therein. Kearns by Kearns v. DeHaas, 377 Pa.Super. 200, 546 A.2d 1226, 1233 (1988), allocatur denied, 522 Pa. 584, 559 A.2d 527 (1989). “It is the purpose for which the information is offered, not the manner in which [it] is introduced, which makes it objectionable.” Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 622, 537 A.2d 334, 340 (1988), allocatur denied, 520 Pa. 594, 552 A.2d 249 (1988) (emphasis added).

In the case at bar, Remington asked its expert, William C. Davis, Jr. to read from a book he considered authoritative: The Bolt Action Rifle, by Stuart Otteson. Mr. Davis read out loud the following excerpts:

The trigger is a single-stage override type, but a somewhat sophisticated variation which results in one of the best performing triggers made.
* * * * * sjs
The secret to this level of performance in a reasonable cost assembly primarily involves a unique' connector piece which is resiliently mounted on the trigger. Normally unless the trigger ledge is perfectly sharp and true, an almost impossible thing to produce and retain in service, the sear breaks before the edges are actually clear resulting in a spongy and imprecise release. The Remington trigger connector, a hardened steel strip sandwiched between the trigger and the sear allows precise trigger function without perfect surfaces and a sharp and clean release without perceptual over-travel.

N.T. 9/14/87-10/2/87 at 1166-67. It is clear from the record that this portion of Mr. Davis’ testimony was introduced to bolster his credibility as to his knowledge of the inner workings of the firing mechanism. See e.g. N.T. 9/14/87-10/2/87 at 1144-57 (describing to the jury the various tests performed to determine the reaction of the inner mechanism to various types of stress).

Remington additionally inquired of Mr. Davis:

In regard to this operation of the safety in this fire control mechanism, do you have an opinion as to the soundness of the design of this safety system in this Remington fire control system?

Id. at 1173. Mr. Davis responded that it was his opinion that the safety was satisfactory. Id. Remington’s counsel next indicated that “we can establish [Mr. Davis’] expertise has some concurrence.” Id. at 1174. The trial court permitted Mr. Davis to bolster his credibility by reading a consistent passage from the above-mentioned treatise:

Operating on the sear, while in theory possibly slightly less positive than directly on the firing pin assembly, is nonetheless totally effective and far superior to merely blocking the trigger. This is because the engagement between the sear and the cocking piece far exceed that between the sear and the trigger often by a factor of ten or more. Operation of the Remington safety is also exceptionally easy, and in fact is perhaps the best combination of positive action and convenience and silent operation yet devised.

Id. at 1174-75. It is apparent from the record that this testimony was offered not to prove that the mechanism on the rifle was safe, but for the permissible purpose of supporting Mr. Davis credibility with regard to his expert opinion. Majdic v. Cincinnati Machine Co., supra. Accordingly, we find that the trial court’s grant of a new trial on this basis was improper.

In its seventh and eighth issues, Remington argues that the trial court erroneously granted a new trial on the basis of two, separate charges to the jury. In its opinion, the trial court once again addressed the two separate charges to the jury, and found that each charge constituted an error justifying the grant of a new trial. Upon review, we find that the Superior Court resolved these issues in Remington’s favor in Nigro I, at 3-6, 7-8. Accordingly, these issues are covered by the law of the case doctrine. Under this doctrine, a trial court must strictly comply with the mandate of the appellate court and issues decided by an appellate court on a prior appeal will not be reconsidered on a second appeal. Roskwitalski v. Reiss, 338 Pa.Super. at 90, 487 A.2d at 866-67. Therefore, we hold that the trial court erred in granting a new trial on the basis of the two jury instructions referenced by appellant Remington.

In its ninth issue, Remington argues that trial court improperly granted a new trial on the grounds that it erred by entering a directed verdict in favor of Remington on the punitive damages claim. Because we find that a new trial is not warranted on any basis, Remington’s argument in this regard is moot. However, assuming arguendo that a new trial was necessary, we find Remington’s argument persuasive. At trial, Remington moved for a compulsory nonsuit on Nigro’s claim for punitive damages. At that time, the trial court deferred its consideration of the motion. At the close of all evidence, the trial court entered a directed verdict on the punitive damages claim in favor of Remington. On remand, the trial court reconsidered its prior decision and concluded that entry of a directed verdict in Remington’s favor constituted reversible error and granted a new trial on this basis.

As its basis for granting a new trial on the punitive damages claim, the trial court cited Remington’s knowledge of “the defective nature of the Model 700 rifle warranting, at the least, further investigation and recall in order to protect the public from injuries sustained by inadvertent discharge of the Model 700.” Trial court opinion dated 7/10/92 at 38. However, our review of the evidence cited by the trial court discloses that the evidence in question in no way supports a finding that Remington was aware of the defective condition claimed by Nigro.

The trial court refers to Exhibit 5B-4, and states that this exhibit “reveal['s] sixty-nine Model 700’s produced in the years 1970-1974 inclusive were returned to Remington with complaints that the rifle inadvertently fires upon the bolt closure (Remington standard complaint No. 107) and that after testing of those rifles by Remington, sixty-six of the complaints were justified. (R. 865a).” Trial court opinion dated July 10, 1992 at 37-38. The trial court finds that this evidence clearly demonstrates that Remington had actual knowledge of the defective nature of the Model 700.

Upon review of the record, however, we find uncontroverted evidence that Remington’s classification of “justified” was not indicia of a defect found in the Model 700. At trial, defense witness James Hutton explained that customer complaints are generally in letter form and are accompanied by the gun in question. N.T. 9/17/87-10/2/87 at 1053-54. The uncontroverted testimony of Mr. Hutton indicates that the term “justified” implies that the rifle had a malfunction, whether caused by broken parts, rust, altered parts, etc. Id. at 1455. Thus, the testimony concerning these documents does not support a finding that Remington knew of the defect which Nigro sought to prove.

The trial court additionally cited various documents related to a phenomenon known as “tricking.” At trial, Mr. Hutton described the “tricking” phenomenon in great detail. This description may be found on pages 1461 through 1464 of the Notes of Testimony from September 17, through October 2, 1987. Mr. Hutton provided uncontradicted testimony that the “tricking” phenomenon is a separate and distinct phenomenon from the defective condition alleged by Nigro. N.T. 9/17/87-10/2/87 at 1464, 1469-70. Finally, Mr. Hutton noted that the subject rifle was tested and found not to be subject to the phenomenon known as “tricking.” Id. at 1465. Evidence pertaining to the “tricking” phenomenon in no way supports a finding that Remington had knowledge of the defective condition averred by Nigro. Accordingly, we find that the trial court’s grant of a new trial on this basis is without sufficient legal justification.

In its tenth allegation of error, Remington argues that the trial court erred in granting a new trial on the grounds that it provided an improper response to a jury inquiry, and on the grounds that it improperly inquired about the jury’s progress in reaching a verdict. An erroneous jury instruction may provide the basis for a new trial if it is shown that the instruction was fundamentally in error and may have been responsible for the verdict. Soda v. Baird, 411 Pa.Super. 80, 87, 600 A.2d 1274, 1278 (1991). Moreover, if the charge has the tendency to mislead or confuse the jury, rather than to clarify a material issue, a new trial is warranted. Id.

During deliberations, the jury submitted the following inquiry to the trial court:

Does the question of product liability concern only Exhibit 1 [the rifle in question] or all Remington 700 BDL bolt lock rifles? In other words, should the decision in this case as to whether the Remington 700 bolt action rifle is a safe product be based solely on Exhibit 1 or on the design features inherent in all Remington 700 BDL bolt lock rifles?

N.T. 8/17/87-10/2/87 at 1839. The trial court responded:

Your decision in this case should be based on whether the Remington 700 bolt lock rifle is a safe product based on the design features inherent in all Remington 700 BDL bolt lock rifles, including Exhibit 1.

Id. However, the trial court now finds that it should have given the following instruction requested by Nigro:

This is a case involving a claim of a design defects in the Remington Model 700 BDL bolt lock rifles, including Exhibit 1.
The design of all Remington Model 700 bolt lock rifles, including Exhibit 1, is the same.
The decision in this case as to whether the Remington 700 bolt lock rifle is a safe product should be based upon Exhibit 1 and on the design features inherent in all Remington 700 BDL bolt lock rifles.
Your decision in this case is limited to whether or not Remington Arms Company is liable to Nick Nigro for the damages sustained as the result of the accident of December 11, 1980.

Trial Court opinion dated July 10, 1992 at 41-42. In the alternative, the trial court stated that it should have advised the jury to rely on its recollection of the court’s instructions on the law or the court should have repeated the instructions in its their entirety. In this regard, the trial court opined that its instruction failed to clarify the issue and thus severely prejudiced Nigro. We disagree.

The question submitted by the jury panel was quite specific and straightforward. The trial court’s answer to the inquiry constituted a concise and correct response to the question. Nigro’s suggested answer, although wordy and repetitive, did not differ substantively from the trial court’s response. In fact, we find that Nigro’s suggested answer would tend to confuse, rather than clarify the issue. In light of the specific inquiry, we find no error in the trial court’s response to the jury. Accordingly, the trial court erred in granting a new trial on this basis. Soda v. Baird, supra.

The trial court also granted a new trial because it erred in ordering an undecided jury on Friday evening at 5:00 P.M. to render a verdict or be sequestered over the weekend until a verdict was reached.” Trial court opinion dated July 10, 1992 at 42. However, we find that at trial, when the trial court proffered this suggestion, neither counsel objected. Thus, Nigro’s objection to the trial court’s order to the jury is waived. See Rogers v. Johnson & Johnson Products, Inc., 401 Pa.Super. 430, 438, 585 A.2d 1004, 1008 (1990) (challenge to fundamental trial error waived where counsel fails to make timely and specific objection).

Finally, in its eleventh issue, appellant argues that the trial court erred in granting a new trial on the basis that the verdict was against the weight of the evidence and the law. Granting a new trial on the grounds that the verdict was against the weight of the evidence is generally committed to the sound discretion of the trial court. Dierolf v. Slade, 399 Pa.Super. 9, 15, 581 A.2d 649, 652 (1990). “Upon review, the test is not whether the appellate court would have decided the case in the same way but, rather, whether the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice and ‘to make the award of a new trial imperative, so that right may be given another opportunity to prevail.’ ” Id. (quoting Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984) (citations omitted)).

We find that the trial court, in granting a new trial, cited only the evidence presented by plaintiff Nigro, while ignoring all of the contradictory evidence presented by Remington. In light of the evidence presented by Remington, we cannot say that our conscience is shocked by the jury’s verdict. Accordingly, we reverse the grant of a new trial on this basis.

Remington raises six additional issues pertaining to the trial court’s order of August 21,1992. In this order, the trial court found that Remington willfully failed to comply with Nigro’s requests for discovery and with prior discovery orders. The trial court ordered that a default judgment on liability be entered against Remington for its failure to comply with the subject discovery orders. As discussed supra, we find that the trial court erred in granting Nigro a new trial. Accordingly, that portion of the July 10, 1992 order which required Remington to produce various documents for discovery is void and a nullity. Because this portion of the trial court’s order is for all practical purposes a nullity, we hold that the trial court’s order of August 21, 1992, which relates to the vacated portion of the July 10,1992 order, is likewise void. Therefore, we hereby quash Remington’s appeal of the August 21, 1992 order as moot.

The order of July 10, 1992 is hereby reversed on all grounds. The verdict rendered by the jury is reinstated. Nigro’s motion to quash the appeal from the August 21, 1992 order is granted. This case is remanded for entry of judgment consistent with this opinion. Remington’s petition for a writ of prohibition related to the August 21, 1992 order of the trial court is denied as moot. Nigro’s petition application to supplement the record is denied. Remington’s motion to strike Nigro’s application to supplement the record is denied as moot in light of our denial of the application. Jurisdiction is relinquished.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I join in Judge Cercone’s well-reasoned opinion. I write separately to propose that Pennsylvania recognize a hearsay exception for learned treatises.

It is time that Pennsylvania join the many other jurisdictions that permit a hearsay exception. The Federal Rules also provide for the exception:

To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Fed.R.Evid. 803(18).

The adoption of such an exception,

would not be as great a change as might at first be supposed because much of the testimony of experts consists of information they have obtained from such sources. Also, admitting the sources would greatly improve the quality of information presented to trial courts in litigated cases. Wigmore concluded that there were sufficient assurances of trustworthiness to justify equating a learned treatise with the live testimony of an expert. First, authors of treatises have no bias in any particular case. Second, they are acutely aware that their material will be read and evaluated by others in their field, and accordingly there is strong pressure to be accurate.

2 John W. Strong et al, McCormick on Evidence § 321 (1992).

      . In the case of United States v. Hart, 693 F.2d 286 (3d Cir.1982), Judge Aldisert, J., opined:
      With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two errors. I have said in open court that when I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.

        Id. at 287 n. 1. Here, we find that appellant effectively rebuts the presumption.

        . Even assuming, arguendo, that the trial court could consider Nigro’s motion for judgment n.o.v. on remand, the trial court committed an error of law in granting such motion. When reviewing the propriety of an order granting or denying judgment n.o.v., we must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can reasonably be drawn from the evidence and rejecting all unfavorable testimony and inferences. Ingrassia Construction Co., Inc. v. Walsh 337 Pa.Super. 58, 61, 486 A.2d 478, 480 (1984). Judgment n.o.v. may be granted only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Id. We have reviewed the record and find that there was sufficient competent evidence to sustain the verdict.

      . Although we find no Pennsylvania cases directly on point, we find the reasoning employed by some of our federal courts to be helpful in our analysis of the issue. See, e.g., Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192, 1198 (4th Cir.1982) (whether defendant followed industry standards and complied with the state of art while designing product is probative on the issue of wantonness, willfullness and maliciousness of defendant’s acts); Wolf by Wolf v. Procter & Gamble Co., 555 F.Supp. 613, 617 (D.N.T.1982) (defendant should not be precluded from presenting state of art evidence where claim for punitive damages is also presented).

        . In their briefs, both Remington and Nigro set forth the interrogatory in question:

        Does or did Remington manufacture, produce, distribute or sell the product, series or model previously identified as Remington Model # 700 bolt action rifle, or which the subject rifle serial no. 6311332 is a part, as well as any other Remington firearm with the same or similar firing, loading, bolt, trigger and/or safety assembly or mechanism including but not limited to all predecessor models of the Model # 700 and all successor models of the Model # 700, for or under the name, trade name, trademark, private label or other similar designation of any other person, company or organization?
      Even if Nigro’s objection had been preserved, we find no evidence of record that Remington did “manufacture, produce, distribute or sell the product” under any designation other than the Model 700. We cannot deem Remington's answer to be unresponsive where it properly responded to Nigro's inartfully drafted interrogatory.