author: POPOVICH, Judge:

text:
    600 A.2d 558
    William GROSS and Rosemarie Gross, H/W v. JOHNS-MANVILLE CORP., Pacor, Inc., Eagle Picher Industries, Unarco Industries, Inc., Keene Corporation, Raybestos-Manhattan, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, GAF Corporation, Owens-Corning Fiberglas Corporation, Amatex Corporation, Pittsburgh Corning Corporation, Nicolet Industries, Inc., H.K. Porter Company, Forty-Eight Insulation, Inc. and Armstrong World Industries. Appeal of KEENE CORPORATION. William GROSS and Rosemarie Gross, H/W v. FIBREBOARD CORPORATION, Garlock, Inc., Pittsburgh Corning Corporation, Johns-Manville Corp., Pacor, Inc., Eagle Picher Industries, Unarco Industries, Inc., Keene Corporation, Raybestos-Manhattan, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Owens-Illinois Glass Company, GAF Corporation, Owens-Corning Fiberglas Corporation, Amatex Corporation, Nicolet Industries, Inc., H.K. Porter Company, Forty-Eight Insulation, Inc. and Armstrong World Industries. (Two Cases) Appeal of FIBREBOARD CORPORATION and Pittsburgh Corning Corporation. (Two Cases). William GROSS and Rosemarie Gross, H/W, Appellants v. JOHNS-MANVILLE CORP., Pacor, Inc., Eagle Picher Industries, Unarco Industries, Inc., Keene Corporation, Raybestos-Manhattan, Inc., Celotex Corporation, Southern Textile Company, J.P. Stevens Company, Garlock, Inc., Owens-Illinois Glass Company, Fibreboard Corporation, GAF Corporation, Owens-Corning Fiberglas Corporation, Amatex Corporation, Pittsburgh Corning Corporation, Nicolet Industries, Inc., H.K. Porter Company, Forty-Eight Insulation, Inc. and Armstrong World Industries, Appellees.
    Superior Court of Pennsylvania.
    Argued July 16, 1991.
    Filed Dec. 11, 1991.

      Carol L. Widemon, Philadelphia, for Keene Corp., appellant (at 367) and appellee (at 368, 369 & 370).
    Kristine F. Collins, Philadelphia, for Gross, appellants (at 370) and appellees (at 367, 368 & 369).
    George E. McDavid, Philadelphia, for Fibreboard Corp. and Pittsburgh Corning, appellants at (368 & 369) and appellees (at 367 & 370).
    Before POPOVICH, HUDOCK and MONTGOMERY, JJ.
   POPOVICH, Judge:

Before this Court are consolidated appeals from two orders entered in the Court of Common Pleas of Philadelphia County. This is a case involving personal injuries as a result of exposure to asbestos at the Philadelphia Naval Shipyard. Appeals have been filed by the plaintiffs, (the Grosses), as well as several of the defendants, (Keene Corporation, Pittsburgh Corning Corporation and Fibreboard Corporation). The Grosses appeal the trial court’s orders of November 5, 1990, and December 7, 1990, in which their motion for a new trial and additur was denied, and their petition for delay damages was denied as being untimely with regard to those defendants who stipulated to liability following the damages phase of the trial. The latter is an issue of first impression. Keene Corporation appeals the trial court’s order of November 5, 1990, in which its motion for a new trial on the issue of damages or, in the alternative, remittitur was denied. Pittsburgh Corning Corporation and Fibreboard Corporation appeal the trial court’s December 7,1990, order which granted to the Grosses delay damages as to them and the November 5, 1990, order which denied their motion for a new trial based upon various errors allegedly committed by the trial court. We affirm in part and reverse and remand in part.

William Gross was a marine machinist employed by the Philadelphia Naval Shipyard from 1962 to 1983. It was during this time that he was exposed to asbestos. Mr. Gross testified during trial that he first began to experience shortness of breath in 1975. (N.T. February 6, 1990 p. 84). There was expert testimony that Mr. Gross had developed pleural plaques, pleural thickening and asbestosis as a result of his exposure to asbestos and that this played a role in his shortness of breath. (N.T. February 6, 1990, pp. 168-184). There was also expert testimony that his shortness of breath was due to obesity and hypertension and that the pleural thickening was of a minimal degree and therefore unlikely to be the cause of his respiratory symptoms. (N.T. February 7, 1990, pp. 85-88).

The proceeding took the form of a reverse bifurcated trial in which the issue of damages was tried first to be followed by a trial on the issue of liability. On February 8, 1990, the jury returned a verdict of $170,000.00 for William Gross and $50,000.00 for Rosemarie Gross on her loss of consortium claim. On February 9, 1990, following the damages phase of the case, several defendants stipulated to a 10% share of liability, reserving their rights to file post-trial motions and to appeal the damages verdict. The remaining defendants, Pittsburgh Corning Corp. and Fibreboard Corp., went on to the liability phase, and on February 15, 1990, the jury found all named defendants liable with the exception of H.K. Porter and Celotex Corp. who did not appear on the verdict sheet.

Post-trial motions were filed by the Grosses requesting an increase in the award and by the defendants requesting a new trial or, alternatively, for a reduction in the award. These motions were denied by the trial court in its opinion and order of November 5, 1990. On February 22, 1990, the Grosses filed a petition for delay damages. In its order and opinion of December 7, 1990, the trial court granted the Gross’s petition as to the two defendants who went on to the liability phase; Pittsburgh-Corning and Fibreboard, and denied their petition as to the stipulating defendants as being untimely.

The trial court concluded that the Pa.R.Civ.P. 238 requirement that a petition for delay damages be filed within ten days began to run on February 9, 1990, for the stipulating defendants and on February 15, 1990, for those defendants who went on to the liability phase of the case. The petition for delay damages was therefore filed thirteen days after the stipulations to liability and not within the ten days required by the Rule.

Pa.R.Civ.P. 238 states in pertinent part:
(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be liable to the plaintiff in the verdict of a jury, in the decision of the court in a nonjury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa.C.S. § 7361, and shall become part of the verdict, decision or award.
* * * * * *
(c) Not later than ten days after the verdict or notice of the decision, the plaintiff may file a written motion requesting damages for delay and setting forth the computation.
* * * * * *

It was the trial court’s determination that a stipulation was, in effect, a “verdict or notice of decision” from which the time for filing begins to run. We disagree. The fact that this was a reverse bifurcated trial complicates what would, under ordinary circumstances, be an uncomplicated reading of the rule. It is clear that the case could not have ended at the conclusion of the first verdict, i.e. damages, since there had been no finding as to liability. Therefore the time within which to file for delay damages could not begin to run from the first verdict under any circumstances.

The trial court attempts to equate the stipulations to liability in conjunction with the damages verdict with a “notice of the decision”. This, in our view, is an incorrect reading of the rule. Part (a) of the rule itself tells us what is meant by “notice of the decision”, stating as follows: “... damages for delay shall be added to ... damages awarded ... in the verdict of a jury, in the decision of the court in a nonjury trial or in the award of arbitrators — ” Pa.R.Civ.P. 238(a)(1) (emphasis added). A stipulation is not a “decision” within the meaning of the rule. The term “decision” as set forth in the rule refers to the decision of the court in a nonjury trial which would be the equivalent of a verdict in a jury trial. The question then becomes whether the rule contemplated that a stipulation to liability in conjunction with a damages verdict, as occurred in this case, constitutes a verdict of a jury or decision of the court. We think not.

The plain meaning of the statute contemplates that delay damages not be requested until the verdict has been rendered. In most cases this would not be problematic. There would either be one verdict, encompassing both liability and damages or, in the case of a bifurcated trial, the first verdict would generally be the liability verdict (at which point the defendants may settle), followed by the damages phase, making that the final verdict from which the time period to file for delay damages would run. A reverse bifurcated trial, while a useful tool in effecting settlement, creates the unique problem presented here.

The purpose of Rule 238 is to encourage early settlement of cases and to “unclutter the courts”. See Craig v. Magee Memorial Rehab. Center, 400 Pa.Super. 126, 582 A.2d 1376, 1379 (1990) citing Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981); see also Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350, 1353 (1986). We do not consider a stipulation to liability a settlement offer. While we do not minimize the effort to do away with unnecessary litigation where liability is clear, we also consider that no settlement exists as a result of the stipulations. It is therefore a reasonable interpretation of the rule that the verdict for the liability phase triggers the time period within which to file a petition for delay damages. As a practical matter, it would be a duplication of efforts for the plaintiffs to be required to file more than one petition in the same case and for the trial judge to have to entertain more than one petition. For the above stated reasons, the ten day time period within which to file for delay damages begins to run following the liability verdict, absent a settlement.

The Grosses next appeal the trial court’s denial of their motion for a new trial and for additur. They assert that a verdict of $170,000 is “shockingly low” where Mr. Gross’s lost wages were allegedly more than $1,000,000. They rely on the testimony of expert witnesses during the trial which showed that Mr. Gross’s shortness of breath was related to his asbestos exposure and that his difficulties will become increasingly worse as time goes on, affecting his employability. In addition, the Grosses state that all of the experts agree that Mr. Gross has a significantly increased risk of developing cancer as a result of his asbestos exposure.

The trial court found that the jury’s verdict was not “shocking” and refused to overturn it in the absence of evidence which showed “caprice, prejudice, partiality or corruption.” (Trial court opinion, November 5, 1990, p. 4). We agree.

Our standard of review of an order denying a motion for a new trial is whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 424-27, 521 A.2d 413, 420-21 (1987). See Solomon v. Baum, 126 Pa.Commw. 646, 560 A.2d 878 (1989) allocatur denied 525 Pa. 636, 578 A.2d 930. The granting of a new trial on the ground that the verdict is inadequate is appropriate only where “[t]he injustice of the verdict ... stand[s] forth like a beacon.” Elza v. Chovan, 396 Pa. 112, 118, 152 A.2d 238 (1959). Further, there must be no resemblance between the verdict and the damages proved. Id. Thus, the verdict must appear to have resulted from

passion, prejudice, partiality or corruption, or that the jury disregarded the instructions of the court, or, in some instances where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from the uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff, or according to some, where, otherwise, there has been an evident failure of justice to the plaintiff ...

Guidry v. Johns-Manville Corp., 377 Pa.Super. 308, 314, 547 A.2d 382, 385 (1988) quoting Morris v. Peckyno, 202 Pa.Super. 490, 492, 198 A.2d 396 (1964) (quoting 15 AmJur. § 231). We went on to state in Guidry:

The fact that a verdict is low, standing alone, does not indicate that the verdict is inadequate____ If the low verdict can be explained by viewing it as a compromise verdict, then it should not be disturbed on appeal____ Where the evidence is conflicting and the resulting verdict is low, the verdict may be regarded as a compromise verdict, i.e., “one where the jury, in doubt as to defendant’s negligence or plaintiff’s freedom from contributory negligence, brings in a verdict for the plaintiff but in a smaller amount than it would have if these questions had been free from doubt.”

Guidry, 377 Pa.Superior Ct. at 314, 547 A.2d at 385 (citations omitted) quoting Phelps v. Paul L. Britton, Inc., 412 Pa. 55, 60 n. 3, 192 A.2d 689, 692 n. 3 (1963).

While there is consistent testimony that Mr. Gross was clearly exposed to asbestos, a review of the record reveals that there was conflicting expert testimony as to the cause of the symptoms which he exhibited. Generally, there was testimony that Mr. Gross’s shortness of breath and chest pain resulting in his inability to work to his same capacity, was due to his exposure to asbestos. There was, however, also testimony that Mr. Gross’s symptoms were not a result of his asbestos exposure but were due to obesity and coronary irregularities and that he did not have asbestosis. “It was the province of the jury below to resolve inconsistencies and contradictions, to disbelieve all or part of the testimony of the witnesses, and to thereafter compromise the verdict or establish an amount which it determined would justly compensate the plaintiff for his loss.” Guidry, 547 A.2d at 386, quoting Fierman v. SEPTA, 277 Pa.Super. 252, 419 A.2d 757 (1980). Although the Grosses set the amount of lost wages at $1,221,000 the jury’s award of $170,000 can be considered a compromise verdict based upon the conflicting evidence. We will not substitute our judgment for that of the jury’s absent any showing of passion, prejudice, partiality, corruption or mistake on the part of the jury.

We will next address Keene Corporation’s motion for a new trial or remittitur. Keene contends that expert testimony regarding Mr. Gross’s pulmonary function tests showed that he should have been able to perform most jobs and that his exposure to asbestos should not have prevented him from engaging in all but the most physically demanding jobs. Keene further asserts that Mr. Gross’s termination from employment with the shipyard was due to his refusal to accept a lower salary for alternative positions, choosing instead to become self-employed at a significantly higher income. It is argued that the award was based largely upon Mr. Gross’s fear of contracting cancer and risk of developing cancer, what Keene refers to as “subjective intangibles”, and as such, should not be the basis for an award of this amount.

In reviewing a motion for a new trial on the ground that the verdict was excessive the standard for its grant or denial is within the discretion of the trial court and we will not interfere absent a clear abuse of discretion. Robert v. Chodoff, 259 Pa.Super. 332, 366, 393 A.2d 853, 871 (1978) see also Taylor v. Celotex Corp., 393 Pa.Super. 566, 574 A.2d 1084, 1098 (1990). A verdict is not considered excessive unless it is “so grossly excessive as to shock our sense of justice.” Robert, 259 Pa.Superior Ct. at 366-367, 393 A.2d at 871 quoting Kane v. Scranton Transit Co., 372 Pa. 496, 94 A.2d 560 (1953); see also Weed v. Kerr, 416 Pa. 233, 205 A.2d 858 (1965).

As stated in our above discussion regarding inadequacy of the verdict, the record reveals conflicting testimony as to the nature and extent of Mr. Gross’s injuries. There was testimony that his condition is due to his asbestos exposure and that he is experiencing tangible symptoms of such exposure which are of a permanent and regressive nature. There was also testimony that his asbestos exposure was not responsible for his current symptoms or his termination from employment. Evidence was presented that Mr. Gross planned to work at the shipyard until his retirement, that his lost wages exceeded $1,000,000 and that the United States Department of Labor declared him to be totally disabled. There was also testimony by Mrs. Gross as to the effect of Mr. Gross’s symptoms on their marital relationship.

The jury had the difficult task of sorting through the evidence to come up with a damages verdict which fairly represented its view of the most credible evidence. There was sufficient evidence, if accepted by the jury, to support its award of compensatory damages in the amount of $170,-000 as well as damages for loss of consortium in the amount of $50,000. We do not find that the jury’s verdict “shocks our sense of justice” or that it is excessive any more than we found it to have been inadequate. Keene Corporation is therefore not entitled to a new trial or remittitur.

Lastly, we will review Pittsburgh Corning Corporation’s, (Pittsburgh), and Fibreboard Corporation’s, (Fibreboard), appeal from the trial court’s denial of their motion for a new trial and its award of delay damages. They raise the following issues in their motion for a new trial:

1. The court below committed an error of law in declining to charge the jury to determine the comparative liability of all defendants on the verdict sheet.
2. The lower court erred in holding that defendants’ motion for apportionment of liability was premature.
3. The lower court erred in holding that the number of defects was relevant to the present matter.
4. The court below committed an error of law in holding that there was insufficient evidence to charge the jury on apportionment of damages among the defendants.
5. The court below erred in holding that defendants’ evidence on the apportionment issue failed to meet the Eckenrod [v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1988)] test.

Fibreboard and Pittsburgh first argue that the trial court was required to charge the jury on the issue of comparative liability. This issue was argued to the trial court before the jury was charged and at that time the court concluded, among other things, that insufficient evidence was presented to the jury to enable it to make a determination as to the comparative fault of the defendant companies. In its opinion of November 5, 1990, following post-trial motions, the trial court again stated that the jury did not receive sufficient evidence to permit it to apportion liability and that “allowing apportionment would have required jurors to engage in speculation and conjecture to truly percentagize liability.” (Trial court opinion, November 5, 1990, p. 7).

We are presented with nothing which requires as a matter of law that a jury must be charged on the issue of comparative liability in every tort action involving more than one defendant. Had evidence been presented upon which a jury could have apportioned the comparative fault of the defendant companies such an instruction would have been appropriate. See Walton v. Avco Corp., 383 Pa.Super. 518, 557 A.2d 372 allocatur granted, 524 Pa. 594, 568 A.2d 1245 (1989); Compare Martin v. Owens-Corning Fiberglas, 515 Pa. 377, 528 A.2d 947 (1987) (Expert witnesses were unable to determine the relative contributions of cigarette smoking and asbestos exposure and without such expert guidance the court concluded that a jury cannot be expected to make such a determination.)

Fibreboard and Pittsburgh next argue that the trial court was in error in its conclusion that the holding in Walton, which permitted apportionment of liability amongst tort defendants in strict liability cases, was applicable only after a determination of liability and not during the time of such determination. Because we have concluded that the trial court properly declined to charge the jury on the issue of comparative fault for lack of a factual basis upon which to base such a determination, we find it unnecessary to address whether the trial court’s conclusion during trial that it was premature to submit the question of comparative liability to the jury was in error. We note only that the trial court, in its November 5, 1990, opinion, does not offer this as its reason for denying Fibreboard’s and Pittsburgh’s motion for a new trial. Whether the request for the instruction was premature is a moot point.

Similarly, we find it unnecessary to address the third issue, (the relevancy of the number of defects in this action as compared to those in Walton), which again raises the trial court’s discussion following its denial of Fibreboard’s and Pittsburgh’s requested instruction regarding comparative liability. It was sufficient to have based its refusal to instruct upon the lack of evidence available to the jury on the issue of comparative fault and that is the basis of the trial court’s decision on that issue in its November 5, 1990, opinion. Any additional rationale of the trial court during the trial has become a moot point.

The fourth issue raised, sufficiency of evidence to support a jury instruction on apportionment, is closely related to the first issue, if not overlapping. We have determined that the trial court is not, as a matter of law, required to instruct the jury on the issue of comparative liability where it has been determined that insufficient evidence was presented upon which such a determination could be based. Fibreboard and Pittsburgh argue that sufficient evidence was in fact presented to the jury. More specifically, they state that evidence was presented that their presence at the shipyard was relatively small as compared to the other defendant companies, and, additionally, that their products, unlike the others, contained warnings of the dangers of inhaling asbestos fibers.

We have carefully reviewed the trial testimony and agree with the trial court’s assessment that sufficient facts were not presented upon which a jury could apportion liability. Evidence of the amounts of asbestos present at the shipyard was presented in vague and uncertain terms. Evidence presented during trial of warnings which were placed only on the products of Fibreboard and Pittsburgh may be a defense as to liability, requiring that the jury determine the adequacy and efficacy of such warnings; however, it does not provide a basis upon which to apportion liability. See Glomb v. Glomb, 366 Pa.Super. 206, 530 A.2d 1362 (1987), allocatur denied, 517 Pa. 623, 538 A.2d 876 (1988) (“A court can direct the apportionment of liability among distinct causes only when the injured party suffers distinct harms or when the court is able to identify ‘a reasonable basis for determining the contribution of each cause to a single harm.’ ” Restatement (Second) of Torts § 433A(1) (1965). “The availability of apportionment therefore hinges upon whether the party who seeks it can demonstrate some logical, reasonable or practical basis for assigning discrete portions of the over-all liability to discrete causes.” See Martin v. Owens-Corning Fibreglas Corp., 515 Pa. 377, 528 A.2d 947 (1987)).

Fibreboard’s and Pittsburgh’s next argument, as we understand it, is that because the Eckenrod test, which requires a showing that the plaintiff demonstrate that he inhaled asbestos fibers manufactured by each particular defendant, Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1988) allocatur denied 520 Pa. 605, 553 A.2d 968, has been met, sufficient evidence has been produced on which to base apportionment.

Eckenrod requires only that the plaintiff establish the identity of the product and his exposure to the particular product before liability may be determined. That this was shown in the present case is in no way conclusive of the issue of comparative liability. There was no testimony that one manufacturer’s product was present in specific proportions. A designation of “large,” “small” or “medium,” as was testified to in this case, is significantly different from statements that there was, for example, three or four times more of one product than another present in the workplace. No such testimony was offered. We therefore find no support in Eckenrod for the appellant’s assertions and no error in the trial court’s denial of their motion for a new trial.

Fibreboard’s and Pittsburgh’s next argument assigns error to the trial court’s granting of the Gross’s petition for delay damages. Their first contention is that, without a clear finding of fault, assessment of delay damages is unconstitutional as a violation of the Due Process Clause. In support of their contention, Fibreboard and Pittsburgh cite Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986).

The issue of the constitutionality of revised Rule 238 was considered by this court in Craig v. Magee Memorial Rehabilitation Center, 400 Pa.Super. 126, 582 A.2d 1376 (1990). In that case we stated:

While the Supreme Court found that the former Rule 238 did create “an uncontestable presumption that all fault lies with a defendant”, ... the revised rule “creates no such irreversible presumption; in fact, it specifically provides that delay damages should not be awarded for that time for which plaintiff is responsible for delay or for which defendant has made a reasonable settlement offer”____ The argument of appellant, that defendants are wrongfully deprived of their property by the rule, is further flawed since the defendant may earn interest during the pendency of trial upon those monies ultimately determined to be owed to the plaintiff____
Nor does the fact that delay caused by court congestion may not be subtracted from the period of delay chargeable against a defendant deprive a defendant of his or her property without due process of law “since the defendant has the ability to earn prejudgment interest upon the amount of the verdict, decision or award during the entire period that the plaintiffs claim is being litigated”____

Craig, 400 Pa.Superior Ct. at 133, 582 A.2d at 1379-80 (citations omitted). We believe that we have adequately addressed Fibreboard’s and Pittsburgh's concerns regarding Rule 238 in Craig and accordingly find no merit to the appellant’s arguments.

Fibreboard’s and Pittsburgh’s final challenge to Rule 238 is that delay damages may not be awarded in actions for loss of consortium. Additionally, they argue that delay damages should be awarded only as to past damages, not future damages. A similar argument was presented to this court in Rogers v. Johnson & Johnson, 401 Pa.Super. 430, 585 A.2d 1004 (1990) where we quoted our conclusion from Novelli v. Johns-Manville, 395 Pa.Super. 144, 151-152, 576 A.2d 1085, 1089 (1990) allocatur denied 527 Pa. 621, 592 A.2d 42:

In light of the derivative nature of the action for loss of consortium, we are satisfied that loss of consortium is part of the total compensable damages arising from the decedent’s bodily injuries, and we hold that loss of consortium is part of “what was owed” under Craig [v. Magee Memorial Rehab. Ctr., 512 Pa. 60, 515 A.2d 1350 (1986) ].
We find further support for this conclusion by noting that not to allow delay damages for loss of consortium awards would undermine the purpose of Rule 238. As noted above, Rule 238 is designed to encourage responsible approaches to these cases and prevent unreasonable refusals to pay what is owed for tortious injury____
In summary, we hold that, because loss of consortium is part of the total compensable damages related to the decedent’s injuries, Rule 238 delay damages may be assessed on awards for loss of consortium____

Rogers, 401 Pa.Superior Ct. at 439, 585 A.2d at 1008 (citations omitted). It was therefore proper for the trial court’s assessment of delay damages to include the loss of consortium verdict.

Fibreboard and Pittsburgh next argue that it is improper to assess delay damages against an award of damages for future pain and suffering. Initially, we note that Rule 238 makes no distinction between present damages and future damages and no exclusion for future damages is provided under section (b) of the Rule which allows for exclusion for the period of time in which there has been a settlement offer. We also note that appellants only state that “[a] large portion of the verdict in this case clearly represents compensation for Mr. Gross’s future pain and suffering.” (Brief of appellants Fibreboard and Pittsburgh, p. 32). No support is offered for this statement nor has any assessment been made as to what portion of the damages award represents future pain and suffering. We do not find appellants’ argument to be persuasive. The trial correctly awarded delay damages to the entire verdict absent any assertions that the plaintiff caused delay of the trial. See Pa.R.Civ.P. 238(b)(2).

The trial court’s denial of delay damages as to the stipulating defendants is reversed and remanded for assessment of such damages in accordance with this opinion. The trial court’s orders and opinions of November 5, 1990, and December 7,1990, are affirmed in all other respects. Jurisdiction relinquished.

      . All but two of the defendants in this action stipulated to a ten percent share of liability following a jury verdict on damages in a reverse bifurcated proceeding in which the damages phase was tried before the liability phase. The question to be addressed is whether the time for filing a petition for delay damages begins to run immediately following the stipulations to liability as to those stipulating defendants, or at the conclusion of the liability phase of the case which involved only two non-stipulating defendants. An elaboration of the circumstances described are discussed later in this opinion.

      . After proceeding to the liability phase, Garlock, Inc. settled on February 13, 1990, and is not a party to this appeal. The automatic stay provisions of the Bankruptcy Code, 11 U.S.C. § 362 et seq., are currently in effect with regard to Celotex, Eagle-Picher and H.K. Porter.

      . We note that the trial court likened the stipulation of liability to a "quasi settlement”. Where there is a settlement, however, the parties do not retain the right to file post trial motions or appeals. A settlement ends the case because both parties have agreed to some compromise of their interests. In the case at bar, the defendants have essentially agreed only that their product was present at the Shipyard, but there has been no offer of settlement which would end the litigation. In retaining post trial and appellate rights, the defendant companies have by no means made an offer of settlement.

      . As long as there is no settlement, the defendant companies continue to earn interest on the funds retained.

      . We note, however, that nothing in the rule prevents the plaintiffs from filing a petition for delay damages following the stipulations but before the second verdict on the liability issue. We only address the issue of whether they are required to file their petition within ten days of the stipulation.

      . We are aware that the rule requires the calculation of delay damages to include the period of time up until the verdict. The rule states:
      (2) Damages for delay shall be awarded for the period of time
      (i) in an action commenced before August 1, 1989, from the date the plaintiff first filed a complaint or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision; or
      (ii) in an action commenced on or after August 1, 1989, from a date one year after the date original process was first served in the action up to the date of the award, verdict or decision.
      Pa.R.Civ.P. 238(a)(2)(i) & (ii). The only time to be excluded from the calculation of delay damages is the time:
      (b)(1) after which the defendant has made a written offer of
      (1) settlement in a specified sum with prompt cash payment to the plaintiff, or
      (ii) a structured settlement underwritten by a financially responsible entity, ... or
      (2) during which the plaintiff caused delay of the trial.
      There has been no settlement offer in this case. The defendant companies chose to try the case and without a settlement are liable for delay damages for the time period specified by the rule.

      . The jury may also have considered evidence of Mr. Gross’s failure to accept employment at a salary below that which his seniority entitled him to along with evidence of the establishment of his own business. We do not in any way pass upon the weight or importance to be given such evidence, but merely point out that there was varying evidence which the jury may have chosen to consider in deciding the amount of damages.

      . In Robert we reviewed factors to be considered along with the particular circumstances of the case in determining whether a verdict is excessive: "(1) the severity of the injury, (2) whether plaintiffs injury is manifested by objective physical evidence instead of merely the subjective testimony of the plaintiff, (3) whether the injury will affect the plaintiff permanently, (4) whether the plaintiff can continue with his employment, (5) the size of plaintiffs out-of-pocket expenses, and (6) the amount plaintiff demanded in the original complaint.”
        Robert, 259 Pa.Superior Ct. at 367, 393 A.2d at 871, citing Kemp v. Philadelphia Transportation Co., 239 Pa.Super. 379, 361 A.2d 362 (1976).

      . The trial court also stated that the present case was distinguishable from Walton v. Avco, 383 Pa.Super. 518, 557 A.2d 372 (1989), which required that a hearing be held to determine the comparative liability of the two defendants, each responsible for a separate defect causing the crash of a helicopter. It was the view of the trial court that Walton involved a post-liability holding for contribution among defendants already found liable and that liability had not yet been determined in the present case making defendant’s motion premature. The trial court also noted that in Walton there were two separate defects involving only one product. These two issues will be addressed later in this opinion.

      . 42 Pa.C.S.A. § 7102(b) states:

        (b) Recovery against joint defendant; contribution. — Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.
      We do not read this to mean that the issue of apportionment must be submitted to the factfinder regardless of the sufficiency of evidence which would support such a determination.

      . The trial court stated that the jury had not yet made a determination as to liability and it was therefore premature to require that it apportion liability amongst the defendant companies. (N.T. February 14, 1990, pp. 152-53).

      . The only testimony regarding the relative amounts of asbestos present at the shipyard was that of Mr. Watts:
      Q. Say up until 1965 was Johns-Manville the supplier of the majority of the products down at the navy yard?
      A. I would say it’s one of the larger ones, but I couldn’t say it was the main____ The court: Was [Raymark] there all the time or there a little bit?
      The witness: Yes, it’s there all the time, but it’s used by other people. It’s probably still there today in some form____
      Q. Now we’re back to Baldwin-Ehret-Hill, [Keene], I guess, where I began. How shall I characterize them?
      A. Large____
      Q. Eagle Picher?
      A. That’s cement. It shouldn’t actually be in there. It’s only cement.
      Q. Was it cement used regularly by pipe coverers
      A. Yes.

        Q. Was It used daily by pipe coverers?
      A. Yes. "L."
      Q. “L". Johns-Manville?
      A. “L.”
      Q. Unarco, Unibestos?
      A. “L.”
      Q. Sourthern [Textile]____
      A. Medium____
      Q. H.K. Porter____ Is this small, medium or large?
      A. Large____
      Q. G.A.F., and Mr. Maginnis has put down Ruberoid?
      A. I would said [sic] “L”.
      Q. Keene Corporation?
      A. “L".

      Q. Fibreboard?
      A. “S".

      Q. Pittsburg [sic] Corning?
      A. “L”.
      N.T. February 14, 1990, pp. 35 & 41-43.

      . The Grosses raise the issue of appellants’ noncompliance with Pa.R.App.P. 521, requiring that notice of a constitutional challenge of any statute be provided to the Attorney General, and Pa.R.App.P. 522, requiring the filing of notice of a challenge to the constitutionality of a general rule with the Court Administrator. The record does not reveal that such notice was provided to either the Attorney General or the Court Administrator.

      . In Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 568 A.2d 1272 (1990), it was argued that Rule 238 imposes delay damages for future losses and injuries not yet payable, and violates the excessive fines clause of the United States Constitution. Id. 568 A.2d at 1278. We concluded that Rule 238 was not patently unconstitutional.


source: Caselaw Access Project

author: BECK, Judge: POPOVICH, Judge,

license: Public Domain

text:
    600 A.2d 568
    Lamar GOLDEN, Appellant, v. DION & ROSENAU, State Farm Insurance Company and Dennis Veneziale, Esquire, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 25, 1990.
    Filed Dec. 11, 1991.

      Allen L. Feingold, Philadelphia, for appellant.
    Wayne A. Schaible, Philadelphia, for appellees.
    Before BECK, KELLY and POPOVICH, JJ.
   BECK, Judge:

This case requires us to construe and apply the principle that judges of coordinate jurisdiction sitting in the same court and in the same case should not overrule the decisions of each other.” Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827, 831 (1989). Since we find that this rule was not complied with in this case, we reverse the order on appeal granting appellees’ preliminary objections and dismissing appellant’s complaint.

On January 27, 1988, plaintiff appellant Lamar Golden filed a complaint against defendants appellees, Dion & Rosenau (a law firm), Dennis Veneziale, Esquire, and State Farm Insurance Company. Golden alleged that when he attempted to collect benefits from State Farm after he was injured in an automobile accident, appellees subjected Golden to medical examinations that were unnecessary and embarrassing, causing him physical pain and mental suffering. Golden alleged that the examinations were intended to harass him, that the service of the petition filed by State Farm to compel the examinations was in derogation of the rules of civil procedure and that he had been denied due process of law. Golden’s complaint included five counts, for breach of contract, wrongful use of civil proceedings, misuse of process, and infliction of emotional distress. Golden sought both compensatory and punitive damages.

Appellees filed preliminary objections in the nature of a demurrer. They alleged that Golden failed to state a cause of action because his allegations were conclusory and unspecific and because the medical examination at issue was not actionable since it took place pursuant to court order and was, therefore, privileged. Appellees also argued that Golden’s action was barred by the statute of limitations since the medical examination in question had been ordered by the court in 1981.

By order dated May 2, 1989, the trial judge assigned to handle the case denied appellees’ preliminary objections. Further pleadings were then filed by both parties. On February 1, 1990, appellees filed a motion for reconsideration of the denial of their preliminary objections. In this motion, appellees asserted that two other lawsuits filed by the same counsel and alleging the same operative facts and causes of action had been filed against appellees in the same court and that in each of those cases, preliminary objections identical to those filed in this case had been granted. Thus, appellees argued that in the interest of consistency, the denial of their preliminary objections should be reconsidered. The trial court denied the motion for reconsideration by order dated February 9, 1990.

Although the record does not contain any further request for reconsideration, inexplicably on March 12, 1990 a different judge sitting on the same court entered the following order:

... upon reconsideration of this Court’s order dated May 2, 1989, it is hereby ORDERED and DECREED that Defendant’s Preliminary Objections to Plaintiff’s Complaint are GRANTED and the Complaint is dismissed with prejudice.

As stated above, this order was not signed by the judge who had originally denied the preliminary objections and who had denied reconsideration, but rather by a different judge. In addition, the judge who signed the March 12th order was the same judge who had granted appellees’ preliminary objections in the two other similar cases that had been filed against appellees. The present appeal is taken from the March 12, 1990 order.

As the foregoing recitation reveals, this is clearly a case where a party who had been unsuccessful before one judge was later able to convince another judge on the same court that the relief requested by that party should be granted. That is not how our system of justice is intended to operate. It is a well-recognized principle that "... judges of coordinate jurisdiction sitting in the same court and in the same case should not overrule the decisions of each other.” Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827, 831 (1989). This principle was clearly violated here. Once a matter has been decided by a trial judge the decision should remain undisturbed, unless the order is appealable and an appeal therefrom is successfully prosecuted. Where the order is clearly interlocutory, as were the first order denying preliminary objections and the second order denying reconsideration thereof, it is impermissible for another judge of the same court simply to ignore the previous decision and, without explanation, enter its own inconsistent order.

As a panel of this court has cogently stated, the purpose of the rule prohibiting one trial judge from overruling a decision by another judge on the same court is to "... ensure a degree of pretrial finality ‘so that judicial economy and efficiency can be maintained.’ ” Salerno v. Philadelphia Newspapers, Inc., 377 Pa.Super. 83, 87, 546 A.2d 1168, 1170 (1988) (quoting Commonwealth v. Eck, 272 Pa.Super. 406, 409, 416 A.2d 520, 522 (1979)). Clearly the second judge’s reversal of the first judge’s order did not serve the interests of judicial economy and efficiency which the rule seeks to promote. The issue concerning the preliminary objections had been decided and reconsideration thereof denied. At that point, the trial court should not have been called upon to devote any further time to the consideration of that issue.

Moreover, the course followed in this case does not comport with basic fairness. It smacks of judge shopping and should not be condoned. Once an interlocutory pre-trial decision has been rendered, the party in whose favor that decision was rendered must be allowed to rely on it and proceed in accordance with it. To allow the opposing party to continue to attack that decision by seeking the same relief from a different judge, as if the order were somehow appealable within the trial court system, is not fair to the successful party. The proper avenue of redress for the opposing party is to wait until it can appeal the allegedly objectionable ruling once a final appealable order has been entered in the case.

Appellees argue that the second judge’s action in this case does not constitute reversible error because the rule against one trial judge overruling another is not a matter of jurisdiction, but rather is based on the policy favoring finality. Appellees also argue that the Salerno case, referred to above, carves out an exception to the rule in any case where the original decision, later overruled by another judge of the same court, is not supported by an opinion and that this case falls within that exception. We disagree on both counts.

First, the fact that the rule generally prohibiting one trial judge from overruling another is not jurisdictional, i.e. the rule is not based on the second judge’s lack of jurisdiction or power to decide the matter, has no relevance to whether the rule was violated here. There is no question as to whether the second judge here had jurisdiction over this case once it was assigned to him. The question is whether a trial judge should redecide those issues that have already been decided by the trial judge previously assigned to the case. Clearly he should not. Where a trial judge overrules the decision of another trial judge in the same case, he violates the rule of law which disfavors such action. That is what occurred here.

Second, appellees’ reliance on Salerno is misplaced. Salerno involved an appeal from a grant of summary judgment for defendant in a libel action. Appellants argued that the grant of summary judgment was improper because another judge on the trial court had previously denied preliminary objections filed by defendants on substantially the same grounds as those asserted in the summary judgment motion. Granting summary judgment, appellants argued, constituted a reversal of this prior ruling. Salerno, 377 Pa.Super. at 84-86, 546 A.2d at 1169-70. A panel of this court disagreed, holding that a denial of preliminary objections does not preclude a later grant of summary judgment. The panel relied primarily on the difference between preliminary objections, which address only the complaint and are filed in the initial pleadings stage of the case, and a motion for summary judgment, which is filed at a much later stage and is based upon what has been revealed through discovery. Therefore, the panel concluded that a denial of preliminary objections, especially when unaccompanied by an opinion providing a legal explanation, should not preclude entry of summary judgment after discovery and further refinement of the positions of the parties has revealed no genuine issue of material fact. Id.

Appellees misconstrue Salerno insofar as they focus on the Salerno court’s observation that there had been no opinion authored by the judge who had previously denied the defendant’s preliminary objections in that case. There is no parallel between this case and Salerno simply because in this case the first judge did not author an opinion in support of his order denying appellees’ preliminary objections. First, Salerno did not actually involve one trial judge overruling another. The first judge in Salerno had denied preliminary objections, whereas the second judge granted summary judgment. This distinction was crucial to the Salerno court’s approval of the second judge’s action. Such a distinction is not present in this case.

Second, the Salerno court’s observation concerning the lack of an opinion by the first judge appears to have been intended merely to indicate that the lack of an opinion rendered the exact reasons for the first judge’s denial of preliminary objections unclear. Thus, the Salerno court could not precisely ascertain whether the second judge had actually contradicted the first judge at all. In contrast, in this case the contradictory nature of the two rulings is self-evident. The first judge here denied the preliminary objections and refused to reconsider that decision. The second judge expressly reconsidered this decision, granted the preliminary objections and dismissed the complaint. We do not have two different procedural stages of the litigation, there was no further development of the facts or positions of the parties between the two decisions, and the fact that the second judge overruled the first judge on precisely the same issue is undeniable.

We can find no reason to ignore the clear applicability of the rule prohibiting one trial judge from overruling the other in the same case to the facts before us. We recognize, of course, that there is an exception to the rule prohibiting one trial judge from overruling the other which provides that the second judge is authorized to overrule the first if new evidence or newly decided legal authorities compel him to do so. See, e.g., Vincent v. Fuller Company, 400 Pa.Super. 108, 582 A.2d 1367 (1990). However, this exception is clearly not applicable here. The fact that in two other cases pending before the trial court the same preliminary objections had been granted by another judge of the same court does not constitute new evidence in this case, and the interlocutory decisions of the trial court in those cases do not bind the judge deciding this case.

Thus, despite the fact that the second judge may have quite correctly determined that appellees’ preliminary objections should be granted and appellant’s complaint dismissed, we must reverse the second judge’s order on the ground that it impermissibly overruled the prior orders of a judge of coordinate jurisdiction in the same case. To ignore the invalidity of the order on this ground would be to sanction an approach to the resolution of cases that does not comport with basic fairness and that ultimately erodes the goals of finality and judicial economy.

The order of the trial court is reversed. The matter is remanded for further proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting.

I dissent to the Majority’s reversal of the lower court’s sustaining the preliminary objections in the nature of a demurrer entered against the plaintiff/appellant, Lamar Golden.

A demurrer tests the legal sufficiency of the complaint. Mudd v. Hoffman Homes for Youth, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988). As the Pennsylvania Supreme Court has written:

A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law. In order to sustain the demurrer, it is essential that plaintiff’s complaint indicate on its face that his claim cannot be sustained, and the law will not permit recovery. If there is any doubt, this should be resolved in favor of overruling the demurrer.

Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 623, 470 A.2d 86, 91 (1983) (Citations omitted).

The record indicates that on January 27, 1988, the plaintiff filed a complaint alleging that he was injured in an automobile accident and, as a result thereof, sought to recover benefits from his insurer, State Farm Insurance Company, pursuant to the existing law. In turn, State Farm, through its legal representative, requested a medical examination of the plaintiff. This examination, according to the plaintiff, was “unnecessary” and was intended to “harass” him. Further, the plaintiff asserted that service of the petition for medical examination by mail was in derogation of the Rules of Civil Procedure. As a result, the plaintiff claimed that he was denied due process and had been forced to submit to unnecessary and embarrassing medical examinations, all of which were an unprivileged intrusion of his person causing great physical pain and mental suffering.

More particularly, in the plaintiffs first count of his five-count complaint, the defendants were charged with breach of contract in requiring “unnecessary and harassing medical examinations” in contravention of the insurance policy, as well as insurance laws and the Rules of Civil Procedure. The second count alleged wrongful use of civil proceedings by the defendants for failure to serve timely the petition for medical examination by the sheriff. The third count was similar in that it asserted a misuse of process with the defendants’ failure to have the petition served by the sheriff. The last two counts alleged the infliction of emotional distress by the “unwarranted intrusions” upon the body of the plaintiff as a result of the examinations, and the demand for punitive damages for the “outrageous” behavior of the defendants in conducting such examinations contrary to accepted social standards, the origin of which was “wanton, willful, malicious, reckless, intentional and outrageous and attended with fraud.”

In response, the defendants filed preliminary objections in the nature of a demurrer alleging that the plaintiff failed to state a cause of action under any counts of the complaint “because all of the averments [we]re conclusory in nature and fail[ed] to contain the requisite degree of factual specificity, particularly in regard to time, person, place, and action.” Further, the defendants asserted that the core of the complaint — “the filing of a Petition to Compel Medical Examination” — was not actionable because it took place at the direction of a court order and was “absolutely privileged” in that it occurred in the course of litigation. Lastly, as is herein germane, the defendants averred that the plaintiff’s complaint was barred by the doctrine of laches and/or the statute of limitations since the petition in question was filed and granted by the lower court in 1981.

The plaintiffs filed an answer with new matter denying the defendants’ contention that no cause of action was set forth in the complaint, and that the representation of the defendants by counsel created a conflict of interest which necessitated a disqualification of the defendants’ counsel.

By order of court dated May 2, 1989, the defendants’ preliminary objections were “overruled” by Judge D’Allessandro. Thereafter, on May 22, 1989, the defendants filed an answer with new matter denying that they acted improperly in any fashion so as to give a cause of action to the plaintiff. Defendants asserted the defense of the statute of limitations and/or laches, litigation immunity, and, upon information and belief, that the plaintiff did not undergo any independent medical examination as a result of the petition to compel such an examination.

Preliminary objections were submitted by the plaintiff to the defendants’ answer and new matter reasserting a potential conflict of interest as to counsel representing all of the defendants. To the contention that the plaintiff did not undergo any medical examination, it was asserted by the plaintiff that: “The defendants’ allegation that the plaintiff may not have had to undergo a medical examination is not a defense since the plaintiff may claim damages from the procedure which was followed by the defendants in filing the petition for medical examination.”

Of record appears a Motion For Reconsideration of the May 2, 1989, order overruling the defendants’ preliminary objections; it was filed February 1, 1990, with a notation that the motion was being forwarded to Judge D’Allessandro for disposition. In the motion, counsel for the defendants recounted that the suit was predicated on a claimed denial of due process by the plaintiff in regard to the manner in which the Petition For Medical Examination was served (by mail and not by sheriff as is required with any original process), and that it was necessary and not intended to harass the plaintiff.

Although Judge D’Allessandro had overruled the defendants’ preliminary objections, the defendants noted that two other lawsuits filed by the same counsel and alleging the same causes of action had been granted preliminary objections by Judge Doty. Accordingly, counsel for the defendants requested that, “to avoid inconsistency in results, and in recognition of Judge Doty’s rulings on Preliminary Objections involving similar issues in two other cases,” the court reconsider its May 2, 1989, order and grant the preliminary objections previously filed for the reasons stated therein.

By order of court dated February 9, 1990, Judge D’Allessandro denied the defendants’ motion for reconsideration of the May 2, 1989, order overruling the defendants’ initial preliminary objections. In the record appears an order dated March 12, 1990, and signed by Judge Doty reading:

Lamar Golden vs. Dion & Rosenau, et al.

COURT OF COMMON PLEAS

JANUARY TERM, 1989

No. 4676

ORDER

... upon reconsideration of this Court’s Order dated May 2, 1989, it is hereby ORDERED and DECREED that Defendant’s Preliminary Objections to Plaintiff’s Complaint are GRANTED and the Complaint is dismissed with prejudice.

In an opinion in support of the March 12, 1990, order, Judge Doty referred to the opinion he wrote in Bowie v. Dion & Rosenau, et al., May Term, 1989, No. 4049, to buttress his decision to grant the defendants’ preliminary objections.

The issue with which we are confronted via the plaintiff’s application for panel reconsideration is the propriety of Judge Doty issuing an order at odds with and, in effect, overruling Judge D’Allessandro’s order in regard to Golden v. Dion & Rosenau, et al., No. 4676, January Term, 1989.

As noted by the Pennsylvania Supreme Court on the question of “judges of coordinate jurisdictions” acting inconsistently in the same case:

It is true that judges of coordinate jurisdictions sitting in the same court and in the same case should not overrule the decisions of each other. We note, however, that this rule is not a matter of jurisdiction per se; rather it is a rule of sound jurisprudence based on the policy of fostering finality of pre-trial applications so that judicial economy and efficiency can be maintained.

Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827, 831 (1989) (Citations omitted). Also, this Court, in Salerno v. Philadelphia Newspapers, Inc., 377 Pa.Super. 83, 546 A.2d 1168 (1988), found no error in upholding a grant of a motion for summary judgment finding that a newspaper article was not capable of a defamatory meaning even though preliminary objections claiming the same relief and regarding the identical article was denied by another judge. In doing so, we wrote:

Ordinarily, a trial judge should not place himself in the position to overrule a decision by another judge of the same court in the same case. The purpose of this rule is to ensure a degree of pretrial finality “so that judicial economy and efficiency can be maintained.” However, this rule is not intended to preclude granting summary judgment following denial of preliminary objections. “The failure to present a cause of action upon which relief can be granted may be raised at anytime. A motion for summary judgment is based not only upon the averments of the pleadings but may also consider discovery depositions, answers to interrogatories, admissions and affidavits.” We can discern no reason for prohibiting the consideration and granting of a summary judgment if the record as it then stands warrants such action. This is particularly true when the preliminary objections were denied without an opinion. Moreover, where, as here, dismissal of the entire complaint on motion for summary judgment is appropriate, preclusion of consideration of the summary judgment motion by application of the rule stated, would have further burdened the parties and the court by requiring them to undergo the time and expense of an unnecessary trial, and thereby thwart the very purpose the rule was intended to serve, i.e. that judicial economy and efficiency be maintained. Thus, we reject appellant’s ... contention [that the trial court erred in granting summary judgment upon finding that material published by the appellee was not capable of supporting an action for defamation and intentional or negligent infliction of emotional distress when a court of coordinate jurisdiction had ruled that it was capable of both in denying appellee’s preliminary objections.]

377 Pa.Super. at 87-88, 546 A.2d at 1170 (Citations omitted).

As noted in Okkerse and Salerno, the rule of issue-preclusion by a subsequent judge of coordinate jurisdiction, where the same issue has been decided differently by a previous judge, is not a hard-and-fast rule; it is a matter of sound jurisprudence geared to promote finality of pre-trial matters so that judicial economy and efficiency can be maintained. This is especially true when the initial judge entered its order without an opinion.

Because Judge D’Allessandro did not issue an opinion in support of his denial of the appellees’ motion seeking reconsideration of his May 2, 1989, order denying the appellees’ preliminary objections, we are without guidance and insight as to the basis for his actions. See Williams v. City of Philadelphia, 131 Pa.Cmwlth. 71, 569 A.2d 419, 421 (1990); Salerno, supra. In contrast, we have the opinion of Judge Doty enunciating the predicate for his order granting the preliminary objections of the appellees, albeit the basis has its origin in the issuance of orders in two other cases involving the “identical” underlying issue challenging the manner of service of the appellees’ Petition For Medical Examination which spawned a five-count complaint, in each of the two other cases and the one at bar, sounding in breach of contract, wrongful use of civil proceedings, misuse of process, infliction of emotional distress and punitive damages. See note 5, infra.

In dismissing the plaintiff’s complaint, Judge Doty “referred]” to his opinion in Robert Bowie v. Dion & Rosenau, State Farm Insurance Company, Lee H. Rosenau, Esq., Ind., & t/a Dion & Rosenau, (May Term, 1989, No. 4049, Court of Common Pleas of Philadelphia County), as reflective of the rationale underlying his grant of the preliminary objections of the appellees. He did so because the “identical issues” were raised by the same counsel in the Bowie case.

In justification of his ruling, Judge Doty concluded that no specific facts had been alleged to show that the appellees’ conduct was “outrageous, intentional, or otherwise wanton” to support a cause of action for intentional infliction of emotional distress. I join in this determination.

Under Comment D to Section 46 of the Restatement (Second) of Torts, when pleading a claim for intentional infliction of emotional distress, it is written that:

It has not been enough that the Defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice” or a degree of aggravation which would entitle Plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, the case is one in which the recitation would arouse resentment against the actor and lead him to exclaim “outrageous”!

I do not find any allegation proffered by the plaintiff in the complaint that would cause me to exclaim “outrageous” with regard to any of the conduct attributed to the defendants by the plaintiff. See Baker v. Morjon, Inc., 393 Pa.Super. 409, 574 A.2d 676 (1990), and compare Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1979) and contrast Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976).

In regard to the breach of contract count, Judge Doty wrote that the plaintiff had failed to set forth sufficient facts to establish a cause of action because of the “failure] to specify the contract terms at issue and the manner of their breach and [the] failure] to allege that the [appellees’] conduct was unprivileged.” I concur. See, e.g., Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986) (actions and communications which are pertinent and material to representations in ongoing proceedings enjoy absolute immunity).

Likewise, Judge Doty found that no facts had been averred to establish a cause of action for wrongful use of civil proceedings or misuse of process. On this point, the judge explained:

[appellant] failed to allege that the underlying litigation terminated in his favor and failed to show proper exhaustion of all remedies in that underlying litigation. Nor has he shown any damages which resulted from unprivileged conduct by the defendants. In addition, plaintiff failed to state the day, month or year when the alleged improper conduct of the defendants occurred.

I find no fault with the judge’s assessment of the case sub judice. See, e.g., Brown v. Delaware Valley Transplant Program, 372 Pa.Super. 629, 539 A.2d 1372 (1988).

Under the prevailing standards of review, as applicable to preliminary objections in the nature of a demurrer and judges of coordinate jurisdiction issuing contrary rulings in the same case, I would hold that the claims of the plaintiff lack merit. In particular, I see no need to remand this case to allow Judge D’Allessandro to give us his rationale for entering the challenged May 2,1989, order and the denial of the reconsideration thereof on February 9,1990. Rather, to require that the parties be placed in the same position in the legal process following Judge D’Allessandro’s February 9, 1990, order would ignore the realities of the case and fly in the face of the purpose behind the rule that judges of coordinate jurisdiction sitting in the same court and in the same case should not overrule the decisions of each other, i.e., promote judicial economy and efficiency in the judicial system. See Okkerse, supra; Salerno, supra.

Additionally, I would hold that Judge Doty, having ruled on two similar cases brought by counsel for the plaintiff against the same defendants on behalf of two other plaintiffs, see note 5, supra, was exposed to additional information not otherwise presented for Judge D’Allessandro’s consideration (save for the notation of the existence of the other two related cases being litigated, id.). See Buck v. Coldway Food Express, Inc., 383 Pa.Super. 580, 557 A.2d 404, 407 (1989); Roseman v. Hospital of the Univ. of Pa., 377 Pa.Super. 409, 547 A.2d 751 (1988).

More importantly, unlike the Majority, I find that Salerno, supra, stands for the proposition that where the dismissal of a lawsuit is “appropriate”, be it at the preliminary objection or summary judgment stage, and to do otherwise “would ... further burden[ ] the parties and the court by requiring them to undergo the time and expense of an unnecessary trial, [or further pre-trial pleadings, this] thwart[s] the very purpose the rule was intended to serve, i.e., that judicial economy and efficiency be maintained.” Id. 377 Pa.Super. at 88, 546 A.2d at 1170.

By reversing and remanding this case, I am of the opinion that we do a disservice to the litigants and merely pay lipservice to the Okkerse and Salerno goal of promoting judicial economy and efficiency. For example, at bar, we have a case involving the same causes of action, the same legal theories of recovery and the same defendants which resulted in the grant of the appellees’ preliminary objections in two previous lawsuits filed by the same attorney. The only distinction being the names of the plaintiffs vary in each of the three cases. See notes 1 & 4.

By the Majority’s actions this day, we protract this lawsuit unnecessarily, add to the cost of proceeding with this dispute and clog the court system below with a suit which, for all intent and purposes, has no more merit than the two previous cases affirmed by this Court on appeal from the appellees’ preliminary objections. See note 4. The Majority admits as much when it concedes “the fact that [Judge Doty] may have quite correctly determined that appellees’ preliminary objections should be granted and appellant’s complaint dismissed[.]” Majority Opinion at 513.

I wish to distance myself from any appearance that I condone “judge-shopping” as a means to secure a ruling contrary to that issued by another judge of equal jurisdiction. But, given the facts confronting us here, I believe that affirmance of Judge Doty’s March 12, 1990, order would obviate further burdening of the litigants under the aegis of Okkerse and Salerno, both of which endorse a rule of sound jurisprudence, i.e., issue-preclusion by a judge of coordinate jurisdiction need not be followed where to do so would burden the litigants and the court by requiring them to expend, unnecessarily, time and expense in further litigation. I find the instant case to be such a situation. Thus, I respectfully dissent.

      . We granted panel reconsideration in this case on February 25, 1991 to consider this issue. Our initial decision in the case, in which we affirmed the trial court, was filed on December 11, 1990.

      . For convenience of reference, we will hereinafter refer to the judge who initially denied the preliminary objections and refused to reconsider that decision as the "first judge”. We will refer to the judge who entered the order on appeal, in which the preliminary objections were granted, as the "second judge”.

      . The record does not reveal whether the second judge was even aware of the entry of the first judge's order denying reconsideration. Whether he was aware or not does not, however, alter our analysis since the impact of the second judge’s order overruling the first judge’s order is the same in any event.

      . The defendants consist of the insurer, State Farm, its law firm, Dion and Rosenau, and the firm member handling the case, Dennis Veneziale, Esquire.

      . A hearing was held and the plaintiffs motion to disqualify the defendants’ counsel was denied by order dated March 21, 1990.

      . The notation appears on the face of a “Motion Court Cover Sheet” prepared by counsel for the defendants.

      . The cases were captioned Bowie v. Dion & Rosenau, et al, CCP, May Term, 1989, No. 4049, and Kovatch v. Dion & Rosenau, CCP, January Term, 1989, No. 4677. Each case was initially heard and disposed of by Judge Doty before being appealed by counsel for the plaintiff to Superior Court. A panel of this Court affirmed the orders granting preliminary objections by Judge Doty. See Bowie v. Dion & Rosenau, et al., 408 Pa.Super. 642, 588 A.2d 556 (1990); Kovatch v. Dion & Rosenau, et al., 408 Pa.Super. 657, 588 A.2d 568 (1990). No application for panel reconsideration has been filed in regard to either case.

      . Having had the opportunity to examine the record in this case, I do not see what would be accomplished by reversing the order of Judge Doty of March 12, 1990. The complaint does not withstand a preliminary objection challenge. Although the better practice would have been to have the case at bar heard by the same judge who ruled on the cases cited in footnote 5 at the pre-trial level, I do not find the course taken or result reached to warrant a reversal by this Court. The judgment should stand as entered.