author:
DEL SOLE, Judge:
      WIEAND, Judge, OLSZEWSKI, Judge,

text:
    537 A.2d 334
    Henry MAJDIC and Ann Majdic, his wife, Appellants, v. CINCINNATI MACHINE COMPANY, a/k/a Cincinnati Schafer Company of America, Appellee.
    Superior Court of Pennsylvania.
    Argued March 9, 1987.
    Filed Jan. 29, 1988.

      Nicholas S. Mattise, Scranton, for appellants.
    Stephen W. Saunders, Scranton, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and BROSKY, WIEAND, OLSZEWSKI, DEL SOLE, MONTEMURO, TAMILIA, POPOVICH and JOHNSON, JJ.
   DEL SOLE, Judge:

We consider an appeal from the judgment entered in Appellee’s favor in a products liability action. Following the denial of post-trial motions and judgment, an appeal to this Court was filed in which a panel of this Court affirmed the trial court. We have granted reargument, however, for three principal reasons:

1. to clarify the role which “state of the art” evidence, including evidence of industry custom and federal safety standards, plays within the context of a strict liability action;
2. to re-examine the rule which prohibits hearsay statements appearing in learned treatises and other informational material from being admitted into evidence and used as substantial proof of the matters to which they relate; and,
3. to determine the admissibility of evidence of similar prior accidents to show constructive, post-sale notice of a defective product.

The underlying facts of this case are as follows. On April 20, 1978, Appellant-Henry Majdic (Majdic) was employed by National Standard Company. Majdic’s duty on that date was to operate a power press which was designed, manufactured, and sold by Appellee-Cincinnati Machine Company (Cincinnati). The power press was utilized to perform various functions in conjunction with the punching, stamping, bending, or sheering of metal. In operating the press, Majdic hand fed sheet metal between the dyes attached to the ram and bed of press, which shaped and formed the metal. The procedure entailed further steps which necessitated Majdic to reach into the machine to remove the work in process at least ten times. The power press, however, was not equipped with a guard to prevent an operator’s hands from coming in contact with the point of operation. Likewise, no safety feature was attached to bar the operation of the press while the user’s hands were between the ram and bed. No warning signs were posted on the machine advising of the danger involved in exposing one’s hands to the point of operation.

On the date in question, the ram of the power press descended upon Majdic’s right hand as he operated the machine. Thereafter, on April 8, 1980, Majdic and his wife, Ann, commenced an action against Cincinnati, the manufacturer of the power press, for the injuries he received from the accident. Three theories of recovery were asserted: negligence, breach of implied and expressed warranties, and strict liability. The action, however, was tried solely on the strict liability theory. By his complaint, Majdic contended that Cincinnati had manufactured and sold the press in a defective condition. This averment was based on the Restatement (Second) of Torts § 402A.

It was Majdic’s position at trial that the power press was defectively designed inasmuch as it did not contain a guard which would have prevented the operator’s hands from entering the point of operation. In addition, Majdic claimed that the machine was defective since it was not equipped with a mechanism to prevent operation of the press while the user’s hands were in the pinchpoint. Further, the lack of a warning of the danger involved in placing one’s hand in the work area was cited as a ground for the claim of defective design.

During the course of trial, Cincinnati did not dispute Majdic’s allegation that the power press had not been equipped with guards and warnings discussed, supra. Rather, Cincinnati maintained that the press brake was a general purpose, multifunctional unit which was unequipped with dies and had no point of operation when sold. Thus, Cincinnati claimed that only Standard Machine Company, which incorporated the press brake into its manufacturing system, could determine and install the guards and warnings necessary for the particular function assigned to the press. (Appellant’s Brief, 12). Cincinnati posited that, for this reason, the responsibility for providing the guards and warnings rested solely with Standard Machine Company, Majdic’s employer. The verdict returned by jury was in Cincinnati’s favor. Majdic filed a Motion for a New Trial which contained assignments of error allegedly committed by the trial court in its evidentiary rulings.

Before beginning an analysis of the evidentiary rulings involved, it is important that we remain mindful of the broad and sound social policy which underlies a seller’s liability as established by the Restatement (Second) of Torts, § 402A. Section 402A provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) the rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

The social policy sought to be effected by the implication of the seller’s liability is very basic, very simple and very sound. As between an innocent user of a product and a manufacturer or seller who is engaged in the business of manufacturing or selling a product, risk of loss for injuries resulting from the use of a defective product shall be borne by the manufacturer and/or seller. Salvador v. Atlantic Boiler Co., 457 Pa. 24, 319 A.2d 903, 907 (1974). See: Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966) (§ 402A adopted as the law of Pennsylvania).

With this guiding principle in mind, one can readily analyze the application of liability under § 402A. In a product liability case, principles of negligence have no place. Dambacher By Dambacher v. Mollis, 336 Pa.Super. 22, 27, 485 A.2d 408, 428 (1984). Liability does not focus upon a manufacturer’s reasonableness in the design or manufacture of the product. Nor does it concern the manufacturer’s use of “state of the art” concepts. Rather, liability rests where there is a defect in the product which caused injury to the user. Whether or not the defect was known or could have been anticipated at the time of the design or manufacture is of no concern. Id.

Section 402A does contain the term “unreasonably dangerous,” which arguably introduces negligence concepts into products liability cases. However, our Supreme Court has explained that that term was included within § 402A “to foreclose any argument that the seller of a product with inherent possibilities for harm would become ‘automatically responsible for all the harm that such things do in the world.’ ” Berkebile v. Brantly Helicopter Company, 462 Pa. 83, 95, 337 A.2d 893, 900 (1975) (quoting Prosser, Strict Liability to the Consumer in California, 18 Hast.L.J. 9, 23 (1966)). Later, in Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978), the term “unreasonably dangerous” was found to impose on the trial court the responsibility of determining “as a matter of law and by resolving considerations of ‘social policy’, whether ‘the risk of loss should be placed upon the supplier.’ ” Dambacher, supra, 336 Pa.Superior Ct. at 59-60, 485 A.2d at 426 (quoting Azzarello, supra, 480 Pa. at 556, 391 A.2d at 1025). We now consider the propriety of the evidentiary rulings challenged by Majdic on appeal.

I. “State of the Art” Evidence

We are mindful that questions concerning the admission and exclusion of evidence are vested within the trial court’s discretion. Absent an abuse, of that discretion, such rulings will not be reversed. Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 456, 467 A.2d 615, 621 (1983). In assessing the propriety of the trial court’s actions, a fundamental consideration in determining the admissibility of evidence is its relevance. Evidence is relevant if it tends to make a fact at issue more or less probable. Martin v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983).

Over Majdic’s objection, Joseph L. Schwalje was permitted to testify concerning the custom in the industry in 1949 with respect to power press brakes. Cincinnati sold the press which injured Majdic to National Standard Machine in 1949. The witness testified that it was customary practice at that time for an employer or another party implementing the press brake into a metal forming system to provide the necessary safety devices. Further, Schwalje was permitted to refer to the 1973 American National Standards Institute (ANSI) Safety Standards for power presses to demonstrate that the standard in 1973 was the same as the trade custom prevalent in 1949.

At trial, Majdic argued that evidence of industry practices or trade customs was inadmissible in strict liability cases since it related to the reasonableness of a manufacturer’s conduct. The trial court rejected this argument and found the testimony to be relevant as to whether the press brake was defective at the time it was sold to National Standard. The written 1973 ANSI reports were excluded from evidence; however, Schwalje was permitted to refer to them in order to determine the industry custom during 1949.

Recently, our Supreme Court in Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590 (1987), considered the identical issue presented by Majdic— the admissibility of custom and usage as well as industry standards in a products liability case. In Lewis, the plaintiff was injured while using a control box to operate an overhead hoist. The plaintiff stumbled and struck one of the control buttons, causing the overhead hoist chain to disengage, swing forward, and hit both of his legs. During trial, the trial court admitted the plaintiffs evidence that if the control box had been designed in a different fashion, the accident would have been prevented. The defendant attempted to put into evidence a publication of the American Society of Mechanical Engineers, which set forth standards with respect to the manufacture of electric hoists and other industrial lifting equipment. Likewise, the defendant sought to introduce evidence by an expert witness that at least ninety percent of the electric hoists manufactured in this country had control panels devoid of safety guards around the activating buttons. Both types of evidence were excluded by the trial court on grounds that such evidence injected into the case concepts of negligence. On appeal the Superior Court upheld the trial court’s ruling and our Supreme Court affirmed.

In this bellwether decision, the Pennsylvania Supreme Court noted that there existed a general consensus among the various jurisdictions that the manufacturer’s due care has no bearing in a products liability case. However, there is a discrepancy among the courts with respect to the relevance and admissibility of evidence demonstrating industry standards, customs and practices of the design of products. Id., 515 Pa. at 342, 528 A.2d at 593. After embarking upon an analysis of the treatment of such evidence among our sister states, the Lewis court opined:

[hjaving 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.

Id., 515 Pa. at 343, 528 A.2d at 594. (Emphasis supplied).

Further, the Concurring Opinion of Mr. Justice Larsen adds:

[t]he injection of industry standards into a design defect case would be not only irrelevant and distracting, but also, because of the inherently self-serving nature of ‘industry standards’, would be highly prejudicial to the consumer/plaintiff. By our determination today, we have made it clear that a manufacturer cannot avoid liability to its consumers that it injures or maims through its defective designs by showing that ‘the other guys do it too.’

Id., 515 Pa. at 344, 528 A.2d at 595.

We are aware that there exists in Pennsylvania cases which have discussed, and even suggested, that custom or usage and state of the art, as well as similar matters, should be admissible in design/defect cases. It is abundantly clear that the rationale employed in this body of cases has been expressly rejected by Lewis. Likewise, to the extent that the dicta in the recent panel decision of this Court in Foley v. Clark Equipment Co., 361 Pa.Super. 599, 523 A.2d 379 (1987) seems to suggest that a change in the law in this area would be desirable, we disapprove of that language.

For the reasons cited above, we reverse the trial court’s decision to admit into evidence testimony concerning the custom in the industry during 1949 as it related to power brakes. Further, we hold that the trial judge improperly permitted evidence of the 1973 ANSI Safety Standards for power presses. Accordingly, we must remand this case for a new trial.

II. The Use of Learned Treatises

At trial, Majdic presented the expert testimony of Paul Glasgow, a mechanical engineer, who testified that in his opinion the power press manufactured by Cincinnati had been defective because of the absence of safety guards. During Glasgow’s testimony, Majdic sought to introduce into evidence various articles from trade publications and learned treatises which Glasgow had relied upon in forming his opinion. He also offered as evidence numerous patents which suggested the availability of safety guards at the time the power press had been manufactured. Although the trial court permitted Glasgow to refer to these materials, it refused to allow them to be received into evidence or their contents to be read to the jury.

The law in this Commonwealth is well-settled that an expert witness may be cross-examined on the contents of a publication upon which he or she has relied in forming an opinion, and also with respect to any other publication which the expert acknowledges to be a standard work in the field. See: Cummings v. Borough of Nazareth, 430 Pa. 255, 242 A.2d 460 (1968); Walheim v. Kirkpatrick, 305 Pa.Super. 590, 451 A.2d 1033 (1982); and, Brannan v. Lankenau Hospital, 254 Pa.Super. 352, 385 A.2d 1376 (1978), rev’d, on other grounds, 490 Pa. 588, 417 A.2d 196 (1980). In such cases, the publication or literature is not admitted for the truth of the matter asserted, but only to challenge the credibility of the witness’ opinion and the weight to be accorded thereto. Brannan v. Lankenau Hospital, supra, 254 Pa.Superior Ct. at 365, 385 A.2d at 1383. Learned writings which are offered to prove the truth of the matters therein are hearsay and may not properly be admitted into evidence for consideration by the jury. See: McCormick on Evidence § 821, at 899 (3d ed. 1984).

Under the current state of the law in this Commonwealth, it was entirely proper for the trial court to refuse to admit into evidence the treatises and patents offered by Majdic. Because these materials were being offered to prove the truth of the matters asserted therein (i.e., that safety guards could have been added to the press in 1949), they were hearsay, and were inadmissible as substantive evidence. It was also proper for the trial court to refuse Majdic’s offer to allow his expert witness to read the contents of the documents aloud in court. Excerpts from a publication which are read into evidence for the purpose of proving the truth of the statements contained therein are still hearsay and, therefore, inadmissible. This fact is not changed merely because the document is read into evidence by the witness instead of being received as an exhibit for inspection by the jury. It is the purpose for which the information is offered, not the manner in which is introduced, which makes it objectionable.

Majdic concedes that information contained in private treatises is hearsay. Nevertheless, he argues that we should adopt a more liberal view towards treatises and periodicals and allow their admission when relied upon by an expert. That decision, however, is not for this Court to decide; therefore, we decline this invitation.

With respect to the patents, the learned treatise exception has no application. The assurances of trustworthiness which are intrinsic in scholarly treatises do not exist where patents are concerned. Unlike learned treatises, patents are not necessarily propounded by an expert in the field in which the patent applies; rather, they may be obtained by any individual with an original idea. Moreover, they are not generally subject to the type of criticism and analysis which learned treatises usually undergo. In light of these circumstances, the trial court did not abuse its discretion either by refusing to admit the treatises and patents into evidence or by declining to allow portions thereof to be read to the jury.

III. Prior Accidents

Majdic argues that the trial court erred by refusing to admit into evidence certain admissions by Cincinnati concerning 64 accidents that involved injuries to operators of its press brake. All of these incidents occurred prior to Majdic’s accident. This evidence was sought to be introduced to prove that Cincinnati was aware of the dangerous propensities of the machine, but did not warn of the dangers involved. The trial court disallowed this evidence and ruled that Majdic had failed to show that the prior accidents had occurred under similar circumstances to Majdic’s incident.

It is established in this Commonwealth that a “defective condition” is not limited to defects in the design or manufacture of a product. The test is whether or not the product is equipped with every element necessary to make it safe for use. Berkebile v. Brantly Helicopter, supra, 462 Pa. at 100, 337 A.2d at 902. In Berkebile, our Supreme Court noted:

[o]ne such element may be warnings and/or instructions concerning use of the product. A seller must give such warning and instructions as are required to inform the user or consumer of the possible risks and inherent limitations of his product. Restatement (Second) of Torts § 402A, comment h. If the product is defective absent such warnings, and the defect is a proximate cause of the plaintiff’s injury, the seller is strictly liable without proof of negligence.

Id., 462 Pa. at 100, 337 A.2d at 902.

A product’s “defective condition” may be proven through circumstantial evidence such as the occurrence of similar accidents. Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 139, 359 A.2d 822, 827 (1976). Evidence of similar accidents occurring at substantially the same place and under the same or similar circumstances is generally admissible to prove a manufacturer’s constructive notice of a dangerous or defective condition. However, the admission of such evidence is tempered by judicial concern that the evidence may raise collateral issues which confuse both the real issue and the jury. These matters are vested within the sound discretion of the trial court. Whitman v. Riddell, 324 Pa.Super. 177, 182, 471 A.2d 521, 523 (1984). To constitute reversible error, a ruling on evidence must be shown to be erroneous and harmful to the complaining party. Id., 324 Pa.Superior Ct. at 180, 471 A.2d at 521, quoting Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789, 791 (1965).

During trial, Majdic sought to introduce into evidence certain admissions made by Cincinnati in reference to 64 accidents involving the same type of press brake which had injured him. Majdic’s purpose in requesting the introduction of this evidence was to show that the mere occurrences of the 64 accidents served as notice to Cincinnati of the dangerous propensities of the unshielded press brake and that Cincinnati had the duty to alert those who used the machine to these dangers. In addition, Majdic maintained that the specifics of these accidents were unnecessary in presenting these admissions to the jury. The trial court disagreed, however, and ruled that the admissions were repetitious and lacked the required specificity as to whether the accidents were in fact similar to the circumstances under which Majdic was injured. We have reviewed the record of the instant case and find that the trial court did not err by excluding Majdic’s proffered evidence. The admissions, as presented to the trial court, specified neither the exact circumstances under which the other accidents occurred nor in what manner they were similar to Majdic’s accident. Clearly, the burden with respect to the admissibility of prior accidents was not sustained by Majdic. Therefore, we find that the trial court did not abuse its discretion in disallowing the admissions.

As pointed out, supra, Cincinnati conceded during trial that it had been aware of the hazards associated with the use of the power press. Cincinnati argued, though, that since the power press was utilized as a component part of National Standard’s larger metal forming system, the machine did not become dangerous until after it had been integrated. Therefore, National Standard, the buyer, was responsible for installing the necessary safety features and warnings commensurate to the particular function the power press served. Cincinnati essentially maintained that it could not be charged with the duty of apprising each buyer of the product’s inherent dangers, given the wide array of purposes for which the machine was utilized.

We disagree. Although Cincinnati may have indeed expected its buyers to correct any safety hazards associated with the power press once it was consolidated within their manufacturing systems, a manufacturer’s duty to warn of the dangers may nevertheless continue when it becomes cognizant that its buyers are not making the necessary safety adjustments to its product. It would be a question of fact for the jury to determine whether the product was safe absent sufficient instructions to its purchasers that safety guards and warnings should be attached to the power press upon implementation into a larger metal forming system. For this reason, we believe that on retrial it would be appropriate to permit Majdic to introduce evidence of similar accidents so that Cincinnati’s claim that it was unnecessary to inform its buyers of the product’s hazards after integration may be challenged. However, we emphasize that in order for such evidence to be admissible, it must be comprised of similar accidents occuring at substantially the same place and under the same or similar circumstances.

IV. Cross Examination of Richard Griesheimer

During trial, Cincinnati presented testimony of Richard Griesheimer, a staff engineer and former manager of engineering. On cross-examination, Majdic attempted to cross-examine Mr. Griesheimer concerning the discrepancy between answers to interrogatories which had been filed in this case by Cincinnati and those which it had filed in a case in another jurisdiction. In the instant case, Cincinnati answered that it had no knowledge of injuries, other than Majdic’s, resulting from the use of its power presses. By comparison, Cincinnati had filed answers to interrogatories in another action in which it listed approximately 60 separate incidents involving the power press, including Majdic’s claim. Majdic attempted to use these inconsistencies to impeach Cincinnati’s credibility on cross-examination.

“It is well-established that the scope and limits of cross-examination are within the trial court’s discretion and the court’s rulings thereon will not be reversed in the absence of a clear abuse of discretion or an error of law.” Kemp v. Qualls, 326 Pa.Super. 319, 324, 473 A.2d 1369, 1371 (1984). After considering Majdic’s arguments in support of the requested cross-examination, the trial court refused this line of questioning in light of its previous ruling which excluded evidence of prior accidents. The trial court opined that the materiality and relevance of the cross-examination would be outweighed by its resulting prejudice to Cincinnati.

We conclude that the trial court erred in prohibiting this line of questioning which went to Cincinnati’s credibility. The totally different answers filed in the other action by Cincinnati were a proper subject matter for cross-examination on the issue of credibility. We find that the trial court could have restructured the questioning to ensure that the jury would not focus its attention on extraneous issues in light of the trial judge’s previous ruling. Thus, we find that the trial court abused its discretion on this evidentiary matter.

The judgment is reversed. Case remanded for a new trial consistent with this Opinion.

WIEAND, J., files a dissenting opinion.

OLSZEWSKI, J., files a concurring and dissenting statement.

WIEAND, Judge,

dissenting:

I respectfully dissent and would affirm the judgment entered in the trial court.

On April 20, 1978, Henry Majdic was injured during the course of his employment when the ram of the power press which he had been operating descended upon his right hand. Majdic commenced an action against Cincinnati Machine Company (Cincinnati Machine), the manufacturer of the power press, alleging, inter alia, that Cincinnati Machine was strictly liable under the Restatement (Second) of Torts § 402A for manufacturing and selling the press in a defective condition. In particular, he alleged that the press had been defectively designed because it did not contain a safety guard which would have prevented the operator’s hands from entering the point of operation and because it was not equipped with a mechanism to prevent operation of the machine while the operator’s hands were in the pinch-point.

Cincinnati Machine did not contest Majdic’s allegation that the press should have been equipped with safeguards to prevent an operator from placing his or her hands within the point of operation. Rather, it was Cincinnati Machine’s principal defense that it had no obligation to provide the safety features urged by Majdic. In this regard, Cincinnati Machine showed that the press brake which it had manufactured and sold to Majdic’s employer, National Standard Company (National Standard), had not been a completed product, but had been only a general purpose, multifunctional unit, unequipped with dies and having no point of operation, which ultimately was to be incorporated into a larger metal forming system. Until National Standard had installed dies on the press and had incorporated it into the larger system, Cincinnati Machine argued, no protective barrier could have been installed. As a result, Cincinnati Machine maintained, responsibility for providing safeguards and warnings rested solely with Majdic’s employer who had assembled the press.

The jury which heard the evidence returned a verdict for Cincinnati Machine. Majdic filed a motion for a new trial in which he alleged error in several evidentiary rulings by the trial court. Most importantly for our purposes, he questioned whether it was appropriate to allow a defense expert to describe the custom in the power press industry in 1949 (when the press in question had been manufactured) and to refer to a federal safety standard for presses which had been published in 1973. In addition, he challenged the trial court’s refusal to allow his expert witness to read from learned treatises and patents which allegedly were relevant in determining whether the press which caused his injury had been defective. He asserted, moreover, that the trial court had erroneously excluded evidence of similar accidents involving Cincinnati press brakes which occurred after the press in question had been manufactured and sold to National Standard but before Majdic sustained the injury to his hand. The trial court found no error in its evidentiary rulings; and, therefore, denied Majdic’s request for a new trial. Following entry of judgment on the verdict, a panel of this Court affirmed. We granted reargument for three principal reasons: to review the admissibility of evidence of industry customs and federal safety standards in this action; to re-examine the rule which prohibits hearsay statements appearing in learned treatises and other informational material from being admitted into evidence and used as substantive proof of the matters to which they relate; and, finally, to determine the admissibility of evidence of other accidents to show constructive, post-sale notice of a defective product.

I. Evidence of Industry Customs

During trial, Cincinnati Machine called Joseph L. Schwalje to testify as an expert. Schwalje, a mechanical engineer, was questioned concerning the custom in the industry as it pertained to power press brakes in 1949, the year in which the brake sold by Cincinnati Machine to National Standard had been manufactured. He testified that the customary practice in 1949 was for an employer or other party incorporating a press brake into a metal forming system to provide the safety devices necessary to prevent the operator’s hands from entering the point of operation. In support of this conclusion, Schwalje referred to a federal safety standard for power presses which had been published by American National Standards Institute (ANSI) in 1973 and which imposed the responsibility for providing point of operation guards on those who assembled metal forming systems rather than on the manufacturers of the press brakes. Although the established standard of 1973 was not in existence in 1949 when the press which injured the plaintiff had been manufactured, Schwalje opined, the trade practice prevalent in the power press industry in 1949 was the same as that reflected by the 1973 standard.

Majdic opposed Schwalje’s testimony on two grounds. First, Majdic contended that evidence of industry-wide customs tended to focus attention upon the reasonableness of the manufacturer’s conduct and, therefore, was inadmissible in an action based upon strict liability. Second, he argued that because the 1973 safety standard was not promulgated until twenty-four years after the press brake in question had been manufactured, Schwalje’s testimony with respect to the standard was irrelevant to a determination of the safety of the brake at the time of manufacture.

The trial court determined that the custom evidence introduced by Cincinnati Machine did not relate to the reasonableness of the manufacturer’s conduct and was relevant in aiding the jury to determine who was responsible for adding the safety devices which all parties agreed were missing. The court excluded the 1973 written standard from evidence but allowed the expert to refer to it in order to elucidate the custom of the industry in 1949.

Custom in the industry refers to the common way things are done in an industry, or to a formal industry standard. See: Spradley, Defensive Use of State of the Art Evidence in Strict Products Liability, 67 Minn.L.Rev. 343, 344-345 (1982); Note, Perpetuating Negligence Principles in Strict Products Liability: The Use of State of the Art Concepts in Design Cases, 36 Syracuse L.Rev. 797, 816 (1985). Evidence of industry custom was originally used in negligence cases to prove that a defendant-manufacturer’s conduct either was or was not unreasonable. See, e.g., George v. Morgan Construction Co., 389 F.Supp. 253 (E.D.Pa.1975); Forrest City Machine Works, Inc. v. Rayburn Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981); Varas v. Barco Manufacturing Co., 205 Cal.App.2d 246, 22 Cal.Rptr. 737 (1962); Chown v. USM Corp., 297 N.W.2d 218 (Iowa 1980). See generally: Robb, A Practical Approach to Use of State of the Art Evidence in Strict Products Liability Cases, 77 Nw.U.L.Rev. 1, 6-9 (1982).

Despite its negligence heritage, I am of the opinion that custom evidence is also relevant under the theory of strict products liability to determine whether a product is defective. In this Commonwealth, the determination of defectiveness is made through a two-step process. First, the trial court must engage in a risk-utility analysis to decide whether the imposition of strict liability would be justified; thereafter, the case is submitted to the jury to determine whether the facts of the case support the averments of the complaint. Azzarello v. Black Brothers Co., 480 Pa. 547, 558, 391 A.2d 1020, 1026 (1978); Foley v. Clark Equipment Co., 361 Pa.Super. 599, 606, 523 A.2d 379, 382 (1987). Evidence of industry custom is but one factor which may be considered by a court in balancing the risks posed by the product against its utility. This position has been explained most cogently by the United States Court of Appeals for the Fifth Circuit in Carter v. Massey-Ferguson, Inc., 716 F.2d 344 (5th Cir.1983). There, Judge Garwood, in a lucid concurring opinion, stated:

[E]vidence that a product’s design conforms to or deviates from industry custom, though not dispositive, may nevertheless be relevant in determining whether the product is unreasonably dangerous under the risk-utility balancing test. That potential relevance may be two-fold. First, industry custom will usually tend to show the collective judgment of the industry on the subject, and in this respect it has the same character of relevance as a professional society standard, though the relevance is more attenuated since factors other than product safety are more likely to influence the custom than the standard. Second, it will in many instances, though by no means all, tend to show general user experience with and expectations of product handling or performance in respect to the design characteristics at issue; and frequently the extent of the risk actually posed by a given product design characteristic will be affected by the degree to which it causes the product’s operation and performance to conform to general user experience and expectations. Whether in a given case industry custom is relevant under either of the above theories, and if so the degree of its probative value, will naturally depend, among other things, on the nature of the product, the particular design characteristics at issue and the industry custom.

Id. at 350 (Garwood, J., concurring) (emphasis in original).

Legal scholars who have considered the admissibility of custom evidence in strict liability cases agree that it is relevant insofar as it relates to the industry’s perception of the danger associated with the use of the product. See: Spradley, supra at 357-359; Keeton, Annual Survey of Texas Law-Torts, 35 Sw.LJ. 1, 11 (1981). The same or similar reasoning has been employed by the majority of jurisdictions in approving the admissibility of custom evidence in actions sounding in strict liability. See, e.g., Carter v. Massey-Ferguson, Inc., supra; Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192 (4th Cir.1982); Smith v. Minister Machine Co., 669 F.2d 628 (10th Cir.1982); Wagner v. International Harvester Co., 611 F.2d 224 (8th Cir.1979); Wisconsin Electric Power Co. v. Zallea Brothers, Inc., 606 F.2d 697 (7th Cir.1979); Poland v. Beaird-Poulan, 483 F.Supp. 1256 (W.D.La.1980); Caterpillar Tractor Co. v. Ford, 406 So.2d 854 (Ala.1981); Sturm, Ruger & Co. v. Day, 594 P.2d 38 (Alaska 1979), cert. denied, 454 U.S. 894, 102 S.Ct. 391, 70 L.Ed.2d 209 (1981); Deyoe v. Clark Equipment Co., 134 Ariz. 281, 655 P.2d 1333 (1982); Anderson v. Hyster Co., 74 Ill.2d 364, 24 Ill.Dec. 549, 385 N.E.2d 690 (1979); Chown v. USM Corp., supra; Hancock v. Paccar, Inc., 204 Neb. 468, 283 N.W.2d 25 (1979); Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978); O’Brien v. Muskin Corp., 94 N.J. 169, 463 A.2d 298 (1983); Friederichs v. Huebner, 110 Wis.2d 581, 329 N.W.2d 890 (1983). See also: Ky.Rev.Stat.Ann. § 411.310 (Baldwin Supp.1982) (compliance with “generally recognized and prevailing standards” in an industry gives rise to presumption of non-defectiveness).

The law in Pennsylvania is an anomaly. A failure of a product to comply with industry standards is relevant to show that a product is defective. Forry v. Gulf Oil Corp., 428 Pa. 334, 237 A.2d 593 (1968). Recently, however, the Supreme Court held in Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590 (1987) that industry standards are irrelevant and inadmissible to show that a product is not defective. Thus, industry standards are relevant and admissible for the purpose of showing that a product is defective; but if the product does comply with industry standards, that fact is irrelevant and inadmissible. Although we are obliged to follow the holdings of the Supreme Court, I continue to be of the belief that the view adopted by a majority of courts is the better view. According to this view, industry standards are generally admissible in product liability cases, although not conclusive, to assist the factfinder in determining whether or not a product has been defectively designed.

In any event, Lems is not controlling of the instant case. In this case, industry standards were not offered to show that the metal forming system was either defective or not defective. The manufacturer of the power press conceded that safeguards should have been added to protect those workmen who used the system. The manufacturer offered to show, however, that according to industry custom in 1949, when the power press had been manufactured, it was for those who assembled the metal forming system of which the press was only a part, and not the manufacturer of the press, to add the necessary safeguards. The reason was logical. Until the system had been assembled, the precise nature of the safeguards could not be determined. I would hold that industry custom was relevant and admissible for this purpose.

Almost identical factual scenarios were presented in two cases decided by the federal judiciary of Pennsylvania. In Powell v. E.W. Bliss Co., 529 F.Supp. 48 (E.D.Pa.1981), aff'd, 681 F.2d 805, 808 (3d Cir.1982), the plaintiff had been injured when his hand became caught in the pinchpoint of a punch press. He commenced a product liability action against the manufacturer of the press brake, alleging that the press had been defective because it had not been equipped with safeguards which would have prevented the operator’s hands from entering the work area and because it had lacked warnings regarding the danger of operating the press without such safeguards. The defendant-manufacturer did not dispute that safeguards were necessary; rather, it contended that the press brake which it had manufactured was not a completed product and, therefore, that it was not responsible for providing point of operation safeguards. The jury was instructed that if it found that the press as sold by the defendant-manufacturer was not a finished product, it could consider evidence of industry custom in determining who was responsible for providing safety features. The District Court observed that the jury had not been charged that it could consider the evidence of trade custom as bearing upon the reasonableness of the defendant’s conduct, but instead had been instructed that such evidence was to be considered only for the purpose of determining who bore the responsibility for installing safeguards on the press. Id. at 53. Because the charge “did not impermissibly ‘ring of negligence,’ ” the court concluded, it was appropriate and not erroneous. Id.

Confronted with a set of facts which mirrored those in Powell, the United States District Court for the Middle District of Pennsylvania, in Christner v. E.W. Bliss Co., 524 F.Supp. 1122 (M.D.Pa.1981), employed similar reasoning in upholding the admissibility of industry custom evidence in a case also arising under a theory of strict liability. The court noted that the evidence of trade custom had not been offered to prove due care, but rather to show that the absence of point of operation guards had not been the responsibility of the manufacturer. If the jury were to conclude that the power press was not a completed product when it left the defendant-manufacturer’s control, the court said, it could then consider evidence of industry custom to assist it in determining who was responsible for providing point of operation guards. Id.

I would adopt the analysis of the federal courts. In the case sub judice, as in Powell and Christner, the custom evidence was not offered to demonstrate the exercise of due care by the manufacturer but only to show that the press brake was an incomplete product which, as the industry understood it, was to be completed by the assembler of a larger metal forming system who alone could design and provide safeguards appropriate to the assembled system. For such purpose, I would hold, the customs of the industry were relevant and admissible as an aid in determining whose responsibility it was to add the safeguards for the completed system.

II. Evidence of Governmental Regulations

In actions based upon strict liability, the almost universal rule is that compliance with governmental standards, rules and regulations constitutes evidence of the adequacy of the product’s design, and is therefore admissible, though not conclusive. See: Spradley, supra at 367 (collecting cases). This is also the law in Pennsylvania. See: Jackson v. Spagnola, 349 Pa.Super. 471, 503 A.2d 944 (1986); Berkebile v. Brantly Helicopter Corp., 219 Pa.Super. 479, 281 A.2d 707 (1971).

Instantly, the defense expert offered by Cincinnati Machine was allowed to refer to an ANSI standard for power presses which had been published in 1973 in order to describe the custom within the power press industry in 1949. Evidence that the press brake manufactured by Cincinnati Machine was in compliance with governmental standards would, of course, be pertinent to the issue of defectiveness and, accordingly, would be admissible for that purpose. It is Majdic’s contention, however, that the standard was irrelevant because it was promulgated twenty-four years after the press brake had been manufactured. He argues, therefore, that it was error to permit any reference to the 1973 standard.

In resolving this issue, the decision in Powell v. E.W. Bliss Co., supra, is once again instructive. There, the defendant-manufacturer was permitted to introduce into evidence the 1971 ANSI standard which, like the 1973 standard at issue here, placed the responsibility for installing point of operation safeguards upon the employer. The plaintiff contended that because the standard had been promulgated in 1971, it was irrelevant to the issue of whether the press was defective when it was manufactured in 1954. The court rejected this argument, stating:

The 1948 A.N.S.I. standards, which were in effect when the press was manufactured, did not explicitly place the responsibility for providing such safety devices upon any one party. Hence, the express mandate of the 1971 standards placing this obligation on the employer was relevant to the jury’s determination in that it served to clarify the somewhat ambiguous standards promulgated in 1948.

Id. at 54. Similarly in the instant case, Cincinnati Machine’s expert alluded to the 1973 ANSI standard to clarify the 1949 standards. This testimony was relevant in determining the custom within the power press industry at the time the press brake in question was manufactured.

I am not able to perceive that this caused any prejudice to Majdic. The standard itself was not admitted into evidence; rather, Schwalje was merely permitted to refer to the standard in explaining his opinion concerning the custom in the industry in 1949. The trial court expressly instructed the jury that it could consider the testimony only for that purpose, and not as evidence that the 1973 standard itself was in effect in 1949. Under these. circumstances, the testamentary reference to the 1973 ANSI standard was harmless.

III. Admissibility of Learned Treatises

I agree as fully as if I had written myself the majority’s discussion regarding the use of learned treatises. It is worth noting, however, that other jurisdictions have promulgated rules or enacted statutes which adopt in whole or in part the learned treatise exception to the hearsay rule embodied in Federal Rule of Evidence 803(18). See: Ala. Code § 12-21-108; Alaska Rules of Evidence 803(18); Arizona Rules of Evidence 803(18); Arkansas Uniform Rules of Evidence 803(18); Cal.Evid.Code § 1341; Colorado Rules of Evidence 803(18); Delaware Uniform Rules of Evidence 803(18); Hawaii Rules of Evidence 803(b)(18); Idaho Rules of Evidence 803(18); Kan.Stat.Ann. § 60-460(cc) (1986); Minnesota Rules of Evidence 803(18); Montana Rules of Evidence 803(18); Nev.Rev.Stat.Ann. § 51.255 (1986); New Hampshire Rules of Evidence 803(18); New Mexico Rules of Evidence 11-803(R); N.C.Gen.Stat. § 8-40.1; North Carolina Rules of Evidence 803(18); North Dakota Rules of Evidence 803(18); Oklahoma Evidence Code 12 O.S.1981, § 2803(18); South Dakota Rules of Evidence SDCL 19-16-22; Texas Rules of Evidence 803(18); Utah Rules of Evidence 803(18); Washington Rules of Evidence 803(a)(18); West Virginia Rules of Evidence 803(18); Wis.Stat.Ann. § 908.03(18); Wyoming Rules of Evidence 803(18). Several other jurisdictions have embraced the federal view by way of judicial decision. See: Cross v. Huttenlocher, 185 Conn. 390, 440 A.2d 952 (1981); Heilman v. Snyder, 520 S.W.2d 321 (Ky.1975). Those states recognizing a learned treatise exception now constitute a majority.

Whether Pennsylvania should join the growing number of jurisdictions which permit excerpts of treatises and other publications to be read to the jury is not for this Court to decide. That decision is better left to the legislature. Moreover, even if we were able and inclined to change the rule in Pennsylvania, Majdic would not be entitled to a new trial. The portions of the treatises and patents which Majdic wanted to read to the jury were offered solely to demonstrate the availability in 1949 of safety guards which could have been incorporated into the press brake sold by Cincinnati Machine. The record is clear, however, that Cincinnati Machine conceded such availability; it defended on other grounds. Therefore, the failure of the jury to have the verbatim texts of these treatises was harmless.

IV. Prior Accidents

During trial, Majdic sought to introduce admissions made by Cincinnati Machine in discovery proceedings that there had been prior instances of injuries sustained by operators of press brakes. The evidence was offered to show that Cincinnati Machine had become aware following sale of the machine that it possessed a propensity for causing harm. The trial court disallowed the evidence because it would have created collateral issues and because plaintiff-appellant was not prepared to show that the prior accidents had occurred under circumstances which were the same or similar to those of the accident which were presented to the jury in the action being tried. Majdic contends that this was error.

There is, as Majdic suggests, a rapidly developing body of opinion which favors the imposition upon manufacturers of a post-sale duty to warn. See: Allee, Post-Sale Obligations of Product Manufacturers, 12 Fordham Urb.LJ. 625 (1984); Royal, Post-Sale Warnings: A Review and Analysis Seeking Fair Compensation Under Uniform Law, 33 Drake L.Rev. 817 (1983); Schwartz, Post-Sale Duty To Warn: Two Forks in the Road to a Reasonable Doctrine, 58 N.Y.U.L.Rev. 892 (1983); Comment, Products Liability: Post-Sale Warnings, 1978 Ariz.St.L.J. 49; Note, Post-Sale Warnings: Products That Go “Bump” in the Night, 1984 Ariz.St.L.J. 719; Note, The Manufacturer’s Duty to Notify of Subsequent Safety Improvements, 33 Stan.L.Rev. 1087 (1981). Most jurisdictions which have considered the issue have recognized such a duty. See generally: Allee, supra (collecting cases); Royal, supra (collecting cases). Other states have enacted statutory provisions which codify the duty of product manufacturers to issue post-sale warnings. See: Ala.Code § 6-5-502 (Supp.1983); Idaho Code § [6-1406], 6-1306 (1980); N.D. Cent.Code § 28:01.1-02 (Supp.1983); Wash.Rev.Code § 7.72.010 (Supp.1983); N.H.Rev.StatAnn. § 507-D:2 (1983). This trend has been evident on the federal level as well. A post-sale duty to warn is recommended in the Model Uniform Product Liability Act § 104(c)(6), 44 Fed. Reg. 62,714, 62,721 (1979). Various legislative bills which have been submitted to Congress have also proposed the adoption of such a duty. See: S. 2631, 97th Cong.2d Sess. (1982); H.R. 5214, 97th Cong. 1st Sess. (1981). There is no reason to believe that the Pennsylvania courts would not also recognize a continuing duty to warn of dangers discovered for the first time after a product has been placed into the stream of commerce.

To prove constructive notice of a dangerous or defective condition, a trial court may under certain circumstances receive evidence of prior accidents occurring under the same or similar circumstances. Before such evidence may be received, however, the proponent must show that the prior accident was sufficiently similar to constitute constructive notice of a defective condition. “This limited exception, permitting the introduction of evidence of similar accidents, is tempered by judicial concern that the evidence may raise collateral issues, confusing both the real issue and the jury.” Whitman v. Riddell, 324 Pa.Super. 177, 181, 471 A.2d 521, 523 (1984). It follows that much must be left to the discretion of the trial judge. Stormer v. Alberts Construction Co., 401 Pa. 461, 466, 165 A.2d 87, 89 (1960); Whitman v. Riddell, supra, 324 Pa.Super. at 180-181, 471 A.2d at 523. See also: Craven v. Niagara Machine & Tool Works Co., Inc., 417 N.E.2d 1165 (Ind.App.1981). “To constitute reversible error, a ruling on evidence ... must be shown not only to have been erroneous, but harmful to the party complaining.” Whitman v. Riddell, supra, 324 Pa. Super, at 180, 471 A.2d at 522, quoting Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965). See: Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc., 344 Pa.Super. 218, 224, 496 A.2d 762, 765 (1985).

In the instant case, the evidentiary ruling of the trial court was not erroneous. Although appellant offered an admission by Cincinnati Machine of sixty-four accidents preceding his injury, there was no evidence to show the precise circumstances under which any of them had occurred. Therefore, the burden of showing the relevancy of the admissions of prior accidents was not met; and the trial court properly excluded the evidence thereof.

V. The Cross-examination of Richard Griesheimer

During the cross-examination of Richard Griesheimer, the former manager of engineering and the present staff engineer for Cincinnati Machine, Majdic attempted to question Griesheimer regarding answers to interrogatories which had been prepared by other agents of Cincinnati Machine and which had been submitted by the manufacturer prior to trial. In these answers to interrogatories, it had been indicated that Cincinnati Machine had no knowledge of injuries, other than Majdic's, resulting from use of its press brakes. These answers, however, were inconsistent with answers to similar interrogatories which Cincinnati Machine had filed in another case in another jurisdiction. In the other action Cincinnati Machine had listed additional accidents involving Cincinnati press brakes. Majdic sought to cross-examine Griesheimer about this inconsistency in order to impeach his credibility. Majdic argues on appeal that he is entitled to a new trial because the court prohibited this cross-examination, and the majority agrees. I do not. In my judgment, the ruling was a proper exercise of discretion by the trial court.

The scope and limits of cross-examination are within the sound discretion of the trial court and a ruling thereon will not be reversed in the absence of a clear abuse of that discretion. Townsend Will, 430 Pa. 318, 323, 241 A.2d 534, 537, cert. denied, Cochran v. Morris, 393 U.S. 934, 89 S.Ct. 293, 21 L.Ed.2d 270 (1968); Kemp v. Qualls, 326 Pa.Super. 319, 324, 473 A.2d 1369, 1371 (1984). Here, the trial court refused to permit the cross-examination requested by Majdic because it viewed it as an attempt to circumvent its ruling disallowing evidence of prior accidents. As such, the cross-examination was viewed as being unduly prejudicial. This prejudice, the court concluded, would outweigh any materiality or relevance the evidence would have on the issue of credibility. I am able to find no abuse of discretion in this ruling. In the first place, the answers to interrogatories in another action in another jurisdiction were irrelevant to attack the witness’ credibility unless he had prepared the answers in the other action. Moreover, the answers given in another proceeding in another jurisdiction did not contradict the testimony of the witness from the witness stand in the instant case. Finally, the cross-examination with respect to answers to interrogatories filed in another action was collateral to the issue being litigated and more than likely to confuse that issue and mislead the jury. See: Stormer v. Alberts Construction Co., supra; Whitman v. Riddell, supra. See also: Prashker v. Beech Aircraft Corp., 258 F.2d 602 (3d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 236, 3 L.Ed.2d 230 (1958); Craven v. Niagara Machine & Tool Works, Inc., supra. For these reasons alone, the trial court could properly exclude the cross-examinations.

This action, as is true of most design defect cases, involved complex issues and was difficult to try. My review of the record suggests that despite the inherent difficulty, the case was well tried by both court and counsel.

I would affirm the judgment.

OLSZEWSKI, Judge,

concurring and dissenting statement:

I join in Parts II and IV of the majority opinion and in the disposition of the case.

I join with Judge Wieand in Parts I, II, and IV of his Dissenting Opinion.

      . The ram was the mobile upper part of the machine, while the bed was the stationary lower part of the press.

      . Although there exists in Pennsylvania neither statutory nor case law on point discussing a manufacturer’s post-sale duty to warn, we note that a trend has developed among our sister states which places such a duty on a manufacturer. See Allee, Post-Sale Obligations of Product Manufacturers, 12 Fordham Urb.LJ. 625 (1984) (collecting cases); and, Royal, Post Sale Warnings: A Review and Analysis Seeking Fair

        Compensation Under Uniform Law, 33 Drake L.Rev. 817 (1983) (collecting cases).

      . That section provides:
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

      . Majdic also asserted theories of negligence and breach of implied and express warranties. The action was tried, however, solely on the theory of strict liability.

      . Press brakes generally are used to bend large sheets of metal, although they may also be adjusted to perform other functions such as punching and stamping.

      . Fed.R.Evid. 803 provides:
      The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
      (18) Learned treatises. 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.
      This exception to the hearsay rule is founded on the belief that, although the material contained in such literature is technically hearsay, there are compelling reasons which favor admitting such evidence under limited circumstances. These reasons have been summarized as follows:

        [M]uch of the testimony of experts testifying in person consists of information they have obtained from such sources. Permitting the sources to be proved directly would not be as great a change as might at first be supposed and would greatly improve the quality of information presented to trial courts in litigated cases. Moreover, ... there are sufficient assurances of trustworthiness to justify equating a learned treatise with a personally-testifying expert. Not only does the author of the treatise have no bias in any particular case, but it is also likely that he was motivated in writing the treatise by a strong desire to state accurately the full truth. The authors are also aware that their material will be read and evaluated by others in their field, and there is therefore additional strong pressure to be accurate.

        McCormick on Evidence § 321, at 899 (3d ed. 1984), paraphrasing 6 Wigmore, Evidence §§ 690-92 (Chadbourn Rev.1976) (footnote omitted).


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    537 A.2d 350
    Mia Joy LAMPA, Appellant, v. Craig Monroe LAMPA, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1987.
    Filed Jan. 29, 1988.

      Richard J. Shiroff, Easton, for appellant.
    Before CAVANAUGH, McEWEN and KELLY, JJ.
   KELLY, Judge:

This is an appeal from an order directing modification of child support for two minor children. Appellant, Mia Joy Lampa argues that the trial court improperly excluded from its consideration the legitimate expenses attendant to raising these children, and failed to follow the dictates of Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984) and county guidelines promulgated pursuant to 23 Pa.C.S. § 4322. We agree, and accordingly reverse the trial court’s order and remand with directions for further proceedings.

The parties to this appeal were separated in 1981; appellant retained custody of the two children. A consent order was entered later in 1981 whereby appellee, Craig Monroe Lampa agreed to pay $115.00 per week for support of the children. On July 21, 1984, appellee purchased a lucrative photography business and left his former employment to manage the business. On January 8, 1985, based upon appellee’s change in circumstances, appellant petitioned for modification and increase of the support order. A support conference was held, and the parties failed to reach agreement. The court dismissed the petition on February 28, 1985 and ordered the support obligation continued at $115.00 weekly.

Both parties requested a de novo hearing following entry of this order. The trial court then, on April 10, 1985, reduced the appellee's support obligation to $67.00 weekly. Appellant appealed the order to this Court. We reversed the order and remanded for further proceedings.

On remand, support hearings were held on October 22, 1986 and November 26, 1986 before a Domestic Relations (Special) Master; the Master recommended the. appellee’s support obligation be increased to $169.00 weekly based upon the county guidelines, the Melzer formulations, the needs of the children and the parties’ individual circumstances, including the income of appellee’s second wife. {See Master’s Report filed January 28, 1987). However, on review of the Master’s recommendation, the court rejected the Master’s computations of appellee's disposable income, and of appellant’s reasonable and necessary expenses associated with her custodial care of the children. On April 29, 1987, the court entered an order, also using the Melzer formula, increasing the support obligation to $121.00 weekly (an increase of only $6.00 over the previous court order of $115.00). Appellant’s timely appeal to this Court followed.

Appellant contends the court abused its discretion as the court: impermissibly reduced the amount of mortgage payments and household expenses attributable to the reasonable needs of the children; disallowed any expenses for automobile maintenance; disallowed any expenses for babysitting; failed to include appellee’s spouse’s income when calculating appellee’s disposable income; and failed to adequately consider the county support guidelines. We agree that the trial court erred in reducing or disallowing reasonable and necessary expenses in child-rearing and therefore we reverse the order.

Our standard of review is such that we will not overturn a child support order unless the court abused its discretion in fashioning the award. Such abuse will be found where there is insufficient evidence to sustain the award or where the law is overridden or misapplied. Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793 (1985).

At the outset, we note that there were material changes in circumstances which would justify modifying the support order. In a petition to modify a support order, the petitioner carries the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original support order. Palmatier v. MacCartney, 365 Pa.Super. 300, 529 A.2d 518 (1987); Koller v. Koller, 333 Pa.Super. 54, 57, 481 A.2d 1218, 1220 (1984) (citing Commonwealth ex rel. Vona v. Stickley, 287 Pa.Super. 296, 430 A.2d 293 (1981)). The trial court must consider all pertinent facts and base its decision upon facts appearing in the record which indicate whether the petitioner did or did not meet the burden of proof as to changed circumstances. Koller, supra, 333 Pa.Superior Ct. at 57, 481 A.2d at 1220; Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 457 A.2d 98 (1983). We agree with the trial court that appellant established a sufficient change in circumstances that appellee had purchased a lucrative business and doubled his disposable income. Thus, reconsideration of the support order was appropriate.

Once a new award must be calculated, the court is required to determine the reasonable needs of the parties’ children; reasonable expenses are not limited to bare necessities but may reflect a reasonable standard of living for the child. Commonwealth ex rel. Stump v. Church, 333 Pa. Super. 166, 481 A.2d 1358 (1984). The court must then analyze the respective abilities of the parents to support their children. DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987); see also Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975). After both the children’s needs and their parents disposable income is calculated, the court arrives at a support obligation. This analysis is to be accomplished pursuant to consideration of the Melzer formula; however, the trial court is permitted “to adjust the resulting support obligation if deviation from the formula is warranted under the particular circumstances.” DeWalt supra. Moreover, this Court has directed that the county support guidelines (promulgated pursuant to 23 P.S. § 4322) are to be considered both in entering the original support order, and in entering any subsequent modification, as long as the county guidelines are harmonious with the caselaw. Ryan v. DeLong, 371 Pa.Super. 248, 538 A.2d 1 (1987); Palmatier v. MacCartney, supra; Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 513 A.2d 448 (1986).

The Master, after assembling the pertinent financial data, concluded that the children’s reasonable and necessary expenses amounted to $198.00 weekly. This figure included, inter alia, one-half of the appellant’s mortgage and utility expenses, twenty percent (20%) of the costs associated with maintaining the family automobile, and annual babysitting expenses of $845.00, incurred during the hours appellant worked and was unable to be at home with her minor children. (N.T. 11/26/86 at 19). The Master also found appellee’s disposable income to be $425.00 weekly; that amount included appellee’s new spouse’s income of $104.00 weekly. Appellant’s disposable income was found to be $74.00 weekly.

The court, upon review of this analysis, reduced the portion of the mortgage and household expenses attributable to the children to a one-third share, stating:

We feel that plaintiff’s testimony indicates that the children each have a bedroom and mainly use the family room and kitchen for other activities. There are other rooms in the home which are used rarely or not at all by the children. (N.T. 11/26/86 pp. 4-5.) ... Were Plaintiff to be living on her own without the children she would in fact incur expenses similar to those she is presently incuring [sic].

(Trial Ct.Op. at 3). The court also disallowed all of the plaintiff’s babysitting expenses as the court said appellant failed to “specify who provided babysitting services and for what purposes and when.” (Trial Ct.Op. at 4). The court similarly disallowed any automobile expenses as they relate to the children because appellant did not detail the mileage and did not demonstrate “the necessity of any of the trips” undertaken for the children’s girl scout activities, parties and visits to friends. (Trial Ct.Op. at 4). Thus, the court found the children’s needs to be approximately $150.00 weekly. Finally, the court reduced the amount of appellee’s disposable income of $425.00 by the amount of his spouse’s income of $104.00 and arrived at a figure of $321.00 weekly. After disallowing the above expenses and income, the court did use the Melzer formula to calculate its support obligation of $121.00 weekly.

The trial court erred when it based its decision to reduce the children’s expenses upon the determination that the mortgage “would have been incurred absent the presence of the children.” The trial court was not called upon to speculate as to what appellant’s lifestyle would or would not be if she did not have custody of her children; rather, the court was to determine what expenses or portion of expenses were reasonably attributable to the fact that she did have custody of the children. Absent evidence suggesting the home itself is unduly luxurious in light of the parties’ station in life, the court’s task is to determine what constitutes the reasonable household expenses appellant incurs because she does have custody of those children. Sutliff v. Sutliff, 515 Pa. 393, 528 A.2d 1318 (1987); Shutter v. Reilly, — Pa.Super. —, 539 A.2d 424 (1987) (“Among the bare necessities of a child’s life is a home”); Shapera v. Levitt, 260 Pa.Super. 447, 394 A.2d 1011 (1978) (reasonable household expenses are necessarily included in a support order).

We reaffirm that in reaching the determination as to the inclusion of mortgage payments and household utilities in calculating support, the court is to be cognizant of the fact that a child’s station in life is dependent at least in part upon where the child lives. Shutter, supra. Our courts should not erect barriers where a parent struggles to maintain the marital residence for the children’s sake; otherwise, the courts would be acting to reduce the children’s station in life. Commonwealth ex rel. Stump v. Church, supra; Shank v. Shank, 298 Pa.Super. 459, 444 A.2d 1274 (1982); Dunbar v. Dunbar, 291 Pa.Super. 224, 435 A.2d 879 (1981).

We find that the court abused its discretion in reducing the children’s share of the expenses from one-half to one-third. The trial court’s analysis involved allocating percentages to each room, corresponding to how frequently that room was used by the children. A method of calculation dependent upon room usage is unmanageable as it requires a record-keeping process unduly burdensome to the custodial parent. See Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985). Moreover, this method of calculation leads to the absurd result that the court could, under these facts, decide a home one-third the size of the present home could adequately maintain these children. To the contrary, it is readily apparent that while the children’s necessities might be supplied, their station in life would be ignored. See Stump, supra. Finally, this method of calculation would require continual court supervision; as the children’s use of the rooms of the house changed, the court could face repeated requests to modify the child support obligation based upon the change in circumstances implicit in the change of room usage under this method of calculation. Thus, we find it unreasonable to conclude, as the trial court did, that the needs of these children could be met by a mere one-third allocation of the household resources because they, at the time of the hearing, were using only one-third of the rooms of the house on a regular basis.

The court also erred in excluding the twenty percent (20%) of the automobile expenses suggested by appellant as the portion of car expenses reasonably attributable to the children’s needs. First, the law does not impose upon a parent the burden of detailing the mileage on each trip taken on behalf of the children; in the ordinary course of daily living such detailed itineraries are not maintained. See Semasek v. Semasek, 331 Pa.Super. 1, 8, 479 A.2d 1047, 1051 (1984), aff'd 509 Pa. 282, 502 A.2d 109 (1985) (where statute gives no specific method to evaluate assets, court must rely on estimates and inventories submitted by parties). Secondly, the trips undertaken to transport the children to social activities need not be found to be a necessity, but rather need only be evaluated in terms of whether they are a reasonable expense of child-rearing considering the children’s standard of living and station in life. See Stump, supra. Neither citation nor extended explanations are necessary to support the conclusion that supervised social interaction in activities such as the Girl Scouts of America aid children to grow into responsible adults. Thus, we find that the trial court abused its discretion in excluding any portion of automobile expenses from its determination of appellee’s reasonable support obligation.

Likewise, we find that the court erred in excluding the totality of the appellant’s babysitting expenses. Again, it takes no citation or extended explanation to support a conclusion that the parties’ seven year old child requires adult supervision before and after school, while appellant is employed. Similarly, babysitting care is a reasonable expense incurred when appellant occasionally devotes an evening to her own social life outside the home. (See N.T. 11/26/86 at 30-33). Even appellee concedes that babysitting is a reasonable expense of child-rearing, although he questions the exact amounts incurred herein. (See N.T. 11/26/86 at 47). The trial court, nonetheless, excluded all babysitting expenses from its calculation of appellee’s support obligation. Absent proof that appellant’s absences from the home are unreasonably frequent, or the costs of securing competent child care are exorbitant compared with other child care services available in the area, we find the court’s failure to include a reasonable amount for babysitting expenses constituted an abuse of discretion.

We, however, affirm the trial court’s decision not to include the income of appellee's spouse in calculating appellee’s disposable income. The law is clear that the court must be aware of such income and thus must consider that income in fashioning a child support obligation. Melzer v. Witsberger, supra; Shank v. Shank, supra. However, the spouse is under no obligation to support her husband’s children from a previous marriage. “... [WJhile her income is not available for support, its effect on the total financial status of the appellant cannot be ignored.” Palmatier v. MacCartney, supra, 365 Pa.Superior Ct. at 305, 529 A.2d at 521. Therefore, once her income has been considered, the court may, within its discretion, choose not to include that amount when calculating what funds are available for child support. Commonwealth ex rel. Travitsky v. Travitzky, 230 Pa.Super. 435, 326 A.2d 883 (1974). We cannot say the court abused its discretion in excluding appellee spouse’s income of $104.00 from what had been the Master’s calculations of appellee’s total family disposable income of $425.00.

Accordingly, the application of the Melzer formulation to appellee’s disposable income level of $321.00, appellant’s disposable income of $74.00, and to the children’s weekly needs of $198.00, as found by the Master, indicates appellee’s support obligation would be approximately $161.00 weekly which is $40.00 more than the court’s award.

We agree with appellant that the trial court failed to adequately explain its substantial deviation from the county guidelines. See 23 Pa.C.S.A. § 4322. The applicable county guidelines suggest appellee’s obligation should be approximately $173.00 weekly, $51.00 more than the court’s award. Although the county guidelines must not be mechanically applied, if the guidelines are in accord with Melzer, then the appropriate amount under the guidelines must be determined and used by the court as a framework for its decision. While the court did utilize the Melzer formula, the data it used in that formula to arrive at a figure of $121.00 was in error. (See discussion, supra). In this case, we note that the suggested guideline amount of $173.00, and the Melzer formula amount of $161.00 as calculated supra are substantially in accord. Ryan v. DeLong, supra; Riess v. DeLuca, 353 Pa.Super. 622, 510 A.2d 1239 (1986); Shutter supra. Therefore, where, as here, there is a substantial deviation of the trial court award from the county guideline as well as from the Melzer formula, a reasonable explanation for the deviation is required. The absence of such a reasonable explanation in the instant case supports our conclusion that the trial court abused its discretion in disallowing necessary and reasonable expenses of child-rearing.

Accordingly, we vacate the order of the court entered April 29, 1987 and remand for determination of support in conformance with this opinion. Jurisdiction is relinquished.

      . Appellant’s Statement of Questions Involved presents only one issue: whether the trial court committed an abuse of discretion and errors of law. However, appellant raises the aforementioned arguments in support of this one issue.

      . Appellant testified her primary babysitter was an adult neighbor; only occasionally did she resort to using the services of a neighborhood teenager. (N.T. 11/26/86 at 30-33).

      . Northampton County guidelines are based upon a formula indexed to weekly net earnings of both parents, if both work, or of one parent if the custodial parent does not work. The guideline charts are also indexed to the number of children to be supported. This method "eschew[s] establishment of specified numerical amounts” and instead sets “an idealized figure based upon the income of the parents.” Ryan, supra. This figure is to be used as a guideline only, and is not binding upon the court, hence it is presumptively valid. Ryan, supra.

        . The amount of deviation between the guideline amount and the Melzer formula figures is approximately $624.00 annually, whereas the amount of deviation between the trial court’s award and the guideline amount is $2,704.00 annually.


author: HOFFMAN, Judge: CIRILLO, President Judge, ROWLEY, Judge,

text:
    537 A.2d 355
    Kurt JEFFERIS, Appellant, v. COMMONWEALTH of Pennsylvania and West Chester University, Theta Chi Fraternity and Ralph Brown.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1987.
    Filed Feb. 9, 1988.

      Theodore P. Michaels, West Chester, for appellant.
    Richard A. Mitchell, Media, for Theta Chi Fraternity, appellee.
    Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the order of the lower court granting appellee’s, the National Chapter of Theta Chi Fraternity, motion for summary judgment. The appellant contends that the lower court erred in granting summary judgment because appellee was not entitled to judgment as a matter of law. We agree, and, accordingly, reverse the order of the lower court and remand the case for proceedings consistent with this opinion.

Appellant, a minor, was injured after consuming liquor at a party hosted by a local chapter of Theta Chi Fraternity. Appellant filed an action in tort arguing that under the social host liability recognized in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), the fraternity as one entity was negligent per se for furnishing alcoholic beverages to a minor. Appellee, the national fraternity, filed a motion for summary judgment arguing that it did not exert sufficient control over the local chapter to be held liable as a matter of law. Ruling on other grounds, the trial court granted the motion. This appeal followed.

Appellant contends that the trial court erred in granting summary judgment in favor of appellees. We agree. In determining whether to grant a motion for summary judgment, a trial court must decide whether, under the facts averred, there is any genuine issue of material fact in the absence of which the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b). See also Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 573, 79 A.2d 262, 263 (1951). Because the effect of a summary judgment is to put one party out of court, it should be granted only in the clearest of cases. Mscisz v. Russell, 338 Pa.Superior Ct. 38, 41, 487 A.2d 839, 841 (1984). On review, we must examine the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of summary judgment. Harris by Harris v. Easton Publishing Co., 335 Pa.Superior Ct. 141, 152, 483 A.2d 1377, 1383 (1984).

Here, the trial court found, without articulating its reasons, that appellee could not be held liable as a matter of law. Lower Court Order, June 19, 1986. In its opinion, filed pursuant to Pa.R.A.P. 1925(a), the trial court referred us to its June 19th order, and, in support of that order, cited as precedent the then-recently announced federal case Fassett v. Poch, 625 F.Supp. 324 (E.D.Pa.1985). In Fassett, the district court interpreted our Commonwealth’s social host liability law to preclude recovery from any defendant who did not actually and physically serve alcohol to a minor. Id. at 336. Because the trial court offered no basis for its opinion other than merely citing Fassett, we can only surmise that it granted summary judgment in favor of appellee under the reasoning used in that case. We disagree with the Fassett court’s interpretation of Pennsylvania’s social host liability law, and, accordingly, hold that the trial court erred in relying upon it as the basis for its ruling.

It is the duty of the courts of Pennsylvania to interpret the laws of the Commonwealth. Our Supreme Court first addressed the issue of social host liability in the companion cases of Congini v. Portersville Valve Co., supra and Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983). Klein concerned plaintiffs injured in an automobile accident by a drunken adult driver. In addition to suing the driver for damages, the plaintiffs also sued the social hosts who had served the driver intoxicating beverages. Our Supreme Court concluded that it would not impose liability in a social host situation when an adult had been served alcohol. Id., 504 Pa. at 148, 470 A.2d at 516.

In Congini, however, the intoxicated driver who had been served by the social host was a minor. Congini v. Portersville Valve Co., supra 504 Pa. at 160, 470 A.2d at 516. The Congini court reasoned that liability may be found in social host situations involving minors because the legislature has “[M]ade a judgment that persons under twenty-one years of age are incompetent to handle alcohol.” Id., 504 Pa. at 161, 470 A.2d at 517 (citing 18 Pa.C.S.A. § 6308). This, the Court held, distinguished the case from the adult intoxicated driver situation in Klein. The Court further noted that a person may be criminally liable as an accomplice for furnishing a minor with alcohol, id. (citing 18 Pa.C.S.A. § 306), and that civil liability may be premised upon the requirements of a legislative enactment designed to protect a similar class of interests or individuals. Id. (citing Restatement (Second) Torts § 286 (1977)). The Court concluded that as the legislature had imposed a measure of criminal accomplice liability upon a person who furnishes a minor alcohol, the same principle would be imposed in civil situations. Id. The Court then held that social hosts who furnish a minor with alcohol were potentially liable for damages resulting from that minor’s intoxication. Id., 504 Pa. at 162, 470 A.2d at 518. While recognizing the existence of such liability, however, the Court did not determine the scope of liability for social hosts. That, therefore, is our task in this case.

As the basis of social host liability in Congini was premised upon the criminal accomplice statute, we must look to that statute to begin to define the limits of civil liability. The accomplice statute, in pertinent part, reads:

A person is an accomplice of another in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such person in planning or committing it____

18 Pa.C.S.A. § 306(c). The statute, therefore, mandates that in order to impose criminal liability upon a defendant under an accomplice theory, the Commonwealth must prove that the defendant both intended to act to promote or facilitate the commission of an offense, and that he or she did in fact act to promote or facilitate the offense. See Commonwealth v. Scoggins, 451 Pa. 472, 480, 304 A.2d 102, 107 (1973); Commonwealth v. Jones, 213 Pa.Superior Ct. 504, 508, 247 A.2d 624, 626 (1968). For example, mere presence at the scene of the crime will not establish accomplice liability. Commonwealth v. Smith, 490 Pa. 374, 377, 416 A.2d 517, 518 (1980). In our situation, the prohibited act is the consumption of alcohol by a minor. Accomplice liability attaches to those actors who furnish the alcohol to the minor, or promote that end. See Congini v. Portersville Valve Co., supra 504 Pa. at 161, 470 A.2d at 517.

Our analysis of the limits of liability in a social host situation involving a minor does not, however, end with our review of the pertinent criminal accomplice statute. Because the liability here is civil in nature, in order to make an accurate transition from criminal liability we must look to similar civil concepts involving liability in tort in situations where a person acts in concert with another. Section 876 of the Restatement (Second) Torts reads:

For harm resulting from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

Id.

Both the criminal accomplice statute and the Restatement require an intent to act and an act. The Restatement, however, adds the further element that the act must have been a substantial factor in assisting in the commission of the tort. Factors relevant to determining whether the defendant’s act was a substantial factor in the commission of the tort include, but are not limited to, the nature of the act encouraged, the amount of assistance given, the defendant’s presence or absence at the time of the tort, the defendant’s relation to the tortfeasor and the foreseeability of the harm that occurred. See Restatement (Second) Torts § 876 (1977), Comment on Clause (b). A synthesis of the criminal and civil elements provides us with the following test which we conclude should be used to determine the extent of liability in a social host situation involving an intoxicated minor:

(1) the defendant must have intended to act in such a way so as to furnish, agree to furnish or promote the furnishing of alcohol to the minor, and

(2) the defendant must have acted in a way which did furnish, agree to furnish, or promote the furnishing of alcohol to the minor, and

(3) the defendant’s act must have been a substantial factor in the furnishing, agreement to furnish, or the promotion of alcohol to the minor.

In light of the test announced in this case, the question to be answered by the trial court is whether the appellee, the National Fraternity, intentionally rendered substantial assistance to the minor appellant in his consumption of alcohol. Because of the trial court’s error of law and the resulting posture of this case, we cannot determine on the pleadings whether there is a genuine issue of fact the absence of which would entitle either party to summary judgment. Sun Ray Drug Co. v. Lawler, supra. We therefore reverse the order of the trial court granting summary judgment in favor of appellee and remand the case for proceedings consistent with this opinion.

Reversed and remanded. Jurisdiction is not retained.

CIRILLO, President Judge, files a concurring opinion.

ROWLEY, J., files a concurring and dissenting opinion.

CIRILLO, President Judge,

concurring:

This court is obliged to follow the ruling of our supreme court in Congini v. Portsville Valve Company, 504 Pa. 157, 470 A.2d 515 (1983), and it is for this reason that I join in Judge Hoffman’s opinion. I write separately to express my disagreement with our supreme court’s creation of a common law cause of action for vicarious social host liability, and join in the observation of our high court in Manning v. Andy, 454 Pa. 237, 239, 310 A.2d 75, 76 (1973): “[A] decision of this monumental nature is best left to the legislature.” In my opinion, the judiciary is least equipped to resolve the competing considerations implicated by such a cause of action.

ROWLEY, Judge,

concurring and dissenting:

I concur in the majority’s decision to vacate the trial court’s order granting summary judgment in favor of appellee. However, I do not agree with the standard adopted by the majority for determining the vicarious liability of a corporation or organization for providing alcohol to a minor.

The majority asserts that the basis for the social host liability to a minor announced in Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), is the criminal accomplice statute, 18 Pa.C.S. § 306. However, my reading of Congini convinces me that the accomplice provision of the Crimes Code was not the basis of the civil liability discussed in that case.

In Congini, the Supreme Court stated:

Under Section 6308 of the Crimes Code 18 Pa.C.S. § 6308, a person “less than 21 years of age” commits a summary offense if he “attempts to purchase, purchases, consumes, possesses or transports any alcohol, liquor or malt or brewed beverages.” Furthermore under Section 306 of the Crimes Code, 18 Pa.C.S. § 306, an adult who furnishes liquor to a minor would be liable as an accomplice to the same extent as the offending minor.

Id., 504 Pa. at 161, 470 A.2d at 517. While clearly the Court mentioned § 306 accomplice liability, the paragraph in which the Court set forth its holding manifests the basis of the holding as being only § 6308. The Court stated:

Section 6308 of the Crimes Code represents an obvious legislative decision to protect both minors and the public at large from the perceived deleterious effects of serving alcohol to persons under twenty-one years of age. Thus, we find that defendants were negligent per se in serving alcohol to the point of intoxication to a person less than twenty-one years of age, and that they can be held liable for injuries proximately resulting from the minor’s intoxication.

Id., 504 Pa. at 162-163, 470 A.2d at 518. This language indicates that the support for a per se finding of negligence when alcohol is made available to a minor is the legislative intent to protect minors and the public, rather than the legislative intent to make an adult liable as an accomplice. For this reason, I do not join in the majority’s conclusion that the limits of civil liability for serving alcohol to minors should be analyzed in light of criminal and civil accomplice principles.

The basis for the per se liability established in Congini extends even to liquor licensees. In Matthews v. Konieczny, 515 Pa. 106, 527 A.2d 508 (1987), the Supreme Court stated that an adult who dispenses alcohol to a minor is per se negligent because the Crimes Code prohibits minors purchasing or consuming alcohol. The fact that the person making the alcohol available to the minor is a licensee is of little consequence. Matthews, Id., 515 Pa. at 112, 527 A.2d at 511. (“Since the code’s provisions apply with equal force to licensees as well as non-licensees, the rationale of Congini is equally applicable here.”) Therefore in order to analyze who may be liable for providing alcohol to a minor, we need not limit ourselves to those cases involving non-licensees.

In the instant case, the issue is to what extent someone other than the actual server or provider of alcohol may be vicariously liable for the per se negligence of the one immediately responsible for making the alcohol available to the minor. Although this issue was not explicitly before the Court in either Congini or Matthews, in Congini the Court determined that it was error to grant the corporate employer’s preliminary objections in the nature of a demurrer because the corporate employer was potentially liable when a minor was served alcohol at a party the employer was hosting. Similarly, in Matthews, the Court held that summary judgment in favor of the corporate liquor licensee must be vacated because the corporate liquor licensee was potentially liable. In both cases, the Supreme Court remanded the case to the trial court, and yet in neither case did the Supreme Court direct the trial court upon remand to determine whether the corporations “intentionally rendered substantial assistance to the minor appellant in his consumption of alcohol,” even though technically it was not the corporations which immediately provided the alcohol to the minors but an individual working on behalf of the corporations.

In Pennsylvania, one is ordinarily not liable for the negligent acts of another unless there is a relationship of master and servant or principal and agent. Fuller v. Palazzolo, 329 Pa. 93, 197 A. 225 (1938). However, a principal will be liable to third parties for the “frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances or misfeasances of his agent committed in the course of his employment, although the principal did not authorize, justify or participate in, or indeed know of, such misconduct, or even if he forbade the acts or disapproved of them.” Aiello v. Ed Saxe Real Estate, Inc., 508 Pa. 553, 562, 499 A.2d 282, 287 (1985). In Congini and Matthews, the corporate employer and licensee, respectively, undeniably had a relationship of master and servant with the person who actually provided the minors with alcohol in each case.

Therefore, in my opinion, the test which should be applied to determine if a person or entity, other than the actual server or provider of alcohol to a minor, may be liable for serving the minor, is whether or not the person or entity is in a master/servant or principal/agent relationship with the actual server. Upon remand, I would direct the trial court to reconsider appellee’s motions for summary judgment in light of whether or not appellee was in the position of principal, master or employer with the individual who actually served appellant alcohol.

Additionally, I think it is essential to note that whether appellee, Grand Chapter Theta Chi Fraternity, may be entitled to judgment as a matter of law on another issue raised by it, but not decided by the trial court, is not before us. The trial court has addressed the merits of no other argument advanced by the appellee as a basis for summary judgment in its favor, e.g., whether or not it is the party named as a defendant, and therefore whether or not it is even a party to the case. Therefore, I express no opinion, and I do not understand the majority to do so, as to the propriety or impropriety of granting summary judgment on any other basis. As I understand the majority Opinion, upon remand, the trial court shall reconsider appellee’s motion for summary judgment on the basis that it cannot be vicariously liable for the acts of the local Theta Chi Fraternity. If the trial court determines that summary judgment should not be granted on this basis, then it should consider the other grounds for summary judgment asserted in appellee’s original motion for summary judgment.

       This case was reassigned to this writer on January 26, 1988.

      . Appellant lists six issues of alleged error. We express no opinion on any issue other than the one decided upon by the lower court.

      . Because the trial court held that no party could be held liable who did not actually and physically provide the minor with alcohol the court did not reach the national fraternity’s argument that it did not exert sufficient control over the local fraternity to be held liable for its actions. We note that this question of agency may have to be reached at some point in this case.

      . For this reason, we would prefer that a trial court state the rationale in support of its holding rather than simply citing precedent.

      . The reasoning employed in Fassett is incorrect on its face in that the case recognizing social host liability in Pennsylvania involved a corporate defendant. See Congini v. Portersville Valve Co., supra. We additionally note that the Court of Appeals for the Third Circuit agreed with out assessment of the Fassett reasoning by reversing the District Court. See Fassett v. Poch, 807 F.2d 1150 (1986). We agree with Judge Garth’s opinion in that case, and employ much of his reasoning here.

      . We note that our Supreme Court has recently reaffirmed the principle that social hosts who furnish a minor with alcohol are potentially liable for damages resulting from the minor’s intoxication in the companion cases Orner v. Mallick, 515 Pa. 132, 527 A.2d 521 (1987) and Matthews v. Konieczny, 515 Pa. 106, 527 A.2d 508 (1987). Neither case, however, directly affects our holding here.

      . We note that the trial court may wish to consider any further evidence relevant to the test announced in this case proffered by the parties.

      . Although Alumni Association v. Van Kingsley Sullivan, 369 Pa.Super. 596, 535 A.2d 1095 (1987) involved vicarious social host liability for service of alcohol to minors, that case is distinguishable from the present case. In Alumni Association, the issue before the court was whether or not the complaint stated a cause of action, and thus should the preliminary objections to the complaint be sustained. The present case, however, does not involve preliminary objections and a determination of whether or not a complaint in fact is sufficient to state a cause of action, but whether a summary judgment can be entered on the basis that as a matter of law there can be no vicarious social host liability for service of alcohol to minors. These two issues are separate and distinct, and therefore I do not find Alumni Association to be relevant to the inquiry here.