author: CERCONE, President Judge:

text:
    470 A.2d 553
    Florence A. Todd KNAUER, a/k/a Florence A. Todd, Appellee v. Lewis E. KNAUER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued May 2, 1983.
    Filed Dec. 16, 1983.
    Petition for Allowance of Appeal Denied April 6, 1984.

      Edward J. Carney, Jr., Media, for appellant.
    Rodger L. Mutzel, Media, for appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   CERCONE, President Judge:

Defendant-appellant, Lewis E. Knauer, Jr., takes this appeal from the jury verdict and accompanying order and judgment of the court, awarding plaintiff-appellee, Florence A. Todd a/k/a Florence A. Todd Knauer, the sum of $30,-000.00 in her action in assumpsit. Appellant raises numerous issues in his appeal. Finding these issues to have no merit, we affirm.

Appellee and appellant first met in 1969 when appellant, a building contractor, was hired to build a home for appellee and her first husband, Robert Todd. At that time, appellee was living with her husband and two teenaged children in Swarthmore, Delaware County, Pennsylvania, while appellant and his first wife, Pearl, and their four children lived in Upper Chichester, also in Delaware County, Pennsylvania. Gradually, the parties fell in love and in the summer of 1971 both parties separated from their respective spouses. A year passed, and in the summer of 1972 appellant began work on the construction of an apartment building in Dover, Delaware. Then, in August of 1972, appellant, tired of commuting from Pennsylvania to Delaware, decided to take up residence in Delaware. According to the testimony of appellee, it was at this time that appellant said to appellee:

[Y]ou come with me. I will take care of you the rest of your life. We will share everything together. And at the end of one year, if we are still compatible, we would plan to marry.

Appellant denies ever making such a statement. Appellant contends that appellee announced that she was moving in to live with appellant in Delaware which she did on October 15, 1972. Once in Delaware, appellee began working as a waitress. At trial appellant testified the parties didn’t discuss expenses before they moved, and he further stated:

I assumed when Florence [appellee] went down there, she would at least be able to carry her own. I assumed that I wasn’t taking on a liability or a dependent. I assumed we were going down there and just coexist.

In any event, appellee did not make very much money as a waitress, so the parties then decided she should quit her job, which she did, and she then went to work for appellant’s corporation, known as Lekco, Inc., a Pennsylvania corporation. Appellee was employed in a supervisory capacity with Lekco and her duties were to oversee the various subcontractors at a new construction project begun by appellant on Governor’s Avenue in Dover, Delaware. According to appellee’s testimony, before appellant began the new project, he brought appellee to see the property and told her that he would like to build two duplexes on the two lots. He asked appellee to quit her waitress job and oversee the construction of the duplexes. In exchange, appellant promised to pay appellee a salary of $200.00 per week, gross pay, ($150.00 net pay) plus he would give her a share of the profits from the sale of the units. Appellee agreed. According to appellee, in addition to going to the construction site and overseeing the work of the subcontractors, appellee also assumed the office of secretary of the corporation and was responsible for keeping the books and records. However, while appellant admitted at trial that appellee worked for Lekco, Inc., he denied either that he promised appellee a share in the profits or that appellee became an officer in the corporation. All this time appellant and appellee lived together. Thereafter, each of the four units was sold at a price of $21,900.00. Another tract of land was purchased and the corporation began construction of five more duplexes (10 more units). During this time, appellee’s work for Lekco continued. Also, while the parties were living together, appellee did all of the shopping, cooking, cleaning, and household duties.

Then, in spring of 1974, appellant announced that he was going back to his wife, Pearl. However, before he left, he wrote the following will:

To Whom It May Concern: In the event of accidental and/or natural death of Lewis E. Knauer, Jr., president of Lekco, Inc., a Pennsylvania corporation, the then existing assets and liabilities and land, improvements, equipment and stock of the company, Lekco, Incorporation, shall be immediately transferred to Miss Florence A. Todd, a single woman, who shall then be the sole owner of Lekco, Incorporated, and who shall continue or terminate its existence as she may decide is in her best interest.
This has been written with a free mind and without reservation and shall remain in effect until such time as I personally revise or terminate its existence. Such revisions or terminations shall be recorded in the company minutes. *

After an absence of three weeks, appellant returned to appellee. Appellee testified that when appellant returned he made these declarations:

When he [appellant] came back he told me that he did what he thought he had to do. But there was no way that he could go back to Pennsylvania, that he loved me very much. And he had to come back to me. And this is where he wanted to be, to share life with me and to share everything we had together. And now it was time for us to get a home.

Whereupon, the parties began living together and went looking for a lot upon which to build a house.

But despite their apparently amicable personal relationship, the parties thereafter had disagreements at work, and in August of 1974 appellee was laid-off from Lekco, Inc., although she continued to be called upon on occasions to work on the books. Notwithstanding this turn of events, the parties continued their search for a house and in the winter of 1974 they purchased a site in Cecil County, Maryland. Both appellant and appellee signed the agreement of sale, however, afterwards appellant asked appellee to sign a separate agreement transferring her interests in the property to appellant. When appellee asked for an explanation, appellant said “because of tax reasons and business purposes.” Appellee agreed, and both parties signed the following document:

THIS AGREEMENT made this 27th day of December, 1974, by and between LEWIS E. KNAUER, JR., Party of the First Part, and FLORENCE A. TODD, Party of the Second Part.
IN CONSIDERATION of the party of the second part assigning her interest in the Lot which the parties agreed to purchase from Harlan S. Young to the party of the first part. The parties agree that should either party die before the property is titled in joint names, that the survivor’s interest shall be the net equity in the property as of the date of death.
It is the intent of the parties hereto that the party of the first part upon the preparation of a partnership agreement or similar arrangement will transfer this property unto both parties names hereto. This property will be subject to a Note and Mortgage with the Bank of Delaware and eventually to a regular mortgage with a standard amortization.

Appellee testified that she invested no money into this property and did not sign a mortgage nor made any mortgage payments. Eventually, a house was constructed on the property, at a cost of $146,058.00. When it was sold, the house only brought $130,000.00.

Then in August of 1978, appellant decided to buy two undeveloped lots on Amosland Avenue in Prospect Park, Pennsylvania. Appellee lent appellant $9,200.00 towards the purchase price. When appellant said that he would repay appellee, appellee replied, “I don’t need your money to pay me back with interest. This is my part of sharing with you.” Appellant answered, “Okay, fine. We will share this as we have done other things.”

On March 2, 1979, appellant terminated the relationship with appellee and left the parties’ home in Maryland. Appellant then married another woman, and brought his new wife with him when he returned to the Maryland house in April of 1979. Appellee was still in the house at the time, but she vacated the premises in May of 1979.

I.

The first issue which appellant raises is a choice of law question. Appellant asserts that the lower court erred when it applied the law of Pennsylvania, rather than the law of Maryland, to the instant case. The rule to be applied to choice-of-law issues is set forth by our Supreme Court in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). In an exhaustive discussion on the subject, the Griffith Court rejected a former rigid rule in favor of the greater flexibility in the choice of law rule as advocated by the American Law Institute’s Restatement of Conflict of Law, Second. Although the Griffith case discussed conflicts of law specifically in the context of torts, in a subsequent case before our Court Gillan v. Gillan, 236 Pa.Superior Ct. 147, 345 A.2d 742 (1975), we applied Griffith to a case in assumpsit.

In Gillan, we quoted from section 188(1) of the Restatement of Conflict of Laws, Second, which reads:

The rights and duties of the parties with respect to an issue in contract are determined by the local law of’ the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6.

Section 6, referred to in this passage, provides generally:

Choice-of-Law Principles
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Section 188(2) of the same Restatement sets forth the contacts considered significant in resolving a choice of law issue in a case in assumpsit. This section reads:

In the absence of an effective choice of law by the parties (see § 187), the contacts to be taken into account in applying the principals of § 6 to determine the law applicable to an issue include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicil, residence, nationality, place of incorporation and place of business of the parties.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Applying the Restatement test to the instant case, we find no error in the lower court’s ruling that Pennsylvania law applies. Appellant first promised appellee that they would “share everything” in 1972 while the parties still were residing in Pennsylvania. Additionally, appellee worked for two years for appellant’s corporation, Lekco, Inc., a Pennsylvania corporation, and an important part of the case at bar pertains to appellee’s claim for a share in the profits of Lekco, Inc. Furthermore, appellee is also suing to recover the outstanding balance on a $9,200.00 loan which she made to appellant towards the purchase of a tract of land in Prospect Park, Pennsylvania. These facts, weigh in favor of application of Pennsylvania law despite the fact that the parties lived for a time in the State of Maryland. Consequently, we find that Pennsylvania has the most significant relationships to the transaction which occurred between appellant and appellee, and we affirm the lower court’s ruling on this point.

II.

A.

Appellant next argues that the contract sued upon is based upon a meretricious relationship and thus is a void contract and against the public policy of Pennsylvania. Appellant asserts that the only consideration for appellant’s promise to “share everything” was a promise of sexual services by appellee. We disagree with this careless description of the parties’ relationship.

While it is generally held that a contract founded solely on the procurement of sexual services is unenforceable as contrary to public policy, nevertheless, it is also the rule that mere cohabitation between negotiating parties does not render them incompetent to form binding contracts regarding other transactions. Baldassari v. Baldassari, 278 Pa. Superior Ct. 312, 420 A.2d 556 (1980). The case of Baldassari v. Baldassari, supra, dealt with a comparable agreement. Suit in Baldassari was initiated in trespass for fraud and deceit and in assumpsit for breach of a written agreement. The parties lived together for approximately fourteen years, from 1960 to 1974. Throughout the parties’ entire relationship, the defendant was married to another woman, a fact known by plaintiff from the beginning. Four children were born of the relationship, and plaintiff assumed the roles traditionally assumed by wife and mother, staying at home to rear the children and maintain the home, and also entertaining defendant’s business associates. But despite their prolonged cohabitation, the parties’ relationship was punctuated by frequent disputes and periods of separation. It was during one of these periods of separation that the parties entered into a written agreement, wherein for a recited consideration of $1.00 and a pledge by plaintiff to provide a home environment for the four children, defendant agreed to lease to plaintiff for a period of forty years a home that was in the process of being constructed on land allegedly owned by defendant. It was further agreed that should defendant sell the home during the term of the lease, forty percent of the proceeds would be distributed to plaintiff and sixty percent to the children. Defendant also agreed to write a will devising the home to plaintiff and the children in the same proportions. The agreement was signed and plaintiff moved back into the parties’ apartment and took care of the children. However, relations between the parties did not improve and approximately four months later plaintiff again vacated the apartment. Only then did plaintiff discover that defendant did not own the lot upon which the home was being constructed. Whereupon plaintiff sued and, following a jury trial, a verdict was returned for breach of contract, and defendant appealed. In our opinion affirming the enforcement of the contract, we “decline[d] [defendant’s] offer to espouse the moral, ethical and legal considerations arising from the type of relationship to which the parties voluntarily committed themselves.” 278 Pa.Superior Ct. at 318, 420 A.2d 556. We concluded that such analysis was unnecessary, saying:

The evidence presented in the instant case establishes that the relationship between [plaintiff and defendant] did not form the basis for the agreement on November 1, 1973. That agreement made no mention of a continuing relationship between [plaintiff and defendant], nor even of an obligation for the parties to resume cohabitation.
Thus, we find the evidence sufficient to support the conclusion that the purpose of the agreement was to provide a home and family environment for the children and that the agreement was not based upon consideration that was immoral, illicit, meretricious or otherwise contrary to public policy.

Id., 278 Pa.Superior Ct. at 318-319, 420 A.2d 556.

In Mullen v. Suchko, 279 Pa.Superior Ct. 499, 421 A.2d 310 (1980), the plaintiff brought suit in assumpsit and trespass, alleging that defendant had breached an agreement to “take care of her for the rest of her life” if plaintiff would quit her job of thirty-three years and travel with defendant. Plaintiff alleged that she relied on defendant’s promise and quit her job. Defendant, although he was a married man, then moved in with plaintiff and began paying many of plaintiff’s expenses as well as giving her $500.00 per month. Three months later, defendant left plaintiff’s home permanently and stopped assisting her financially. Whereupon, plaintiff filed suit in assumpsit, claiming damages in the form of lost wages, lost employee benefits and indebtedness to her family for support; plaintiff also sued in trespass, alleging damages for severe emotional distress. The trial court dismissed plaintiff’s assumpsit count on the grounds that it was contrary to the public policy against contracts in consideration of sexual intercourse and against contracts facilitating divorce. As regarding the trespass count,, the court ruled that defendant’s actions could not be deemed “outrageous.” Plaintiff appealed.

On appeal, we reversed the lower court’s disposition of the assumpsit court, rejecting both of the reasons advanced by the trial court for not permitting the case to go to trial. Basically, we held that, considering the averments in the complaint, the sparseness of the record, and the presumption in favor of overruling demurrers, thé trial court had an insufficient basis upon which to conclude either that the alleged agreement was entered into by defendant in exchange for meretricious sexual services and nothing else, or that the agreement was entered into for the purpose of collusively obtaining a divorce where no ground existed. However, on the trespass count, we were in agreement with the trial court’s ruling that no cause of action was stated. We noted that while defendant’s actions were inconsiderate and unkind, they were not of the extreme and outrageous sort.

Additionally, there are a number of cases in equity which hold that where a man and a woman, not married to each other but cohabiting, take an interest in land proported in the deed to be held by them “by the entireties,” the parties’ will not be found to hold by the entireties since only a married couple can take such title. Instead, depending on the facts of the case, the parties will be found to hold either as joint tenants with a right of survivorship or as tenants in common. Masgai v. Masgai, 460 Pa. 453, 333 A.2d 861 (1975); Bove v. Bove, 394 Pa. 627, 149 A.2d 67 (1959); Teacher v. Kijurina, 365 Pa. 480, 76 A.2d 197 (1950); Maxwell v. Saylor, 359 Pa. 94, 58 A.2d 355 (1948). In other cases, where one party in such a relationship pays the purchase price for the property, but title is held by the other party, a purchase money resulting trust may be raised. Hughes v. Bailey, 202 Pa.Superior Ct. 263, 195 A.2d 281 (1963). Alternatively, in some cases, although the purchase money was paid by one party and title is held by the other, the court may decline to impress a resulting trust where the evidence indicates that a gift was intended Wosche v. Kraning, 353 Pa. 481, 46 A.2d 220 (1946). Other jurisdictions have ruled on similar cases and we now shall examine those decisions.

B.

The most celebrated case in this area of the law is, of course, Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976). The Marvin case was, however, antedated by comparable decisions in Oregon, Michigan and Massachusetts.

The Oregon decision, Latham v. Latham, 274 Or. 421, 547 P.2d 144 (1976), was a suit on an express, oral contract. The plaintiff alleged that the parties were not married but had been living together as husband and wife for nineteen years. Plaintiff further alleged that she “rendered services to the defendant, at defendant’s special instance and request, by living with defendant, caring for and keeping after him, and furnishing and providing him all the amenities of married life.” In consideration, defendant was said to have agreed to pay plaintiff one-half of all the property, both real and personal, accumulated by the parties during the cohabitation. In ruling in favor of plaintiff, the Latham Court held that the contract at issue was not void as against public policy. To reach this conclusion, the Court considered the fact that the legislature had removed all criminal sanctions from private, consensual, sexual activity between competent adults. The Court noted that while it was not condoning the parties “conduct”, the Court nevertheless felt that to permit the defendant to keep all of the assets accumulated during the parties’ nineteen years together would be unduly harsh. Citing Tyranski v. Piggins, 44 Mich.App. 570, 205 N.W.2d 595 (1973), the Court then concluded:

For these reasons we hold that such an agreement is not void. We are not validating an agreement in which the only or primary consideration is sexual intercourse. The agreement here contemplated all the burdens and amenities of married life.

The referenced case of Tyranski v. Piggins, supra, was a case commenced by the plaintiff against the administrator of the estate of Alfred P. Lattavo, a man with whom plaintiff had lived for six years. Despite the fact that both plaintiff and Lattavo, were already married to other people throughout the time they lived together, the Court nonetheless allowed plaintiff to recover on an express, oral agreement between plaintiff and Lattavo. The court wrote:

Neither party to a meretricious relationship acquires, by reason of cohabitation alone, rights in the property accumulations of the other during the period of the relationship. But where there is an express agreement to accumulate or transfer property following a relationship of some permanence and an additional consideration in the form of either money or of services, the courts tend to find an independent consideration. Id at 573, 205 N.W.2d 595.

In this case, the Court found that the consideration given by plaintiff was that she “cleaned the house, did the marketing, cooked the food, did Mr. Lattavo’s personal laundry, and acted as his hostess. She cared for him when he was sick, especially during the last year and a half of his life when his condition required greater attention and care.” Id at 574, 205 N.W.2d 595.

Both Latham and Tyranski were suits based on an express, oral contract. The case in Green v. Richmond, 369 Mass. 47, 337 N.E.2d 691 (1975) is an example of a preMarvin decision allowing recovery under the equitable remedy of quantum meruit. In Green, the plaintiff, a woman, sued the estate of Maxwell Evans Richmond in quantum meruit seeking recovery for services rendered by her in reliance on Richmond’s oral promise to leave a will bequeathing his entire estate to her. Plaintiff and Richmond at one time were engaged, the engagement lasting approximately one year, but Richmond asked to be released from the engagement, saying that he had a “mental hangup” about marriage. Richmond, however, did not want to terminate the relationship completely and, according to plaintiffs testimony Richmond said to her:

He said he couldn’t lose me, either, and then he said, T have been thinking about something, and I want you to listen to me.’ He said: T have been looking for you all my life. You’re the perfect woman for me.’ He said: ‘If you will agree to stay with me without marriage, you will be happy. I will see that your life will be happy. There’s only one thing you won’t have. You won’t have the emotional security a woman has when she knows she is married, but I will make it up to you. I am going to make my will out right away. Everything I have when I die will be yours. I owe nothing to anyone else.

The terms of this agreement were corroborated by evidence of statements made by Richmond to other individuals acknowledging the agreement. Pursuant to the agreement, plaintiff performed services of a social, domestic, and business nature during the eight year period prior to Richmond’s death. Other evidence showed that plaintiff and Richmond never lived together, although they did have sexual relations. After a jury trial, verdict was for plaintiff in the amount of $1,350,000.00. (Richmond left an estate valued at $7,323,000.00). On appeal, Court noted that while an oral promise to make a will is not binding under Massachusetts law, plaintiff can recover the fair market value of her services if the oral agreement is found to be legal and not contrary to public policy. The Court ruled that because the terms of the contract were disputed, the question of illegality was correctly given to the jury to determine. The court then reviewed the evidence and held that based on the evidence, the jury was warranted in finding that the illicit relations were no part of the contract, and were no more than an incidental part of plaintiff’s performance.

Nevertheless, although the Latham, Tyranski and Green cases preceded the Marvin decision’s ruling that agreements between non-married persons to share property can be enforced in court, even where the primary consideration of one party consists of household services, it was the Marvin case which first detailed at length the various remedies which could be applied to such cases.

In Marvin, plaintiff and defendant had lived together for seven years; for the first three of these years, defendant was still married to his first wife, but he did eventually obtain a divorce. Plaintiffs complaint alleged that she had agreed to “give up her lucrative career as an entertainer [and] singer” in order to “devote her full time to defendant ... as a companion, homemaker, housekeeper, and cook.” In return, defendant agreed to “provide for all of plaintiffs financial support and needs for the rest of her life.” It was further alleged that during the relevant time period, as a result of the parties’ joint efforts, defendant acquired in his name $1 million in real and person property. The trial court granted defendant judgment on the pleadings; on appeal, the California Supreme Court reversed, holding that the facts alleged by plaintiff were sufficient to state a cause of action based on an express contract. In so holding, the Court recognized that personal services are sufficient consideration for such a contract and that this aspect of the consideration was severable from any other part of the consideration which might be based on sexual services.

Of even more interest in Marvin is the Court’s discussion of the theories of implied contract or equitable relief. The Marvin Court noted that while the courts in California have enforced express contracts between nonmarital partners, the courts have refused to enforce implied contracts arising in the same situation, and instead have “left the parties as they found them”. The Court further noted that in some cases, the courts have permitted a partner to recover a proportionate share in the acquisition, despite the “lack of legal standing of the relationship”, Id. 18 Cal.3d at 679, 134 Cal.Rptr. at 828, 557 P.2d at 119, yet the courts have refused to recognize the same type of interest based upon the contribution of services. The Marvin court disapproved of both of these disparities. The Court wrote:

The principal reason why the [prior California] decisions result in an unfair distribution of property inheres in the court’s refusal to permit a nonmarital partner to assert rights based upon accepted principles of implied contract or equity. We have examined the reasons advanced to justify this denial of relief, and find that none have merit.
Concepts of “guilt” thus cannot justify an unequal division of property between two equally “guilty” person.
There is no more reason to presume that services are contributed as a gift than to presume that funds are contributed as a gift; in any event the better approach is to presume, a Justice Peters suggested, “that the parties intend to deal fairly with each other.”
Id. at 682, 134 Cal.Rptr. at 830, 577 P.2d at 121.
(footnote omitted) (citation omitted)

The Marvin court concluded by ruling that in addition to express and implied contracts, or implied agreements of partnership or joint venture, other traditional equitable remedies should be considered, such as constructive trust, resulting trust or in quantum meruit for the reasonable value of household services rendered less the reasonable value of support received, where it is shown that services were rendered with the expectation of monetary reward.

In the seven years since the Marvin decision, many other jurisdictions have been faced with similar disputes. Most courts have ruled that express, oral agreements, if proved, will be enforced by the courts. Poe v. Estate of Levy, Fla.App., 411 So.2d 253 (1982); Glasgo v. Glasgo, 78 Ind. Dec. 477, 410 N.E.2d 1325 (1980); Donovan v. Scuderi, 51 Md.App. 217, 443 A.2d 121 (1982); Carnes v. Sheldon, 109 Mich.App. 204, 311 N.W.2d 747 (1981); Carlson v. Olson, Minn., 256 N.W.2d 249 (1977); Kinkenon v. Hue, 207 Neb. 698, 301 N.W.2d 77 (1981); Kozlowski v. Kozlowski, 80 N.J. 378, 403 A.2d 902 (1979); Dominguez v. Cruz, 95 N.M. 1, 617 P.2d 1322 (1980); Morone v. Morone, 50 N.Y.2d 481, 429 N.Y.S.2d 592, 413 N.E.2d 1154 (1980); Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978). See also, Matter of Estate of Steffes, 95 Wis.2d 490, 290 N.W.2d 697 (1980) (Court rules that evidence supports a finding of contract implied in fact or implied in law and court also voices approval of express contracts under the same circumstances.) It is the general view that an agreement to accumulate or transfer property and the legally viable consideration, such as household or personal services, upon which the agreement is based can be enforced to the extent that the contract is independent of any agreement to pay for sexual services.

Of the courts cited above, however, some have ruled that, while they will enforce an express contract, an implied contract will not be enforced by their courts. Carnes v. Sheldon, supra (Implied in fact contracts will not be found to allow recovery for “household” services but may be found for “services of a commercial nature.”); Morone v. Morone, supra. The rationale given by these courts for this distinction was the belief that to recognize an implied contract between non-married persons living together would effectively revive the concept of common law marriage, abolished in those states by the legislature. Thus, these courts felt that the public policy against common law marriage would be violated by an implied contract. But this rationale appears to raise as many issues as it answers, for in one of these two cases the parties would in any event have been incapable of contracting a common law marriage because they were not yet divorced from their estranged spouses when they began living with, and allegedly contracting with, the other party to the action then before the courts. See Carnes v. Sheldon, supra. By contrast, other courts have not been troubled by this distinction and have found implied contracts neither to be against public policy nor a revival of common law marriage, also abolished by the legislatures of their respective states. Glasgo v. Glasgo, supra; Beal v. Beal, supra; Matter of Estate of Steffes, supra.

There are only two jurisdictions which we have found that completely refuse recovery of any sort on public policy grounds. The first of these is Rehak v. Mathis, 239 Ga. 541, 238 S.E.2d 81 (1977), where, despite the fact that the plaintiff had contributed more than one-half of the purchase price for the house which the parties’ lived in for over eighteen years, the court affirmed a summary judgment in favor of the defendant on the grounds that the contract was founded on illegal or immoral consideration. Contra Brooks v. Kunz, Mo.App. 597 S.W.2d 183 (1980), wherein the court, under comparable facts, ordered partition of property proportionate to the contributions of the parties. See also Pennsylvania cases cited at 560, infra.

The other jurisdiction denying recovery is Illinois. In Hewitt v. Hewitt, 77 Ill.2d 49, 31 Ill.Dec. 827, 394 N.E.2d 1204 (1979), the court expressed concern over the impact of cohabitation by non-married persons on society and the institution of marriage. The court posited the query whether recognizing legal rights between parties to “what have heretofore been commonly referred to as ‘illicit’ or ‘meritricious’ relationships encourage[s] formation of such relationships and weaken[s] marriage as the foundation of our family-based society.” Id. at 58, 31 Ill.Dec. 827, 394 N.E.2d 1204. Thus, the court wrote, “The issue, realistically, is whether it is appropriate for this court to grant a legal status to a private arrangement substituting for the institution of marriage sanctioned by the State.” Id. at 61, 31 Ill.Dec. 827, 394 N.E.2d 1204. While the court implied that it found such relationships to be immoral, the court’s ruling was that such suits would not be permitted because to rule otherwise would in effect reinstate common law marriage, abolished by the legislature, and thus would contravene public policy.

The Hewitt decision has been rejected as harsh, Glasgo v. Glasgo, supra, and in view of the facts in Hewitt we agree with this characterization.- In Hewitt, the parties cohabited for more than fifteen years and raised three children. When plaintiff first became pregnant, defendant told her that no formal ceremony was necessary because they were already husband and wife. In reliance on defendant’s promise to “share his life, his future, his earnings, and his property” with her, plaintiff worked to put defendant through school and even obtained financial assistance from her parents for this purpose. At the time suit was filed defendant was earning $80,000.00 per year and had accumulated large amounts of property, which he owned either jointly with plaintiff or separately.

In criticising the Hewitt decision, the Glasgo court wrote:

Unlike the Illinois court, however, we are not convinced that the impact of the recognition of relationships such as the Hewitts’ or the Glasgos’ upon our society and the institution of marriage to be of greater importance than the rights of the immediate parties. The strength and endurance of the Anglo-American judicial system has been in just this characteristic, viz., its flexibility as a court of equity to afford and shape individualized relief in the interest of justice when a court of law could not. Therefore, whether or not the common law marriage concept would have been applicable in this case absent its legislated demise has little relevance. As pointed out by the Minnesota Supreme Court, legislative abolition of the common law marriage doctrine has obviously not eliminated the institution, but only the rules which apply to it. Carlson v. Olson, supra, ..... In the absence of this doctrine courts have applied other traditional common law and equitable principles.
410 N.E.2d at 1330. (citations omitted), (emphasis added).

We agree with the Glasgo court.

Returning now to appellant’s contention that the agreement at issue violates Pennsylvania public policy, we rule that it does not. We are in accord with the majority Of courts from other jurisdictions in that we hold that agreements between nonmarried cohabitors fail only to the extent that they involve payment for sexual services. An individual cannot sue for such payment nor can one sue to enforce an agreement to provide sexual services. But on the other matters, the parties can contract and bring suit for breach. Furthermore, we do not view this as a way of effectively creating a common law marriage where there is none. While the damages awarded under an implied contract between cohabitors may to some extent parallel a property settlement following a divorce, the two are not the same. Parties to a common law marriage are legally married in Pennsylvania and can, by virtue of their status as spouses, make claims to property even absent an agreement. Cohabitors, on the other hand, acquire no automatic claims to property from cohabitation.

Additionally, we find no public policy in Pennsylvania against entertaining suits between non-married cohabitors in property disputes. While, admittedly, suit on an express contract between such parties is a recent development, the premise of this cause of action is consistent with our earlier cases which permitted non-married cohabitors to sue in equity for a partition of property.

III.

Appellant next contends that any oral agreements between the parties concerning profits from the sale of real estate fall within the Statute of Frauds and are not enforceable. Appellant’s position is without support in the law.

The Statute of Frauds provides:

From and after April 10, 1772, all leases, estates, interests of freehold or term of years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents, thereunto lawfully authorized by writing, shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage to the contratry notwithstanding; except, nevertheless, all leases not exceeding the term of three years from the making thereof; and moreover, that no leases, estates or interests, either of freehold or terms of years, or any uncertain interest, of, in, to or out of any messuages, manors, lands, tenements or hereditaments, shall, at any time after the said April 10, 1772, be assigned, granted or surrended, unless it be by deed or note, in writing, signed by the party so assigning, granting or surrendering the same, or their agents, thereto lawfully authorized by writing, or by act and operation of law.

It’s well settled that the purpose of the Statute of Frauds is to prevent assertion of verbal understandings in the creation of interests or estates in land and to obviate the opportunity for fraud and perjury regarding said estates. Simplex Precast Industries, Inc. v. Biehl, 395 Pa. 105, 149 A.2d 121 (1959); Haines v. Minnock Construction Co., 289 Pa.Superior Ct. 209, 433 A.2d 30 (1981).

At issue in the instant case, however, is not title to real estate but is an agreement to share in the accumulated wealth accrued during the pendency of the parties’ cohabitation. While part of this accumulated wealth consists of profits from the sale of real estate, the court’s division of these profits does not violate the Statute of Frauds. Oral agreements to share in profits from the sale of real estate can be enforced after the realty has been sold. Smith v. Brown, 294 Pa. 213, 143 A. 913 (1928); Davis v. Hillman, 288 Pa. 16, 135 A. 254 (1926); Edgcomb v. Clough, 275 Pa. 90, 118 A. 610 (1922); McBride v. Western Pennsylvania Paper Co., 263 Pa. 345, 106 A. 720 (1919); Howell v. Kelly, 149 Pa. 473, 24 A. 224 (1892); Everhart’s Appeal, 106 Pa. 349 (1884); Benjamin v. Zell, 100 Pa. 33 (1882). Therefore, we find no merit in appellant’s argument.

IV.

Appellant also argues that appellee did not prove by substantial evidence, the existence, terms and breach of the oral agreement. On the subject of oral contracts, the Supreme Court has stated:

In the case of a disputed oral contract there is a well marked distinction between the relative functions of court and jury. There are three successive stages of inquiry; first, what were the terms of the contract; second, what was the understanding of the parties as expressed by those terms; third, what was the legal effect of the agreement as thus determined and interpreted. The authorities are clear to the effect that the first two of these processes are for the jury as questions of fact; the last is for the court as a matter of law.

McCormack v. Jermyn, 351 Pa. 161, 164-165, 40 A.2d 477, 479 (1945) (emphasis in original.) See also Lucacher v. Kerson, 355 Pa. 79, 48 A.2d 857 (1946); Solomon v. Luria, 213 Pa.Superior Ct. 87, 246 A.2d 435 (1968); Kirk v. Brentwood Manor Homes, Inc., 191 Pa.Superior Ct. 488, 159 A.2d 48 (1960); Curtin v. Marson, 185 Pa.Superior Ct. 194, 138 A.2d 149 (1958).

The Court further said in McCormack:

In performing its duty of determining the factual meaning of an oral contract what is the standard of interpretation to be observed by the jury? A verbal agreement differs from a written one in this, that in the construction of the latter all negotiations leading up to the contract are presumed to be merged in the writing; moreover, oral testimony is not admissible to explain the written document in the absence of an ambiguity requiring such explanation. But in an unwritten contract, where the words constituting the agreement are merely parts of, and embedded in, a general conversation, the scope of interpretation is more extended, and indeed, even in the case of a written contract, the agreement, if there is any doubt about its meaning, must be interpreted “with reference to the circumstances under which the parties contract and in the light of the objects to be accomplished” ... In construing an oral contract the question is always, what meaning is to be ascribed to the words employed, in the light of all the circumstances surrounding the agreement when it was made? While words are prima facie to be given their normal meaning, this does not necessarily obtain when the context of the conversation and the surrounding circumstances show that a different meaning was intended. However broad may be the apparent terms of the agreement, it extends only to those things concerning which the parties intended to contract, and the subject-matter of their negotiations may affect the meaning of the words they employ, especially if, in connection with that subject-matter, the conventional interpretation would give an unreasonable or absurd result. The meaning of words in ordinary speech is rarely rigid and inflexible.
Id. 35 Pa. at 166-167, 40 A.2d at 480. (citations omitted) (emphasis added).

Using the above test, we find appellant’s argument to be without merit. It was for the jury to determine the terms of the contract — the offer, acceptance and consideration — and the jury apparently credited appellee’s testimony to the effect that appellant offered to share all the accumulated assets if appellee would live with him and act as “a homemaker, a mother to his children, a partner, a hostess.” We reject appellant’s further claims that the terms of the contract were too vague, that the only consideration promised was sexual services, or that no breach was proven. We also reject appellant’s claim that appellee suffered no damages. The evidence supported a finding that appellee performed many services for appellant but that appellant refused to satisfy his agreement to share the accumulated assets.

We do not mean by this opinion to in any way reflect a diminution of the sanctity of marriage, which brings to society an orderliness and stability which no other social institution can bring. All we say is that two adults not married to each other, who agree to establish a financial and economic relationship based on adequate consideration which is not predominantly based on sexual consideration create an agreement cognizable and binding in law.

Affirmed.

      . In tort cases prior to Griffith, the former rule was that the law of the place of the wrong governed. Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). As for assumpsit actions the rule prior to the Gillian decision was that in matters relating to the enforcement of a contract or in matters concerning the remedy for breach of a contract, the lex fori, or law of the place where such remedies are pursued, applied. Silvestri v. Slatowski, 423 Pa. 498, 224 A.2d 212 (1966) (plurality).

      . See also In Re Estate of Agostini, 311 Pa.Superior Ct. 233, 251, 457 A.2d 861, 871 (1983), wherein the Court stated "We observe that Pennsylvania has not restricted the application of this flexible choice of law solely to conflict questions involving torts.” (citations omitted).

      . Plaintiff also filed suit in trespass alleging fraud and deceit. The jury, pursuant to special interrogations, indicated that its award was based on both trespass and assumpsit theories. The trial judge, however, later granted defendant's motion for judgment n.o.v. on the fraud counts, reasoning that the measure of damages in a fraud action is the "actual loss” and not the "loss of the value of the bargain.” The court found that plaintiff did not prove actual loss. Plaintiff took no appeal from the court’s ruling.

      . The case of Snaith v. Snaith, 282 Pa.Superior Ct. 450, 422 A.2d 1379 (1980), provides an interesting twist. There, a woman filed suit against her lawful, but estranged, husband alleging breach of an express contract, of a contract implied-in-fact, and of a contract implied-in-law, also, partnership, joint venture and unjust enrichment. The trial court read the complaint as basically alleging an express and an implied contract. On appeal, we dismissed the action on the express contract for failure to specify the breach. As for the implied contract, we dismissed based on the established rule that the law will not imply a promise to pay for services rendered where a close family relationship exists between the parties. The plaintiff apparently filed her suit in equity before the effective date of the divorce code of 1980, Act of April 2, 1980, P.L. 26, § 401, which significantly changed the law for property settlements following a divorce.

      . Ironically, while the Marvin case is popularly viewed as the initiator of so called "palimony", in fact the plaintiff, Michele Marvin, ultimately, after the case was remanded, ended up recovering not one penny. The trial court found that plaintiff failed to prove either that some type of agreement existed or that she was in any way economically damaged or that defendant was unjustly enriched. These findings were affirmed by the Court of Appeal at Marvin v. Marvin, 122 Cal.App.3d 871, 176 Cal.Rptr. 555 (1981).

      . The Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1 (1967).

      . The case cited by appellant for this argument is Seiss v. McClintic-Marshall Corp., 324 Pa. 201, 188 A. 109 (1936). In Seiss, the plaintiff, an injured employee, alleged that the defendant employer promised to provide "suitable employment ... for life.” The Supreme Court found, inter alia, that the term “suitable employment” was too vague to be enforced, and that the contract was vague because the rate of pay was not specified. We find the Seiss case to be distinguishable for we find both aspects of the consideration promised to be sufficiently clear to be enforced.

      . Appellant additionally sought to argue the inadequacy of the court's charge to the jury, but we find this argument to be waived by appellant’s failure to first raise this issue at trial. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).


source: Caselaw Access Project

author: LIPEZ, Judge:

license: Public Domain

text:
    470 A.2d 567
    Myroslow PODOLAK, Appellant, v. ARTISAN’S VALVE REPAIR, INC.
    Superior Court of Pennsylvania.
    Submitted Feb. 8, 1983.
    Filed Dec. 16, 1983.
    Reargument Denied Feb. 14, 1984.

      Edwin P. Smith, Philadelphia, for appellant.
    Eugene Arthur Steger, Jr., Kennett Square, for appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   LIPEZ, Judge:

This is an action in equity by a stockholder against the directors of a corporation, alleging waste by the Board of Directors and seeking appointment of a receiver pendente lite and involuntary dissolution of the corporation. Myroslow Podolak, plaintiff below, now appeals from the lower court’s order striking a default judgment entered in his favor against defendant Artisan’s Valve Repair, Inc. We vacate the order of the lower court.

The lower court’s order was based upon its conclusion that service of process on defendant, a Delaware corporation, was defective. Service was made in purported compliance with Pennsylvania Rule of Civil Procedure 2180(a)(2), by handing a certified copy of the complaint to a person in charge of defendant’s office or usual place of business. The sheriff’s return indicated that the complaint was handed to an “adult male, refused to give name, the person at the time being in charge personally at their place of business, 2222 West 9th Street, Chester, Pa.” The lower court held that service upon an unknown person in the office or place of business cannot effect valid service upon a foreign corporation, and therefore struck the default judgment, This was error.

“It is axiomatic that a motion to strike will not be granted unless a fatal defect in the judgment appears on the face of the record____ If the record is self-sustaining, the judgment cannot be stricken.” Advance Building Services Co. v. F & M Schaefer Brewing Co., 252 Pa.Super. 579, 582, 384 A.2d 931, 932 (1978) (citations omitted). Here, the lower court apparently concluded that the indication in the sheriff’s return that service had been made upon a person who refused to give his name was such a fatal defect. We must disagree, for decisions of this court and of our supreme court make it clear that service upon an unidentified person is not necessarily defective service. See Pincus v. Mutual Assurance Co., 457 Pa. 94, 321 A.2d 906 (1974) (service upon a corporation and two corporate trustees as individuals upheld where process was handed to a manager at the corporation’s offices who refused to give his name); American Vending Co. v. Brewington, 289 Pa.Super. 25, 432 A.2d 1032 (1981) (service upon an individual upheld where process was handed to an adult female in charge of defendant’s residence, who refused to give her name). Since in light of these cases, service of process cannot be found defective based on the face of the record, the default judgment entered against defendant could not properly be stricken.

Defendant’s motion, on which this court’s order to strike was entered, asked that the default judgment be stricken or, in the alternative, opened. We have determined that the motion to strike should have been denied. Disposition of the motion to open, however, requires consideration of facts not yet developed in proceedings in the lower court. Accordingly, we remand for disposition of the motion to open.

Orders vacated and case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . The lower court relied on Myers v. Mooney Aircraft, Inc., 429 Pa. 177, 240 A.2d 505 (1967) in drawing this conclusion. In Myers, the supreme court held that, where a corporation has no office or place of business in the Commonwealth, service under Pa.R.C.P. 2180(a)(2) can be made only upon a person properly characterized as an agent of the corporation. Here, however, the defendant corporation has a registered office in the Commonwealth, and service was made in accordance with the alternative language of Rule 2180(a)(2) which allows service upon a "person for the time being in charge of, and only at, any office or place of business of the corporation.” [Emphasis added]. We do not read the Myers court’s strict application of the first part of Rule 2180(a)(2) as in any way limiting the validity of service in accordance with the second part of that rule where the existence of an office or place of business in the Commonwealth makes it available. The lower court’s reliance on Myers as authority for striking, the default judgment entered in this case was thus misplaced.

      . In its brief, defendant also raises questions as to whether the person served was actually in charge of the place of business and as to whether the service made, even if nominally in compliance with Rule 2180(a)(2), gave constitutionally sufficient notice of the action to the foreign corporation. Such defects in service, if they exist, clearly do not appear on the face of the record and hence cannot serve as grounds for striking the judgment in this case. They may, however, be grounds for opening the default judgment if other requirements are met. See Liquid Carbonic Corp. v. Cooper & Reese, 272 Pa.Super.Ct. 462, 416 A.2d 549 (1982).


author: CAVANAUGH, Judge:

text:
    470 A.2d 568
    ESTATE OF Charlemagne TOWER, Deceased. Appeal of Tripp TOWER and Annette Tower Ragsdale.
    Superior Court of Pennsylvania.
    Argued April 13, 1983.
    Filed Dec. 23, 1983.
    Reargument Denied Feb. 14, 1984.
    Petition for Allowance of Appeal Granted Aug. 22, 1984.

      See also 410 Pa. 389, 189 A.2d 870; 463 Pa. 93, 343 A.2d 671.
    William C. Bullitt, Philadelphia, for appellants.
    Richard W. Stevens, Philadelphia, for Brunet, participating parties.
    John R. Suria, Philadelphia, for Fidelity Bank, participating parties.

      Alfred Wynne Putnam, Philadelphia, participating party, in propria persona.
    Before HESTER, CAVANAUGH and POPOVICH, JJ.
   CAVANAUGH, Judge:

On May 21,1889, Charlemagne Tower, a wealthy industrialist and owner of coal lands, executed his last will and testament. He died shortly thereafter on July 24, 1889. His will was probated in Philadelphia County. A residuary trust was established under Mr. Tower’s will and the trust continues. In the course of the last ninety-five years, twenty-three accounts have been filed in the Orphans’ Court of Philadelphia County.

Under Item Fifth the testator gave his residuary estate to his trustees, in trust, to pay, after the death of his wife, which occurred several years ago, the income in equal shares to and among his five children, Charlemagne Tower, Jr. (now deceased), Deborah Taylor Lee, (subsequently Janney, now deceased), Emma Snyder (subsequently Reilly, now deceased), Henrietta Tower (subsequently Werts, now deceased) and Grace Tower Putnam (now deceased). Upon each of their deaths his estate was to be held in further trust, to pay income to and among the child or children surviving, and the issue of deceased children of the child so dying, per stirpes, for so long as the testator might prolong distribution of principal without violating the rule against perpetuities. Testator provided for ultimate distribution of principal which we are not concerned with at this juncture in the administration of the estate.

One of testator’s grandchildren was Geoffrey Tower who died on March 26, 1957, and who was survived by his wife who died on December 4, 1959 and by two blood children, Charlemagne Tower, IV and Helen Tower Brunet. Geoffrey Tower was also survived by two adopted children, Annette Tower Ragsdale (formerly Annette Tower Earl) and Tripp Tower. The sole question on appeal is whether Geoffrey Tower’s adopted children, Annette Tower Rags-dale and Tripp Tower, are entitled to participate in the share of income that had been paid to their adoptive father during his lifetime. Since the death of Geoffrey Tower only his blood children have shared in the income.

The issue presently before this court has been raised and decided on prior occasions. It was originally raised in 1960 before the Orphans’ Court of Philadelphia County. At that time, Judge Lefever in an adjudication approved by the court en banc found that the testator intended, at the time he wrote his will, to include only blood relatives in the class of those who would share in income. Judge Lefever stated in Tower Estate, 27 Pa.D. & C.2d 114, 118 (1962):

Testator made constant reference throughout his will to members of his blood, i.e., “children”, “grandchildren”, “issue” and “lineal descendents”. The sole exceptions to “blood” relatives were his own wife and the surviving spouses of children and grandchildren, to whom he carefully and precisely authorized his children and grandchildren to appoint to the limit of one fourth of their respective shares of income. It is clear, therefore, that testator knew how to provide for blood relatives and for strangers to the blood; and that if he wished to include “adopted children” of a grandchild, he could have, and would have, expressly said so. Testator’s intention, affirmative or negative, governs. Nothing in the will shows an intention to include the petitioners.

The Orphans’ Court analyzed the meaning that testator gave the term “lineal decendants” and stated at 27 Pa.D. & C.2d 123:

Moreover, testator directed that the remainder be divided among all of his “lineal descendants then living, to each an equal fractional share thereof without regard to their stock or the degree of descent from me”. As noted above, testator specifically described his lineal descendants as his children and his grandchildren. If these two points form a straight line, an extension of that line must include only great-grandchildren, great-great-grandchildren, etc., of the blood. To include adopted children of a grandchild within the term “lineal descendants” (which testator has so clearly defined), would require a variance of the straight line which testator drew between the two éssential points which he fixed, namely, children and grandchildren (and more remote lineal descendants). Furthermore, by his use, interchangeably, of “issue” and “lineal descendants” testator closed the door to strangers to his blood.

The court found that the testator’s manifest intent was to limit the class of income beneficiaries to the blood descendants of deceased grandchildren.

Tripp Tower and Annette Tower Ragsdale, the present appellants, appealed from the Orphans’ Court decision to the Supreme Court which affirmed the decree of the Orphans’ Court in Tower Estate, 410 Pa. 389, 189 A.2d 870 (1963), referred to hereafter as Tower I. Five Justices were in agreement with the Orphans’ Court’s finding that the testator intended only blood descendants of deceased grandchildren to share in income. Justice Roberts (now Chief Justice Roberts) filed a dissenting opinion in which Justice Musmanno joined.

It would appear settled that the adopted children of Geoffrey Tower do not share in the income formerly received by their deceased adoptive father. However, the trustees filed their twenty-second trustees’ account in 1970 because of the death of one of the individual trustees, and the adopted children of Geoffrey Tower again claimed a one-quarter share each of the Geoffrey Tower share of income. The claim was disallowed by the Orphans’ Court on the basis that: “the clear language of the will” limited beneficiaries of principal and income to “blood descendants” and on the further basis of res judicata as the law of the case had been established in Tower I. The Orphans’ Court’s adjudication is reported at Tower Trust, 62 Pa.D. & C.2d 151 (1970). The present appellants took an appeal to the Supreme Court but before that Court decided Tower II it handed down its decision in Tafel Estate, 449 Pa. 442, 296 A.2d 797 (1972), opinion by Jones, C.J.; Pomeroy, J. did not participate, Mandarino, J. concurred in the result, and Egan and O’Brien, JJ. dissented. That case involved the interpretation of a 1935 will and the issue was whether the appellants, as adopted children, were entitled to take under a testamentary trust as “children” of the testator’s blood son, Adolph Tafel. The Supreme Court in Tafel adopted a presumption that the testator intended to include adopted children within the terms “child” or “children” unless a contrary intention appeared in the will. The Supreme Court stated at 449 Pa. 445, 296 A.2d 797, 799:

under our prior case law, in the absence of any testamentary language demonstrating the intent of the testator, our courts have presumed that the testator, in a will making a gift or bequest to a person or persons other than the testator’s “child” or “children,” intended to exclude adopted children.

The court went on to state at 449 Pa. 452, 296 A.2d 802:

The rule of construction we today recognize equates the rights of natural children and adopted children and executes the legislatively mandated equality so clearly and unequivocally expressed in the statutes of adoption, i.e., that the adopted person “shall have all the rights of a child and heir of” the adopting parents. This rule does not preclude nor prevent any testator who desires to distinguish between natural and adopted children as recipients of his bounty from doing so; an expression of such intent in his will accomplishes that result.

The Supreme Court decided Tower Estate, 463 Pa. 93, 343 A.2d 671 in 1975 (referred to hereafter as Tower II) and stated at 463 Pa. 99, 100, 101, 343 A.2d 674:

In Tower I, this Court based its conclusion that the adopted children were not to participate in the trust on the language used by the testator. We there stated:
“[T]he instant testator’s will controls the controversy. His meaning must be determined from his will in light of the law in effect on July 24, 1889. His will begins with words of blood, viz., ‘children’,. ‘grandchildren’, ‘issue’ and ‘lineal descendants’, and closes with ‘descent from me’, also words of blood. It is inescapable that testator, by the language he used, intended to include only relatives of his blood and to exclude strangers to the blood, as subsequent takers of income on a grandchild’s death. [The adopted children], therefore, are not entitled to share.”
410 Pa. at 393, 189 A.2d at 872-73.
Since this Court held in Tower I that a clear intent regarding adopted children existed in the will of the testator, we did not, nor did we need to, apply the preTafel presumption which excluded adopted children. For the sake of finality and consistency in litigation, we must apply the doctrine of res judicata to uphold our decision in Tower I that Charlemagne Tower intended to exclude adopted children.
The rationale of the doctrine of res judicata is to bring an end to vexatious and repetitious litigation. The prohibition against renewed litigation of an old cause of action applies even though the statute upon which a valid judgment is based is later declared unconstitutional and void. Strauss v. W.H. Strauss & Co., Inc., 328 Pa. 72, 76-77, 194 A. 905 (1937); Philadelphia v. Ridge Avenue Railway Co., 142 Pa. 484, 493, 21 A. 982 (1891). Even if the ratio decidendi of a valid judgment is later ruled improper or erroneous by an appellate court in another case, the parties to the prior litigation are precluded from a new trial of the same cause of action.

In Tower II the Supreme Court recognized that Tafel was not controlling as it established only a rule of construction which is not applicable where the testator’s intent is clear from the will. Justice Nix determined that the doctrine of res judicata did not apply in Tower II, but found that the testator clearly manifested his intent to exclude strangers to his blood.

The instant case arises in connection with the audit of the trustees’ 23rd Account. Nothing has changed since Tower II except the passage of time vis a vis testator’s will and the two adopted children of Geoffrey Tower. Certainly, the testator’s intent as expressed in his will of May 21, 1889 cannot change. If he manifested a clear intent to limit income to his blood line when he drew his will, subsequent changes of law concerning rules of construction will not affect this. The thrust of the appellants’ argument is that the Tafel rule must be applied in this case, notwithstanding the Supreme Court’s decision in Tower II and the lack of any ambiguity in the decedent’s will. The Supreme Court answered this contention in Tower II and stated at 463 Pa. 105, 343 A.2d 676, 677:

We are not convinced that Tower I contains any error of law in light of Tafel Tower I was based upon a finding of clear intent by the testator to exclude adopted children. Tafel announced a new rule that this Court would no longer rely solely on the use of words like “child” and “children” to find an intent to exclude adopted children. But Tower’s Will contains more than just passing references to “children” or “grandchildren,” and testator’s intent is clear beyond question. It is replete with the words “children,” “grandchildren,” “issue” and “lineal descendants” used in a methodical, precisely-drawn instrument which clearly illustrates that the bounty of the trust was to be confined to bloodlines only. We there concluded from a reading of the instrument as a whole that Charlemagne Tower displayed the requisite intent to exclude adopted children. Tafel held that, unless a contrary intention is expressed, the presumption arises that the testator intended to include adopted children. Nowhere is it stated that such a contrary intention must be explicit. The intent of the testator, explicit or naturally inferable from his language, is still the polestar of every will. Although words like “issue” and “children” will ordinarily trigger the Tafel presumption, in some instances, as in Tower’s Will, these words may be used in such a context as to negate the necessity of relying upon the presumption.

The appellants’ contention that the Tafel rule must be applied in this case relies on a line of post-Tafel cases where adopted children had been excluded by a pre-Tafel adjudication, and this was reversed by the Supreme Court. The cases relied on in this respect by the appellants are Flinn Estate, 479 Pa. 312, 388 A.2d 672 (1978); DeRoy Estate, 481 Pa. 403, 392 A.2d 1355 (1978); and Biddle Estate, 487 Pa. 616, 410 A.2d 782 (1980). In none of these cases had the Supreme Court already decided that the testator clearly expressed his intention to limit his beneficiaries to his own blood line. Appellants also rely on a post-Tafel adjudication in Riley Estate, 498 Pa. 395, 446 A.2d 903 (1982). In that case the Supreme Court held that a 1922 will and 1924 codicil referring to “issue” did not indicate a clear intention to exclude adoptees, and under a settled cannon of construction the testator intended to include adopted children. Similarly, in Riley Estate the Supreme Court had not previously affirmed a finding of the Orphans’ Court that the testator manifested an intent to exclude adopted children.

In the instant case testator’s intent may be ascertained from his will so that the Rule of Farmers Trust Company v. Bashore, 498 Pa. 146, 150, 445 A.2d 492, 494 (1982) is applicable:

A settlor’s intent is to be determined from all the language within the four corners of the trust instrument, the scheme of distribution and the circumstances surrounding the execution of the instrument. Only if a settlor’s intent cannot be ascertained with reasonable certainty will a court apply canons of construction, to attribute a reasonable intention to the settlor in the circumstances. See, e.g., Estate of Houston, 491 Pa. 339, 421 A.2d 166 (1980); Matter of Tracy, 464 Pa. 300, 346 A.2d 750 (1975).

See also, Sykes Estate, 477 Pa. 254, 383 A.2d 920 (1978).

Testator’s will named his “ten lineal descendants”, all of whom were of his blood. He provided with respect to income that “in like manner the share of income which may accrue to any of my grandchildren or more remote lineal descendants under this my will and who may die before the period appointed for the distribution of the principal of my residuary estate shall in like manner accrue to their children and issue of deceased children as above provided ...” When testator referred to “lineal descendants” he unequivocally meant descendants of his blood line. “Prior to the passage of the Will’s Act of June 7, 1917, P.L. 403, it was the established rule that adopted children could not participate in testamentary gifts to ‘children’---- As the testator died five years before the effective date of the Wills Act [of 1917] this is the rule that must govern the interpretation of this will.” Corr’s Estate, 338 Pa. 337, 340, 12 A.2d 76, 78 (1940). In addition, when testator wrote his will the term “issue” referred to heirs of the body. Ashhurst’s Estate, 133 Pa.Super. 526, 3 A.2d 218 (1938) dealt with the will of a testator which was written in 1892 and who died in 1900. The will established a trust from which income was to be paid to the decedent’s wife during her lifetime and at her death the income was to be paid to his children then living “or the issue of any child of mine who may be deceased”. One of testator’s children died, unmarried and without issue, and leaving an adopted daughter who claimed the share of income that had been paid to her adoptive mother. The court held that the adopted child could not share, stating at 133 Pa.Super. 529, 530, 3 A.2d 220:

Whatever changes the Intestate Act of 1917 may have made in the distribution of estates of persons dying intestate thereafter, and whatever change the Wills Act of 1917 may make on the construction of wills made or proved after its date, neither of them can change the distribution of his estate prescribed by a testator in his will, made and proved seventeen years before; nor will the Act of April 4, 1925, relating to Adoption, passed twenty-five years after the will was proved, affect its provisions. The will will be interpreted and applied in the light of the law as it was when admitted to probate.

We must interpret a will in the light of the circumstances existing when the testator drafted his will. Houston Estate, 491 Pa. 339, 421 A.2d 166 (1980). We agree with the Orphans’ Court and the Supreme Court that when the testator drafted his will in 1892 he used unequivocal language to limit his bounty to his blood line and no other. The testator delineated under his will as clearly as he could that the objects of his bounty were not to include strangers to his blood.

In addition to what we have said above, the decisions of the Supreme Court in Tower I and Tower II are res judicata. The decision of the Supreme Court in Tower II stated that the doctrine of res judicata applied and we are bound by that decision. The court appropriately stated in Tower II at 463 Pa. 100, 343 A.2d 674: “For the sake of finality and consistency in litigation we must apply the doctrine of res judicata to uphold our decision in Tower' I that Charlemagne Tower intended to exclude adopted children.”

Decree affirmed.

      . Charlemagne Tower’s will provided in pertinent part:
      Item 4. I have living at the date of this my Will ten lineal descendants: that is to say, five children and five grandchildren. My children living are, Charlemagne Tower, junior; Deborah Taylor Lee, wife of Richard Henry Lee; Emma Snyder, widow of Benjamin C. Snyder, deceased; Grace Williams Putnam, wife of Earl B. Putnam; and Henrietta Tower.
      My five grandchildren living are, Charlemagne Tower, son of my said son, Charlemagne Tower, junior; Ruth Snyder and Emma Tower Snyder, daughters of my said daughter, Emma Snyder; Amelia Tower Putnam and Grace Tower Putnam, daughters of my said daughter, Grace Williams Putnam.

        Item 5. All the rest, residue and remainder of all my Property and Estate whatsoever and wheresoever, Real, Personal or Mixed, I give devise and bequeath unto my son, Charlemagne Tower, junior, my son-in-law, Richard Henry Lee and Julius A. Bailey, (who for many years has been my trusted assistant and friend,) whom I hereby constitute and appoint the Executors of this my Last Will and Testament, and to their heirs, assigns and successors in the Trusts hereinafter set forth, In Trust,
      At and after the decease of each of my said five children, severally and successively, his or her share of the income from my Residuary Estate, as above designated shall be appropriated and divided among the children and issue of deceased children of each one of my children as he or she may successively die, in the same shares and proportions they would take in distribution under the intestate laws of Pennsylvania from their deceased parent, and in like manner the share of income which may accrue to any of my grandchildren or more remote lineal descendants under this my Will and who may die before the period appointed for the distribution of the principal of my residuary estate shall in like manner accrue to their children and issue of deceased children as above provided, and such payment or application of the income of a deceased child’s or grandchild’s share among his or her children and issue shall continue until the arrival of the period for division of the capital of my said Residuary Estate, and if any one or more of my children or grandchildren shall die without leaving any issue to survive him or her, then the share of income theretofore appointed and payable to such decedent shall go to the other of my children or grandchildren, (as the case may be), then living and the issue of any others of my said children or grandchildren who may then be deceased, in the same way and manner in all respects as are limited and provided in respect to their original shares which shall simply be augmented thereby but in all respects governed by the same provisions as applied to their original shares. Provided always, however, that I authorize and empower each one of my children or grandchildren who may leave a husband or wife surviving him or her, by his or her Last Will and Testament, or any writing in the nature thereof by him or her signed to make provision for any surviving husband or wife either of them may leave surviving, to continue during life but not to exceed one-fourth of the income which would have been payable to such testator or appointer if he or she had remained living. The period I appoint for the distribution of the capital of my Estate and the termination of the Trusts hereby created is at the expiration of twenty-one years from and after the death of the last survivor of my children and grandchildren who may be born in my lifetime, if I may lawfully prolong such distribution until that period without violating the Rule against Perpetuities, which I do not design to violate. And if that period shall be beyond what the Rule against Perpetuities will allow, then I designate at the expiration of twenty-one years after the death of the last survivor of my above named ten children and grandchildren living at this date; and . at such period I direct the division of all the capital of my Residuary Estate among all my lineal descendants then living, to each an equal fractional share, thereof without regard to their stock or the degree of their descent from me.

      . The twenty third account shows a balance of principal of $6,097,-883.17.


author: WICKERSHAM, Judge: POPOVICH, Judge,

text:
    470 A.2d 574
    Mary DiSERAFINO, Personal Representative of, for and on behalf of the Estate of Frank DiSerafino, Deceased, for the Maintenance of an Action Under the Pennsylvania Survival Statute and Mary DiSerafino, Personal Representative for and on Behalf of all Entitled to Recover Under the Pennsylvania Wrongful Death Statute, Appellant, v. BUCYRUS-ERIE CORPORATION, Hydynamic Division and H.T. Sweeney & Son.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1982.
    Filed Dec. 23, 1983.
    Petition for Allowance of Appeal Denied April 9, 1984.

      Joseph R. McFadden,' Jr., Media, for appellant.
    Joseph V. Pinto, Philadelphia, for Bucyrus-Erie, appellee.
    Bryon L. Milner, Philadelphia, for H.T. Sweeney, appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   WICKERSHAM, Judge:

Plaintiff’s decedent, Frank DiSerafino, died on January 16, 1975, in an on-the-job accident, when he was crushed beneath the boom and bucket of a front-end loader-backhoe manufactured by defendant Bucyrus-Erie Corporation. Decedent’s widow, Mary DiSerafino, as personal representative of the estate, brought suit under the Pennsylvania Wrongful Death and Survival Act against Bucyrus-Erie alleging that the equipment was defectively designed and manufactured.

Defendant Bucyrus-Erie joined decedent’s employer. H. T. Sweeney & Son, as an additional defendant alleging that the operator of the backhoe was negligent in the operation of the equipment and that this negligence was the cause of DiSerafino’s death. H.T. Sweeney & Son filed an answer and new matter to the complaint by Bucyrus-Erie. In its new matter, H.T. Sweeney & Son stated that its liability, if any, was limited to the liability provided by the provisions of the Pennsylvania Workmen’s Compensation Act.

After a five-day trial, the jury returned a verdict in favor of the plaintiff and against additional defendant, H.T. Sweeney & Son, only, in the amount of $465,000.00. $275,000 was awarded under the Wrongful Death Act and $190,000 was awarded under the Survival Act.

Plaintiff moved for a new trial on the ground, inter alia, that the trial court committed reversible error in its charge to the jury. The trial court denied and dismissed plaintiff’s Motion for a New Trial on September 29, 1980. ,

H.T. Sweeney & Son filed a Motion for Judgment Notwithstanding the Verdict or, in the alternative, to Mold the Verdict on March 16, 1979. H.T. Sweeney & Son averred that the Pennsylvania Workmen’s Compensation Act barred any recovery by the plaintiff against H.T. Sweeney & Son, the employer. On January 15, 1981, plaintiff filed an Answer to additional defendant’s Motion to Mold the Verdict, denying that the Workmen’s Compensation Act barred recovery against H.T. Sweeney & Son. On July 13, 1981, the Honorable Robert A. Wright entered the following Order:

AND NOW, to wit, this 13th day of July, A.D.1981, Additional Defendant’s Motion for Judgment N.O.V. is hereby denied and dismissed, Additional Defendant’s Motion to Mold the Verdict is hereby granted and the verdict is hereby entered in favor of Additional Defendant and against Plaintiff.

Brief for Appellant at 2.

This consolidated appeal was taken from the order granting additional defendant’s Motion to Mold the Verdict and from the order dismissing plaintiff’s Motion for a New Trial.

In the first of these consolidated appeals, appellant states the issue as follows:

Whether the charge of the court below on the law of product liability, when considered- as a whole, was so erroneous, confusing and prejudicial that a new trial is required.

Brief for Appellant in No. 1415 Philadelphia 1981 at 3. The instruction to which appellant objects dealt with the law of strict liability. The Court charged the jury:

Now, the law of strict liability which is the law in Pennsylvania is set out in Section 402A of the restatement of torts and it reads as follows:
One, 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 was sold.

R.R. at 178a-179a (emphasis supplied).

After giving the entire charge, the trial court invited counsels’ objections to the charge. Counsel for appellant specifically objected to the use of the term “unreasonably dangerous.” Counsel argued to the court that Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978) held that the term “unreasonably dangerous” should not have been included in the jury instructions as to the question of defect in this type of case. As soon as this error was pointed out, the trial court agreed to recharge on that point. The court stated its supplementary instruction on that point as follows:

THE COURT: All right, members of the Jury, we will complete the charge and I read from the re-statement and I did not read it in accord with the Pennsylvania modifications. So that Pm going to read the Pennsylvania modification as to the Section 402A. So you will take this to be the law in Pennsylvania. You may or you may not recognize the difference. But, in any event, this is what you are to be guided by.
One, one who sells any product in a defective condition to the user or the 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 without substantial change in the condition in which it is sold.

R.R. at 230a.

In this appeal, appellant argues that this supplementary instruction was not curative, but rather, simply served to confuse the jury. We note, however, that appellant’s counsel did not take specific exception to the recharge on this point. After the additional instructions were given, the trial judge asked counsel if there were any further exceptions to the jury charge. (R.R. at 241a). Appellant excepted to portions of the recharge (R.R. at 236a-241a), but did not indicate any disagreement with the portion of the charge to which he now objects.

Appellant’s counsel should have taken a specific exception to the recharge if he was dissatisfied. Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974) held that the doctrine of “basic and fundamental error” in a jury charge is no longer a basis for appellate review. Thus, a party cannot complain of error in jury instructions unless he makes a specific exception thereto, thereby giving the trial court the opportunity to correct the error. Appellant’s counsel had earlier agreed to a recharge; he failed to indicate afterwards that he was dissatisfied with the recharge. By failing to specifically object to the recharge, counsel denied the trial court the opportunity to correct the alleged error. Because appellant failed to specifically object to the portion of the recharge in question, we find that he has waived appellate review of this allegation of error.

In the second of these consolidated appeals, appellant sets forth the issue as follows:

Whether the Pennsylvania Workmen’s Compensation Act as applied to the death of an employee on January 16, 1975 immunizes the employer from recovery by the dependents of the decedent/employee under the Wrongful Death Statute.

Brief for Appellant in No. 1202 Philadelphia 1982 at 8.

The provision of the Workmen’s Compensation Act applicable at the time of the death of appellant’s decedent, 77 P.S. § 481, (footnote omitted) provided:

Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the- parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of the employment, or to any method of determination thereof, other than as provided, in article three of this act. Such agreement shall bind the employer and his personal representatives, and the employe, his or her wife or husband, widow or widower, next of kin, and other dependents. 1915, June 2, P.L. 736, art. Ill, § 303; 1937, June 4, P.L. 1552, § 1; 1939, June 21, P.L. 520, § 1.

The above section of the act was amended on December 5, 1974, effective 60 days hence (a date after the death of appellant’s decedent) and it provided:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.

77 P.S. § 481(a) (footnotes omitted).

Appellant argues that although amended section 481 explicitly prohibits a dependent’s common law cause of action against an employer, former section 481 does not clearly bar such a suit. Appellant concedes that recovery against H.T. Sweeney & Son under the Survival Act on behalf of the estate of decedent is barred by the Workmen’s Compensation Act. Appellant argues, however, that the claim brought under the Wrongful Death Act is not barred because this claim is direct as against the employer by the dependents and is not derivative. We disagree.

Former section 481 specifically states that the “agreement ... operate[s] as a surrender by the parties thereto of their rights to ... damages for any injury or death occurring in the course of the employment____ Such agreement shall bind ... widow ... and other dependents.” 77 P.S. § 481. By failing to give written notice of any refusal to accept the protection of the Workmen’s Compensation Act, the decedent accepted the provisions of the Act. See 77 P.S. § 461. By doing so, he agreed to look to the Act as an exclusive remedy, surrendering any rights to bring an action at law. Former section 481 indicates that his widow and dependents are also bound by the agreement. Temple v. Able Tool Co. Inc., 240 Pa.Super. 609, 359 A.2d 412 (1976); Polk v. Western Bedding Co., 145 Pa.Super. 142, 20 A.2d 845 (1941).

Appellant refers to a Massachusetts case in support of her argument. Judge Wright’s discussion of that case in the lower court opinion correctly disposes of this argument.

We first distinguish the case of Ferriter v. Daniel O’Connell’s Sons, Inc., [381 Mass. 507] [413 N.E.2d 690] (1980), decided by the Supreme Judicial Court of Massachusetts [sic], September 9, 1980 Opinion by Liacos J., proffered by Plaintiff’s counsel in support of Plaintiff’s position. The case is easily distinguishable because (1) the Massachusettes [sic] Workmen’s Compensation Statute, General Laws, c. 152, Section 24, as amended through St.1955, c. 174, Section 5, states that “an employee shall be held to have waived his right of action at common law ...”. There is absolutely no limiting language pertaining to family members as there is in the Pennsylvania Act, i.e. “... shall bind the employer ... and the employee, his or her wife or husband, widow or widower, next of kin, and other dependents.” ; and (2) the plaintiff had received no compensation payments, as has Plaintiff here in the instant case. Additionally, see footnote 24 in Ferriter, cited supra, which cites Smither & Co. v. Coles, 242 F.2d 220, 222 (D.C.Cir. [1957]), cert. denied, 354 U.S. 914 [77 S.Ct. 1299, 1 L.Ed.2d 1429] (1957) which refers to the District of Columbia Workmen’s Compensation Act which barred wife’s action under language in the Act similar to our Act.

Lwr.Ct.Op. in No. 1202 Philadelphia 1982 at 5-6.

Appellant’s final argument is that “an interpretation of former § 481 which limits the right of a widow and children of a decedent/employee is voilative [sic] of the Pennsylvania Constitution.” Brief for Appellant in No. 1202 Philadelphia 1982 at 23.

Any discussion of the constitutionality of lawfully-enacted legislation must commence with the restatement of the principle of law which creates a “presumption” in favor of constitutionality. “An Act of Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution.” ____ “[T]he burden rests heavily upon the party seeking to upset legislative action on constitutional grounds; all doubt is to be resolved in favor of sustaining the legislation.”

Singer v. Sheppard, 464 Pa. 387, 393, 346 A.2d 897, 900 (1975) (citations omitted). In the present case, appellant has not overcome the presumption of constitutionality.

Appellant argues that our interpretation of former section 481 violates Article III, Section 18 of the Pennsylvania Constitution which provides:

The General Assembly may enact laws requiring the payment by employers, or employers and employes jointly, of reasonable compensation for injuries to employes arising in the course of their employment, and for occupational diseases of employes, whether or not such injuries or diseases result in death, and regardless of fault of employer or employe, and fixing the basis of ascertainment of such compensation and the maximum and minimum limits thereof, and providing special or general remedies for the collection thereof; but in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property, and in case of death from such injuries, the right of action shall survive, and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted.

Appellant’s position is that this provision grants the legislature “authority to enact laws requiring payment of compensation for injuries to employees only." Brief for Appellant in No. 1202 Philadelphia 1982 at 24. Appellant’s interpretation of this provision is too narrow.

Our reading of this provision indicates that the General Assembly may make compensation under a Workmen’s Compensation Act the exclusive remedy whenever an employee is injured within the scope of his employment. The Constitution does not require that such compensation be paid to employees only; rather, the provision indicates that the compensation is to be paid when an employee is injured “whether or not such injuries ... result in death.” Obviously, if an employee’s injuries result in his death, he will not be able to receive compensation. In cases where the employee is killed, someone other than the employee will receive the compensation benefits under the Act. Article 3, section 18 indicates that those who receive compensation under the Act may constitutionally be excluded from asserting any other remedies. Thus, former section 481 does not violate Article 3, Section 18 of the Pennsylvania Constitution.

Appellant goes on to note that when a widow survives a deceased employee, the children of that employee have no right on their own to recover compensation. See Anderson v. Borough of Greenville, 442 Pa. 11, 273 A.2d 512 (1971). Therefore, appellant argues, our interpretation of former section 481 violates Article 1, Section 11 of the Pennsylvania Constitution which mandates access to the courts for all persons. We note, however, that when a widow survives, “the existence of the children serves to generate a larger compensation payment to the widow.” Id., 442 Pa. at 15, 273 A.2d at 514. Thus, the children are within the coverage of the Workmen’s Compensation Act and their losses are considered in the compensation paid to the widow. To require that the children, through their mother, look to the Workmen’s Compensation Act as an exclusive remedy does not violate Article 1, Section 11 of the Pennsylvania Constitution.

The lower court’s order to Mold the Verdict was proper.

Judgment and Order affirmed.

POPOVICH, J., files a concurring opinion.

HESTER, J., concurs in the result.

POPOVICH, Judge,

concurring:

I agree with the result reached by the Majority, but write separately to clarify what could be construed as an inconsistency with prior law in this Commonwealth concerning the waiver of the defective recharge on strict liability (Section 402A of the Restatement (Second) of Torts) under Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) (holding that failure to make a timely, specific objection to an alleged trial error results in waiver of that issue for post-trial and appellate purposes). Such a result could occur from the manner in which the facts are recounted by the Majority as to what transpired prior to and after the instructions to the jury.

The Majority recites the following scenario: counsel for appellant submits a point for charge, the point is denied and counsel fails to object specifically to its exclusion after the jury is (re)charged. As the preceding facts stand, unembellished, this Court’s decision in Brancato v. Kroger Co., 312 Pa.Super. 448, 458 A.2d 1377 (1983), petition for allocatur denied July 8, 1983, would hold the issue preserved for review. See also Saylor v. Rose, 319 Pa.Super. 560, 466 A.2d 686 (1983) (Prior to jury instructions, appellee presented a point for charge that was not read by the trial judge. Although there is no mention as to whether appellee took exception to the denial, it was raised in post-trial motions and the trial judge granted appellee a new trial. We affirmed on appeal without discussing the question of whether the issue was preserved in accordance with Dilliplaine).

In Brancato, after quoting from Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977), we held that because the appellant had submitted a point for charge that was denied by the trial court, she need not have made a specific, timely objection to the charge as given to have the propriety of the denial preserved. Either action, i.e., submission of a specific point for charge or a specific, timely objection to the charge, would suffice to preserve the matter for review.

At first blush, the situation instantly may appear to be controlled by Brancato. However, upon close scrutiny of the facts, the disparity becomes apparent. To start with, it is true that counsel for DiSerafino sought to have his point concerning product liability read to the jury, and was initially denied that request before his objection to the charge was acknowledged as valid by the trial judge and counsel for Bucyrus-Erie Corporation in light of Azzarello v. Black Brothers, Co., 480 Pa. 547, 391 A.2d 1020 (1978) (Inclusion of “unreasonably dangerous” verbiage in charge to a jury on product liability is reversible error). Counsel for appellant reaffirmed the influence of Azzarello by noting to the court, “Your Honor, that’s why I set out in full 402A without the words unreasonably dangerous.” (RR. 217a) At this stage, appellee’s acquiescence to recharging the jury was conditional. That is, he remarked, “Well, I’m agreeable if Frank [appellant’s counsel] is that you just read number one as he’s quoted it and tell them that this replaces anything you may have said earlier.” Id. To accommodate all concerned, the trial judge responded, “All right. Do it that way.” Id. Counsel for appellant then proceeded to discuss another objection he had to the charge on the issue of joint liability of the employer and manufacturer.

Thus, based on the record before this writer, there is reason to believe that the recharge that was thereafter read to the jury was, in fact, that which had been previ ously submitted, by appellant’s counsel and denied. Although the appellant’s counsel did object after the recharge, it was in regard to certain court rulings concerning the admissibility of photographs depicting appellant’s decedent husband on the job site. (RR. 236a-241a) It had nothing to do with the court’s recharge as to strict liability under Section 402A.

Consequently, in light of the aforesaid, we have neither a Brancato-type situation, since from all of the evidence on hand it appears that the recharge was a verbatim (“quoted”) recitation of appellant’s counsel’s submitted point, nor do we have a specific objection to the charge as finally given. Ergo, counsel for appellant has failed to present a viable argument as to the (re)charge to the jurors.

      . The accident in this case occurred prior to the effective date of the amendment to the Workmen’s Compensation Act that prohibited the joinder of an employer as an additional defendant in employee actions against third party tortfeasors. See Workmen’s Compensation Act § 303(b). Act of December 5, 1974, P.L. 782, No. 263, as amended, 77 Pa.S.A. § 481(b) (Purdon’s Supp.1983). The Pennsylvania Supreme Court has recently held that this section bars joinder of the employer as a defendant for any purpose, including apportioning the degrees of negligence of the employer and the third party tortfeasor. Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 465 A.2d 609 (1983).

      . In his concurring opinion, Judge Popovich finds it necessary to distinguish the instant case from Brancato v. Kroger Co., 312 Pa.Super. 448, 458 A.2d 1377 (1983). In Brancato, this court held that because the appellant had submitted a point for charge that was denied by the trial court, she was not required to make a specific exception to the charge in order to have the issue preserved for appellate review. Judge Popovich notes that because in the instant case appellant presented a point for charge that was not used by the trial court, this case, at first blush, would seem to be controlled by Brancato. Judge Popovich then goes on to distinguish the instant case from Brancato by explaining that in the recharge in the instant case, the trial judge did use appellant’s submitted point for charge. Therefore, a failure to take specific exception to the recharge waived the issue.
      This analysis is not relevant to the instant case. The issue in the instant case, is not whether or not the court used appellant’s submitted point for charge, but that the appellant objected to the initial charge and failed to renew his objection after the recharge. It is true that under the Brancato holding, this allegation of error might have been preserved for review if appellant had taken no exception to the original instruction since he had submitted a point for charge that was denied by the court. Nevertheless, the fact is that appellant did take specific exception to the original instruction; he then failed to renew his objection after the recharge was given. By his conduct, appellant indicated to the court that he was satisfied with the recharge. He failed to give the lower court the opportunity to correct the alleged error. This failure to specifically object to the recharge waives appellate review of this allegation of error.