author: BECK, Judge:

text:
    533 A.2d 739
    Price L. ROGERS and Elaine Rogers, H/W v. JOHNSON & JOHNSON PRODUCTS, INCORPORATED and Lankenau Hospital and Thomas Jefferson University Hospital. Appeal of JOHNSON & JOHNSON PRODUCTS, INCORPORATED.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1987.
    Filed Nov. 6, 1987.

      Alan K. Cotier, Philadelphia, for appellant.
    Jim Beasley, Philadelphia, for appellees.
    Before CIRILLO, President Judge  and BECK and HESTER, JJ.

       President Judge Cirillo replaced the deceased Justice Roberts.

   BECK, Judge:

This case presents a difficult question regarding the parameters and application of the “malfunction theory” in a strict product liability action.

The malfunction theory has been part of the law of strict liability in Pennsylvania since 1969 when this Court decided MacDougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676 (1969), allocatur denied. In MacDougall, the Court held "... that the occurrence of a malfunction of machinery in the absence of abnormal use and reasonable secondary causes is evidence of a ‘defective condition’ within the meaning of § 402A____” Id., 214 Pa.Superior Ct. at 391, 257 A.2d at 680. Thus, the malfunction theory relieves a Section 402A plaintiff from the burden of proving a specific defect in the product. The theory permits a plaintiff to establish a prima facie case as to the first element of strict liability, existence of a defect, through circumstantial evidence of a defect consisting merely in the fact of the malfunction of the product and the absence of abnormal use or reasonable secondary causes. Id.; Thompson v. Anthony Crane Rental, Inc., 325 Pa.Super 386, 395-96, 473 A.2d 120, 125 (1984), allocatur denied.

The primary argument of defendant-appellant Johnson & Johnson, Products, Incorporated (J & J) on appeal is that the trial court erred in submitting plaintiffs-appellees’ strict liability claim, insofar as it was based on the malfunction theory, to the jury. J & J asserts that appellees failed to demonstrate the absence of reasonable secondary causes as to the malfunction and urges this court to direct the entry of judgment n.o.v. in J & J’s favor. Thus, the instant case calls upon us to divine precisely what the malfunction theory requires of a plaintiff who seeks to establish the absence of reasonable secondary causes.

The facts giving rise to this action can be briefly summarized. The action arose out of injuries sustained by appellee Price Rogers on May 1,1977. On that date, Mr. Rogers went to Lankenau Hospital (“Lankenau”) seeking medical treatment for a broken leg. The treating physicians were Dr. John J. Dowling, Chief of Orthopedic Surgery at Lankenau, and Dr. Lawrence Naame, a third-year resident at Thomas Jefferson University Hospital (“Jefferson”). Dr. Naame was on rotation to Lankenau at the time. As part of the treatment of Mr. Rogers, Dr. Dowling instructed Dr. Naame to prepare a plaster of Paris splint to support Mr. Rogers’ leg until the next day when Dr. Dowling intended to operate. The plaster of Paris product Dr. Naame used, technically called Johnson & Johnson Specialist fast-setting plaster of Paris (the “plaster of Paris”), was manufactured by appellant J & J.

After Dr. Naame prepared the splint, he applied it to Mr. Rogers’ leg and left the treatment room. Dr. Dowling continued Mr. Rogers’ treatment for a short while. Mr. Rogers complained to Dr. Dowling of a feeling of heat being generated by the splint but Dr. Dowling assured him everything was fine and left to secure Mr. Rogers a hospital bed for the night. Shortly thereafter, Mr. Rogers began to complain again about a burning sensation under the splint. Mrs. Rogers called Dr. Dowling back to the room and it would appear that he made some further efforts to cool the splint. However, when the splint was removed the next day, second and third degree bums were discovered on the back of Mr. Rogers’ leg.

In August 1978, appellees instituted this action against J & J, Jefferson and Lankenau. Neither doctor was a defendant. Appellees’ complaint alternatively alleged that the J & J plaster of Paris product was defective and/or negligently designed or manufactured and that the hospital defendants were liable under a theory of respondeat superior for the negligence of the treating physicians in preparing and applying the plaster of Paris. Prior to trial, counsel for appellees summarized their basic position, demonstrating that counsel relied both on strict liability and negligence:

I have evidence in this case that cuts two ways____ [A] 402A result for the plaintiff against Johnson & Johnson____ I have a burned man, Your Honor. The evidence can also show overwrapping and pillowing and dip water being too hot [evidence of medical malpractice in preparing and applying the splint], if [the jury] believe all of that, they can come back against____ Jefferson by their agent, Dr. Naame.

At first blush, this would appear to be less than extraordinary. Appellees had simply pleaded and were pursuing alternate theories of relief. However, in this case the situation was rendered somewhat more complex because of the precise nature of appellees’ strict liability claim against J & J. Appellees conceded that they were unable to prove any specific defect in the manufacture or design of the plaster of Paris that would result in it overheating. Given this lack of direct evidence of defect, appellees based their strict liability claim against J & J on circumstantial evidence of a defect under the malfunction theory. Appellees’ reliance on the malfunction theory to support their strict liability claim coupled with their continued desire to preserve their negligence claim against the hospitals forced appellees to adopt a novel trial strategy. Appellees were apparently aware that it was potentially problematical for them to attempt both to sustain their burden of demonstrating the absence of reasonable secondary causes of the malfunction, and thus present a prima facie case of strict liability under the malfunction theory, while also presenting compelling evidence of a possible secondary cause, namely, the medical malpractice of the doctors. Appellees apparently also knew that J & J intended to attempt to prove that the product was not defective by showing that the product had acted as it did, i.e. had overheated, solely because of the negligence of the doctors in preparing and applying the splint. Faced with this dilemma, appellees decided to marshal of their evidence in favor of the malfunction theory and to leave the proof of the alleged medical malpractice to J & J. In this manner, appellees sought to have their cake (the malfunction theory) and eat it too (the negligence theory). As we will indicate in greater detail below, this appellee could not do.

At trial, appellees called Dr. Dowling himself to testify to the occurrence of a malfunction in the plaster of Paris. Dr. Dowling testified that there had been no negligence on the part of either himself or Dr. Naame and that the burning of Mr. Rogers’ leg could, therefore, only be explained by a malfunction of the product caused by some defect therein. Appellant, on the other hand, produced its own expert to testify tp the negligence of Drs. Dowling and Naame, both in preparing the splint and in treating Mr. Rogers thereafter.

The case proceeded to the jury on all of appellees’ theories, the trial court having denied all of the defendants’ motions for compulsory nonsuit and/or directed verdict. The jury was sent out with a detailed Verdict Form which, coupled with the trial court’s charge, gave the jury very specific guidance as to how its deliberations should proceed. Because of the importance of the Verdict Form to our disposition of this case, we reproduce it here:

Question 1: Was the Johnson & Johnson plaster of Paris defective as a result of malfunction?
Yes No
Question 2: Was the Johnson & Johnson plaster of Paris defective as a result of failure to warn its users?
Yes No
Question 3: If you answer “Yes” to either Questions 1 or 2, was the defect a substantial factor in bringing about the plaintiffs harm?
Yes No
Question 4: Was defendant, Johnson & Johnson, negligent?
Yes No
Question 5: If yes, was the negligence of defendant, Johnson & Johnson, a substantial contributing factor in causing plaintiffs burns?
Yes No
Question 6: Was Dr. Naame negligent?
Yes No
Question 7: If yes, was the negligence of Dr. Naame a substantial contributing factor in causing plaintiffs injuries?
Yes No
Question 8: If you answer “Yes” to Question 7,
(a) Was Dr. Naame the agent of Lankenau Hospital?
Yes No
(b) Was Dr. Naame the agent of Jefferson Hospital?
Yes No
Question 9: If you answer “Yes” to either Questions 3, or 5, or 8(a) or
(b), in what amount do you find damages for plaintiff, Price

L. Rogers?

In what amount do you find damages for Elaine Rogers’ loss of consortium? $- Question 10:

If you answer “Yes” to Question 5 and Question 8(a) or (b), what percentage of that causal negligence do you attribute to: Question 11:

Defendant Johnson & Johnson % Dr. Naame % Total 100%

(R. 2669-70).

The jury was instructed that if it found for appellees on the strict liability theory, it should not consider any of the appellees’ remaining theories and should proceed directly to a determination of damages. Moreover, although the trial court never expressly instructed the jury that if it found that the plaster of Paris was defective under the malfunction theory, it need not determine whether the product was also defective under the failure to warn theory, this was the clear implication of the Court’s charge.

On February 7, 1984, the jury returned a verdict for appellees and against Johnson & Johnson only on the malfunction theory. The jury answered “Yes” to Question Nos. 1 and 3 and did not answer Question No. 2 or Question Nos. 4 through 8. In response to Question Nos. 9 and 10, the jury awarded $175,000 to Mr. Rogers and $50,000 to Mrs. Rogers on her loss of consortium claim.

The specificity of the Verdict Form coupled with the trial court’s instructions provide us with a reliable guide to interpreting the jury’s verdict. First, it is clear that the jury found for appellees on the malfunction theory only and did not even consider appellees’ failure to warn theory. In delivering the verdict, the jury foreman specifically stated that the jury had not discussed Question No. 2 relating to failure to warn. This apparently resulted from the clear implication in the court’s charge that a finding of a defect could be premised on either the malfunction theory or the failure to warn theory. Second, the jury did not specifically consider the negligence of J & J since it was instructed not to do so if it found J & J strictly liable.

On the other hand, despite the fact that the jury did not specifically answer those questions relating to Dr. Naame’s negligence or the responsibility of the hospitals for such negligence, the jury’s verdict might also be construed as a verdict not only against J & J but also in favor of the hospital defendants. The trial court announced this to be its understanding of the verdict shortly after the verdict was returned.

J & J filed a timely post-trial motion on February 16, 1984 and asserted therein numerous grounds for the grant of judgment n.o.v. or, alternatively, a new trial. J & J later supplemented this motion on March 22, 1984. By order of the trial court dated March 6,1986, J & J’s post-trial motion was denied and this appeal followed.

J & J’s major contention on appeal is made in support of its request for entry of judgment n.o.v. J & J contends that the trial court erred in submitting both appellees’ malfunction theory strict liability claim and their medical malpractice claim to the jury. Actually, J & J argues that when the trial court determined that there was sufficient evidence of medical malpractice to require submission of that issue to the jury, it thereby had necessarily also determined that appellees had failed to sustain their burden of establishing a prima facie case of strict liability under the malfunction theory. J & J so reasons because, as we have previously stated, a jury will be permitted to infer that a product is defective based solely on circumstantial evidence of a malfunction only in the absence of abnormal use of the product and reasonable secondary causes for the product to have malfunctioned. MacDougall, supra. Under J & J’s interpretation of these requirements, a plaintiff cannot possibly have established the absence of reasonable secondary causes as to the malfunction if in fact the trial court is able to find that there is also sufficient evidence of negligence by third parties to justify submitting plaintiffs case to the jury on a negligence theory.

J & J finds compelling support for its position in Thompson v. Anthony Crane Rental, Inc., supra. In Thompson, the plaintiff was injured when the boom of a truck crane owned by one of the defendants struck high voltage wires on the premises of another of the defendants. Plaintiffs hands were resting on an iron rail being lifted by the crane when the crane struck the wires and, as a result, he suffered severe electrical burns. The Thompson plaintiff alleged that the owner of the crane was strictly liable because the crane was defective and the defect caused the crane to swing into the wires. Alternatively, the plaintiff alleged that the operator of the crane, an employee of the owner, negligently operated the crane and thereby caused the crane to swing into the wires. The plaintiff relied exclusively on the malfunction theory in support of his strict liability claim. The trial court submitted both the strict liability and the negligence theories to the jury, which returned a verdict in favor of plaintiff on both theories. Id., 325 Pa.Superior Ct. at 390-95, 473 A.2d at 122, 123-24.

On appeal, the crane owner argued that the trial court had erred in submitting plaintiffs strict liability claim to the jury because plaintiff had failed to eliminate all possible secondary causes for the crane to have functioned as it did. Id., 325 Pa.Superior Ct. at 395, 473 A.2d at 125. Although the Thompson Court rejected the crane owner’s contention that a malfunction theory plaintiff must completely negate all possibility of a secondary cause for the malfunction of the product, the Court did require that such a plaintiff eliminate those other causes, if any, as are fairly suggested by the evidence. Id. (quoting Lenkiewicz v. Lange, 242 Pa.Super. 87, 363 A.2d 1172 (1976) (plurality)). See also Woelfel v. Murphy Ford Co., 337 Pa.Super. 433, 436, 487 A.2d 23, 24 (1985) (prima facie case under malfunction theory requires a showing of malfunction and elimination of other reasonable causes); Ocean Barge Transport Co. v. Hess Oil Virgin Islands Corp., 726 F.2d 121, 124-25 (3d Cir.1984) (malfunction theory plaintiff must negate other reasonable explanations for malfunction).

Applying that standard to the case before it, the Thompson Court concluded that the trial court had erred in submitting the case to the jury on the malfunction theory. The Court held it was reversible error for the trial court to submit the malfunction theory to the jury where the evidence of a reasonable secondary cause, i.e. the negligence of the crane operator, was sufficient to permit a theory of liability based on that cause to go to the jury. Id., 325 Pa.Superior Ct. at 395, 473 A.2d at 125. In other words, as appellant has correctly stated in its brief, Thompson establishes that “reasonable secondary causes cannot be both a jury question and have been ‘eliminated’ at the same time.” Brief for Appellant at p. 16.

That this was in fact the fundamental reason underlying the Thompson decision is beyond question. The Court specifically stated:

[The] [trial] court erred in submitting the instant case to a jury on a malfunction theory of strict liability. Our conclusion results from the recognition that the [trial] court also found sufficient evidence to present this case to the jury on Plaintiffs theory of negligence by the operator.
in cases like the instant one, where the plaintiff’s strict liability case depends not upon the actual proof of a defect, but only upon the mere occurrence of a malfunction, it is inconsistent to permit him to proceed on the strict liability ground where he also advances a theory of human intervention which purportedly caused the harm.

Id., 325 Pa.Superior Ct. at 395-96, 473 A.2d at 125 (emphasis added).

Appellant persuasively argues that the instant case is directly controlled by Thompson. As in Thompson, appellees included both theories of malfunction liability and of negligence based on the human intervention of the doctors. Moreover, as in Thompson, here the trial court found that there was sufficient evidence in support of both theories to allow both to go to the jury. On these bases, the legal analog between the cases is compelling.

Appellees, on the other hand, contend that their evidence in support of the malfunction theory was sufficient to present a jury question. Appellees see their burden as having been simply to come forward with enough probative evidence that the malfunction of the product was not caused by any “non-defect” factors reasonably suggested by the evidence to enable a jury reasonably to find that the malfunction was caused by a defect. Moreover, appellees correctly stress that we, as an appellate court reviewing a denial of a motion for judgment n.o.v., must review the evidence in all respects most favorable to appellees as the verdict winners. Miller v. Checker Cab Company, 465 Pa. 82, 348 A.2d 128 (1975). Given this limited standard of review, appellees urge us to regard the testimony of Dr. Dowling as sufficient negation of reasonable secondary causes to justify submission of the malfunction theory to the jury.

In making the foregoing argument, appellees also attempt to distinguish Thompson. In this regard, appellees primarily point out that they submitted no evidence of doctor negligence and in fact offered Dr. Dowling’s testimony in opposition to the negligence theory. They contrast this approach to the approach of the plaintiff in Thompson, who did not attempt to rebut his own negligence theory and in fact himself presented evidence in support of it. Appellees also point to language in the Thompson opinion that describes the plaintiff's strict liability case as being one where the plaintiff’s only proof of a defect was the occurrence of the malfunction. Appellees contrast their case by pointing to Dr. Dowling’s testimony to the effect that since it was his opinion that there had been no doctor negligence in the use of the plaster of Paris, he would conclude that there was a defect in the plaster of Paris. This, appellees argue, is proof of a defect outside of the malfunction itself and renders appellees’ case distinguishable from Thompson.

We find all of appellees’ arguments and attempts to distinguish Thompson to be unavailing. They are based upon a misapprehension of the malfunction theory, apparently shared by the trial court.

There are two elements of proof in any strict product liability action. The plaintiff must prove both that the product is defective and that the defect is the legal cause of the plaintiff’s injuries. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Bascelli v. Randy, Inc., 339 Pa.Super. 254, 260-261, 488 A.2d 1110, 1113 (1985). The malfunction theory is relevant only to the first of these elements. It addresses a situation where the plaintiff lacks direct proof of any specific defect in the product but can establish that the product malfunctioned. In such a case, the jury is permitted to infer the presence of a defect if the plaintiff proves that a malfunction of the product occurred in the absence of abnormal use or reasonable secondary causes for the malfunction.

We stress that the “absence of reasonable secondary causes” requirement does not refer to causation in the sense of proximate or legal causation. The malfunction theory plaintiff must demonstrate the absence of reasonable secondary causes for the malfunction, not for the injuries to the plaintiff. In other words, to satisfy the defect element of a Section 402A claim, the malfunction theory plaintiff must show that the malfunction of the product was not caused by any other factor reasonably suggested by the evidence. After satisfying this element, the plaintiff must also satisfy the second element, i.e. that the defect is the legal cause of the injuries.

This important distinction was elucidated by our Supreme Court in one of the few cases in which that Court has had an opportunity to opine on the malfunction theory. In Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974) (plurality), the plaintiff attempted to proceed on the malfunction theory to recover for injuries sustained when the locking device of a crane failed and the crane dropped its load on plaintiff. The defendant argued that plaintiff had not demonstrated the absence of reasonable secondary causes because the crane operator had negligently left the operator’s cab of the crane at the time the locking device failed. Defendant argued that this negligence was a reasonable secondary cause. Id., 457 Pa. at 323, 328-30, 319 A.2d at 917, 919-20.

The Supreme Court rejected this argument, stating: When a malfunction occurs, a concurrent abnormal use of the machine forecloses an inference of a defective condition only if the abnormal use itself contributed to the malfunction. Here, while the operator’s absence from the cab might be found to be a cause of the accident, it certainly did not cause the release of the brake locking device [i.e. the malfunction].
Given the occurrence of a malfunction, the operator’s assumed negligence assumes legal significance only if it was a supervening cause of Kuisis’ injuries.

Id., 457 Pa. at 330, 319 A.2d at 920.

The Kuisis Court would, therefore, allow a case to proceed to the jury on the malfunction theory despite the presence in the same case of an allegation of negligence by a third party as a legal cause for the plaintiff’s injuries only where the alleged negligence was not a possible cause of the malfunction itself. We note that in the instant case, as well as in Thompson, the alleged negligence consisted in conduct that contributed to the malfunction itself, as well as to the plaintiff’s injuries.

The above-quoted language from Kuisis clarifies the burden of a malfunction theory plaintiff in eliminating secondary causes of the malfunction to establish a defect. We note that the Kuisis Court would find that an inference of a defect is foreclosed where “abnormal use itself contributed to the malfunction”. Id. We must, therefore, conclude that an inference of a defect is equally foreclosed where a reasonable secondary cause other than abnormal use itself contributes to the malfunction.

The question that arises, however, is what must a plaintiff do to sufficiently negate the possibility that reasonable secondary causes contributed to the malfunction? In the instant case, the malfunction is the overheating of the plaster of Paris to the point of burning appellee Mr. Rogers. Appellees argue that the jury here could reasonably find from the preponderance of the evidence that this malfunction was caused by a defect in the plaster of Paris. In fact, the jury here did so find, presumably by believing appellees’ evidence and disbelieving appellant’s evidence. In other words, appellees argue that they presented a prima facie case by presenting enough evidence to enable the jury, if it believed such evidence, to find that there were no causes other than a defect that contributed to the malfunction. This, appellees state, is sufficient despite the presence of conflicting evidence that other causes may well have contributed to the malfunction.

The trial court agreed with appellees’ analysis, stating in its Opinion denying J & J’s Motion for Post-Trial Relief:

In the case before us, Plaintiffs presented evidence which, if believed, would support a verdict under the malfunction theory, i.e. would eliminate all reasonable secondary causes, in addition to establishing the malfunction itself ... Defendant presented evidence in rebuttal, which, if believed, would establish the presence of at least one reasonable secondary cause and would make the malfunction theory inapplicable, i.e. negligence on the part of either or both doctors. At that point, which evidence to believe became a jury question.

Trial Court Opinion at p. 4.

The fatal flaw in this analysis is that it leaves to the jury the determination of a pure question of law — namely, has the plaintiff eliminated those other possible causes for the malfunction as were reasonably suggested by the evidence, thus providing an adequate ground on which the jury might base an inference of the existence of a defect?

The principle that this question is a matter of law which must be answered in the affirmative by the trial court before a malfunction theory strict liability action can be sent to the jury was first indicated in the plurality opinion in Lenkiewicz v. Lange, 242 Pa.Super. 87, 92, 363 A.2d 1172, 1175 (1976) (plurality). The principle became binding precedent upon its application in the unanimous opinion of a panel of this Court in Thompson. In Lenkiewicz, the plurality opined that in a malfunction theory case, where an explanation for the malfunction which is consistent with a finding of a defect is only as probable as some other explanation arising from the evidence which is inconsistent with a finding of defect, the plaintiff has not met his burden. Id,., 242 Pa.Superior Ct. at 91, 363 A.2d at 1175. Moreover, Lenkiewicz required that the trial court make this determination before the issue could be submitted to the jury. Id.

We agree with the analysis of the Lenkiewicz plurality and with the application of that analysis made in Thompson. Malfunction theory cases differ materially from strict product liability cases involving direct proof of a defect. In the latter, the plaintiff can indeed present a jury question as to the existence of a defect by producing enough evidence of a specific defect to enable a jury reasonably to find by a preponderance of the evidence that a defect in the product existed. Johns v. Shaler Township, 240 Pa.Super. 129, 368 A.2d 339 (1976) (en banc) (generally a plaintiff must establish each element of his cause of action by a preponderance of the evidence). In contrast, a malfunction theory plaintiff actually produces no evidence of a specific defect. Such a plaintiff produces evidence only of a malfunction. In fact, by proceeding on the malfunction theory, the plaintiff admits that it not only cannot prove a specific defect by a preponderance of the evidence, but that there is no direct evidence of a specific defect. The defect is found purely through an inference from the occurrence of the malfunction whereby proof of the malfunction is allowed as proof of the defect. See Ocean Barge Transport Co. v. Hess Oil Virgin Islands Corp., 726 F.2d 121, 124 (3d Cir.1984) (evidence of malfunction is not a substitute for need to establish defect; malfunction is evidence of defect only where plaintiff eliminates all reasonable explanations for the malfunction other than existence of defect).

Lenkiewicz and Thompson merely require that a jury be foreclosed from drawing this inference of defect where the evidence is such that a jury could conclude that the malfunction was explained by some act or condition other than a defect. Stated somewhat differently, a trial court may not allow a plaintiff to use evidence of the occurrence of a malfunction as proof of a defect unless the court has first found that the malfunction cannot reasonably be said to have been caused by something other than a defect. We note that contrary to the suggestion found in the concurring opinion in Lenkiewicz, placing the responsibility for this decision on the trial court rather than leaving it to the jury to decide does not invade the province of the jury as the finder of fact. Lenkiewicz, 242 Pa.Super. at 95, 363 A.2d at 1177 (Hoffman, J., concurring). Here, the question is not which evidence to believe. We reiterate that there is no evidence of a specific defect. The question is whether evidence of a malfunction is to be considered probative of the existence of a defect. This is a question of law.

The Thompson holding is the necessary corollary of the foregoing analysis. If a malfunction theory plaintiff must demonstrate that there is an absence of reasonable secondary causes in order to present a jury question as to the existence of a defect, then such a plaintiff must necessarily negate any explanation for the malfunction based on negligence by a third party which is reasonably suggested by the evidence. Where there is enough evidence that the malfunction was caused by negligence of a third party to warrant submitting a negligence cause of action against the third party to the jury, the plaintiff can not have met its burden. This conclusion rests on the standard for submission of a negligence claim to a jury, which is well-settled in Pennsylvania. To present a jury question as to negligence, there must be sufficient evidence for the jury reasonably to say that the preponderance favors liability. Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959). Therefore, a trial court’s finding that there is sufficient evidence of negligence by third parties as a cause for a product’s malfunction to make out a jury question as to negligence as a cause of the plaintiff’s injuries necessarily imports that a reasonable jury could find by a preponderance of the evidence that negligence caused the malfunction. Thus, such a trial court had impliedly found that there is a reasonable secondary cause for the malfunction and that the inference of a defect is foreclosed.

We note that our reasoning applies equally whether the evidence that presents a jury question as to negligence is produced by the malfunction theory plaintiff or, as in this case, by the defendant. It is the presence of the evidence of a reasonable secondary cause in such a case, no matter what the source, that creates the burden on the plaintiff to negate such evidence. This is what is meant by the Thompson Court’s statement that a malfunction theory plaintiff must eliminate all reasonable secondary causes as are fairly suggested by the evidence.

In fact, a malfunction theory plaintiff carries the same burden even in a case where the plaintiff itself has not brought a negligence action against a third party in which the plaintiff alleges that the negligence of the third party caused the malfunction and the injuries. In Wojciechowski v. Long-Airdox Div. of Marmon Group, Inc., 488 F.2d 1111 (3d Cir.1973), the plaintiff brought a strict liability action against the manufacturer of a blasting device which allegedly malfunctioned, injuring plaintiff. The manufacturer brought a third party claim against the plaintiff’s employer, alleging that its negligence through its servant was the cause of the malfunction and the injury to the plaintiff. Id. at 1112-14. Plaintiff brought no action against his employer since such action was barred by the Workmen’s Compensation Act.

The Wojciechowski Court stated the plaintiff’s burden as requiring the negation of the likelihood of other reasonable secondary causes. In dicta, the Court said that it doubted whether the plaintiff had satisfied that burden in that case because of the “possibility” of human intervention as a cause for the malfunction which had been raised by the defendant in support of its third-party claim. Id. at 1117. In deciding the actual issue in Wojciechowski, i.e. whether the trial court had erred in dismissing the employer-defendant because the evidence allegedly would support a finding of joint causation (malfunction due both to defect and negligent human intervention), the Wojciechowski Court concluded that there could be no such concurrent causation in a malfunction theory case. The Court reasoned that a finding that the malfunction and injury to plaintiff could have been caused by negligent human intervention would foreclose a permissible inference of defect from the occurrence of the malfunction alone. Id.

We draw the same conclusion today. In a case where there is sufficient evidence of negligent human intervention as a cause of the malfunction of a product to enable a trial court to conclude that an independent theory as to the cause of the plaintiff’s injuries based on that negligence merits submission to the jury, the plaintiff has not sustained its burden of eliminating other reasonable secondary causes for the malfunction. Thus, the malfunction theory strict liability claim of such a plaintiff must fail in that he has failed to present a jury question as to the existence of a defect which is an essential element of his cause of action. Berkebile, supra.

We caution that we are not deciding that a mere scintilla of evidence of negligence by a third party will suffice to defeat a malfunction theory plaintiffs claim. Our decision in this case does not enable defendants in strict liability malfunction theory cases to obtain directed verdicts merely by introducing evidence, no matter how little, of a reasonable secondary cause. Our decision allows such a defendant to defeat the claim only where there is sufficient evidence of a reasonable secondary cause to present a jury question as to whether that cause itself resulted in the malfunction and the plaintiffs injury.

Applying these principles to the instant case, we find that the trial court erred in submitting appellees’ malfunction theory strict liability claim to the jury in the presence of sufficient evidence of negligence as a cause of the malfunction to warrant submission of appellees’ negligence theory to the jury. We are not persuaded that appellees’ production of Dr. Dowling’s testimony as to the absence of reasonable secondary causes was a sufficient elimination of such causes, as is evidenced by the trial court’s determination that, even considering this testimony, a jury question as to doctor negligence had been presented. Moreover, we are not persuaded that Thompson is inapplicable because of the presence in the instant case of Dr. Dowling’s statement that because in his opinion there had been no doctor negligence, the malfunction was caused by a defect in the plaster of Paris. This statement does not constitute independent proof of a specific defect. In fact, on cross-examination Dr. Dowling admitted that he could not identify any specific defect in the plaster of Paris. Dr. Dowling’s statement was nothing more than a conclusion that absent reasonable secondary causes, in his opinion, the only other possible cause of the malfunction was some kind of defect. (R. 524). This is certainly not proof of a specific defect and does not distinguish this case from Thompson.

Since we have demonstrated our concurrence with the rationale underlying Thompson and with its holding and since we have determined that it is legally indistinguishable from the instant case and concluded that the trial court here erred in submitting appellees’ malfunction theory strict liability claim to the jury, the jury’s verdict based solely on that theory must not be permitted to stand. However, we cannot accept J & J’s argument that we must accomplish this end by granting judgment n.o.v. in J & J’s favor. Under the peculiar circumstances of this case, we view that such a disposition would work a substantial injustice to appellees.

If we were to grant judgment n.o.v., we would leave appellees completely without a remedy, despite the fact that none of appellees’ causes of action other than their malfunction theory strict liability action were ever expressly decided by the jury. As we have earlier stated, the construction of the Verdict Form in this case coupled with the trial court’s instructions thereon resulted in the jury ceasing its deliberations as to liability questions immediately upon finding liability under the malfunction theory. The jury then proceeded to award damages. Although as we have stated, the verdict can be interpreted as being not only against J & J but also for the hospital defendants, this jury clearly never decided either appellees’ failure to warn strict liability claim or their negligence claim against J & J.

J & J argues that appellees are deserving of this harsh result because they advocated the use of the Verdict Form and, therefore, must accept the consequences of its use. We, on the other hand, are constrained to avoid an unnecessarily harsh result whenever we can do so without doing violence to the applicable law. In this case, we consider the grant of a new trial to be the most equitable disposition. Granting a new trial both acknowledges the applicability of Thompson to this case and rectifies the error of the trial court which gave rise to the malfunction theory verdict against J & J. It also permits appellees to obtain a jury’s decision on those of appellees’ claims which retain viability in light of this opinion. In light of this disposition, we need not consider J & J’s remaining contentions on appeal, all of which are made in support of J & J’s alternative request for a new trial.

The judgment of the trial court is reversed and a new trial to be conducted in a manner consistent with this Opinion is hereby ordered.

      . J & J also raises numerous grounds for the grant of a new trial. Because of our disposition of this case on the basis of J & J’s malfunction theory argument, we find it unnecessary to decide J & J’s remaining contentions.

      . Mr. Rogers’ wife is a co-appellee. She joined in her husband’s action with a claim for loss of consortium.

      . Appellees also pleaded a second and alternative strict liability theory based on J & J's alleged failure to warn of the dangers inherent in plaster of Paris. As in any failure to warn case, proof of this theory (like the malfunction theory) did not include any direct proof of a manufacturing defect or of any defect in the design, or chemical formula, of the plaster of Paris itself. Justice Larsen, writing in dissent in Sherk v. Daisy-Heddon, 498 Pa. 594, 450 A.2d 615 (1982) (Larsen, J. dissenting), explained the difference between failure to warn defects and other product defects as follows:
      A defect due to a failure to warn is a defect extrinsic to the product itself and the adequacy of (or need for) a warning is a determination that cannot be made in a vacuum containing only the physical properties of the product. In the manufacturing or fabrication defect situation there exists an intrinsic flaw, blemish or imperfection of some sort which is physically demonstrable, i.e. the jury may see or touch the defective product and can compare it to a perfectly manufactured product of the same product line. However, the problem of finding a defect in a perfectly constructed product is conceptually different.
      When trying to identify a defect for failure to warn or for improper design, any ‘defect’ becomes apparent only by additionally looking at a configuration of elements external to the product — in the non-manufacturing/fabrication context, then, ‘defect’ is used in a special sense.

        Id., 498 Pa. at 623, 450 A.2d at 630 (emphasis supplied) (citations omitted). Appellees’ failure to warn theory is not directly implicated in this appeal and we mention it only for purposes of completeness.

      . On February 4, 1983, J & J answered appellees’ complaint and, in New Matter, cross-claimed against Jefferson and Lankenau pursuant to Pa.R.C.P. 2252(d). If for no other reason, J & J could be expected to put on evidence of doctor negligence in support of this cross-claim.

      . It should be noted that the trial court, after having denied Lankenau’s Motion for Directed Verdict, later partially reversed itself and granted the motion only insofar as it requested a directed verdict that Dr. Dowling was not an ostensible agent of Lankenau. It was because of this ruling that the Verdict Form (discussed infra ) contained no reference to any possible negligence by Dr. Dowling.

      . The trial court charged the jury:
      But it's clear that you have to start with the determination of the defect, if there is a defect in the product, whether it be on the theory of malfunction or the theory of failure to warn. Once you reach that decision, once you answer yes to either question 1, 2 and 3, all the rest of the case is out, even though it’s that much instruction I have to give you concerning the rest of the question, because once there’s a defect, that’s the only party that can be found liable. Is that clear? So you skip to 9 and 10 only. (R. 2417).

      . We note that the Thompson Court mistakenly referred to the plurality opinion in Lenkiewicz as a majority opinion. This error, although meriting correction, in no way erodes the viability or binding nature of the Thompson opinion.

      . It would appear that the Lenkiewicz plurality somewhat confused the distinction that we have indicated must be drawn between eliminating reasonable secondary causes to prove a defect and establishing that the defect was the proximate or legal cause of the plaintiffs injuries. This may well result from the fact that in many cases involving the malfunction theory, proof of the defect will be somewhat coincident with proof of causation. This is because in eliminating other possible causes of the malfunction, a plaintiff will also be producing evidence that goes to establish the causal link between the malfunction and defect and his injuries. In a case not involving a possible supervening cause, this may be all that is necessary to establish a prima facie case as to the second element of a strict liability case, i.e. legal causation.

      . Appellee’s brief also makes passing reference to evidence they presented regarding a similar burning incident involving plaster of Paris which appellees sought, over J & J’s objection, to use to show a defect in the plaster of Paris. In support of J & J’s alternative motion for a new trial, J & J has alleged on appeal that the admission of this evidence was in error. We note that this evidence was admitted only in support of appellees’ failure to warn theory and their negligence theory against J & J, and not in support of their malfunction theory.

      . We note that the Thompson Court was not faced with a similar difficulty since in that case, unlike here, the jury had returned an independent verdict based on the plaintiffs negligence of the crane operator theory. The Thompson Court’s decision that judgment n.o.v. was warranted as to the malfunction theory strict liability claim did not affect the negligence verdict, which the Court allowed to stand. Thompson, 325 Pa.Super. at 394-96, 473 A.2d at 125-6.

      . Thompson was decided three days after the completion of the trial in this case. Nevertheless, changes in decisional law are applicable to cases in litigation at the time of the change. McCloskey v. Workmen’s Compensation Appeal Board, 501 Pa. 93, 98 n. 3, 460 A.2d 237, 239 n. 3 (1983).


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    533 A.2d 750
    COMMONWEALTH of Pennsylvania, Appellant, v. Eric MARTINSON, Appellee.
    Superior Court of Pennsylvania.
    Argued March 12, 1987.
    Filed Nov. 9, 1987.

      Frances G. Gerson, Assistant District Attorney, Philadelphia, for Com., appellant.
    John G. McDougall, Philadelphia, for appellee.
    Before CIRILLO, President Judge , and McEWEN and MONTEMURO, JJ.

       President Judge Vincent A. Cirillo has replaced the deceased Justice Samuel J. Roberts.

   McEWEN, Judge:

The Commonwealth has taken this appeal from an order which granted appellee’s motion to suppress, and argues that the hearing court erred when it directed the suppression of evidence discovered by police officers during an inventory search of a motor vehicle in their custody. We agree and reverse.

Two Philadelphia police officers, on patrol on the Schuylkill Expressway on December 31, 1985, halted a vehicle after they had observed it endanger other vehicles by weaving back and forth in traffic, across the dividing lines, at a slow rate of speed. The vehicle was occupied by a minor female driver who was unable to provide the officers with any form of identification, and a male passenger. The operator initially lied to the police concerning her identity, had red, watery eyes, provided slow responses to questions, was unable to produce a driver’s license or vehicle registration, and stated that she did not know who owned the car. As a result of her demeanor, the driver was arrested on suspicion of driving while under the influence. Appellee, the passenger, was asleep when the vehicle was halted, but awoke to the questions of the officers and stated that he had borrowed the vehicle from a friend, and had given the minor driver permission to operate the car. When asked to produce identification, appellee got out of the car and reached for his belt, causing one of the officers to grab his arm. Appellee responded that he was merely reaching for his money and displayed to the officer a clear plastic bag of currency, later determined to be a sum in excess of $6,000.00. When appellee attempted to supply identification, he stated that he “lived in Philadelphia”, but produced a Virginia driver’s license issued to “Eric Martinson”. The officer had noticed a Pennsylvania Welfare Department medical card in the appellee’s wallet as he searched for his license. Appellee, upon request of the officer, displayed the card which had been issued to “Anthony Merkel”. While the police were not certain that appellant had been drinking intoxicants, the manner of his response to their questions and the glassy condition of his eyes led them to conclude that appellee wasn’t “in any better condition than [the arrested driver] was” to operate the vehicle. The officer who had the more direct contact with appellee at the scene, when asked why appellee was not allowed to drive the car from the scene, testified at the suppression hearing:

A. Well, at that time, I decided that we would take him into headquarters to find out exactly who he was.
Also, since he said he had borrowed the car from a friend, we were going to — since we had to investigate the ownership of the car, we would take him and the vehicle in and investigate that further at headquarters.
* * # * * He
A. I wasn’t positive that Mr. Martinson was Mr. Martin-son or Mr. Merkel. As I said, he had two different identifications on him, and I had some doubt as to who he was. No one had produced any information on the ownership of the car, and I didn’t believe his condition was such that he would be able to drive. (emphasis supplied).

Immediately upon returning to the precinct, one of the officers ran a computer check on the vehicle as well as the names “Anthony Merkel” and “Eric Martinson.” No record of the registration of the vehicle was discovered. The officers had, at that time, no means of ascertaining the ownership of the car as appellee had stated that he “would not give us any information once we got into the district. He said only that his name was Eric Martinson.” [N.T. 35]. The computer check additionally disclosed that while no warrants were outstanding for Eric Martinson, a warrant for Anthony Merkel had been issued by the State of Maryland.

The officer further testified that he related all of this information to his supervisor who instructed him to take the car into custody until the identity of the owner could be ascertained. Subsequently, pursuant to Philadelphia Police Department regulations, an inventory search of the car was conducted, during the course of which a temporary registration for the vehicle, issued to Timothy Cox, 1924 South 65th Street, Philadelphia, was discovered in the glove compartment.

When appellee arrived at the police station, the contents of his pockets were inventoried and a property receipt prepared. A trunk key for the automobile was included among appellee’s effects and, as a result, used by the two officers to conduct an inventory search of the trunk. Upon opening the truck the officers saw a three and one-half foot high wooden planter, containing a plant, lying on its side in the trunk. The side of the planter facing the officers had been pried open, exposing the interior of the planter. The officers noted that the upper three-quarters of the planter was filled with dirt while the lower quarter of the planter was filled with a white powder encased in clear plastic. Upon removing the planter from the trunk, the officers discovered in the trunk an unzipped gym bag containing $5,000 in cash. The suspicion of the officers that the white material in the planter was a controlled substance was confirmed when the narcotics unit determined that the planter contained five one pound bags of methamphetamine.

The trial court concluded that the arrest of appellee was illegal because the officers did not have probable cause to arrest or detain appellee, and held that all evidence seized as a result of the initial illegal detention was inadmissible.

The role of an appellate court in reviewing an order granting or denying a motion to suppress is to determine whether the record supports (1) the suppression court’s factual findings, and (2) the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, this Court may consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as fairly read in the context of the record as a whole remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse only if there is an error in the legal conclusions drawn from those factual findings. Commonwealth v. Vinson, 361 Pa.Super. 526, 530, 522 A.2d 1155, 1157 (1987); Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1043 (1986).

Appellee does not dispute that the arresting officers had probable cause to believe that the minor driver had violated Section 3731 of the Vehicle Code, 75 Pa.C.S. § 3731, Driving Under Influence of Alcohol or Controlled Substance, a second degree misdemeanor, 75 Pa.C.S. § 3731(e)(1). Thus, Section 3731(c) of the Vehicle Code authorized the officers to make a warrantless arrest of the driver. 75 Pa.C.S. § 3731(c). Appellee argues, however, that there was no basis upon which to detain or arrest him and that he, therefore, should have been permitted to assume control of the vehicle following the arrest of the driver.

Contrary to the assertion of appellee, the officers had authority, pursuant to Section 1575 of the Vehicle Code, to arrest appellee. See: Commonwealth v. McAulay, 361 Pa.Super. 419, 522 A.2d 652 (1987); Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982). This section provides, in relevant part:

(a) General rule. — No person shall authorize or permit a motor vehicle owned by him or under his control to be driven in violation of any of the provisions of this Title.
(b) Penalty. — Any person violating the provisions of subsection (a) is guilty of the same offense as the driver of such vehicle and subject to the same penalties____

75 Pa.C.S. § 1575. As previously noted, appellee informed the arresting officers that he had given the minor driver permission to drive the vehicle. This was an admission of a violation of 75 Pa.C.S. § 1575(a), and a basis of probable cause for the arrest of appellant.

There exists an even further basis for finding that the inventory search of the vehicle was proper. As heretofore noted, the driver of the vehicle, after initially providing a false name to the officers, identified herself and stated that she did not have a registration for the vehicle and did not know who owned the car. Appellee stated that he had borrowed the car from “a friend” but did not offer to produce the vehicle registration and refused to provide the name of the owner to the officers. Appellee, who stated that he lived in Philadelphia, displayed a Virginia operator’s license bearing his name and photograph but also had a Pennsylvania medical card bearing the name Anthony Merkel in his wallet. It is beyond question that, under the circumstances, the police officers would have been derelict in their duty had they permitted appellee, whom they believed to be incapable of safe driving and whose identity was uncertain, to assume control of a vehicle, whose ownership they could not ascertain.

As for whether the police had lawful custody of the vehicle, the Motor Vehicle Code confers authority upon police officers to remove vehicles from the highway in certain circumstances including:

§ 3552. Removal of vehicle by or at direction of police
* # # * # *
(c) Removal to garage or place of safety. — Any police officer may remove or cause to be removed to the place of business of the operator of a wrecker or to a nearby garage or other place of safety any vehicle found upon a highway under any of the following circumstances:
* # * * * #
(2) The person or persons in charge of the vehicle are physically unable to provide for the custody or removal of the vehicle.

72 Pa.C.S. § 3352(c)(2).

Having concluded that appellee was lawfully arrested and that the vehicle was lawfully taken into custody, the final issue for resolution is whether the inventory search was reasonable and proper. Our venerable colleague, President Judge William F. Cercone, in Commonwealth v. Brandt, 244 Pa.Super. 154, 366 A.2d 1238 (1976), keenly clarified the notions and issues attendant an inventory search when, on behalf of a unanimous court, he wrote:

An inventory takes place when it is not coupled with the intent of discovering evidence of a crime. The inventory is conducted not for the purpose of uncovering incriminating evidence, but for the purpose of safeguarding the contents of the vehicle for the benefit of both the owner and the police. This benevolent purpose was recognized by the United States Supreme Court in its recent decision of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).
******
In explaining the noninvestigative functions of inventories the [United States Supreme] [C]ourt explained that, “These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, ... the protection [of] the police against claims or disputes over lost or stolen property, and the protection of the police from potential danger____” (footnote omitted) 428 U.S. at 368, 96 S.Ct. at 3096.
******
We believe that absent probable cause, a search of an automobile is reasonable provided that the Commonwealth prove two elements. First, the Commonwealth must show that the vehicle was lawfully within the custody of the police.
Secondly, the Commonwealth must show that the search was in fact an inventory search pursuant to the objectives laid down in Opperman, supra, and noted earlier in this opinion. The hearing judge must be convinced that the police intrusion into the automobile was for the purpose of taking an inventory of the car and not for the purpose of gathering incriminating evidence. Those facts and circumstances which the hearing judge must consider include the scope of the search, the procedure utilized in the search, whether any items of value were in plain view, State v. Tully, [166 Conn. 126] 348 A.2d 603 (1975); the reasons for and nature of the custody, Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); the anticipated length of the custody, and any other facts which the court deems important in its determination. If, after weighing all the facts and circumstances, the court is of the opinion that it was an inventory search of an automobile lawfully in police custody, then any evidence seized as a result of this “reasonable” inventory search is admissible. If, on the other hand, the hearing judge determines that the Commonwealth has not shown that the search was part of the police caretaking function rather than their investigative function, the probable cause-warrant standard must be used for determining reasonableness.

Commonwealth v. Brandt, supra, 244 Pa.Superior Ct. at 162, 366 A.2d at 1241-1242 (footnotes omitted throughout). Thus, this Court declared that an inventory search of a motor vehicle is lawful only if it is, under all of the extant circumstances, “reasonable”. When the focus of the search is, as here, to protect and preserve from loss during storage such items of personal property as are carried in a vehicle, the search procedures must be reasonable, and must, as well, be restricted to those locations where items of value would normally be carried, including, necessarily, the passenger areas, the glove compartment, and the trunk.

The only evidence available for review during our determination of whether the police complied with Brandt is the direct testimony of the arresting officer who assumed the duty of the inventory search and the testimony of his superior who participated in that search. This direct testimony provides a clear and quite detailed picture of the procedures employed to conduct the search, and to examine the articles found in the vehicle. Moreover, the able and thorough cross-examination undertaken by counsel for appellee failed to uncover any discrepancy in all of that testimony.

Judicial examination of a challenge to a police search requires the court to balance the competing needs of society. On the one hand, the need of every society, including our free society, to provide for enforcement of its laws and thereby enable the preservation of the .common weal is intrinsic to the existence of any society. That need in our society is, of course, described in constitutional parlance as the “police power”. On the other hand, the quite decisive restrictions upon the “police power” imposed by the founders and framers in the Bill of Rights bespeaks their keen awareness of the awesome nature of the “police power”. The specific role of the courts then is to balance the right of society to implement its police power against the right of a citizen to be free of police intrusion. This challenging task requires the courts to balance those competing rights and then to discern: what is “reasonable” — a term which, with its kin “fairness” and “due process”, defies definition, but demands determination.

The mandate of Brandt required the hearing court to focus upon (1) the scope of the search, (2) the procedure utilized in the search, (3) whether any items of value were in plain view, (4) the reasons for and nature of the custody, (5) the anticipated length of the custody, and (6) any other facts deemed important. The testimony of the searching officers provides a lengthy description of the search and the purposes for the search, and makes apparent: (1) that the police did not ensnare the occupants and their vehicle, rather the erratic and dangerous manner in which the vehicle was operated signaled the attention of the police; (2) that the police did not confiscate the vehicle as contraband, but rather took it into custody due to their belief that neither occupant was fit to operate the automobile and their inability to ascertain the ownership of the vehicle; (3) that the police did not contrive a reason for the inventory search but rather conducted the search as part of their caretaking function; and, (4) that the police did not scatter and tear apart the contents of the vehicle or the trunk seeking contraband, but instead discovered the illicit substance in the ordinary course of an inventory search, which properly included the trunk of the vehicle. See: Commonwealth v. Burgwin, 254 Pa.Super. 417, 421, 386 A.2d 19, 24-25 (1978).

As a result, we conclude that there is no evidentiary basis for the conclusion of the hearing court that the search was illegal. Rather, the evidence supports but one conclusion, namely, that the police here complied with the Brandt mandate because “the vehicle was lawfully within the custody of the police” and their “intrusion into the automobile was for the purpose of taking an inventory of the car____” Commonwealth v. Brandt, supra 244 Pa.Super. at 162, 366 A.2d at 1242. Since the evidence was seized during a “reasonable” and, therefore, lawful inventory search, the evidence is admissible. See: U.S. v. Edwards, 577 F.2d 883, 893 (5th Cir.1978).

Order reversed. Case remanded for trial. Jurisdiction relinquished.

      . An order suppressing evidence is appealable when it is apparent from the record that the order terminates or substantially handicaps the prosecution. See: Commonwealth v. Dugger, 506 Pa. 537, 543, 486 A.2d 382, 386 (1985).

      . The arresting officers testified that they did not conduct any field sobriety tests at the scene because the shoulder in the University Avenue area of the expressway is "very, very dangerous.” [N.T. 87]

      . The officer testified at the preliminary hearing that appellant "had stated that a friend owned [the car] but when he saw we were arresting the driver he said he would not answer anymore questions ... We brought the defendant, the vehicle and the driver of the car into the district because no one would tell us who owned the car."

      . The police in this case were also required to comply with Philadelphia Police Department Directive 91, Section Five, Subsection A, Number Three — Vehicles and Their Contents (temporary storage only) directing:
      (a) When the owner or operator of a vehicle is not physically able to retain possession of his or her vehicle and its contents, and no relative or other authorized person is present to accept responsibility for the property, the police officer initially assigned to the incident will:
      (1) Remove all personal property from the vehicle and place it in a police vehicle for safekeeping.
      (a) The officer will not force a lock off the compartment or trunk, but will note on the Property Receipt that either or both were locked.
      ******
      (b) When the vehicle arrives at the district, the Operations Room Supervisor will re-inventory the vehicle and add to the Property Receipt (75-3) any additional items found.
      Since appellant does not argue that the search violated the departmental regulations, we need not address that issue.

      . Although the decision in Commonwealth v. Burgwin, supra, was split as to the issue of whether, upon the facts, the search of the car constituted an inventory search, this Court was in agreement to extend the reasonableness requirement of Opperman, supra, to the inventory search of a trunk.


author: MONTEMURO, Judge:

text:
    533 A.2d 756
    COMMONWEALTH of Pennsylvania, Appellant v. Joseph MARKLE, Appellant
    (at 3251), (at 3249 and 3250).
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1987.
    Filed Nov. 9, 1987.

      David P. Trulli, Philadelphia, for appellant in Nos. 3249 and 3250 and appellee in No. 3251.
    Alan Sachs, Assistant District Attorney, Philadelphia, for Com., appellant in No. 3251 and appellee in Nos. 3249 and 3250.
    Before CAVANAUGH, ROWLEY and MONTEMURO, JJ.
   MONTEMURO, Judge:

This case comes before us on a consolidation of three appeals. The Commonwealth appeals from the Order of the Post-Conviction Hearing Act (“PCHA”) Court granting Joseph Markle (designated as appellee herein) the right to file a direct appeal nunc pro tunc. Appellee appeals nunc pro tunc from the trial court’s judgment of concurrent sentences following a jury trial where appellee was found guilty of burglary and conspiracy. He also appeals from the PCHA Court’s denial of his other grounds for PCHA relief. We affirm.

On June 25, 1981 a Philadelphia police officer, responding to a radio report of a burglary-in-progress at the All Saints Episcopal Church, observed appellee and another man running across the street approximately 50 yards from the church. The man accompanying appellee was carrying a weighted pillow case. The officer apprehended the men as they entered a vehicle parked in an apartment complex across the street from the church. The pillow case was discovered to contain various articles of church property. In addition, the police officer observed a large screwdriver and a pair of gloves on the back seat of the car. The two men were arrested and charged with burglary and conspiracy.

At trial, the court denied appellee’s requested point for charge on “mere presence” and flight. The jury returned a guilty verdict on both the burglary and conspiracy charges. Timely post trial motions were filed and denied by the trial court and appellee was sentenced to consecutive terms of imprisonment of ten (10) to twenty (20) years for burglary and five (5) to ten (10) years for conspiracy. Upon appellee’s motion for reconsideration, the court made the sentences concurrent. Appellee then filed an appeal with this court alleging that the evidence was insufficient to support a guilty verdict on the charges; that the court erred in failing to grant trial counsel’s request for a continuance of the post-trial motions hearing, and that trial counsel was ineffective. We quashed appellee’s appeal as untimely filed. Appellee subsequently filed a PCHA petition, which as supplemented, alleged that trial counsel was ineffective for failing to file a timely appeal; for failing to contend that the trial court wrongly denied his point for charge on “mere presence” and flight, and for failing to demand an adequate instruction on accomplice liability. The PCHA court found that appellee had been denied his appellate rights because of trial counsel’s failure to perfect a timely appeal and granted appellee leave to file a direct appeal nunc pro tunc to this court. In addition, the PCHA court went on to address appellee’s allegations regarding the denial and sufficiency of the points for charge and found these claims meritless. The Commonwealth appealed from the portion of the PCHA court’s order which determined that his additional PCHA claims were meritless. Moreover, appellee exercised his right to appeal nunc pro tunc from the trial court’s judgment of sentence. The three appeals were consolidated and the Commonwealth was designated appellant.

The resolution of this case requires us to examine: (1) Whether the PCHA court properly granted appellee the right to file an appeal nunc pro tunc; and (2) if so, which of appellee’s claims have been preserved for appellate review?

We conclude that the answer to the first question is controlled by our decision in Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982) (en banc). In Miranda, we discussed the procedural approach to be followed by a PCHA court when it decides that a PCHA petitioner has been denied his appellate rights. Generally, a deprivation of appellate rights claim in the PCHA context is “premised upon counsel’s ineffectiveness for having failed to take an appeal despite petitioner’s request to do so, or for having failed to pursue on appeal an allegedly meritorious claim.” Id., 296 Pa.Superior Ct. at 447, 442 A.2d at 1136. In describing the proper approach in such situations, we stated:

Thus, when beginning to review a petition alleging the deprivation of appellate rights, the PCHA court must act in accordance with the general procedural framework set forth in [Commonwealth v.] Webster [466 Pa. 314, 353 A.2d 372 (1976)]. That is, once the PCHA court determines petitioner has been deprived of his appellate right, it should refrain from ruling upon the merits of the other claims and should grant petitioner the right to file an appeal nunc pro tunc. The Webster holding, however, did not anticipate the problem of an incomplete record on appellate review when the remaining issues were not reviewed by the PCHA courts. The problem was resolved in Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977). Therein the Supreme Court created an exception to the general rule it had established in Webster when it wrote:
We have since stated that the preferred practice is for a Post Conviction Hearing Court, having determined that petitioner is entitled to a direct appeal, to refrain from ruling upon the merits of the remaining claims for relief because they will be reviewable on the direct appeal process (citation omitted). The only justification for a deviation from this practice is when the trial record is inadequate to provide a basis for review of the claim or where the claim was not ruled upon by the trial court.

Id., 296 Pa.Superior Ct. at 450-452, 442 A.2d at 1139 (quoting Commonwealth v. Sullivan, 472 Pa. 129, 140 n. 5, 371 A.2d 468, 473 n. 5 (1977)).

We also made it clear that when the PCHA court finds it necessary to rule on the additional claims raised in the PCHA petition, after determining that appellate rights have been denied, its findings merely provide an evidentiary format for review. Rather than finally determining the additional grounds for PCHA relief, the PCHA court’s findings merely complete the record for appellate review. Id. The result of this procedure is one nunc pro tunc appeal, consisting of a conglomeration of issues. All claims raised in the PCHA petition as well as those which were presented in post-trial motions will be reviewed, if raised, in the nunc pro tunc appeal. Id., 296 Pa.Superior Ct. at 456, 442 A.2d at 1140-1141. Consequently, a petitioner is afforded an opportunity to raise in the nunc pro tunc appeal those issues which ordinarily might have been pursued in a timely appeal, thus vindicating the earlier denial of these rights, and an opportunity to present his PCHA claims. At the same time, traditional notions of judicial economy are fostered by following the Miranda framework.

In the present case, the PCHA court determined that appellee was denied his constitutional right to a direct appeal because of trial counsel’s inadvertence in failing to perfect a timely appeal from judgment of sentence. This determination is clearly supported by the record.

Unless knowingly and voluntarily waived, a defendant’s right to appeal is guaranteed by Article V, Section 9 of the Pennsylvania Constitution, and this right includes the right to assistance of counsel in the task of taking and perfecting the appeal. Commonwealth v. McKnight, 311 Pa.Super. 460, 465, 457 A.2d 1272, 1275 (1983).

In the present case, the record supports the PCHA court’s finding that appellee was denied his right to appeal. The record reveals that appellee clearly wished an appeal to be filed. The denial of this right was not a consequence of appellee’s intentional relinquishment of a known right, but of trial counsel’s failure to timely file an appeal. The Commonwealth has failed to meet its burden of establishing that the appellee had waived his right to appeal. Commonwealth v. Wilson, 430 Pa. 1, 3, 241 A.2d 760, 762 (1968).

After determining that appellee had been denied his constitutional right to appeal, the PCHA court concluded that an appeal nunc pro tunc was the appropriate remedy. In addition, the PCHA court proceeded to make findings on the additional claims asserted in the PCHA petition. This procedure is consistent with the format set forth in Miranda, supra. Because the trial court’s opinion did not address appellee’s claims that the jury was inadequately charged on “mere presence” and on accomplice liability, the PCHA court addressed these claims to complete the record for appellate review. The PCHA courts findings on these issues are not definitive rulings on the merits, which must be appealed separately, but are evidentiary in nature and will be reviewed in the nunc pro tunc appeal along with those issues which were properly preserved in appellee’s post trial motions.

The Commonwealth cites Commonwealth v. Unger, 494 Pa. 592, 432 A.2d 146 (1980), for the proposition that the PCHA court should not have granted nunc pro tunc relief once it concluded that appellee’s other PCHA claims were meritless. The Commonwealth urges that because counsel cannot be ineffective for failing to raise a meritless claim on appeal, the PCHA court should have denied nunc pro tunc relief once it found that the trial court had properly instructed the jury. The Commonwealth further contends that appellate review of the denial of appellee’s PCHA ground serve as the full equivalent of a nunc pro tunc appeal. Aside from expressly rejecting this position in Miranda, we believe that Unger is distinguishable.

In Unger appellant sought PCHA relief alleging that: (1) his plea was not lawfully entered; and (2) counsel was ineffective for both failing to present an intoxication defense and for failing to preserve appellant’s rights on appeal. The PCHA court denied relief. Justice Larsen, speaking for a plurality of our Supreme Court, ruled that the PCHA court had properly found that the guilty plea was lawfully entered and had not erred when it concluded that trial counsel was not ineffective for failing to raise an intoxication defense. The plurality then concluded that because these claims lacked arguable merit, appellate counsel could not be ineffective for failing to raise them on direct appeal.

Consequently, in Unger an appellate tribunal reviewed the claims raised in the PCHA petition on the merits and then concluded that the petitioner’s claim of ineffective assistance of appellate counsel was rendered moot by resolution of those issues. The plurality opinion in Unger is limited to the particular facts of the case and rests on the notion that judicial economy is fostered by adopting such a strategy in the Unger factual situation. Rather than direct that the PCHA court should have granted an appeal nunc pro tunc, only to have the same issues that were squarely before them later raised in the appeal nunc pro tunc, the plurality felt that in light of the adequacy of the record, resolution of appellant’s claim on the merits would be judicious, while at the same time adequately vindicating his denial of appellate rights claim. Accord: Commonwealth v. McKnight, supra, 311 Pa.Superior Ct. at 466, 457 A.2d at 1272. Additionally, Justice Robert’s concurring opinion points out that the PCHA court should have granted an appeal nunc pro tunc if they had concluded, as he believed, that appellant was denied his right to appeal. Unger, supra, 494 Pa. at 599, 432 A.2d at 149. (Roberts, J. concurring opinion). However, Justice Roberts, also apparently influenced by principles of judicial economy, treated the appeal of the PCHA court’s findings as a timely appeal from judgment of sentence. Addressing the merits, Justice Roberts reasoned that because the PCHA court had used proper legal standards to resolve appellant’s claims, the only claims that he would have raised on direct appeal, the failure to allow an appeal was not prejudicial.

In contrast to Unger, the PCHA court in the present case determined that appellee had been denied his right to appeal and properly followed the procedure which we outlined in Miranda. Judicial economy dictates that we address all those claims not waived by appellee, which are presently before us on his nunc pro tunc appeal.

We now turn to the question of which claims appellee has preserved for appellate review on his nunc pro tunc appeal and conclude that only two issues remain for our review.

It is well-settled that specific claims of ineffectiveness not raised in a counseled PCHA petition are deemed waived for purposes of appeal. Commonwealth v. Pettus, 492 Pa. 558, 564, 424 A.2d 1332, 1335 (1981), Commonwealth v. Scott, 345 Pa.Super. 86, 91, 497 A.2d 656, 659 (1985). All issues presented on appeal which were not raised at the first opportunity to do so are deemed waived. Commonwealth v. Zillgitt, 489 Pa. 189, 192 n. 3, 413 A.2d 1078, 1080 n. 3 (1980).

Appellee’s counseled PCHA petition, as amended, specifically alleged ineffectiveness of counsel: (1) for failure to preserve the issue of the trial court’s failure to instruct on mere presence and (2) for failing to object to the trial court’s allegedly insufficient charge on accomplice liability. These two claims, and only these two, remain for our review.

Turning now to the merits of the claims presently before us, we conclude that the trial court correctly denied appellant’s point for charge on mere presence. Where a jury is fully and adequately instructed on the elements of a crime, and where it appears that a charge on “mere presence” is not essential to their understanding of the case, the trial court may refuse to issue a specific instruction on mere presence. Commonwealth v. Durah-El, 344 Pa.Super. 511, 517-518, 496 A.2d 1222, 1227 (1985).

The trial court fully instructed the jury on how to consider circumstantial evidence and evidence of flight. Therefore, any additional charge on “mere presence” was unnecessary.

We also find that the trial court’s instruction on accomplice liability was sufficient. The trial court fully instructed the jury on both the meaning of accomplice liability, as well as it application. As a result trial counsel was not ineffective in failing to raise this meritless claim.

Judgment of sentence at No. 3249 is affirmed.

Order at Nos. 3250-3251 affirmed.

      . 42 Pa.C.S.A. § 9541 et seq.

        . 18 Pa.C.S.A. § 3502.

      . Id. at § 903.

      . See Commonwealth v. Markle, 343 Pa.Super. 613, 494 A.2d 482 (1986)

      . It appears that when trial counsel filed his petition for reconsideration of sentence on May 9, 1983, which was granted on June 16, 1983, he mistakenly assumed that such filing would stay the running of the thirty day appeal period. See Commonwealth v. Sayko, 333 Pa.Super. 265, 482 A.2d 559 (1984) (motion to modify sentence under Pa.R. Crim.P. 1410 does not affect the running of the 30-day period for filing timely notice of appeal). Consequently, when notice of appeal was filed on July 7, 1983, the statutory appeal period had expired. As a result, the PCHA court found that trial counsel was ineffective in failing to preserve appellee’s right to appeal when appellee had requested him to do so.

      . The trial court did not address these claims because they were not raised in appellee’s boilerplate post-trial motions.

      . We note that it was therefore not necessary for appellee to file a separate appeal from the PCHA court’s denial of his additional PCHA claims.

      . In Miranda, supra, 296 Pa.Superior Ct. at 450, 442 A.2d at 1137, we noted that subsequent decisions of our supreme court have reaffirmed the position which that court outlined in Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372, 373 (1976), stating that once the PCHA court determined that a petitioner has been denied his appellate rights the PCHA court should refrain from deciding on the merits any other claims alleged in the petition and grant leave to file an appeal nunc pro tunc. As previously noted, the only exception to this rule is where the PCHA court finds it necessary to make findings of an evidentiary nature to complete the record for review on the nunc pro tunc appeal. In so holding we expressly repudiated the view enunciated in Commonwealth v. Valezquez, 244 Pa.Super. 327, 368 A.2d 745 (1976). Under Valezquez, a nunc pro tunc appeal based on denial of appellate rights would be unavailable. Instead, the PCHA court would determine all of petitioner’s claims on the merits and the petitioner would then appeal from any adverse determination of his claims. The Commonwealth seems to be advocating a return to this procedure. We decline their invitation.
      Moreover, the Commonwealth’s assertion that judicial economy is fostered by the view espoused in Valezquez certainly is not true in the case at bar. Rather than simply rule on all of the claims now directly before us on the nunc pro tunc appeal, the Commonwealth would have us reverse the PCHA court’s granting of the nunc pro tunc appeal and then review the remainder of the PCHA court’s order, a circuitous route to the same end. See Commonwealth v. McKnight, 311 Pa.Super. 460, 466, n. 8, 457 A.2d 1272, 1276 n. 8 (1983) (resolution of appellant’s claims in the posture of a nunc pro tunc appeal serves the dual purpose of quickly remedying the denial of a direct appeal and at the same time promoting the traditional policies of judicial economy and fairness).

      . 42 Pa.C.S.A. § 9544 provides in pertinent part:
      § 9544 When an issue is finally litigated or waived
      (a) ...
      (b) Issues waived. — For the purposes of this subchapter, an issue is waived if:
      (1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.
      (2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
      (c) Presumption. — There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

      . In addition to the trial court’s alleged error in failing to instruct the jury on "mere presence" and in failing to adequately instruct on accomplice liability, appellee asserts that following claims which were not raised before the PCHA court: (1) Insufficiency of evidence to support the jury’s verdict; (2) The trial court erred in denying appellee's request for post trial motions; (3) Ineffective assistance of trial counsel in failing to challenge probable cause for arrest, in failing to challenge the prosecutor’s summation, and in failing to object to prosecutor’s implied reference to appellee’s previous prison term.
      While we said in Miranda, supra at 465, 442 A.2d at 1140-1441, that all issues preserved in post verdict motions and those presented in the PCHA petition are reviewable on the nunc pro tunc appeal, appellee has filed boilerplate post-trial motions. Consequently, the issues sought to be preserved in those motions have been waived and the only issues we need consider are those specifically raised in the PCHA proceeding. See Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). We also note that while appellee is represented by new counsel on appeal, he does not allege ineffectiveness of PCHA counsel in failing to raise other claims in the PCHA proceedings.


author: CIRILLO, President Judge:

text:
    533 A.2d 762
    Thomas CARPITELLA, a Minor By his Parent and Natural Guardian, Shirley CARPITELLA and Shirley Carpitella in her own right v. CONSOLIDATED RAIL CORPORATION T/A Conrail and SEPTA and North Pennsylvania Railroad and Reading Company and National Railroad Passenger Corporation T/A Amtrak and Northeast Commuter Services Corporation and Amtrak Commuter Services Corporation and Philadelphia Electric Company. Appeal of SEPTA.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1987.
    Filed Nov. 13, 1987.

      Joseph R. Livesey, Philadelphia, for appellant.
    Bruce D. Hess, Huntingdon Valley, for appellees.
    Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.
   CIRILLO, President Judge:

Thomas Carpitella, a minor, and Shirley Carpitella, his parent and guardian, filed suit against Southeastern Pennsylvania Transportation Authority (SEPTA) in the Court of Common Pleas of Philadelphia County on November of 1984. The Carpitellas alleged that Thomas was severely injured when he entered a power substation through an opening under a fence and came in contact with a high voltage power line. In February of 1985, SEPTA filed an answer to that complaint; in September of 1986 SEPTA petitioned the court for permission to file an amended answer pleading affirmative defenses available to Commonwealth agencies or parties under 42 Pa.C.S.A. § 8501, et seq. The request was denied. A motion for reconsideration was also denied. SEPTA then appealed to this court.

Appellant SEPTA argues on appeal that the trial court abused its discretion by denying SEPTA leave to amend its answer to allege as “New Matter” that it was acting as a Commonwealth agency and/or party and so was entitled to the immunities and defenses set out in 42 Pa.C.S.A. § 8501 et seq. SEPTA contends that (1) the relevant authority to support the proposed defenses did not exist at the time the original answer was filed; (2) refusal to allow an amended answer would require a waiver of those defenses; (3) no inconvenience or delay would result from allowing the answer to be amended; and (4) the amended answer was in conformity with Rule 1033 of the Pa.R.Civ.P.

Appellant SEPTA argues that Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986), settled the issue of whether SEPTA was a Commonwealth agency. As the Carpitellas point out, however, this point does not seem to have been in great dispute. In Feingold, the Pennsylvania Supreme Court affirmed this court’s ruling on that issue. The superior court’s decision had been handed down before SEPTA’s answer was originally filed. The court relied on a federal court decision, Crilly v. SEPTA, 529 F.2d 1355 (3rd Cir. 1976), also handed down before the answer was filed, as well as the Urban Mass Transportation Law, 55 P.S. § 600.101 et seq. (1980). The decision was not a difficult one. “We have no hesitation in concluding SEPTA was intended to be considered an agency of the Commonwealth." Feingold, 512 Pa. at 579, 517 A.2d at 1276.

Clearly, SEPTA could have relied on the trial court decision and raised the defenses in its original complaint. The federal district court for the Eastern District of Pennsylvania did so in Toombs v. Manning, 640 F.Supp. 938, 944 (E.D.Pa.1986), a case SEPTA cites in arguing precedent has only recently arisen. However, this does not end our analysis of the case. Whether or not SEPTA’s delay in pleading these affirmative defenses will bar it from amending its answer depends upon an examination of the liberal pleading policies behind Rule 1033 of the Pennsylvania Rules of Civil Procedure.

Rule 1033 states:
RULE 1033. Amendment
A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

Pa.R.Civ.P. 1033. It is well settled that amendment to pleadings is a matter of judicial discretion. It is also settled that such amendments should be allowed at any stage of the adversary process to secure a decision of the case on its merits, unless surprise or prejudice to the other party would result or the proposed amendment is against a positive rule of law. Tanner v. Allstate Insurance Co., 321 Pa.Super. 132, 137, 467 A.2d 1164, 1167 (1983); Posternack v. American Casualty Co., 421 Pa. 21, 24, 218 A.2d 350, 351-52 (1966). The prejudice experienced by the other party must go beyond that which would normally flow from allowing the first party to amend:

Prejudice that would prevent the grant of an amendment must be ... something more than a detriment to the other party ‘since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party---- To make the advantage sought by an amendment operate as a bar to amendment would be to destroy the right to amend except in cases when the moving party would have no reason to amend.’

Sands v. Forrest, 290 Pa.Super. 48, 53, 434 A.2d 122, 125 (1981) (quoting Cellutron Products Corp. v. Stewart, 223 Pa.Super. 391, 394, 300 A.2d 900, 901-2 (1972)).

Appellees argue that the trial court was well within its discretion to deny amendment because of undue delay on SEPTA’s part. If this is so, then SEPTA has failed to comply with Rule 1033. Case law, however, requires more than undue delay on the part of the moving party before the liberal policies will be overcome, as is clear from the cases the Carpitellas themselves cite. Apart from Hightower v. Bekins Van Lines, 267 Pa.Super. 588, 407 A.2d 397 (1979) which mentions only the delay, Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966), Commonwealth, Department of Transportation v. Bethlehem Steel, 486 Pa. 186, 404 A.2d 692 (1979), and Tanner v. Allstate Insurance Company, 321 Pa.Super. 132, 467 A.2d 1164 (1983), require more than a lapse of time between the delay of the original answer and the proposed amendment.

In Bata, after allowing appellant to amend after briefs and oral argument, the court denied his request to amend again seven months after appellee had moved for judgment on the pleadings. Bata, 423 Pa. at 385, 224 A.2d at 182. The reviewing court pointed out that the trial court had heard argument and requested briefs on those amendments and, in addition, had found that the amendments would not have advanced appellants’ position. Id., 423 Pa. at 385 n. 7, 244 A.2d at 182 n. 7. In Bethlehem Steel, the court pointed out that discovery had been proceeding during the time following the close of the pleadings, Bethlehem Steel, 486 Pa. at 187, 404 A.2d at 693, a circumstance it found prejudicial, although Justice Manderino in dissent did not. Id., 486 Pa. at 191, 404 A.2d at 695 (Manderino, J., dissenting).

Tanner is perhaps the most instructive. After first quoting from Posternack and considering the meaning of unfair surprise and prejudice, Tanner, 321 Pa.Super. at 137-38, 467 A.2d at 1167, the court turned to the trial court’s refusal to allow amendment to plead a statute of limitations defense. Although the court did express concern over undue delay between the original pleading and the motion to amend, it held that it was a factor to be considered, not that it was dispositive of the issue. Id., 321 Pa.Superior Ct. at 137-138, 467 A.2d at 1169. The court then held that the trial court had abused its discretion because it failed to explain its reasons for the denial, because no prejudice was found to inure to the other party and because the defense was timely filed. Id., 321 Pa.Superior Ct. at 143, 467 A.2d at 1170.

In fact, this court has held that the trial court’s denial of a petition to amend based on nothing more than a finding of unreasonable delay is an abuse of discretion. Brooks v. McMenamin, 349 Pa.Super. 436, 439, 503 A.2d 446, 447 (1986). “Although the time of the amendment is a factor to be considered, it appears that it is to be considered only insofar as it presents a question of prejudice to the opposing party.” Id. See also Gutierrez v. Pennsylvania Gas and Water Co., 352 Pa.Super. 282, 286-87, 507 A.2d 1230, 1233 (1986).

In the instant case, SEPTA claims no inconvenience or delay would result from allowing the amendment. At this point, there has already been delay; one and one-half years passed from the time SEPTA filed the original answer to the time it filed for permission to amend. The Carpitellas, however, are unable to show that they have been or will be prejudiced by SEPTA’s amendment of its answer at this time in the proceedings:

All amendments have this in common: they are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowedf.]

Gallo v. Yahama Motor Corp., 335 Pa.Super. 311, 314, 484 A.2d 148, 150 (1984) (quoting Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972)). Although the only reason SEPTA offers for its failure to include the defenses at an earlier date is that it did not know of them, in the absence of prejudice to the Carpitellas, SEPTA should have been allowed to amend its answer.

We therefore reverse the opinion of the trial court, and remand for further proceedings consistent with this opinion. We relinquish jurisdiction.

      . Septa did not immediately file a statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) and as instructed by the trial court in January of 1987. For this reason that court was unable to prepare an opinion. Approximately one month after the judge instructed SEPTA to file the statement, its counsel did so, stating that he had moved his office and had not received the judge's instructions. The Carpitellas have filed a motion to quash the appeal on the grounds that SEPTA had failed continuously to comply with procedural rules and that noncompliance with Rule 1925(b) could be held to be waiver of SEPTA’s right to object. That motion was denied.

      . SEPTA also points out in its brief that the trial court's refusal to permit an amendment is a final and appealable order. See Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206 (1967); Sechler v. Ensign-Bickford Co., 322 Pa.Super. 162, 469 A.2d 233 (1983).