text:
    564 A.2d 194
    John M. STUMP, Administrator of the Estate of Gary L. Stump, Deceased v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. Appeal of PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY. John M. STUMP, Admr. of the Estate of Gary L. Stump, Deceased v. The PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued May 17, 1989.
    Filed Aug. 24, 1989.

      Barbara B. Carl, Pittsburgh, for Prudential, appellant.
    Douglas R. Nolin, Washington, for State Farm, appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the October 3, 1988, order of the Court of Common Pleas of Washington County denying the motion for post-trial relief of the appellant/The Prudential Property & Casualty Insurance Company (hereinafter Prudential). We reverse in a case of first impression.

The facts of record indicate that, on May 29, 1982, Gary L. Stump was killed while a passenger in a vehicle involved in an accident on U.S. Route 40, east of Uniontown, Pennsylvania.

At the time of the accident, Gary was a resident in the household of his father, John M. Stump. The Stump family had three (3) vehicles, none of which was involved in the accident but all were titled in the name of John M. Stump. Two of the vehicles were insured with State Farm Mutual Automobile Insurance Company (hereinafter State Farm), i.e., a 1973 Chevrolet half-ton pickup truck and a 1976 Pontiac Grand Prix. The third vehicle, a 1977 Ford F-100 pickup truck, was covered by Prudential.

John M. Stump, as the administrator for the estate of Gary L. Stump, presented a claim for post-mortem benefits to Prudential and State Farm under the now repealed Pennsylvania No-Fault Motor Vehicle Insurance Act (hereinafter Act). Prudential paid the total post-mortem no-fault benefits to Gary’s estate: $10,000 work loss, $5,000 survivor’s losses, and $1,500 funeral expenses. State Farm refused to contribute toward the payment of these benefits.

As a result, Prudential, as an original defendant in a lawsuit instituted by the Estate of Gary L. Stump, was able to join State Farm as an additional defendant. It was Prudential’s contention that its payment of all of the no-fault benefits, given decedent’s status as an “insured” under multiple policies, entitled it to receive reimbursement or indemnification for two-thirds (%) of the payments made in accordance with Section 204 of the Act. After the dispute went to trial, Prudential’s request for reimbursement was denied. Post-trial motions were filed, argued and denied. Thereafter, upon praecipe of State Farm, the order denying post-trial motions was reduced to judgment and this appeal ensued.

The single issue raised for our consideration is one of whether, under the applicable provisions of the Act and the facts at bar, the decedent’s post-mortem benefits are recoverable from the appellant only.

In resolving the question posed, we begin by examining the pertinent provisions of the Act under Section 204, which provide in part:

§ 204. Source of basic restoration benefits. ■
(a) Applicable security — The security for the payment of basic loss benefits applicable to an injury to:
(1) •••
(2) an insured is the security under which the victim
or deceased victim is insured____
(b) Multiple sources of equal property. If two or more obligations to pay basic loss benefits apply equally to an injury under the priorities set forth in subsection (a) of this section, the obligor against whom a claim is asserted shall first process and pay the claim as if wholly responsible. Such obligor is thereafter entitled to recover contribution prorata from any other such obligor for the basic loss benefits paid and for the costs of processing the claim.
40 P.S. § 1009.204(a)(2), (b) (Repealed).
The term “insured” is defined by the Act at Section 103: “Insured” means:
(A) an individual indemnified by name as an insured in a contract of basic loss insurance complying with this act; and
(B) a spouse or other relative of a named insured, ...—
(i) not identified by name as an insured in any other contract of basic restoration insurance complying with this act; and
(ii) in residence in the same household with the named insured.

40 P.S. § 1009.103 (Repealed).

The next step in our analysis is an examination of the insurance policies in effect at the time of Gary’s death, the interpretation of which is a question of law for the Court, and, where the language of a contract of insurance is clear and unambiguous, a court is required to give effect to that language. Duffy v. Nationwide Insurance Co., 374 Pa.Super. 55, 57, 542 A.2d 144, 145 (1988).

Instantly, Prudential’s declaration sheet on the 1977 Ford F-100 pickup truck listed the “names insured” as “John M. Stump”. The vehicle operators were identified as “John M. Stump”, No. 1 and “Gary Lee Stump”, No. 2. The policy that accompanied the insurance issued by Prudential provided at page 6 of the “introduction” that:

This policy is a contract between you and us. Throughout this policy, when we refer to “you, we mean you, the person shown as the named insured on the Declarations Page of this policy, and your spouse, if he or she lives in your household. When we refer to “we” or “us,” we mean Prudential Property and Casualty Insurance Company____ (Emphasis added)

Under the same heading, “introduction”, reference was made to “endorsements” appearing on the Declaration Page being considered as part of one’s policy.

The “named insured” under Prudential’s policy had elected additional coverage, evidence of which appears on the declaration sheet. The substance of the added coverage elected by the insured is not herein germane, but it requires mentioning that the insurer had “exclusions” for which coverage did not apply; e.g.,

Relatives Who Have Their Own Auto Insurance
(c) any relative entitled to Pennsylvania personal injury protection coverage as a self-insurer or as a named insured in another insurance policy;

Where an “eligible person” sustained bodily injury due to an accident involving a motor vehicle, Prudential obligated itself to pay all personal injury protection benefits. “Eligible person” was defined on page 10 of the “endorsement” booklet as:

(a) the named insured or any relative who sustains injury while occupying ... any motor vehicle.

Further, at page 11 of the same document, “named insured” was stated to mean “the person ... named in the declarations]^.]” Lastly, on the final page, it was written that the “endorsement(s)” in the booklet formed a part of the insured’s policy.

Under “part 2” of the “policy” pamphlet, captioned “who is insured (part 2)”, Prudential wrote that coverage would be provided in the following instance:

—in someone else’s car
You and [any] relative [who was living in your household at the time the accident occurred] are also insured while occupying a car which is owned by someone else____ This non-owned car has the same coverages as any one of your cars.

The only limitation Prudential placed on its liability was recited at page 13 of the “endorsement” booklet under the heading “Non-Duplication of Benefits; Other Insurance”; namely:

In no case shall the Company be liable for a greater proportion of any loss than this policy's limitation of liability bears to the sum of all limits of liability of all applicable insurance and self-insurance.

To the same effect see page 14 of Prudential’s “policy” handbook.

In light of the aforementioned, there is no disputing that Gary L. Stump was an “insured” as that term is defined under the Act (as a “relative of a named insured”) and under Prudential’s policy of insurance (as “any relative who was living in [the named insured’s] household ... while occupying a car which is owned by someone else”) at the time the accident occurred. Coverage, on such occasions, would not and was not denied by Prudential. It is merely Prudential’s contention that Gary was not a “named insured” so as to preclude it from securing from State Farm its proportionate share of the liability coverage as allowed for under the Act. Our resolution of this matter is discussed infra.

For now, we need to examine State Farm’s “Car Policy” issued in this case before a proper ruling on the matter in dispute can be made. To-wit, the definition section contained the following relevant terms:

Insured — means the person, persons or organization defined as insureds in the specific coverage.
sis S¡S SjS Jfs * *
You and Your — means the named insured or named insureds shown on the declarations page.

The “Declarations Page” listed “John M. Stump” as the “named insured” of the 1976 Pontiac Grand Prix, and that he had various coverages, one of which was “no-fault”. In particular, under “Section II — No-Fault—Coverage P”, State Farm conditioned payment in accordance with the Act for “bodily injury” to an “insured”, caused by an accident resulting from the maintenance or use of a motor vehicle. As is herein relevant, “insured” and “relative” were defined therein as:

Insured — means:
1. you or any relative;
a. while occupying a motor vehicle;
sjs * sfc s«s * #
Relative — means:
1. ...
2. anyone related to you by blood, marriage or adoption;

As was the case with Prudential, State Farm put limitations on its exposure to liability in Section II, under “Other Insurance”. It provided:

If an insured has similar vehicle insurance or self insurance the total amount due shall not exceed the limit of the source with the highest limit. We will pay our share. Our share is the percent the limit of this policy bears to the total amount of all such insurance available.

State Farm limited further its accountability to a claimant by other language appearing in the same section of its “Car Policy”; i.e.,

THERE IS NO COVERAGE FOR BODILY INJURY TO:
1. ...
2. A RELATIVE:
a. ...
b. WHO HAS NO-FAULT COVERAGE AS A SELF-INSURED OR AS A NAMED INSURED IN ANOTHER POLICY.

With regard to the insurance on the 1973 Chevrolet pickup by State Farm, no one contends that the same policy requirements did not exist under that separate policy of insurance.

Further, as part of the State Farm’s case at trial, it produced the two applications for insurance completed by John M. Stump for his 1973 Chevrolet pickup and 1976 Pontiac Grand Prix. At the bottom of the form for the 1973 Chevrolet, it was written that the son, albeit listed as a 0% driver of the vehicle with the father as the 100% user, “will get other car when it comes. Gary, son, has ins. with Prudential #282A317221 liability 12/50/25.”

An agent for State Farm testified that the double asterisk after Gary’s name was to indicate that he drove the 1973 Chevrolet 0% of the time and that he had his own insurance with Prudential.

The insurance application for the 1976 Pontiac Grand Prix again had “John L. Stump” as the 100% driver; Gary was noted to drive the vehicle 0%. The same agent that explained the insurance form for the 1973 Chevrolet also testified in regard to language appearing at the bottom of the application for the 1976 Pontiac Grand Prix; i.e.,

son’s truck insured under Prudential *he is rated as principal operator on that vehicle. He will come to State Farm when his come due. * 382__

The preceding, the agent remarked, would indicate that there were two vehicles being insured by State Farm, with a third insured with another insurer (Prudential). And, with Gary’s policy expiring with Prudential, opined the witness, the verbiage: “He will come to State Farm when his come due” was industry jargon for Gary making the transition to State Farm upon the expiration of his insurance with Prudential.

When John M. Stump took the stand, he admitted that he had title to three (3) vehicles, one of which was the 1977 Ford F-100 pickup truck. He arranged to secure a bank loan to finance its purchase. However, it was owned by his son; the insurance, maintenance and use of the 1977 Ford F-100 was left exclusively to Gary. As for the title to the truck, the father testified to the reasons for his retention of the same:

Well, he [Gary] wasn’t — he was working in a junkyard and he didn’t have enough of income in. That is what they said. I had more income coming in, so that is why I got it [ — the title — ] in my name.

In the father’s mind, there was no doubt as to whom the 1977 Ford F-100 truck belonged. It was Gary’s. This is why, stated the father, his son made the insurance payments on the vehicle to Prudential.

It was State Farm’s position that Section 204(a)(2), as applied to the facts of the case, warranted the finding by the trial court that Prudential alone would bear the cost for Gary L. Stump’s death. The trial court agreed. However, the basis for so holding was the Gary’s “ownership” of the 1977 Ford F-100 pickup truck, and his payment of the premiums to Prudential, was consistent with limiting the liability for payment of the post-mortem benefits to Prudential. Its rationale for doing so was as follows:

There is no doubt that Gary was not listed on the two State Farm policies as a named insured, and he was not listed on the Prudential policy as a named insured. Yet we find it is beyond cavil that the ... Prudential policy was the insurance policy of Gary L. Stump. The pick-up truck was his; he bought it and was paying for it. He procured the automobile insurance for it through Prudential. Gary did not rely on the policies of his father.
Under § 204 the purpose of the section is to provide a source of funds to all accident victims entitled to benefits. Wallman v. Nationwide Mutual Insurance Company, 98 Dauph 166 (1976). Gary was doing what the law required him to do: securing and paying for his own insurance on his own vehicle. Id.
Gary paid premiums for motor vehicle insurance on his own truck, he was contributing to a separate policy of insurance, a policy which did not insure his father’s vehicles. It seems to the Court that the purposes of the No-Fault Act are fostered by having Gary or his estate look to his own insurance policy for benefits. Under the circumstances it is not material that Gary was not listed as a named insured on the policies. Although our research and the research of the attorneys’ have revealed no case on point, we hold that under § 204(a)(2), the basic restoration benefits must be provided by the Prudential policy only, and Prudential may not look to State Farm for contribution.

Trial Court Opinion at 7.

We view the position of State Farm to be one of attempt- . ing to secure “named insured” status for the decedent/ Gary L. Stump under the policy of insurance issued by Prudential to John L. Stump on the 1977 Ford F-100 pickup truck. This is not uncommon:

Named insured status is frequently sought by or on behalf of one not named as such in the automobile insurance policy on the basis that he is the owner of or the person actually responsible for the automobile described in the policy.

See Anno.: Who Is “Named Insured” Within Meaning Of Automobile Insurance Coverage, 91 A.L.R.3d 1280, § 2[a] at 1286 (1979).

The Act under consideration here is quite explicit in providing that where multiple obligors exist, as a source of basic restoration benefits, the payor is “entitled to recover contribution prorata from any other such obligor for the basic loss benefits paid and for the cost of processing the claim.” 40 P.S. § 1009.204(b) (Repealed). The exceptions are that the claimant is neither identified by name in a contract of insurance nor is the claimant, in attempting to secure basic restoration benefits vis-a-vis a relative of a named insured, identified by name as an insured in any other contract of basic restoration insurance. Where this is the case, a claimant will not be labelled an “insured”, as that term is defined under the Act, so as to trigger the multiple obligor/contribution prorata provision.

We find the present scenario to be just such a situation, and dismiss, as unfounded in the law, the trial court’s determination that “ownership” of the 1977 Ford F-100 pickup restricted the sources to which one could look to recoup payment of basic restoration benefits, and, as a result, denying the effectuation of the multiple obligor/contribution prorata provision of the Act. Nowhere does the Act refer to “ownership” of a vehicle as the conduit through which payment of basic restoration benefits is to be measured.

It has been oft-stated that where the language of a statute is clear and unambiguous, it is to be enforced and not convoluted under the guise of pursuing the “spirit of the law”. See Statutory Construction Act, 1 Pa.C.S. § 1921 (Supp.1988-89).

Instantly, we had a contract of insurance issued by Prudential listing “John M. Stump” as the “named insured” of a 1977 Ford F-100 pickup truck. Moreover, a Prudential agent testified that the premium payment, which was “based on a monthly income of less than $500”, was calculated in accordance with John M. Stump’s status as the “named insured”. The reservation of the “named insured” solely to the appellation appearing on the face of the • declaration page was stated clearly to be so in the “policy” and “endorsement” booklets provided to John M. Stump. This is consistent with established law; to-wit:

Whenever the term “named insured” is employed, it refers only to the person specifically designated upon the face of the contract; but whenever the unqualified term “insured” is used, it includes not only the named insured but such other persons as are protected by the omnibus clause. The owner of an automobile is not the named insured where another is so designated by the policy.

7 Appleman, Insurance Law and Practice, § 4354. Accord 1 Long, Law of Liability Insurance 3-3, § 301. This is consistent with the decisions of those jurisdictions which have had occasion to address the scope and meaning of the term “named insured”. For example, in Griffin v. State Farm Automobile Insurance Co., 129 Ga.App. 179, 199 S.E.2d 101 (1973), Harland Griffin bought a vehicle for his daughter, Mary Elizabeth Griffin. He had the vehicle insured under a family insurance policy which had been issued in the name of his wife, Nellie Ruth Griffin. The issue was whether Mary Elizabeth Griffin was an uninsured motorist. State Farm had the uninsured motorist coverage on the injured party and was contending that Mary Elizabeth Griffin was insured:

State Farm contends that the amendment to the Travelers’ policy which added Mary Elizabeth Griffin as a driver of the vehicle made her a named insured. The policy defines a named insured as “any individual named in Item 1 of the declarations and also includes his spouse, if a resident of the household.” The only person named in the amendment to the policy under Item 1 is Nellie Ruth Griffin the spouse of Harland Griffin. Thus, there is no merit to the contention.

129 Ga.App. at 182, 199 S.E.2d at 104.

In Adkins v. Inland Mut. Ins. Co., 124 W.Va. 388, 20 S.E.2d 471 (1942), the plaintiff/Adkins filed suit against Inland Mutual Insurance for injuries sustained when she was struck by an automobile driven by a Thomas Coffman.

The automobile was registered in the name of Earl Canterbury and was covered by the policy issued by Inland Mutual Insurance in compliance with the Financial Responsibility Act of West Virginia. It was shown that James Canterbury paid the deferred purchase installments on the vehicle as well as the insurance premiums.

On the date of the accident, Coffman told James he would drive because of James’ intoxicated condition. James gave an unintelligible answer.

The insurance company asserted on appeal that Earl Canterbury alone was the “named insured”, and having not received permission from Earl to drive the automobile, there was no liability to Coffman from the insurer. Adkins contended that the evidence showed that James was, in fact, the owner of the automobile, and that by the provisions of the State’s insurance law, he was, in fact, the named insured, and the circumstances under which Coffman drove the vehicle amounted to permission being given by James, and, therefore, the insurer was liable. In reversing a judgment in favor of the plaintiff, the West Virginia Supreme Court wrote:

The liability of [the insurer] must be measured by its policy, unless the scope thereof is broadened by the statute, the expressed intent of the policy being to comply with its provisions.
He * * * *‡* H¡
In the policy itself, the name of James Canterbury appears only in an indorsement attached thereto----
* * * * * *
From the foregoing it appears that the policy covered any operation of the vehicle herein involved, by James Canterbury____
* * * * * *
Although the word “insured” without further qualification should apply to any person entitled to protection under the policy, including a “named insured”, the latter term can apply only to the person named as the insured. Madison v. Steller, 226 Wis. 86, 275 N.W. 703. As hereinbefore pointed out, Earl Canterbury was the named insured and James’ name does not appear in the policy, except in the indorsement deleting paragraph VII as to him.
******
“Named Insured”, as used in this policy, can refer to but one person, Earl Canterbury
******
We find nothing in the act which would warrant extension of the policy terms____ On the question of ownership, it may be true that James made payment for the car in question, but this fact can not operate to make James the “named insured.”

20 S.E.2d at 472-73. Next, in Old Reliable Insurance Co. v. Brown, 558 S.W.2d 190 (Ct.App.Ky.1977), the Court of Appeals of Kentucky reversed a circuit court proceeding allowing the estate of a decedent to recover from the insurer under an auto insurance policy held by the decedent’s daughter. In doing so, the Court of Appeals wrote:

The trial court further based its conclusion of coverage on the fact that [the decedent’s daughter’s] brother John, who still resided with his parents, was listed on [decedent’s daughter’s] application for insurance as using the insured vehicle 50% of the time. By virtue of this and because John became the family’s principal driver upon [decedent’s daughter’s] departure, the trial court concluded that John occupied the status of an additional insured under the policy.
The trial court erred in reaching this conclusion because the court may not read into a policy of insurance conditions and terms which are not incorporated therein. [The decedent’s daughter] was the sole named insured on the face of the policy. The policy further defined “insured” as: “(1) The named insured as stated in the policy ... and any other person designated as tlw named insured in the schedule.” John Brown’s name does not appear on any portion of the policy. Therefore, John was not a principal insured under this contract, and coverage for his mother could not attach through him.

558 S.W.2d at 191 (Citation omitted). See also Waller v. Rocky Mountain Fire and Casualty Co., 272 Or. 69, 535 P.2d 530 (1975); Holthe v. Iskowitz, 31 Wash.2d 533, 197 P.2d 999 (1948) and compare with Kent v. Dairyland Mut. Ins. Co., 177 Neb. 709, 131 N.W.2d 146, 149 (1964) (Father and son were named insured on the policy so that son could not cancel insurance without approval of father prior to accident); Ohio Casualty Ins. Co. v. Goodman, 163 Okl. 243, 22 P.2d 997 (1932).

We find that the trial court’s reliance on the fact that the decedent was the “owner” of the vehicle insured by Prudential, although titled in the father’s name, is misplaced since it works an injustice upon Prudential who set the premiums to be paid in the belief that the “owner” of the vehicle was John M. Stump. Compare these facts with those in Dixie Auto Ins. Co. v. Safeco Ins. Co. of America, 292 Ala. 358, 294 So.2d 736 (1974), wherein a bill for declaratory relief was filed to determine which of two insurance companies (Safeco and Dixie) was to afford liability coverage on a 1969 Plymouth GTX. It appears that one Barry Wayne Brittain was operating the vehicle in question when he collided with another vehicle occupied by the Monroes.

The facts indicated that there was no insurance on the 1969 Plymouth. However, Safeco had issued a policy of insurance on a 1968 Chevrolet Malibu and Dixie issued its liability insurance policy to Mrs. Brittain insuring and describing a 1964 Chevrolet. The Court went on to recount additional facts and state its rationale for finding that Dixie was to be held accountable to satisfy the claim against Barry. It stated the matter thusly:

Barry Wayne Brittain was seventeen years old at the time his mother made application for the policy in question with Dixie Auto Insurance Company. Barry Wayne was the owner of the 1964 Chevrolet described in the policy. The bill of sale was made out to him. He paid for it, and the car was registered in his name. He purchased the tag for the car. The policy of insurance was in his mother’s name because “it had to be,” but Barry paid the premiums, shown on the application to have been $284. The application which his mother signed showed that “Barry Wayne Brittain” would be the one hundred percent user of the automobile.
* * ¡it * # *
Admittedly, the application was made by Mrs. Brittain and she signed it. The 1964 Chevrolet was described. The application does not show ownership of the automobile. However, the application shows affirmatively that Barry Wayne Brittain, Mrs. Brittain’s seventeen year old son, would be the one hundred percent user of the car.
The decision to list Mrs. Brittain as the only “named insured” probably was a decision made by Dixie. In other words, Dixie probably lists the “applicant” as the “named insured” in its policies regardless of whether the applicant actually is the “user” of the automobile. Dixie apparently considers that every applicant “requests” to be the only “named insured.” At least that is the only way we can reconcile the statement by Dixie’s vice president that Mrs. Brittain “requested” that she be “named insured.”
There is other evidence which would indicate that the trial judge was justified in finding Barry Wayne Brittain was a “named insured.” The size of the premium ($284) reflects that a young driver would be using the automobile. From the testimony the court could infer that Dixie knew, even considering the application alone, that a mother was applying for a policy to cover a car which her son would be driving one hundred percent of the time.
Dixie’s main argument is that the trial court made a new contract for it. Under the facts here, we cannot agree. Insurance contracts or policies may be reformed with respect to the “named insured” in order to make them conform to the real agreement of the parties. 44 C.J.S. Insurance § 279, p. 1117. The record demonstrates that Dixie knew at the time it issued the policy that Barry would use the 1964 Chevrolet 100% of the time. Dixie would have listed Barry as a “named insured” had it been “requested" to do so. Consequently, under the facts of this case, we are unwilling to overturn the trial court’s determination that Barry was a “named insured” and that Dixie was the primary insurer. It is a familiar principle that equity looks through form to substance. United States Finance Co. v. Jones, 288 Ala. 238, 259 So.2d 264 (1972). That equitable principle, under the facts of this case, seems uniquely applicable.

294 So.2d at 737-38 (Footnote omitted; Emphasis added). Compare with Billups v. Ala. Farm Bur. Mut. Ins. Co., 352 So.2d 1097 (Ala.1977).

In contrast to Dixie, supra, there is no evidence to show that Prudential was cognizant (either by direct or circumstantial proof) that John M. Stump was purchasing the insurance on the 1977 Ford F-100 pickup for his son. In fact, the premium was set to accommodate the father’s income level rather than the son’s, so stated Prudential’s agent at the trial. As for the reliance by the trial court and State Farm upon the fact that Gary L. Stump paid the premiums on the Prudential policy, we would answer that, under the facts of this case,

... the source of the money with which the policy was furnished is not material. It does not control coverage. This question can be determined only by the provisions of the policy as of the time of the accident because of which a claim is made.

Allstate Insurance Co. v. Wallace, 435 S.W.2d 537, 539 (Tex.Ct.App.1968).

Consequently, because we find no ambiguity in the insurance contract issued by Prudential, nor do we detect that there was a mistake in the issuance of the policy to the father, see Unigard Ins. Co. v. Studer, 536 F.2d 1337, 1339 (10th Cir.1976); Jarvis v. Aetna Cas. and Sur. Co., 633 P.2d 1359 (Alaska 1981); United States Fidelity and Guaranty Co. v. Winkler, 351 F.2d 685 (8th Cir.1965); Elliott v. Bankers’ & Shippers’ Ins. Co., 137 Kan. 492, 21 P.2d 376, 378-79 (1933), we conclude that Gary was not a “named insured” under Prudential’s policy of insurance. As such, Section 204(b) is activated to avail Prudential the opportunity to seek contribution from State Farm. See Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 464 A.2d 431 (1983). Since the trial court’s order is to the contrary, improperly relying upon “ownership” as the pivotal factor to buttress its decision (a point we hold is inconsistent with the provisions of the Act), it is reversed and the case is remanded for proceedings not inconsistent with the Opinion herein written.

Order reversed and case remanded. Jurisdiction is relinquished.

MONTGOMERY, J., concurs in the result.

      . The October 3, 1988, order also "confirmed" the trial court’s March 21, 1988, ruling in favor of State Farm Mutual Automobile Insurance Company. Further, upon praecipe by State Farm filed October 12, 1988, the prothonotary entered judgment in its favor and against The Prudential Property & Casualty Insurance Company in accordance with the trial court’s October 3rd order. The present appeal was filed timely from the October 3rd order, after it had been reduced to judgment.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101, repealed by Act of February 12, 1984, P.L. 26, § 8(a), No. 11, effective October 1, 1984.

      . Stump’s complaint sought, inter alia, a lump sum payment of the SI5,000 wage loss benefits instead of the monthly distribution being utilized by Prudential.


source: Caselaw Access Project

author: WIEAND, Judge: McEWEN, Judge, KELLY, Judge,

license: Public Domain

text:
    564 A.2d 203
    COMMONWEALTH of Pennsylvania v. Michael COLE, Appellant.
    Superior Court of Pennsylvania.
    Argued June 3, 1988.
    Filed Aug. 30, 1989.

      Noah Gorson, Merion Station, for appellant.
    Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, BECK, KELLY, POPOVICH and MELINSON, JJ.
   WIEAND, Judge:

Michael Cole entered a negotiated plea of guilty to charges of robbery and criminal conspiracy. Before he had been sentenced, however, Cole filed a motion to withdraw his guilty plea, alleging that it had not been entered voluntarily and that he was innocent of the charges. Following an evidentiary hearing, the trial court denied the motion to withdraw the plea and sentenced Cole to serve two concurrent terms of imprisonment, each for not less than three and one-half (3V2) years nor more than ten (10) years. Cole then filed a motion, pursuant to Pa.R.Crim.P. 321, challenging the trial court’s denial of his motion to withdraw the guilty plea. When this motion was denied, Cole filed a direct appeal from the judgment of sentence. He argues that the trial court abused its discretion when it denied the motion to withdraw his plea of guilty.

Appellant, along with his co-defendant, Earl Robinson, had been arrested on June 27, 1985 and charged with robbery, aggravated and simple assault, theft, receiving stolen property and criminal conspiracy in connection with the robbery and beating of two elderly women in a restroom at the Greyhound Bus terminal in Philadelphia. Trial on these charges was originally scheduled for December 4, 1985, but because of continuances, trial did not commence until July 14, 1986, when the trial court heard pre-trial motions which had been filed by appellant and co-defendant Robinson. After defendant’s motion to dismiss pursuant to Pa.R.Crim.P. 1100 had been denied, the Commonwealth proceeded to present evidence in response to a motion by defendant to suppress evidence. After receiving testimony from two Commonwealth witnesses, the court continued the hearing until the following morning to allow Ms. Essie Dooley, one of the robbery victims and an essential Commonwealth witness, to travel from Georgia, where she was caring for a sick father, to testify as a Commonwealth witness.

On the morning of July 15, 1986, after Dooley’s presence had become known to appellant but before she had testified, the co-defendant, Earl Robinson, entered a plea of guilty. Appellant then also sought to plead guilty and, through counsel, negotiated an agreement with the Commonwealth whereby he would plead guilty to charges of robbery and criminal conspiracy, in exchange for which the Commonwealth would nol pros the remaining charges against him and refrain from making any recommendation at sentencing. Following an extensive colloquy, the trial court accepted appellant’s plea and scheduled sentencing for September 17, 1986. The Commonwealth thereupon dismissed its witnesses, and Dooley returned to Georgia. On August 26, 1986, more than a month after pleading guilty, appellant filed a motion to withdraw his guilty plea. This motion, as we have observed, was denied after hearing.

Appellant argues that his assertion of innocence in the motion to withdraw his guilty plea provided the trial court with a fair and just reason to allow the withdrawal of the plea and that the court’s denial of that motion, therefore, was an abuse of discretion. We disagree with appellant’s reasoning and, for the reasons which follow, affirm the judgment of sentence.

The applicable law was set forth by the Supreme Court in Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973) as follows:

Although there is no absolute right to withdraw a guilty plea, properly received by the trial court, it is clear that a request made before sentencing ... should be liberally allowed. See United States ex rel. Culbreath v. Rundle, 466 F.2d 730 (3d Cir.1972); United States v. Young, 424 F.2d 1276 (3d Cir.1970); United States v. Stayton, 408 F.2d 559 (3d Cir.1969); Pa.R.Crim.P. 320; ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1 (Approved Draft, 1968); Note, Pre-Sentence Withdrawal of Guilty Pleas in Federal Courts, 40 N.Y.U.L.Rev. 759 (1965). In United States ex rel. Culbreath v. Rundle, supra, the Third Circuit stated:
“It has been recognized under Pennsylvania and Federal law that a trial judge has discretion to refuse a request to retract a plea of guilty since there is no absolute right to withdraw such a plea. However, a request made before sentencing has been generally construed liberally in favor of the accused.”
Id. at 732 of 466 F.2d (emphasis added) (footnotes omitted).
The ABA Standards are in complete harmony with this view. The standards state:
“(b) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty or nolo contendere as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea.”
ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty § 2.1(b) (Approved Draft, 1968). See also Commonwealth v. Neely, 449 Pa. 3, 4, 295 A.2d 75, 76 (1972) (Roberts, J., concurring opinion).
Thus, in determining whether to grant a pre-sentence motion for withdrawal of a guilty plea, “the test to be applied by the trial courts is fairness and justice.” United States v. Stayton, supra at 561. If the trial court finds “any fair and just reason”, withdrawal of the plea before sentence should be freely permitted, unless the prosecution has been “substantially prejudiced.” ABA Standards Relating to Pleas of Guilty, supra. As the Third Circuit noted:
“The liberal rule for withdrawal of a guilty plea before sentence is consistent with the efficient administration of criminal justice. It reduces the number of appeals contesting the 'knowing and voluntariness’ of a guilty plea, and avoids the difficulties of disentangling such claims. It also ensures that a defendant is not denied a right [to] trial by jury unless he clearly waives it.”
United States v. Young, 424 F.2d 1276, 1279 (3d Cir. 1970).
Applying these standards to the facts presented, it must be concluded that the trial court should have allowed withdrawal of appellant’s guilty plea. Appellant stated, as his reason for the request, made before the degree of guilt hearing and prior to adjudication and sentence, ''I don’t want to plead guilty to nothing I didn’t do.” Obviously, appellant, by this assertion of innocence — so early in the proceedings — offered a “fair and just” reason for withdrawal of his plea. Moreover, on this record there is not even the slightest suggestion that the prosecution was in any sense “substantially prejudiced by reliance upon the defendant’s plea.” ABA Standards Relating to Pleas of Guilty supra.

Id., 450 Pa. at 190-192, 299 A.2d at 271-272 (emphasis in original).

The Superior Court has followed Forbes and has held that an assertion of innocence may constitute a fair and just reason for the pre-sentence withdrawal of a guilty plea. See: Commonwealth v. Ortiz, 334 Pa.Super. 117, 482 A.2d 1110 (1984); Commonwealth v. Kay, 330 Pa.Super. 89, 478 A.2d 1366 (1984), cert. denied, 471 U.S. 1010, 105 S.Ct. 2009, 85 L.Ed.2d 293 (1985); Commonwealth v. Whittall, 304 Pa.Super. 258, 450 A.2d 669 (1982); Commonwealth v. Boofer, 248 Pa.Super. 431, 375 A.2d 173 (1977). Indeed, where a defendant has asserted his innocence and the Commonwealth has been unable to show substantial prejudice, it has been held to be an abuse of discretion for a trial court to deny a pre-sentence petition for withdrawal of a guilty plea. See: Commonwealth v. Woods, 452 Pa. 546, 307 A.2d 880 (1973); Commonwealth v. Forbes, supra; Commonwealth v. Ortiz, supra; Commonwealth v. Boofer, supra.

However, a motion to withdraw a guilty plea prior to sentencing will generally be disallowed where the Commonwealth will be substantially prejudiced by allowing the same. At the hearing on appellant’s motion to withdraw his guilty plea, the Commonwealth argued that appellant had waited to enter a plea of guilty until it had become clear that the complaining witness, Ms. Dooley, had appeared to testify against him and that appellant only sought to withdraw his plea after Ms. Dooley had returned to Georgia. He did so, the Commonwealth argued, in hope that the Commonwealth would not be able “to fly its witness back up from Georgia.” The trial court agreed with the Commonwealth, concluding that “[t]he Commonwealth, as I understand it, has great problems.”

A criminal defendant will not be permitted to play fast and loose with the guilty plea process in order to delay prosecution or jeopardize the Commonwealth’s ability to prove guilt. Here, the appellant entered a guilty plea only after it became apparent that the Commonwealth had been able to bring Dooley from Georgia to Philadelphia to testify against him. To permit him to withdraw his guilty plea after the witness had returned to her home in Georgia would be to permit appellant to use his motion to withdraw for the improper purpose of gambling on the Commonwealth’s ability to produce the witness for a second trial. This is the type of prejudice to the Commonwealth against which the rule was intended to protect. The trial court did not abuse its discretion when, under such circumstances, it denied appellant’s motion to withdraw his plea of guilty. See: Commonwealth v. Ross, 498 Pa. 512, 447 A.2d 943 (1982) (request to withdraw guilty plea was properly denied when it had been made after the dismissal of key Commonwealth witnesses in reliance on the plea); Commonwealth v. Carelli, 808 Pa.Super. 522, 454 A.2d 1020 (1982) (Commonwealth would be substantially prejudiced if pre-sentence motion to withdraw guilty plea were granted where Commonwealth witnesses were present in court on the day set for trial, and many of the witnesses had travelled great distances and had taken leave from their places of employment to be present at trial).

Under the circumstances of this case, the bald assertion of innocence appearing in appellant’s petition did not constitute a fair and just reason for allowing appellant to withdraw his plea of guilty. Not only would the Commonwealth have been prejudiced by allowing such withdrawal but appellant would have been permitted to make a mockery of the guilty plea hearing process in which appellant, after a full and complete colloquy, admitted his guilt and his role in the robbery and conspiracy.

“A guilty plea is not a ceremony of innocence, it is an occasion when one offers a confession of guilt.... The defendant is before the court to acknowledge facts that he is instructed constitute a crime____ He is then to voluntarily say what he knows occurred, whether the Commonwealth would prove them or not, and that he will accept their legal meaning and their legal consequence.” Commonwealth v. Anthony, 504 Pa. 551, 559, 475 A.2d 1303, 1307-1308 (1984). A criminal defendant who elects to plead guilty has a duty to answer questions truthfully. Commonwealth v. Mitchell, 819 Pa.Super. 170, 175, 465 A.2d 1284, 1286 (1983). A defendant will not be permitted to postpone the final disposition of his case by lying to the court concerning his culpability and thereafter withdraw his plea of guilty by contradicting his prior testimony and asserting innocence. Cf. Commonwealth v. Brown, 242 Pa.Super. 240, 363 A.2d 1249 (1976).

Pennsylvania has constructed its guilty plea procedures in a way designed to guarantee assurance that guilty pleas are voluntarily and understanding^ tendered. See: Pa.R.Crim.P. 319 and comment thereon. The entry of a guilty plea is a protracted and comprehensive proceeding wherein the court is obliged to make a specific determination after extensive colloquy on the record that a plea is voluntarily and understanding^ tendered. A guilty plea colloquy must include inquiry as to whether (1) the defendant understood the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has the right to a jury trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5) the defendant is aware as to the permissible range of sentences; and (6) the defendant is aware that the judge is not bound by the terms of any plea agreement unless he accepts such agreement. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977). Inquiry into these six areas is mandatory in every guilty plea colloquy. Commonwealth v. Glaze, 366 Pa.Super. 517, 531 A.2d 796 (1987); Commonwealth v. Moore, 365 Pa.Super. 65, 528 A.2d 1364 (1987). See also: Commonwealth v. Johnson, 355 Pa.Super. 123, 512 A.2d 1242 (1986). So many safeguards have been imposed by law to ensure that a guilty plea is voluntarily and knowingly made, that a defendant should not be permitted to withdraw his guilty plea, even before sentencing, merely by intoning the allegation that “I am not guilty,” where, as here, his plea of guilty was supported by an extensive colloquy in which the defendant expressly admitted guilt.

In the instant case, appellant admitted during the guilty plea hearing that he and Robinson had agreed to snatch pocketbooks and that he had acted as a look-out as Robinson entered the restroom at the bus terminal and forcibly took pocketbooks from two women. It is true that appellant denied knowledge that Robinson had a knife, but whether or not a knife had been used was not determinative of appellant’s guilt. See: Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979). See also: Commonwealth v. Jackson, 506 Pa. 469, 474-475, 485 A.2d 1102, 1104 (1984) (a co-conspirator “is criminally responsible for the acts of his co-conspirator committed in furtherance of the conspiracy”). The facts of this case suggest that the trial court properly accepted appellant’s plea of guilty, after a full and complete colloquy, to charges of robbery and conspiracy.

Appellant’s counsel alleged in the subsequent motion to withdraw the plea of guilty that appellant was “innocent of the charges against him” and that the plea of guilty had been entered involuntarily. At a subsequent hearing on this motion, counsel argued that appellant had been intimidated by the guilty plea proceeding, but appellant did not testify and no evidence was presented to show that appellant was innocent or that his plea had been entered involuntarily. Under these circumstances, the trial court properly denied appellant’s request for leave of court to withdraw his plea of guilty. Appellant did not have an absolute right to withdraw his guilty plea, and he failed to show any “fair and just reason” for doing so. To have allowed him to withdraw his plea of guilty would have been to allow him to play fast and loose with the court to the prejudice of the Commonwealth.

The judgment of sentence is affirmed.

McEWEN and KELLY, JJ., file concurring opinions.

McEWEN, Judge,

concurring.

I am in absolute agreement with the majority view that the presentence motion to withdraw a guilty plea was properly denied by the trial court. Certainly the Commonwealth would have been substantially prejudiced by the withdrawal of the plea of guilty, and, just as surely, appellant was trifling with the justice system. I write, however, to reecho the particular view to which I cling, albeit in rather lonely fashion until the excellent expression by my eminent colleague of the majority view.

It has long been my position that the Supreme Court in Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), and Commonwealth v. Woods, 452 Pa. 546, 307 A.2d 880 (1973), did not proclaim as a principle, applicable to all such presentence motions, that the assertion of innocence is per se a “fair and just” reason to permit withdrawal of a guilty plea. See: Commonwealth v. Ortiz, 334 Pa.Super. 117, 482 A.2d 1110, 1111-1113 (1984) (Dissenting Opinion by McEwen, J.). The admonition of Forbes and Woods that a presentence request to withdraw a guilty plea be “construed liberally” in favor of the accused, is not a direction to blithely ignore the obvious, or to heedlessly abandon reason. Moreover, I submit that scrutiny of Forbes and Woods makes clear beyond dispute that:

The Supreme Court requires that an examination of the entire record be conducted whenever such motions are presented.
The Supreme Court found that “fair and just reason” was presented in those benchmark cases only by the assertion of innocence together with the fact that it was made so early in the proceedings.
The Supreme Court, in either of these decisions, could well have stated — but did not — that the assertion of innocence by itself offered a “fair and just” reason for withdrawal.

Thus it is that I view the law to be that, when an accused undertakes a presentence effort to withdraw a guilty plea, the trial court is required to consider the totality of the circumstances reflected by the record , and that a pre-sen tence assertion of innocence may compose the required “fair and just reason” provided that the totality of circumstances reflected by the record does not establish otherwise.

KELLY, Judge,

concurring:

I join Judge McEwen’s concurring opinion. I add the following additional observations.

I agree with the majority that an assertion of innocence will provide “just cause” to withdraw a guilty plea, in some cases. However, before I would find such an assertion to be “just cause” to withdraw a valid plea, I would require some credible explanation for the inconsistency between appellant’s sworn admissions in support of the initial guilty plea and the subsequent assertion of innocence. Otherwise, a disingenuous incantation of the words “I now claim I am innocent” by judicial alchemy would become magic words with which to evade the legitimate requirement of “just cause” for withdrawal of the plea. Such a construction of our Supreme Court’s precedents would constrain trial courts to reward rather than sanction the most disingenuous of such claims, and the most brazen of perjuries.

Like Judge McEwen, I do not read Commonwealth v. Woods, 452 Pa. 546, 307 A.2d 880 (1973) or Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973) to mandate allowance of withdrawal of a plea under such circumstances. Rather, I believe that it is for the trial court to determine whether a post-guilty plea claim of innocence and the explanation for the inconsistent plea (or any other purported “just cause” to withdraw a plea) are credible and genuine. See Commonwealth v. Carr, 375 Pa.Super. 168, 171-73, 543 A.2d 1232, 1233-34 (1988). If they are, withdrawal must be granted; if not, withdrawal need not be granted.

Regardless, I agree with the majority that prejudice to the Commonwealth precluded allowance of withdrawal of the plea in this case. Hence, I concur in the result.

      . This rule provides as follows:
      Rule 321. Challenge to Guilty Plea
      (a) A motion challenging the validity of a guilty plea, or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the trial court within ten (10) days after imposition of sentence.
      (b) The motion shall be disposed of promptly.
      (c) The trial court may schedule a hearing on the motion and shall determine whether the motion shall be argued before one judge alone or before a panel of judges sitting as a court en banc. Whenever a single judge hears the motion alone the judge may make any ruling that could be made by a court en banc.
      Pa.R.Crim.P. 321.

      . The other victim of the robbery was an itinerant bag lady whose whereabouts were unknown and who, therefore, was not available to testify.

      . Appellant’s trial had been continued from December 10, 1985 and rescheduled for March 10, 1986 because of the unavailability of this witness.

      . The petition was signed only by appellant’s counsel. It was neither signed nor verified by appellant.

      . Regarding the withdrawal of a plea of guilty, the Rules of Criminal Procedure provide:
      Rule 320. Withdrawal of Plea of Guilty
      At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.
      Pa.R.Crim.P. 320.

      . Although we are required to follow the law as pronounced by the Supreme Court in Commonwealth v. Forbes, supra, one cannot help but question whether the rationale which has called for different standards for withdrawing pleas of guilty before sentencing and after sentencing is not wrong in its focus. As it pertains to a pre-sentence motion to withdraw, it dininishes the gravity of the entry of a guilty plea under Pa.R.Crim.P. 319 to allow the plea to be withdrawn prior to sentencing upon a bald assertion of innocence. Would it not be better — even more realistic — to hold that after a guilty plea hearing has been held under Rule 319 and the guilty plea has been entered by the defendant and accepted by the court, then such a plea may be withdrawn, either before or after sentencing, only to avoid prejudice in the nature of a manifest injustice? Such a uniformly applied rule would discourage the gamesmanship that is apparent in the instant case and would elevate the guilty plea hearing to the formal confession of guilt envisioned by the Supreme Court in Commonwealth v. Anthony, supra.

      . The practice, when a guilty plea is entered, of simply securing from the accused an affirmative answer to questions containing a myriad of specific details of the crimes charged, has proved expeditious. Perhaps, however, it better serves to address such colloquy questions to the accused as require the accused to provide specific details of the crimes to which the plea of guilty is entered. Such a colloquy not only insures that the plea is voluntarily and understandingly entered, but also enables more perceptive study, in the event that the accused subsequently seeks to withdraw the guilty plea, of whether "fair and just reason” to withdraw the plea has been presented.


author: BECK, Judge:

text:
    564 A.2d 209
    Robert A. SMITH, Appellee, v. CELOTEX CORPORATION, Eagle-Picher Industries, Inc., GAF Corporation, Johns-Manville Sales Corporation, Keene Corporation, Owens-Corning Fiberglass Co., Inc., Certainteed Products Corporation, Pacor, Inc., Appellees. Appeal of GAF CORPORATION.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1988.
    Filed Aug. 30, 1989.

      H. Nathaniel Metz, Philadelphia, for GAF Corp., appellant.
    Robert E. Paul, Philadelphia, for Smith, appellee.
    Before CIRILLO, President Judge, and BECK and KELLY, JJ.
   BECK, Judge:

This is an appeal by GAF Corporation from a judgment against it after a jury trial of appellee Robert A. Smith’s personal injury claims. Smith was employed as an applicator of finished asbestos products, including pipe covering products, at least one of which was manufactured by GAF. He instituted suit against GAF and several other asbestos manufacturing defendants on February 19, 1980. A jury trial was conducted from January 21, 1986 to February 13, 1986. Trial was had in reverse bifurcated procedure. The first phase adjudicated medical causation and compensatory damages issues, and the second phase adjudicated liability and punitive damages issues. The jury awarded $500,000 in compensatory damages and, as to GAF, $20,000 in punitive damages. The trial court thereafter molded the verdict to assess $83,333.33 in compensatory damages against GAF, $20,000 in punitive damages against GAF, and $49,885.84 in delay damages against GAF.

GAF appeals all three of these awards. It raises the following issues:

1. Whether the documentary evidence and deposition testimony offered by the plaintiff was admissible against GAF, and if so, whether it was legally sufficient to support an award of punitive damages?
2. Whether the trial court adequately instructed the jury regarding punitive damages?
3. Whether the plaintiff sustained his burden of proof to establish at trial that GAF is subject to punitive damages for the acts and/or omissions of The Ruberoid Co.?
4. Whether the trial court erred in allowing cross-examination of the defendants’ medical expert with regard to past patient referrals by attorneys and fees earned from such referrals?
5. Whether the compensatory award can stand where the trial court allowed the plaintiff to argue a lost wages claim and then excluded the claim as a matter of law without any instructions to the jury?
6. Whether the trial court’s order to mold the verdict is premature until the releases provided to the settled tortfeasors are produced and reviewed?
7. Whether the award of delay damages is appropriate in the context of this case?

We agree with appellant’s position as to issues 1 and 5 and, therefore, grant judgment N.O.V. to appellant as to punitive damages and remand for a new trial as to compensatory damages. This disposition obviates the need for us to opine on GAF’s claims of error as to the award of delay damages and as to the trial court’s molding of the verdict.

Appellant’s first three issues and the bulk of its argument focus on the propriety of the punitive damages award of $20,000. We find that the evidence regarding punitive damages offered against appellant was legally insufficient to permit an award of such damages.

It has long been the law of Pennsylvania that punitive damages are appropriate only in the most circumscribed situations. Section 908 of the Restatement (Second) of Torts, which has been adopted in Pennsylvania, sets forth the governing principles for awards of punitive damages:

Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

Restatement (Second) of Torts, Section 908(2) (1965). See also Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58, 69 (1989); Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800 (1989); Martin v. Johns Manville Corp., 508 Pa. 154, 168, 494 A.2d 1088, 1096 (1985) (plurality); Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963).

The reckless disregard of the rights of others that is required under Section 908 is further explained by Section 500 of the Restatement, which defines “reckless disregard” as follows:

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts, Section 500 (1965).

Thus, as the Supreme Court opined in Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984), in determining whether punitive damages should be awarded, “[t]he state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious.” Id., 506 Pa. at 396, 485 A.2d at 748. See also Rizzo v. Haines, supra: Thomas v. American Cytoscope Makers, Inc., 414 F.Supp. 255 (E.D.Pa.1976); Neal v. Carey Canadian Mines, Ltd., 548 F.Supp. 357, 374 (E.D.Pa.1982). This focus is unquestionably proper, since the purpose of punitive damages is to punish the defendant’s conduct and deter similar behavior in future. See Kirkbride, supra; Restatement (Second) Torts, Section 908(1). Where the defendant has acted in a merely negligent manner, or even a grossly negligent manner, there is insufficient culpability and awareness by the defendant of the nature of his acts and of their potential results either to warrant punishment or effectively to deter similar future behavior.

These principles have recently been applied by the Supreme Court in the specific context of an award of punitive damages in a suit brought by an applier of finished asbestos products against a manufacturer of such products. In Martin v. Johns-Manville Corp., supra, the Supreme Court held that plaintiff, an applier of finished asbestos products, had failed to produce sufficient evidence of the outrageous conduct by the defendants, manufacturers of the asbestos products, to warrant submission of the issue of punitive damages to the jury. Plaintiff had alleged that the outrageous conduct of defendants consisted in not affixing warnings to their products until 1964. Although the lead opinion in Martin was a plurality of two justices, all of the remaining four justices who participated concurred in the result that the punitive damages award should be stricken.

The evidence deemed insufficient in Martin was testimony by two doctors concerning what the medical profession knew of the risks posed to appliers of finished asbestos products and when they knew it. One doctor testified that he first became aware of these risks in 1964. Another doctor, who had been employed as a consultant by one of the defendants from 1962 to 1963, testified that he advised that defendant in 1963 that appliers were at some, albeit minimal, risk from asbestos exposure. He testified that although he had no knowledge of medical reports regarding asbestos related risks posed to appliers prior to 1962-1963, he testified that such risks had been established by then through clinical observations by appliers’ physicians.

In Martin, Justice Hutchinson (author of the lead opinion) emphasized that plaintiff had not produced sufficient evidence of the awareness of the defendants of the specific risks associated with application of finished asbestos products, as opposed to risks associated with the manufacture of asbestos products. Justice Hutchinson distinguished those cases where the plaintiffs were employees of manufacturers of asbestos products and produced evidence of the specific knowledge of the defendants as to the risks posed to manufacturing employees such as the plaintiffs long before the defendants took any measures to protect the employees. See, e.g., Neal v. Carey Canadian Mines, Inc., supra. See also Catasaugua Area School District v. Raymark Industries, Inc., 662 F.Supp. 64, 70-1 (E.D.Pa.1987) (evidence on punitive damages insufficient where it failed to show any awareness by defendant of risks associated specifically with installation of finished asbestos products in schools).

An analysis of the evidence adduced by plaintiff in the instant case forces us to the same conclusion as was reached in Martin. Here, the evidence submitted equally did not establish either that the management of appellant knew or had reason to know of facts indicating that appellant’s conduct posed a substantial risk of physical harm to an applier of finished products like plaintiff.

The evidence as to punitive damages, may be briefly summarized as follows:

1. Deposition testimony of Dr. Katherine Sturgis regarding a historical survey of medical articles concerning the risks of exposure to asbestos beginning in the early part of the century.
2. Deposition testimony of Mr. Limerick, manager of one of appellant’s predecessor’s asbestos mines from 1937-1945 and thereafter Chief Engineer and then Vice President of Manufacture of Building Products Division— testimony indicated that while at the mine, Limerick had never heard of “asbestosis” but he had heard of asbestos “causing some difficulties” and that “some people were having breathing problems”.
3. Deposition testimony of Mr. Sarlo, who began as a machine laborer at an asbestos manufacturing plant owned by appellant’s predecessor and who, by the early fifties, became a production superintendent and then plant manager for the manufacture of asbestos products — testimony that he was unclear as to when he first became aware, although it was possibly in the early fifties, that if one breathed in asbestos one was “in trouble with asbestosis and it could cause lung cancer and that kind of thing.”
4. Evidence of answers to interrogatories filed by appellant in unrelated litigation indicating that in the early 1950’s appellant’s predecessor had received two workers’ compensation claims by manufacturing employees in which the employees alleged that they had asbestos related disease.

As to the testimony of Dr. Sturgis, we note that none of her testimony related to knowledge specifically held by appellant. The testimony contains no references to appellant. Nor did plaintiff produce other evidence of appellant’s specific knowledge of the medical articles to which Dr. Sturgis referred or to any membership by appellant in any association that customarily collected and sent to its members such articles. In addition, the whole of Dr. Sturgis’ testimony related to medical knowledge generally relating to risks to “asbestos workers” and to the risks of inhaling asbestos dust. There is no testimony specifically relating to knowledge by the medical profession as to the risks posed by finished asbestos products to those who installed or applied them. We, therefore, conclude that Dr. Sturgis offered no testimony in any way probative of outrageous conduct by appellant vis-a-vis plaintiff.

We reach a similar conclusion as to the last of the above enumerated categories of evidence, i.e. the workers’ compensation claims submitted to appellant in the early fifties. The existence of these claims alone, with no evidence demonstrating anything relating to how they were ultimately resolved, does not indicate anything regarding appellant’s knowledge of the risks posed to appliers of asbestos products for numerous reasons. Most importantly, we note that the claimants were manufacturing employees and not appliers. Thus, we do not see how the mere fact that these workers’ compensation claims were made is relevant to plaintiff’s punitive damages claim. .

Finally, we must assess the impact of the generalized statements by two former employees of appellant’s predecessor regarding their knowledge of the risks associated with asbestos. Once again, neither of these employees were involved in applying finished asbestos products, nor did either testify that they were otherwise aware of the risks involved in such activity. Mr. Limerick was exclusively employed in the mining aspect of asbestos production when he acquired his generalized knowledge of certain “difficulties” asbestos might pose. Mr. Sarlo was equally not involved in the application of finished products, but rather testified only that while he was involved in the manufacture of asbestos products he acquired knowledge of the risks associated with inhaling asbestos.

We fail to see how these slim and generalized references by two former employees engaged solely in mining and manufacturing, neither one of which had responsibility for medical or health matters, could form the basis for a reasonable jury to conclude that the management of appellant knew or had reason to know long before it placed warnings on its products that the activity of applying those products posed a substantial risk of physical harm to the appliers and yet acted with reckless indifference to that obvious and substantial risk.

The punitive damages award must be reversed.

Appellant next argues that a new trial regarding the medical causation of plaintiff’s injuries must be had because of the trial court’s error in allowing broad cross-examination of one of appellant’s medical expert witnesses regarding his prior testimony on behalf of other asbestos companies and the fees he earned therefrom. Appellant contends that the court violated the rule of Mohn v. Hahnemann Medical College and Hospital, 357 Pa.Super. 173, 515 A.2d 920 (1986), in permitting this testimony and, moreover, was not evenhanded in its treatment of appellant when its counsel cross-examined appellee’s expert witness as to the same subject.

A new trial may be granted if the trial court abused its discretion or committed an error of law which controlled the outcome of the case. Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 521, 229 A.2d 861, 862 (1967); Foley v. Clark Equipment Co., 361 Pa.Super. 599, 523 A.2d 379 (1987).

We agree with appellant to the extent that it points out a slight disparity in the treatment by the trial court of the parties’ expert witnesses. The court sua sponte interrupted appellant’s cross-examination of plaintiff’s expert when appellant was eliciting information about the expert’s services and fees for other lawyers representing the plaintiff in litigation and prohibited further examination on that point. However, the court did not recall that ruling when appellant’s own expert witness was testifying and the court allowed slightly more detailed cross-examination as to that expert’s other services and fees for other asbestos defendants.

Although we disapprove strongly of conflicting rulings by a trial court as to the scope of cross-examination depending on which party is conducting it, we do not see the disparity between the testimony elicited on this point as being nearly great enough to merit a new trial due to this error. Both expert witnesses did testify as to their involvement in other matters and were examined in an attempt to reveal their bias in favor of plaintiffs or defendants, including the approximate amount they received as fees for their services. Thus, we will not reverse on the ground of unequal treatment.

We also do not view the trial court’s allowance of the cross-examination of appellant’s expert witness as having gone beyond the bounds of the rule governing cross-examination of expert witnesses regarding possible bias in favor of the party calling them. In Grutski v. Kline, 352 Pa. 401, 43 A.2d 142 (1945), the Supreme Court established that impeachment of an expert witness by demonstrating partiality to the party for whom the expert is testifying is permissible. The Court stated:

Whatever tends to show the interest or feeling of a witness in a cause is competent by way of cross-examination ____ The fact that an expert witness is to receive, or has received, per diem compensation beyond the legal witness fee does not affect his competency as a witness, and it may have very slight bearing upon the question of his impartiality. Nevertheless, his relation to the party calling him may be such as to warrant the jury in taking it into consideration in weighing his testimony.

Id., 352 Pa. at 406, 43 A.2d at 144 (quoting Duffy v. Griffith, 134 Pa.Super. 447, 4 A.2d 170 (1939). Thus, it is proper to elicit from an expert the fee he is being paid to testify. Accord Zamsky v. Public Parking Authority of Pittsburgh, 378 Pa. 38, 105 A.2d 335 (1954). Later decisions have further indicated that it is also proper to elicit whether a personal friendship exists between the expert and either the party calling him or that party’s counsel. Downey v. Weston, 451 Pa. 259, 301 A.2d 635 (1973). In any event, the precise degree to which such impeachment cross-examination will be permitted rests in the sound discretion of the trial court. Commonwealth v. Lane, 492 Pa. 544, 424 A.2d 1325 (1981); Downey v. Weston, supra.

Appellant argues, however, that one limitation on the scope of such cross-examination was established in Mohn v. Hahnemann Medical College and Hospital, 357 Pa.Super. 173, 515 A.2d 920 (1986), and that this limitation was violated in this case. In Mohn, an expert witness for the defendant, Dr. Urbach, was cross-examined regarding various ledgers he maintained indicating his involvement in numerous activities and his payment therefor. The ledgers contained information spanning a five year period and related not only to cases where the expert had testified, but also to cases where he had examined or treated a patient and then been paid by a lawyer or private or public agency for whatever reason. Despite the breadth of these records, largely unrelated to the case before the court, the trial court allowed the admission into evidence of the income the ledgers revealed.

This court reversed, stating:

No one disputes that [the Supreme Court] approves of cross-examining an expert as to the amount of his compensation for testifying in the case on trial. This same thinking has been extended to permit inquiry into a physicians personal friendship with a party to a suit or a party’s attorney so as to expose his interest in or bias towards either side of the lawsuit. In this regard, we find proper the trial court’s allowance of the plaintiff’s query about the existence of the financial relationship between Dr. Urbach and defense counsel’s firm, which spans approximately twelve (12) years and is still extant as evidenced by some thirty (30) cases in which the two are still actively involved.
We do not believe, however, that the case law in this jurisdiction would condone the type of extensive disclosure of an expert’s fee generating cases, especially since they were not related to the case at bar (except tangentially)____ There must be, and is, a point beyond which inquiry is/will be held to be prejudicial, too intrusive and only serving to divert the case into collateral matters.
... we do not think [the permissible scope of inquiry] encompasses the emptying of one’s pockets and turning them inside out so that one’s financial worth can be open to scrutiny.

Mohn, 357 Pa.Super. at 178, 181, 515 A.2d at 923, 924.

We do not regard the degree to which the trial judge permitted cross-examination of appellant’s expert as having gone beyond the limitation expressed in Mohn, nor do we view it as an abuse of the trial court’s broad discretion in such matters. In contrast to the breadth of disclosure disallowed in Mohn, where the expert’s entire financial picture was displayed to the jury, in the instant case appellant’s witness was only asked regarding his specific involvement in asbestos cases on behalf of the defendants therein and the fees generated from them. This information may be perceived as at least somewhat relevant to whether this expert was biased or prejudiced in favor of asbestos defendants and is unlike the information elicited in Mohn, which was totally irrelevant to showing such bias or prejudice.

We also reiterate that appellee’s expert witness had also previously been allowed to testify (to a somewhat lesser degree) as to his involvement with rendering reports on behalf of law firms representing plaintiffs other than the firm representing plaintiff herein and as to his compensation for those services. Although both lines of questioning were perhaps slightly beyond the proper scope, and elicited to some degree information not directly relevant to the interest of the witness in the case at hand, we find that they counterbalance each other and resulted in no reversible error.

Appellant next argues that a new trial regarding compensatory damages is required due to prejudicial error in the trial court’s charge. The error relates to the court’s description of the allowable damages the jury could award and focuses on appellee’s claim for lost wages. The pertinent facts are as follows.

The trial court allowed testimony regarding appellee’s lost wages allegedly as a result of his asbestos related injuries and further allowed plaintiff’s counsel to argue that lost wages should be awarded in his closing argument. Thereafter, however, after the charge to the jury and out of the jury’s presence, the trial court determined that the lost wages claim could not be submitted to the jury and should be excluded since the evidence thereof was insufficient. The court refused, however, to grant a directed verdict to appellant on this claim or to give clarifying instructions to the jury. The court reasoned that its charge had merely instructed the jury to award damages for appellee’s pain and suffering, loss of life’s pleasures, embarrassment and humiliation and had not specifically mentioned lost wages. Thus, the court concluded that no clarifying instruction was necessary.

We disagree. We recognize that in reviewing a jury-charge we must accord the trial court wide latitude in conveying the law to the jury. Reilly by Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985). We must also read the charge in its entirety to determine whether any prejudicial error has occurred. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 A.2d 1314, 1316 (1984). However, we must also remain mindful that where a jury charge, when read as a whole, may well have misled or confused the jury in a manner prejudicial to the complaining party, we must reverse. Hawthorne v. Dravo Corp., Keystone Div., 352 Pa.Super. 359, 508 A.2d 298 (1986). This is such a situation. This jury heard testimony regarding lost wages and closing argument directed specifically to that point. Shortly thereafter, they received a charge from the trial court that made reference to the general items of damage they might award and that never mentioned anything about lost wages. Thereafter, the trial court changed its mind and excluded this claim but refused to inform the jury of that decision.

Clearly, this jury could well have assumed and, indeed, was impliedly allowed to assume, that the lost wages claim was part of this case. They could have considered lost wages as one element by which they could compensate plaintiff for his pain and suffering or, even more likely, could have regarded the loss of the ability to work as one element of the loss of life’s pleasures. We cannot say with any degree of certainty that this jury somehow gleaned from the court’s charge that the evidence and argument regarding lost wages should now be given no consideration.

The trial court’s refusal to direct the jury that they should ignore all they had heard as to lost wages and specifically exclude any such item of damage from their consideration was reversible error. Thus, a new trial without evidence of lost wages is required.

The judgment as to punitive damages is reversed.

The judgment as to compensatory damages is reversed and the matter is remanded for a new trial as to compensatory damages alone.

The judgment is affirmed as to liability and medical causation.

      . Initially we dispose of appellee’s motion to quash this appeal based on certain deficiencies in appellant’s brief, which was originally filed prior to argument. The motion was denied, but appellant was ordered to correct the deficiencies. Appellant then supplemented its brief, but the motion to quash was thereafter renewed. We find that appellant’s brief, as amended, is in substantial compliance with the Rules of Appellate Procedure and, therefore, will consider the appeal on its merits.

      . Punitive damages were also awarded in the amount of $100,000 against each of the other defendants who had previously settled with plaintiff. The punitive damages awards against them were then vacated by order of the trial court dated February 14, 1986.

      . The award of delay damages must be reconsidered after the new trial on compensatory damages is complete. The propriety and amount of delay damages should then be determined in accordance with new Rule of Civil Procedure 238, effective November 7, 1988. Obviously the molding of the verdict must also await completion of the new damages trial. For the guidance of the trial court, however, we note that the recent decision of a panel of this court in Walton v. Avco Corp., 383 Pa.Super. 518, 557 A.2d 372 (1989), highlights the importance of close examination of the releases exchanged between the plaintiff and settling defendants in determining the rights and liabilities of non-settling defendants like the appellant here.

      . We also reject appellant’s allegation of error as to the trial court’s permitting cross-examination of appellant's expert regarding his involvement with the New Jersey Chemical Association. We find no prejudicial error in this ruling.