text:
    527 A.2d 122
    Harold L. BARNER, Appellant, v. Carol A. BARNER.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1987.
    Filed June 1, 1987.

      Michael K. Hanna, Lock Haven, for appellant.
    H. Denning Mason, III, State College, for appellee.

      Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

Plaintiff/appellant timely appeals from the lower court Order dismissing his exceptions to the report and recommendations of the hearing officer rendered in response to appellant’s request for equitable distribution, alimony pen-dente lite, alimony, custody and child support, all raised in his complaint in divorce, filed July 20, 1984, and the amendment thereto. The parties received a bifurcated divorce decree on April 2, 1985 with the lower court reserving jurisdiction on the above related issues.

Although we agree with defendant/appellee, that appellant’s appellate brief’s statement of the case is inadequate and fails to follow the precepts mandated by Pa.R. A.P. 2117(a), we will not quash his appeal for that reason. The defects appearing in appellant’s brief are not “substantial” within the meaning of Pa.R.A.P. 2101 and do not mandate our quashing the appeal.

Appellee also contends that dismissal is warranted. because of appellant’s failure to comply with Pa.R.C.P. 1920.-55(a), which provides:

Rule 1920.55. Master’s Report. Notice. Exceptions. Final Decree

(a) Within ten days after notice of the filing of the master’s report has been mailed, exceptions may be filed by any party to the report or any part thereof, to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, or to any other matters occurring during the hearing. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to entry of the final decree, leave is granted to file exceptions raising those matters. (Emphasis added).

All of appellant’s exceptions are couched in the following manner: “The Hearing Officer erred in finding that:” followed by a direct quote from the master’s report. (Record item # 14). Appellee claims these responses are improper as appellant failed to explain what he would have the master find in their place.

In support of his claim, appellee argues that the Supreme Court’s Opinion in Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985), “implicity” approved detailed exceptions by quoting exceptions to a master’s report, which stated the master’s finding, the excepting party’s desired finding and the general reason why the excepting party’s position is correct. However, the Estep Court never addressed the issue of what constitutes a proper exception under Pa.R.C.P. 1920.-55 and the fact that the Court approved of certain exceptions without comment cannot be construed to mean that those exceptions are the exclusive model for what constitutes a proper exception under Rule 1920.55.

Here, we must determine whether appellant’s exceptions are drafted within the meaning of Rule 1920.55(a)’s requirement that “[e]ach exception shall set forth a separate objection precisely and without discussion.” In interpreting the Rules of Civil Procedure, we are to consider the prior practice, including other rules upon the same or similar subjects, in the area governed by the rule in question. Pa.R.C.P. 127(c)(5); Union National Bank and Trust Company of Sounderton v. Walker, 315 Pa.Super. 37, 461 A.2d 623 (1983). We find that our earlier decision in Dudash v. Dudash, 313 Pa.Super. 547, 460 A.2d 323 (1983), dealing with Pa.R.C.P. 1518, is controlling in this case. Although Rule 1518 was rescinded effective January 1, 1984 — as part of a series of amendments abolishing the distinction which existed in post-trial practice between actions at law and actions in equity — case law interpreting its provision is applicable to Pa.R.C.P. 1920.55(a) because of the great similarity in language both rules share. Former Rule 1518 provided as follows:

Rule 1518. Exceptions [Rescinded]

Within twenty (20) days after notice of the filing of the adjudication, exceptions may be filed by any party to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, to the decree nisi or in cases where requests for findings of fact or conclusions of law have been submitted by leave of court to a failure or refusal to find any matter of fact or law substantially as requested. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived, unless, prior to final decree, leave is granted to file exceptions raising these matters. (Emphasis added).

Thus the format for exceptions under the two rules is identical, as illustrated by the emphasized portions of both rules above.

In Nord v. Devault Contracting Company, Inc., 460 Pa. 647, 334 A.2d 276 (1975), the Supreme Court held that a general exception to an entire Order and Decree of the lower court failed to comply with Pa.R.C.P. 1518’s requirement that exceptions state objections “precisely” and thus was entirely ineffective. In Dudash, supra, we expanded on this ruling by the Supreme Court in holding that exceptions which simply stated that the excepting party excepts to a particular finding of fact or conclusion of law by number, followed by a direct quote of that finding or conclusion, were adequately done under Pa.R.C.P. 1518. We concluded, in Dudash, supra, 313 Pa.Superior Ct. at 552, 460 A.2d at 325, that such exceptions were “separately and concisely stated with a precise reference to the matter to which objection is made” in full compliance with Pa.R. C.P. 1518’s requirement.

Like former Rule 1518, Pa.R.C.P. 1920.55 requires only that each exception set forth a separate objection and that the objection be stated precisely and “without discussion”. Appellant has set forth only one separate objection in each exception. In quoting the finding of fact he found objectionable, appellant could not have been more precise. Since Rule 1920.55 specifically prohibits an excepting party from discussing his objections in the exceptions, we find that by going no further appellant’s exceptions are in compliance with the rule. Therefore, we find meritless appellee’s argument that appellant’s exceptions were insufficient. However, exceptions set forth in a more detailed format such as those used in Estep, supra, which pinpoint the exact objection and its basis without discussion or attachments, are preferable because their clarity and greater precision allows more meaningful judicial review with less risk of misconstruing the nature of the objection. We now turn to appellant’s claims on appeal.

Based on the hearing officer’s recommendations, the lower court awarded appellant child support from appellee in the amount of $20 per week for the support of the parties’ minor child, Matthew Barner, age nine (9), and ruled that appellee has satisfied her duty to provide support for the parties’ other child, Jeffrey Barner, age eighteen (18), and that no further sum is due or owing for his support. Appellant claims that the child support awarded should have been effective from the date of his filing the complaint in divorce, July 20, 1984, and not merely retroactive to the filing of his subsequent “Petition for Support,” as the lower court ordered. The certified record on appeal discloses a disconcerting irregularity in the filing procedure employed by appellant below. The hearing officer and trial judge fixed the filing date of the appellant’s petition for support as being May 10, 1985. As stated by the hearing officer in his report:

The Hearing Officer notes that the petition for support in this matter is dated May 10, 1985. The exact date of the filing of the document is not disclosed on the document ... Mr. Barner would thus be entitled to child support ... from May 10, 1985.
... Again, the support petition was filed in May of 1985. Under the Centre County practice and Rule of Civil Procedure 1910-17a, support orders become effective as of the date of filing of a support complaint. The Hearing Officer is thus, required to make the support order effective retroactive to the date of filing — May 10, 1985____ The effective date of the order for child support ... shall be May 10, 1985.

(Report and Recommendation of Hearing Officer, hereinafter “Report,” at 2-3, Record item # 16). However, upon careful examination of appellant’s petition in the certified record on appeal, (Record items, # 19 and 20), we are unable to find the date May 10, 1985 on any part of the petition or its attached documents. Instead, we find that the petition’s verification is dated April 15, 1985; the certificate of service, signed by appellant’s counsel, is dated May 7, 1985. Most importantly, the official prothonotary stamp of the lower court is dated September 4, 1986, fifty-one (51) days after appellant’s notice of appeal, dated July 15, 1986, was filed.

It is well settled that an appellate court can only consider the certified record on appeal when reviewing a case. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319 (1986); Anmuth v. Chagan, 295 Pa.Super. 32, 440 A.2d 1208 (1982). Appellant’s placing at issue the proper date from which the child support award should be calculated from, illuminates the discrepancy in the filing date of the petition for support. Even though the parties and the lower court do not contest the May 10, 1985 date as being the proper filing date for appellant’s petition, since the certified record directly contradicts their determination, we would be justified, in accordance with Pa.R.A.P. 1926, in remanding to the lower court with instructions for that court to clarify the record and to make the record conform to the truth. Ritter, supra; Johnson v. Keystone Insurance Company, 299 Pa.Super. 187, 445 A.2d 517 (1982). However, because we find merit in appellant’s argument, that the proper date for fixing appellee’s support duty is the filing date of appellant’s complaint in divorce, the exact filing date of the petition for support becomes irrelevant.

In Shovlin v. Shovlin, 318 Pa.Super. 516, 465 A.2d 673 (1983), we held that even though Pa.R.C.P. 1910.17(a) did not require that a support Order be retroactive, absent a statement of any specific reason to justify nonretroactivity, a complaint for support and petition for modification are generally retroactive only to the date of their filing. See Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986). Appellee contends that because appellant’s July 20, 1984 divorce complaint contained only a “boilerplate” clause requesting child support, it was insufficient to constitute a complaint for support under Pa.R.C.P. 1910.5. Rule 1910.5 states that “[t]he complaint shall be substantially in the form provided by Rule 1910.26(a).” Appellee continues that since appellant’s “Petition for Support” complied with the format of Pa.R.C.P. 1910.26(a), it was in essence appellant’s proper “complaint” for support and the date of that petition/complaint, i.e., May 10, 1985, is the earliest date for which a support award may be made retroactive under Shovlin, supra.

We disagree with appellee’s argument and logic for the following reasons. We find that appellant properly raised his claim for child support in his complaint in divorce as allowed by both statute and the rules of civil procedure. In paragraph thirteen (13) of his complaint in divorce, appellant requested the following relief: “[t]he plaintiff requests the court, following determination of the issue of custody, to enter an Order for child support in an amount deemed just and proper.” (Record item # 1). Pennsylvania Rule of Civil Procedure 1920.13(b) provides the methods for pleading more than one cause of action in a divorce action as follows:

(b) The plaintiff may
(1) join in the complaint in separate counts any other claims which may under the Divorce Code be joined with an action of divorce or for annulment or, if they have not been so joined, the plaintiff may as of course amend the complaint to include such other claims or may file to the same term and number a separate supplemental complaint or complaints limited to such other claims; or
(2) file to the same term and number a subsequent petition raising such other claims.

Those claims, which may be joined under the Divorce Code, 23 P.S. § 101 et seq., with an action of divorce, are set forth in 23 P.S. § 301 Jurisdiction, which reads in pertinent part:

(a) The courts of this Commonwealth as defined in section 104¹ shall have original jurisdiction in cases of divorce and for the annulment of void or voidable marriages and, where they have jurisdiction, shall determine in conjunction with any decree granting a divorce or annulment the following matters, where raised in the complaint or the answer and issue appropriate decrees or orders with reference thereto and may retain continuing jurisdiction thereof:
(3) Any support or assistance which shall be paid for the benefit of any children of such marriage or purported marriage.

Thus appellant’s request for child support within his complaint in divorce is proper under the rules of procedure.

Here, appellant did not choose to file an independent complaint in support to the same term and number as his divorce complaint, pursuant to Pa.R.C.P. 1910.1 et seq., and join this with the divorce complaint for resolution, instead, as allowed by the rules, appellant joined in his divorce complaint a separate count of child support and filed a subsequent “petition” for support in order to provide the hearing officer the necessary social and economic information to assist him in rendering a decision. Pa.R.C.P. 1910.-1(a) provides that: “[ejxcept as provided by subdivision (b), the rules of this chapter govern all civil actions or proceedings brought in the court of common pleas to enforce a duty of support.” Subdivision (b) specifically excludes several actions and proceedings from the operation of the Rules of Civil Procedure, however, none of those actions are present in this case. As explained in the 1981 Explanatory Note to Rule 1910.1:

All actions or proceedings to enforce a duty of support not included in the list of exclusions in subdivision (b), whether that duty arises from common law, statute or agreement of the parties, will be governed by these Rules. These Rules will provide the complete procedure for all such actions of support. The practitioner need not refer to any other source, except for substantive law or administrative procedure. Acts of Assembly governing procedure in actions to which these Rules apply will be suspended.

By employing the format set forth in Pa.R.C.P. 1910.26(a) for his petition for support, appellant was following the procedural method adopted by our Supreme Court for enforcing a duty of support. Appellee’s assertion that this acted to make the petition a separate complaint for support is meritless in view of appellant’s right under Pa.R.C.P. 1920.13(b) to bring such a claim in his complaint in divorce.

We hold that the award of child support should be retroactive to the date of the filing of appellant’s complaint in divorce, July 20, 1984, and not the date of the subsequent petition for support. To hold otherwise would defeat the underlying rationale of Shovlin, supra, which found that retroactivity of a support award was necessary to both alleviate hardship on a custodial party who is entitled to support, but who is required to proceed through the often slow-moving judicial process, and to create a disincentive for the party liable for support to use dilatory tactics. Commonwealth ex rel. Banks v. Banks, 330 Pa.Super. 128, 478 A.2d 1387 (1984). Our Opinion in Shovlin, supra, involved a complaint for support and did not deal with a claim of support raised in a complaint in divorce. There appears to be no jurisdiction or public policy rationale that would prevent us from applying those same fundamental considerations we applied in Shovlin, supra.

As we noted earlier, retroactive application of a support award is not mandatory; however, “unless the order specifies otherwise” or the trial court gives a statement of a specific reason to justify nonretroactivity, the support Order will be retroactive to the date of the filing of a request. Pa.R.C.P. 1910.17(a); Shovlin, supra. Upon careful review of the record, we find that neither the lower court nor the hearing officer gave a statement of a specific reason to justify nonretroactivity for the support award ordered. Further, by not finding a retroactive duty of support for one son because of mitigating actions by appellee, but finding a retroactive duty towards the other son without mention of mitigating circumstances, we are satisfied that the hearing officer found no reasons to deny retroactivity of the support award with respect to the younger son.

Next, appellant claims that the lower court and hearing officer erred in including the marital home, camper, Dodge truck (or van) and a Volkswagen automobile as marital property. Appellant contends that the parties agreed in November, 1982 on the division of their property and that within days of their separation in February, 1983, the parties carried out the agreement by formally transferring the deed and titles of the property to appellant. Based on this agreement, appellant claims the items were no longer marital property, but were owned solely by appellant and should not have been part of the property distribution rendered below.

Equitable distribution is within the discretion of the trial court and its decision will not be disturbed absent an abuse of that discretion. Madden v. Madden, 336 Pa.Super. 552, 486 A.2d 401 (1985); Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 463 A.2d 1196 (1983); Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983); 23 P.S. § 401(d). As we stated in Braderman v. Braderman, 339 Pa.Super. 185, 190-91, 488 A.2d 613, 615-16 (1985):

An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence. As a result, under the abuse of discretion standard, we do not usurp the trial court’s duty as fact finder; rather, we carefully scrutinize each of the guidelines to determine whether the lower court has abused its discretion. Ruth, supra. However, an abuse of discretion will be found by this court if the trial court failed to follow proper legal procedures or misapplied the law. Banks v. Banks, 275 Pa.Super. 439, 418 A.2d 1370 (1980).

(Footnote omitted). Considering this standard of review we now address appellant’s claim.

Appellant contends that the lower court erred in designating certain property as “marital property.” Section 401(f) of the Divorce Code, 23 P.S. § 101 et seq., provides:

(f) All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e).

23 P.S. § 401(f); Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983). It is undisputed that the house, camper, Dodge truck and Volkswagen were acquired by the parties during the marriage and were held by both parties until the time of the transfer to appellant in February, 1983. Appellant now claims, inter alia, that he met his burden of overcoming the presumption of marital property with respect to these items by showing that he acquired the property by valid agreement of the parties, entered into during the marriage, in accordance with 23 P.S. § 401(e)(2).

After a careful review of the record and testimony presented, we find the lower court abused its discretion in finding that a valid agreement was not entered into by the parties during the marriage concerning the distribution of marital assets. It is clear from both the appellant’s and appellee’s testimony that sometime in November, 1982, while the parties were having marital difficulties, the parties had a discussion about the distribution of the marital property and appellee, at that time, told appellant that she did not want any of the property. During direct examination by appellant’s counsel, appellant indicated in what manner the agreement was reached, as follows:

Q. Would you explain to us the circumstances surrounding that conveyance? When was the matter first discussed?
A. In November of 1982, my wife admitted that she was having an affair with another man. I confronted her about the distribution of the property at that time. I think the actual words I said to her ... I said what the hell am I gonna do now. Am I gonna have to sell everything or what? She said, No, I don’t want anything. To the best of my knowledge, that’s pretty near the exact words that were said. (Emphasis and ellipsis in original).
Q. Was there any further discussion regarding it?
A. I don’t think there was any further discussion until the time she moved out in February.

(N.T. 11/21/85, p. 4). Appellant’s testimony was confirmed by appellee during cross-examination as follows:

Q. Now, in November of 1982, you had a discussion with your husband regarding problems that had developed. Is that correct?
A. Yes.
Q. You heard Mr. Barner testify that it was at that time he stated to you ... what am I gonna have to do ... sell everything? And you responded ... No, I don’t want anything. Do you deny that that conversation took place? (Ellipses in original).
A. No, I don’t deny that conversation took place. (N.T. 11/21/85, p. 67).

The parties separated in early February, 1983, with appel-lee moving out of the marital home and appellant remaining. Shortly after their separation, on February 14, 1983, the parties went before a Notary Public and transferred the deed to the house and the titles from appellant and appel-lee’s names to appellant’s name alone. Appellee admitted that at the time of the transfer she was fully aware of what she was signing; specifically, she stated she knew what the deed to the house was and what the titles to the camper, truck and car were. (N.T. 11/21/85, p. 70). It was these physical acts of signing the deed and titles and formerly transferring appellee’s interest in the property from her to appellant which executed the earlier agreement of the parties.

To refute the clear evidence presented, that an agreement was carried forth as contemplated by the parties, appellee testified and argues on appeal that the purpose of the transfer was to enable appellant to use the property as collateral for loans so that he could remodel and build duplex homes. However, both appellant and appellee testified that the idea of appellant remodeling duplexes occurred years before the marital difficulties arose. (N.T. 11/21/85, p. 34). During cross-examination appellee responded as follows:

Q. When was the first discussion regarding Harold’s purchases of duplexes?
A. The first discussion could have been years before we even ... any of the problems started, because before he even went to New Jersey to work, we talked about purchasing duplexes together to fix them up to rent them. (Ellipsis in original).

(N.T. 11/21/85, p. 68), confirming that the idea had preceded the marital difficulties which eventually necessitated the parties’ divorce. Nowhere in the record, however, was there evidence of a tie in between the two prior to or at the time of the agreement to transfer the property. Although appellant’s intentions at the time of transfer may have been to eventually use the house as collateral, this intent does not impinge upon the oral agreement entered into by the parties. Reading the record as a whole, appellant’s ongoing plans as to business ventures are not relevant to the valid agreement executed by the parties.

We find that the lower court erred in relying on the hearing officer’s finding that no valid agreement existed between the parties. Since the house, camper, Dodge truck and Volkswagen automobile were excluded from marital property by 23 P.S. § 401(e)(2), we find that it was improper to consider them as such when equitably dividing the marital assets.

Appellant’s objection on appeal to defendant’s Exhibit D-6, concerning the distribution of household goods, has been waived due to appellant’s failure to object to this exhibit when it was admitted and discussed during the direct examination of appellee. (N.T. 11/21/85, pp. 50-52). Additionally, appellant’s arguments concerning the impropriety of the trial court’s Order directing appellant to pay $3,690.50 in cash to appellee are waived for failure to properly raise them in his exceptions to the report of the hearing officer. (Record item # 14, ¶ 16). In this case, appellant’s mere assertion, without more, that the hearing officer erred in finding that appellant should pay the amount plus interest to appellee is insufficient. Nord, supra, and Dudash, supra.

Consequently, by removing the proceeds from the sale of the house and the value of the camper, truck and Volkswagen from marital property, the hearing officer’s distribution of the marital assets will be altered. In keeping with basic distribution of equality between the parties, which the hearing officer and lower court considered appropriate under the circumstances, we find that as to the remaining marital assets it will be necessary for the court to reconsider the distribution of that property, as it is effected by this determination, and we will, therefore, remand the case for that purpose.

The final issue remaining is appellant’s claim for alimony pendente lite and counsel fees. Appellant claims the lower court erred in ruling that appellant’s request for alimony pendente lite was waived by appellant due to his response during the hearing that at the time of the hearing he no longer needed alimony pendente lite. As stated earlier, appellant’s complaint, filed July 20, 1984, contained appellant’s request for alimony pendente lite. On June 21, 1985, appellant remarried and with this new marriage appellant’s economic situation improved substantially. The hearing on alimony pendente lite, inter alia, was not held until November 21, 1985. Appellant now seeks alimony pendente lite from the time he requested it until the date of his remarriage.

Our scope of review of an award of alimony pendente lite is limited to determining whether or not the trial court has manifestly abused its discretion in awarding or denying alimony pendente lite. Parker v. Parker, 335 Pa.Super. 348, 484 A.2d 168 (1984); Cross v. Cross, 310 Pa.Super. 124, 456 A.2d 214 (1983). An award of alimony pendente lite is designed to enable the dependent spouse to maintain or defend the action in divorce. Prozzoly v. Prozzoly, 327 Pa.Super. 326, 475 A.2d 820 (1984). In determining an award of alimony pendente lite, the trial court should consider the respondent’s ability to pay, the petitioner’s separate estate and income and the general character, situation, and surroundings of the parties. Orr v. Orr, 315 Pa.Super. 168, 461 A.2d 850 (1983). Wechsler v. Wechsler, 242 Pa.Super. 356, 363 A.2d 1307 (1976). Normally, an award of alimony pendente lite may be made retroactive to the filing of the petition or complaint in which it was requested. Orr, supra.

While appellant’s remarriage in June, 1985 probably constituted a substantial change in appellant’s general character, situation and surroundings considering the higher income of his new spouse, the trial court abused its discretion in summarily concluding that appellant waived any claim to alimony pendente lite from the time of his request in July, 1984. until the time of his remarriage. The lower court erred in failing to make a determination as to what period of time, if any, appellant was entitled to alimony pendente lite prior to the hearing but before his remarriage. One of the main reasons for making alimony pendente lite awards retroactive is to insure that the recipient does not unduly suffer because of the delay inherent in the judicial process. However, upon an independent review of the record, we find that appellee did not show a need for alimony pendente lite during the period between his filing of the complaint and his remarriage due to both appellee’s low income for the period and our earlier determination that appellant had a full and undivided interest in the house, camper, truck and Volkswagen, which upkeep and maintenance were his responsibility. The same rules of law and financial considerations determine the award of counsel fees. The amount submitted by appellant for counsel fees is $925.39 of which appellant avers that the wife should pay at least 50 per cent. For the reasons expressed above as to alimony pendente lite, we conclude that no error was committed in failure to award counsel fees retroactively.

Accordingly, for the above-stated reasons, the award of child support is retroactive to the date of the filing of appellant’s complaint in divorce, July 20, 1984; with respect to the issue of equitable distribution, we reverse the lower court’s determination that the house, camper, Dodge truck and Volkswagen automobile were “marital property,” as to the remaining property, we remand the case to the lower court for equitable distribution; the Decree of the lower court denying alimony pendente lite and counsel fees is affirmed.

      . For example, the two exceptions quoted by the Supreme Court in Estep, supra, 508 Pa. at 627-28, 500 A.2d at 420, read as follows:
      1. The learned Master erred in making finding of fact number 5 in that the evidence shows that Plaintiff has and should have a substantially greater interest in the parties’ real estate than Defendant. ******

      4. The learned Master erred in making finding of fact number 15 in that the evidence shows that Plaintiff made the entire contribution to the Merrill Lynch account, and said contribution was totally ignored by the Master, that the $6,000.00 paid to Plaintiff by Mrs. Beach was a loan and not a gift, and that Plaintiffs contribution to the parties’ real estate was substantially greater than Defendant’s for Plaintiff not only provided a significantly greater contribution to said house financially and by his skills as a workman, but he also assisted in the support of the parties during the period of construction.

      . The Note to Pa.R.C.P. 1518 refers to Pa.R.C.P. 227.1. The 1983 Explanatory Comment (Introduction) to Rule 227.1 describes the changes in practice undertaken by the amendments to the rules of civil procedure.

      . Likewise, Pa.R.C.P. 1910.12(e) dealing with exceptions to a hearing officer’s report in judicial districts adopting the alternative support hearing procedure also has the identical language describing the proper content of an exception.

      . For example, one of the exceptions quoted in Dudash, supra, 313 Pa.Superior Ct. at 550, 460 A.2d at 325, reads as follows:
      3. Plaintiff excepts to finding of fact number 2:
      "At sometime prior to July 19, 1974, the plaintiff orally agreed to convey to her son, the defendant, a portion of the said premises 'west of the road’ upon which portion stood a garage later to be converted by the defendant into his house.”

      . Rale 1910.Í7. Support ©refer Effective Bate. Change of Address (a) An order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise.

      . We note that in addition to requesting child support, appellant’s complaint in divorce also requested equitable distribution, alimony pendente lite, and custody of the children, as well as alimony by an amendment to his complaint, filed on February 26, 1985. (Record item # 5). All of these claims were presented in paragraph form and not as separate counts as required by Pa.R.C.P. 1920.13(b)(1). Although we do not view such practice favorably, we will not allow it to adversely affect appellant’s case.

      . Pa.R.C.P. 1910.1(b) provides as follows:
      (b) The rules of this chapter shall not govern
      (1) actions or proceedings for support based upon
      (a) the interstate reciprocal provisions of the Revised Uniform Reciprocal Enforcement of Support Act (1968), 42 Pa.C.S. § 6741 et seq.;
      (b) Sections 4 to 7 of the Support Law of June 24, 1937, P.L. 2045, 62 P.S. §§ 1974-1977, relating to the rights, duties and proceedings between indigents, relatives liable for their support, and public agencies; or
      (c) a contract or agreement unless the contract or agreement provides that it may be enforced by an action in accordance with these rules; and
      (2) an application for a temporary order of support and other relief pursuant to the Protection from Abuse Act of October 7, 1976, P.L. 1090, No. 218, as amended by the Act of June 23, 1978, No. 81, 35 P.S. § 10181 et seq.

      . Section 401(e)(2) of the Divorce Code, 23 P.S. § 101 etseq., provides: (e) For purposes of this chapter only, ‘marital property’ means all property acquired by either party during the marriage except:
      (2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.

      . The report of the hearing officer fixed the date of separation at February 9, 1983. (Report and Recommendation of Hearing Officer at ¶ 29). Appellant testified that the parties separated on February 5, 1983, (N.T. 11/21/85, p. 4), and appellee testified it was February 9, 1983 (N.T. 11/21/85, p. 70).

      . Since this Court finds that there exists a valid agreement which excludes the property in question from marital property under 23 P.S. § 401(e)(2), it is unnecessary for us to consider appellant’s arguments as to the applicability of 23 P.S. § 401(e)(3) and (4).

      . Appellant’s testimony during cross-examination was as follows:
      Q. Under your present circumstances, Mr. Barner, why do you need temporary alimony?
      A. May be [sic] in my present circumstances, I do not need it. But whenever she left, I did need it. She left me with nothing, when she left.
      Q. When did things change for you?
      A. When I remarried.
      (N.T. 11/21/85, p. 23).


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    527 A.2d 131
    COMMONWEALTH of Pennsylvania v. Ronald Jay SMOLOW, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1987.
    Filed June 8, 1987.

      Ronald J. Smolow, Bensalem, appellant, in propria persona.
    Caren J. Fox, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

Appellant was convicted at a hearing de novo in the Court of Common Pleas of Philadelphia County of violating § 3362(a)(2) of the Motor Vehicle Code (speeding), 75 Pa. C.S. § 3362(a)(2). Following denial of his post-trial motions, appellant was sentenced to pay a fine and costs totalling $117. Appellant then filed this timely appeal in which he seeks to have the judgment of sentence reversed.

Briefly, the facts of the case are that on October 9, 1985, a Philadelphia Police Officer noticed that appellant was driving at what appeared to be an excessive rate of speed. Using a VASCAR-plus speed-timing device (hereafter “VASCAR”), the officer determined that appellant was proceeding at 84.1 m.p.h. in a posted 55 m.p.h. zone. The officer then stopped appellant and issued him a citation for speeding.

On appeal, appellant contends that the trial court erred in failing to find that VASCAR is an electronic device and thus, authorized for use only by the Pennsylvania State Police. Since the arresting officer was not a member of the State Police, he claims, the use of the VASCAR unit was unauthorized and his conviction must be reversed. In support of his argument, appellant cites § 3368(c)(2) of the Motor Vehicle Code, which provides, in part, that “(electronic devices ... may be used only by members of the Pennsylvania State Police ..(emphasis added), and our Supreme Court’s holding in Commonwealth v. DePasquale, 509 Pa. 183, 501 A.2d 626 (1985).

In DePasquale the Court concluded that the ESP device used in that case was an electronic device. As such, the Court held, its use by a local police officer was prohibited by § 3368(c)(2). The Court then reversed the appellant’s conviction. At the appellant’s trial in DePasquale, the Commonwealth relied on a regulation of PennDot that classified the ESP machine used by the local police as an electrical device. The defendant, DePasquale, however, presented the testimony of an electrical engineer who expressed his opinion, contrary to PennDot’s regulation, that the ESP machine used there was in fact an electronic device rather than an electrical device. The Supreme Court concluded, on the basis of the engineer’s testimony, which it characterized as “reliable” and “uncontradicted,” that the Department’s regulation was not dispositive and held that the ESP machine was an electronic device and reversed DePasquale’s conviction.

In the case now before us the Commonwealth also relied on a Departmental regulation that classified the VASCAR machine as an electrical-mechanical device [15 Pa.Rull. 321 (1985) ]. Thus it was authorized for use by the local police. In contrast to DePasquale, however, the appellant presented no expert or scientific evidence regarding the nature of the VASCAR machine. Appellant claims first that because VASCAR has a computer and a digital readout in which numerals appear on a screen in “little whips of light,” it is an electronic device, and, therefore, its use by the local police was unauthorized. However, the only evidence provided in the record regarding the scientific nature of VAS-CAR was the testimony of the police officer, on cross-examination by appellant, who issued the citation and who candidly admitted that he was not an expert in electronics (N.T., p. 16), nor had he had any training in electronics, mechanics or computers {id. at 30). This evidence in itself is insufficient to prove that VASCAR is an electronic, as opposed to an electrical or mechanical, device.

Appellant suggests, however, that we use common sense and apply, by analogy, the reasoning of DePasquale to the instant case. We decline this invitation for two reasons. First, DePasquale involved the use of the TK-100, Excessive Speed Preventor (ESP), not VASCAR. Second, appellant cannot rely on the expert evidence provided to the court in another case- to support his theory in the instant case. “A court is bound to decide the case before it based upon the evidence presented to it by the parties; it has no authority to seek out additional testimony in the records of unrelated cases on the matters at issue before it.” DePasquale, 509 Pa. at 190, n. 4, 501 A.2d at 630, n. 4. Thus, we find that based on the record before it, the trial court did not have sufficient information to determine whether the VASCAR unit used in this case was an electronic or an electrical device.

However, PennDot had consistently classified VAS-CAR as an electrical-mechanical device prior to and at the time of appellant’s offense [see 10 Pa.Bull. 3212 (1980); 14 Pa.Bull. 1112 (1984); 15 Pa.Bull. 321 (1985)]. Therefore, the local police were justified in using the VASCAR device. Thus, as in DePasquale, the burden was on appellant to present evidence to support his claim that the VASCAR unit was, contrary to the Department’s classification, an electronic device. In the absence of sufficient scientific evidence to rebut the Department’s classification and establish that VASCAR is an electronic device, appellant’s argument fails. Appellant is therefore entitled to no relief on this issue.

Appellant next contends that the trial court erred in admitting evidence of his speed based upon the VASCAR reading since the speedometer in the patrol car in which VASCAR was used had not been certified as accurate. We find no merit to this argument. The VASCAR unit itself was properly calibrated and there is no evidence that the patrol car’s speedometer was an integral part of or necessary to the accurate functioning of the VASCAR unit. The Motor Vehicle Code provides that:

All mechanical, electrical or electronic devices ... shall have been tested for accuracy within a period of 60 days prior to the alleged violation. A certificate from the station showing that the calibration and test were made within the required period, and that the device was accurate, shall be competent and prima facie evidence of those facts in every proceeding in which a violation of this title is charged.

75 Pa.C.S. § 3368(d). In the instant case, the VASCAR unit was calibrated a few hours prior to appellant’s speeding violation (N.T. at 6). A certificate of accuracy for the VASCAR unit was produced at appellant’s de novo hearing (id. at 7-8). Thus, the Commonwealth provided prima facie evidence that the unit was operating accurately when appellant was clocked. The burden then shifted to appellant to prove that the unit was in fact inaccurate.

Appellant elicited testimony from the police officer that the VASCAR unit was hooked up by a wire to both the patrol car’s speedometer and battery (id. at 12). However, appellant did not produce any evidence that the accuracy of the speedometer was essential or even relevant to the accuracy of the VASCAR unit. The record before us does not disclose whether the patrol car was moving or parked at the time appellant’s speed was measured. Therefore, appellant has failed to meet his burden in this regard also.

For these reasons, we affirm the judgment of sentence imposed by the trial court.

Judgment of sentence affirmed.

      . Although appellant's brief states that his appeal is from the order denying post-trial motions, a judgment of sentence was imposed on the same date that those motions were denied. Thus, we may treat the appeal as properly before us. See Commonwealth v. Gumpert, 354 Pa.Super. 595, 512 A.2d 699 (1986) (improper captioning of defendant’s appeal as being from interlocutory order denying post-trial motions, rather than from judgment of conviction entered the same day, was not fatal error).

      . Since DePasquale, the Motor Vehicle Code has been amended to provide that any police officer may use the ESP speed-timing device. Act No. 1986-24 (March 27, 1986), 75 Pa.C.S. § 3368(c)(3).

      . Since DePasquale, the Department has reclassified VASCAR as an electronic speed-timing device (nonradar) and approved its use by any police officer. 16 Pa.Bull. 3160 (1986).

      . Contrary to appellant’s argument, our research discloses that the accuracy of the car's speedometer is irrelevant in the operation of the VASCAR unit. See Commonwealth v. Koenig, 32 D & C 3d 545 (1984); People v. Persons, 60 Misc.2d 803, 303 N.Y.S.2d 728 (1969).


author: DEL SOLE, Judge:

text:
    527 A.2d 134
    Phillip R. BRANDIMARTI, Appellant, v. CATERPILLAR TRACTOR CO. and Towmotor, Inc., Affiliated Corporations, and Beckwith Machinery Company.
    Superior Court of Pennsylvania.
    Argued Jan. 21, 1987.
    Filed June 3, 1987.

      Anthony P. Picadio, Pittsburgh, for appellant.
    George Yokitis, Pittsburgh, for appellees.
    Before BROSKY, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

The underlying action in the instant case was initiated by Appellant based upon a theory of strict liability. Appellant sought damages for the injuries he suffered when the forklift he was operating overturned. Named as defendants were the manufacturer of the forklift, Towmotor, Inc., Towmotor’s parent company, Caterpillar Tractor Company, and the seller of the forklift, Beckwith Machinery Co. Appellant alleged that the forklift was defectively designed and came equipped with inadequate warnings. After testimony in the case was concluded, the trial court directed a verdict in favor of Caterpillar Tractor Company. The case was subsequently submitted to the jury which returned a verdict in favor of the remaining defendants. Appellant’s timely filed post-trial motions were denied by the court and this appeal ensued.

On appeal, Appellant seeks review of the court’s charge to the jury, the court’s ruling on several evidentiary matters and the court’s directed verdict in favor of Caterpillar Tractor Company. For the reasons which follow, we find it necessary to rule that the jury was improperly charged and order a retrial. Because of our decision on the merits of this first issue, we decline to consider whether the court’s evidentiary rulings were proper. We have, however, reviewed the court’s action which directed a verdict in favor of Caterpillar Tractor Company and find it must also be reversed.

Appellant advances before this court a claim that the charge to the jury contained serious misstatements of the law. It is averred that the jury was instructed to balance social policy considerations which were inappropriate and that negligence, misuse, abuse and abnormal use concepts were erroneously included in the jury charge.

The primary duty of a trial judge in charging the jury is to clarify the issues so that the jury may comprehend the questions that they are to decide. Easton Nat. Bank & Trust Co. v. Union Nat. Bank & Trust Co. of Souderton, 237 Pa.Super. 316, 352 A.2d 544 (1975). As long as the trial judge chooses a form of expression which adequately and clearly covers the subject, the judge is not required to use the exact language of a requested point. McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514 (1980). Where the accuracy of the charge is an issue on appeal, the appellate court must review it, not to determine whether certain portions taken out of context appear erroneous, but whether the charge in its entirety, against the background of the evidence in the particular case, demonstrated that error was committed which was prejudicial to the complaining party. Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority, 507 Pa. 204, 489 A.2d 1291 (1985). After review of the charge applying these standards, we conclude that the instructions given to the jury were, indeed, improper.

Although the trial judge began by correctly outlining for the jury the roles and duties imposed upon manufacturers in Pennsylvania, the following language was employed regarding whether a product should be found defective:

In making your determination of whether the lift truck was sold in a defective condition, you should consider the following factors:
The utility and benefits of the lift truck to the operator, plaintiffs employer and to the public in general as compared to the risks of injury, including the likelihood of injury and the seriousness of such injury;
The availability of a substitute product which would meet the same need and involve less risk, considering the effects that the substitute product would have on the user, plaintiffs employer and the public as a whole;
Tow Motor’s ability to eliminate the alleged defect of the lift truck without impairing its usefulness, creating other risks of injury or making the lift truck too expensive to maintain its utility;
The operator’s ability to avoid danger by the exercise of care in the use of the lift truck;
The operator’s awareness of the dangers associated with the use of the lift truck, and their ability to know such dangers, because of the general public’s knowledge of the dangers or the obviousness of such dangers, or the employer’s ability to eliminate the dangers through training;
The mechanical feasibility of a different design and the economic consequences of a different design; and
The adverse consequences of, including safety hazards created by, a different design of the operator, the employer and the public generally.
Because of the aforementioned factors, you must perform a balancing test and determine whether the risk of injury, given the nature and extent of the probable injuries, is outweighted (sic) by the benefits obtained because of the lift truck to the operator, employers and the public in general.

Appellant, citing Azzarello v. Black Brothers Company, Inc., 480 Pa. 547, 391 A.2d 1020 (1978), maintains the court, by including the above language in the charge, incorrectly submitted social policy considerations to the jury to balance and improperly injected negligence concepts into a strict liability action. Appellees counter this claim by asserting “(t)he court in Azzarello was not called upon to decide by whom or the manner in which social policy is to be considered in a products liability trial”. “Instead, the court in Azzarello was only asked to rule on whether the issue of defect in products liability should be defined by the phrase ‘unreasonably dangerous’.” Appellees’ Brief at 14. Appel-lees reason that since the charge herein did not contain the words “unreasonably dangerous” and since it did not carry connotations of negligence, it was appropriate under Pen-nyslvania law. We do not subscribe to such a reading of Azzarello or to the charge in the instant case.

In Azzarello the Supreme Court was asked to consider whether it was proper to instruct the jury using the term “unreasonably dangerous” and the Court concluded that the jury should not be so instructed. The Court stated “even if we agree that the phrase ‘unreasonably dangerous’ serves a useful purpose in predicting liability in this area, it does not follow that this language should be used in framing the issues for the jury’s consideration.” Id., 480 Pa. at 558, 391 A.2d at 1026. It continued:

“While a lay finder of fact is obviously competent in resolving a dispute as to the condition of a product, an entirely different question is presented where a decision as to whether that condition justifies placing liability upon the supplier must be made.
Should an ill-conceived design which exposes the user to the risk of harm entitle one injured by the product to recover? Should adequate warnings of the dangerous propensities of an article insulate one who suffers injuries from those propensities? When does the utility of a product outweigh the unavoidable danger it may pose? These are questions of law and their resolution depends upon social policy. Restated, the phrases ‘defective condition’ and ‘unreasonably dangerous’ as used in the Restatement formulation are terms of art invoked when strict liability is appropriate. It is a judicial function to decide whether, under plaintiff’s averment of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averments of the complaint. They do not fall within the orbit of a factual dispute which is properly assigned to the jury for resolution.”

Id., 480 Pa. at 556, 558, 391 A.2d at 1025, 1026 (footnote omitted).

Courts and commentators have expressed some criticism of the principle espoused in Azzarello that public policy concerns in a strict liability case are for the courts to consider rather than the jury. See: McKay v. Sandmold Systems Inc., 333 Pa.Super. 235, 482 A.2d 260 (1984). Nevertheless, the court in McKay recognized that the present state of the law is as set forth in Azzarello and it is not within this court’s province to change existing law. Id., 333 Pa.Superior Ct. at 245, 482 A.2d at 266. More recently, this court sitting en banc in Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984), allocatur granted, appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985), reinterated the rule of Azzarello. Therein, it was noted that it is often difficult for a court to decide whether as a matter of social policy a jury should be permitted to impose strict liability. In a footnote the court listed factors a trial judge should consider when making this social policy decision. Id. 336 Pa.Super. at 51, 485 A.2d at 423. The factors listed are strikingly similar to those mentioned herein by the trial court in its charge on defective condition. We agree with Appellant that it is for the court to balance these social policy factors when making its threshold inquiry determination that the case presents a jury question. The jury is not to be presented with the factors. See also: Schriner v. Pa. Power & Light Co., 348 Pa.Super. 177, 501 A.2d 1128 (1985).

Appellant also complains that included in the court’s charge are negligence concepts. Appellant further asserts the charge, in part, erroneously instructed the jury that Appellant’s “misuse”, “abuse” or “abnormal use” of the product was a defense to his strict liability claim. While isolated comments of the trial judge in this case, which may be considered improper, may not be sufficient for us to rule that a new trial is warranted, in the instant case the charge as a whole mandates such a result. On retrial, we would caution the court that the introduction of the element of due care or lack thereof is not an issue in a strict liability case. Jackson v. Spagnola, 349 Pa.Super. 471, 503 A.2d 944 (1986). And, while an examination of plaintiff’s contributory negligence is not appropriate in a strict liability action, inquiry as to plaintiff’s use of the product is relevant as it relates to causation. Jackson v. Spagnola, Id., 349 Pa.Superior Ct. at 479, 503 A.2d 948; Burch v. Sears, Roebuck & Co., 320 Pa.Super. 444, 467 A.2d 615 (1983).

One further aspect of the court’s charge has been challenged by Appellant. It is asserted the trial court erred in denying Appellant’s request for a charge on punitive damages. Our Supreme Court had occasion to consider the application of a punitive damage. charge in a products liability case in Martin v. Johns-Manville Corp., 508 Pa. 157, 494 A.2d 1088 (1985). Therein, it was determined that a punitive damage charge would have been inappropriate since the plaintiff had presented insufficient evidence to support such a claim. Citing Comment a to Section 500 of the Restatement of Torts (Second), the Court defined the reckless conduct sufficient to create a jury question on the issue of punitive damages. Comment a describes this conduct as occurring where the “actor knows, or has reason to know, ... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk”. The Court observed: “[tjhus, punitive damages are awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interest of others”. Martin v. Johns-Manville Corp., 508 Pa. at 171-172, 494 A.2d at 1097-1098 (citations omitted).

In this case, as in Martin v. Johns-Manville Corp., it was found Appellant had not established sufficient evidence to show the defendants were recklessly indifferent to the plaintiffs welfare or conducted themselves outrageously. The facts of the case support this result.

Appellant, herein, was injured on December 9, 1981 when the forklift he was operating began to tip. At that time, Appellant fell or jumped out of the vehicle to the ground in the direction of the tipover. The forklift also fell to the ground and Appellant was pinned under its overhead guard. Appellant points to the testimony of Townmotor’s employees to bolster its claim that a punitive damage charge was warranted in this case. Testimony was received from Townmotor’s current manager of Product Safety indicating that based upon incident reports he had seen, the operator tries to escape a tipping vehicle by jumping out of the low side approximately 40% of the time. He continued: “But less than half the time does the operator go in the direction of the fall and get caught in the head guard”. N.T. 11-13-1985 at 166. Also questioned was the President of Townmotor who had additional duties as the president of Industrial Truck Association, an organization of forklift manufacturers. In this later capacity, it was learned by letter dated August 18, 1980 that three employees of another company were fatally injured by the overhead guard when the forklifts they were operating overturned. The manufacturer of these forklifts was not identified. The President contacted the former manager of Product Safety & Ecology at Townmotor who was serving as a chairman of the Industrial Truck Association. This gentleman was asked by the President to respond to the letter. He then visitf the plant where the previous accident occurred and assurred those present that the organization was continually considering the stability of lift trucks.

We agree with the trial court that this evidence was insufficient to show that Appellees not only appreciated the risks Appellant encountered by operating the forklift, but also were indifferent to Appellant’s welfare and acted outrageously. For this reason, the trial court correctly refused to charge the jury on punitive damages.

The final issue we are asked to address is the propriety of the trial court’s action directing a verdict in favor of Caterpillar Tractor Company (Caterpillar). The facts of record indicate Caterpillar did not manufacture or sell the forklift at issue. The forklift was manufactured by Tow-motor, which is a wholly-owned subsidiary of Caterpillar. The Caterpillar trade name was, however, conspicuously displayed on the forklift. The trial court ruled liability may not be imposed upon Caterpillar under these circumstances.

Appellant pointing to Section 400 of the Restatement (Second) of Torts, maintains Caterpillar, who permitted its name to be placed on the product, is subject to liability as is the manufacturer of the product, Towmotor. The Restatement provides:

§ 400 Selling as Own Product Chattel Made by Another.
One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.

Restatement (Second) of Torts § 400.

The Restatement (Second) of Torts § 400 was adopted as part of the law of Pennsylvania by our Supreme Court in Forry v. Gulf Oil Corporation, 428 Pa. 334, 237 A.2d 593, 599 (1968). Although the trial court found Forry inapplicable and distinguished it based upon its facts, we hasten to note that the court therein specifically applied § 400 in a strict liability case. The Court in Forry gave the following reasons for applying such an extension of liability:

(a) the name and the trademark of the sponsor, constitute ‘an assurance to the user of the quality of the product’ and (b) ‘reliance [by the user] upon a belief that [the sponsor] has required [the product] to be made properly for him’.

Id,., 428 Pa. at 344, 237 A.2d at 599. (citations omitted). More recently, in Burch v. Sears, Roebuck and Co., supra, this court remarked upon the rationale behind § 400 of the Restatement. “[T]he act of placing one’s name on a product is a factor in assessing responsibility because it frequently causes a product to be used in reliance upon the seller’s reputation.” Id. 320 Pa.Super. at 460, 467 A.2d at 624.

In this case, although Caterpillar did not manufacture the product at issue and was not a supplier of the product participating in the chain of distribution, it did permit its name to appear on the equipment. Under such circumstances Caterpillar could expect others to purchase the product in reliance on the skill and reputation associated with the Caterpillar name. The Restatement (Second) of Torts § 400 was drafted in recognition of the fact that where one’s name appears on a product “the actor’s reputation is an assurance to the user of the quality of the product.” Restatement (Second) of Torts § 400 comment (d).

It is for these reasons, Caterpillar should be held to the same responsibility as the seller of the forklift. Accordingly, we hold that Caterpillar, who although not the manufacturer, authorized the defendant manufacturer to display its name on the product, could be held strictly liable if the product bearing the Caterpillar name proved defective and the defect caused Appellant’s injuries. Caterpillar must not be removed as a party in this case and the trial court’s order directing a verdict in favor of Caterpillar is reversed.

Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

      . Appellant’s claim that the jury charge improperly included state of the art concepts will not be considered on appeal since Appellant failed to specifically raise this claim before the trial court and in his motion for post-trial relief. Pa.R.C.P., Rule 227.1, 42 Pa.C.S.A. Commonwealth v. Monarch, 510 Pa. 138, 146-147, 507 A.2d 74, 78 (1986).

      . We are aware of the dicta contained in the recent panel decision of Foley v. Clark Equipment Co., 361 Pa. Super. 599, 523 A.2d 379 (1987), which discusses proof of design defects. We do not subscribe to the theories discussed in that decision and point out that those theories are merely dicta.
      A product that is improperly designed is not less defective than one improperly manufactured and it can present the same risk of harm to the user. Certainly the Pinto gas tank cases and a host of others show that products manufactured according to design can still be defective. And, it is the defect, whether occassioned by labeling, design or manufacture, which creates the liability of the seller and not the stage in which the defect arose.


author: POPOVICH, Judge:

text:
    527 A.2d 140
    James A. STAYMATES, Jr. v. ITT HOLUB INDUSTRIES, a DIVISION of INTERNATIONAL TELEPHONE and TELEGRAPH CORPORATION, Appellants. Appeal of CINCINNATI FAN AND VENTILATOR COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1986.
    Filed June 2, 1987.

      Frederick N. Egler, Jr., Pittsburgh, for appellants.
    Irving M. Portnoy, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment (verdict and delay damages) of $171,350.00 entered against the defendant and additional defendant, ITT Holub Industries and Cincinnati Fan and Ventilator Company, respectively. We reverse.

The facts, viewed in a light most favorable to the verdict-winner, reveal that on the 26th day of May, 1979, the plaintiff James A. Staymates, Jr., as general foreman for Paul Bunyan Rustic Furniture Company, was making a tour of the plant to assess the progress of an order that had to be shipped that day. As he approached the sanding area, Robert Ault was feeding the automatic sander and Thomas Garrity was stacking the boards being emitted.

The dust and wood chips produced by the sanding action were carried, by means of a hose situated atop the sander through which air flowed, to a dust collector. The air stream (suction) was generated by a motorized impeller (fan) contained within the dust collector housing and gravity would cause the heavier, incoming wood particles to fall into a 55-gallon drum upon which the dust collector sat. The lighter particles would be propelled into a cloth bag, 19-square feet in size, attached by a ring clamp to the discharge port of the dust collector. The accompanying air would be expelled through the porous bag.

As the plaintiff stood eight to ten feet away from the dust collector, the cloth bag blew off and landed at his feet. He “instinctively” grabbed the bag and yelled to someone (Ault or Garrity) to “Shut it down.” Then, with his arms fully extended, and a great deal of dust blowing in his face, he moved toward the discharge port to “capture as much dust into the bag or cut down as much flow of the dust into the air as [he] could” to prevent the tables (8-10) located nearby to dry for that day’s delivery from being ruined. Next, as described by the plaintiff:

... I don’t know exactly what happened. All I know was, like pushing against a door that was stuck, that I was pushing very hard, and all of a sudden it gave, and my hand went into the machine.

Neither the plaintiff nor any of the witnesses who testified could recall whether the dust collector had been turned off at the time of his injury. Even if it had been shut down, testimony indicated that the impeller blade rotated freely with the power off until it gradually came to a complete stop.

The entire incident took place within a few seconds and resulted in the plaintiff sustaining permanent injury to the fingers on his right hand.

On March 4, 1981, a three-count complaint in trespass was filed alleging the design and manufacture of a defective product (Ace Dust Collector, Model A-27) by ITT Holub Industries, and its ultimate sale or distribution, through Metwood Industrial (distributor) and First Seneca Bank and Trust Company (lessor), to the plaintiffs employer (lessee).

It was alleged that the “product’s defective condition” was the proximate cause of the plaintiff’s injury and was in existence “[a]t the time of the sale or distribution ... by the Defendants.” Thus, it was asserted, each was strictly liable for the resultant damages incurred. Further, the plaintiff sought recovery on the basis of negligence and breach of warranty by the named defendants as alternative grounds for his recoupment of damages.

On April 29, 1981, ITT Holub Industries filed a complaint to join Cincinnati Fan and Ventilator Company as an additional defendant on the grounds that it (Cincinnati Fan) “designed, manufactured, produced and sold the Dust Collector that is the subject of the Plaintiff’s claim.” For the reasons just recited, assuming that the product was found to be unfit or defective, ITT Holub Industries averred that Cincinnati Fan was solely liable.

After the interchange of interrogatories, the taking of depositions and the securement of relevant documents and reports, the case came to trial and resulted in a jury award in favor of the plaintiff and against the defendant and additional defendant. With the denial of post-verdict motions and the reduction of the verdict to judgment, this timely appeal followed.

The defendant and additional defendant, represented by the same counsel at trial and on appeal, raise five issues for our consideration. The first charges the trial court with error in refusing to submit the issue of the plaintiffs comparative negligence to the jury. This question, as noted by the plaintiff in his brief to us, is unprecedented in this Commonwealth given that the negligence phase of the case was premised only upon the provisions of Section 402A of the Restatement (Second) of Torts, and the liability aspect was based solely upon strict liability in tort. The appellants likewise agree that the question presented is one of first impression and would have us adopt the approach taken by a number of other jurisdictions and apply the law of comparative negligence to strict liability cases involving a claimed defective product.

In this country, strict liability had its origin in the ancient rule that one who engaged in a business of supplying individuals with products, which might endanger their safety or property, owed a “special responsibility” to make sure that the product was not “defective” so as to be “unreasonably dangerous” to the user or consumer. Restatement (Second) of Torts § 402A, Comments / and g. This concept “represented a departure from, and an exception to, the general rule that a supplier of chattels was not liable to third persons in the absence of negligence or privity of contract.” Id. at Comments b and l. Liability was based purely on the law of tort, i.e., a legal wrong committed upon the person or property of another independent of a contract. Black’s Law Dictionary 1660 (4th Ed. 1968). Of course, recovery in tort was and is premised upon the existence of a legal duty owed by the defendant to the plaintiff, a breach of that duty and damages flowing to the plaintiff as a proximate result thereof. Id.

It was the belief of the drafters of the Restatement (Second) of Torts that the burden of accidental injuries caused by products placed in the stream of commerce be shouldered by those “who market the products”, and the cost of such injuries “be treated as a cost of production against which liability insurance can be obtained[.]” Restatement (Second) of Torts § 402A, Comment c. Pennsylvania has adopted the principles enunciated in Section 402A. See Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).

As of the date of this opinion, the concept of strict liability, as being devoid of notions of negligence, has remained intact in this jurisdiction.

To explain, in McCown v. International Harvester Co., 463 Pa. 13, 342 A.2d 381 (1975) the Court was confronted with the issue of the applicability of contributory negligence as a defense to a Section 402A action.

The manufacturer conceded that its steering mechanism was defective but asked that the plaintiffs contributory negligence be considered in calculating the amount of recovery awarded since the plaintiffs own negligence triggered the sequence of events (which included a defectively designed steering column) leading to his injuries.

In the course of refusing to sanction the use of contributory negligence as a defense in Section 402A cases, the Court observed that the defendant’s apportionment-of-fault argument would create a system of comparative assessment of damages for Section 402A actions. Because neither the Legislature nor the Court had established such a scheme in any area of tort law, “[without considering the relative merits of comparative negligence, [the Court] th[ought] it unwise to embrace the theory in the context of an appeal involving Section 402A.” 463 Pa. at 16, 342 A.2d at 382. It was also pointed out that: “To initially apply a theory of comparative negligence to an area of the law in which liability is not premised on negligence seems particularly inappropriate.” 463 Pa. at 16 n. 3, 342 A.2d at 382 n. 3.

Granted, this approach to an admixture of comparative negligence with strict liability preceded Pennsylvania’s enactment of its comparative negligence statute; nonetheless, as noted by one federal court,

... it [McCown ] provides a clear indication of the direction the Court was taking with respect to its product liability doctrine. At a minimum, the Court made apparent its firm belief that negligence concepts did not belong in product liability cases. This has been the theme of several opinions by the Court in an effort to differentiate or police negligence concepts from developing concepts of product liability law. See, e.g. Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975).

Bike v. American Motors Corp., 101 F.R.D. 77, 80 (E.D.Pa. 1984). To the same effect see Holloway v. J.B. Systems, Ltd., 609 F.2d 1069, 1073 (3rd Cir.1979) (“We read Azzarello as a signal that evidence and jury instructions regarding negligence concepts should be kept out of cases brought under § 402A.”); Baker v. Outboard Marine Corp., 595 F.2d 176, 183 (3rd Cir.1979) (The Court held that the district court committed reversible error in a strict liability case by using negligence terminology, i.e., “unreasonably dangerous”, in its charge to the jury); Vizzini v. Ford Motor Co., 569 F.2d 754, 766-67 (3rd Cir.1977) (“We believe that McCown v. International Harvester Co., supra, is evidence that Pennsylvania’s courts would not allow the introduction of ... comparative negligence principles into a § 402A case____”); Conti v. Ford Motor Co., 578 F.Supp. 1429, 1434 (E.D.Pa.1984), rev’d on other grounds, 743 F.2d 195 (3rd Cir.1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1396, 84 L.Ed.2d 784 (1985) (“The Pennsylvania Supreme Court, perhaps more than any other state appellate court in the nation, has been emphatic in divorcing negligence concepts from product-liability doctrine. See, e.g., Berkebile [, supra]; Azzarello [, supra]. * * * [Judge Fullam] believefd] it unlikely that, given Azzarello, that court would hold that the liability of a manufacturer for a defective product is equivalent to ‘causal negligence’ which is to be apportioned under the [comparative negligence] statute.”).

This approach of divorcing comparative negligence principles from Section 402A law was most recently re-affirmed by an en banc panel of this Court in Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984), appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985).

In Dambacher, a products liability case, the absence of a warning embossed on a radial tire that it should not be mixed with non-radials, and that a vehicular accident occurred injuring the plaintiff because the tire was mixed with non-radials, was one of the issues addressed in the context of what instructions should be given to the jury at the new trial.

The plaintiff sued the driver of the vehicle in which she was a passenger and its owner in negligence, while the retailer (Sears) was sued in strict liability. A verdict was returned in favor of the plaintiff, and responsibility was apportioned under Pennsylvania’s Comparative Negligence Act among the defendants (driver — 50%; Sears — 45%; Department of Transportation — 5%).

On appeal, although concluding ■ that a new trial was warranted because the trial court erred in admitting the testimony of the plaintiffs expert on the cause of the accident, this Court commented (in dictum) on how the trial court should instruct the jury on Sears’ strict liability. In doing so, we relied on Azzarello’s distinction between products liability cases and negligence cases; namely:

It was on the basis of the distinction between products liability theory, under which the defendant as manufacturer or supplier is guarantor of its product, and negligence theory, under which the defendant is held to the standard of a reasonable man, that the Court in Azzarello rejected the use of the negligence term “unreasonably dangerous” in products liability cases. We see no reason to depart from that reasoning now. To the contrary, it is sound, both as a matter of legal theory and in its practical consequences. Thus, quite independently of the prece-dential authority of Azzarello, we hold, as the Supreme Court did there, that in a strict liability case, principles of negligence have no place.

336 Pa.Super. at 59-60, 485 A.2d at 428 (Footnote omitted). See also Concurring Opinion of Justice Hutchinson in Sherk v. Daisy-Heddon, 498 Pa. 594, 605, 450 A.2d 615, 621 (1982) (“The liability imposed on manufacturers of defective products is denominated strict, or without fault____”); Pitcavage v. Mastercraft Boat Co., 632 F.Supp. 842, 847-48 n. 5 (M.D.Pa.1985) (“... fault concepts have no place in a strict liability ... action----”); Capuano v. Echo Bicycle Co., 27 D. & C.3d 524, 532 (Northampton Cty. 1982) (“... it is clear that the Pennsylvania Comparative Negligence Statute ... does not apply with respect to a strict liability defendant.”).

We are quite aware that a number of states have taken the initiative, be it by judicial decision or legislative enactment, to apply comparative negligence principles to strict products liability. However, in the absence of any indication from our Supreme Court that it is willing to alter its stance, first made reference to in McCown, favoring a retention of the dichotomy between strict liability and comparative negligence in the area of products liability, we find it inauspicious at this time to follow suit with some of our sister states who have opted to meld strict liability principles with notions of comparative negligence. This is especially so since strict liability came about in this Commonwealth as a result of judicial fiat by our Supreme Court. Thus, if any modification of Section 402A cases is to emerge, it should have its genesis from the same Court or the Legislature. Neither has spoken on this subject.

Before leaving this issue, we would make one last comment. It deals with the fact that Pennsylvania’s Comparative Negligence Act subsumed the doctrine of contributory negligence (Vargus v. Pitman Mfg. Co., 510 F.Supp. 116, 119 (E.D.Pa.1981)), and, by its own terms, is applicable only to “actions brought to recover damages for negligence.” 42 Pa.C.S. § 7102(a). And, as is documented in case law and treatises on the subject, strict liability imposes accountability on the manufacturer without the plaintiff first having to prove “fault”, nor is an apportionment of the damages called for under Section 402A. See Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); McCown, supra; see also Sherk, supra; Prosser, Law of Torts §§ 75, 79 (4th Ed. 1975); Timby & Plevyak, The Effect of Pennsylvania’s Comparative Negligence Statute On Traditional Tort Concepts and Doctrines, 24 Vill.L.Rev. 453 (1978).

In effect, strict liability dispensed with the harsh result which occurred when a plaintiff was denied recovery in a case where he was only slightly negligent. See Prosser, supra at § 67; Prosser, Comparative Negligence, 41 Calif.L. Rev. 1, 4 (1953). Today, even under the Comparative Negligence Act, Pennsylvania has adopted a policy under which a plaintiffs conduct may still bar recovery if the plaintiff is found more negligent than the defendant. Therefore, to the extent that plaintiffs negligence exceeded defendant’s, the plaintiff would be precluded from recovery and we would.be returning to pre-402A times, i.e., a resurrection of contributory negligence as a bar to recovery, a result specifically denounced by our Supreme Court in McCown. Further, such an approach would be at odds with Section 402A, which eschews the use of contributory negligence as a defense in a strict products liability case. See Comment n.

Society’s concern, that the increasing complexity of the manufacturing and distributional processes would have a negative effect upon the plaintiff’s ability to prove negligence, was the motivating force for holding the manufacturer accountable (as a guarantor of his product’s safety) for injuries sustained by a user or consumer. See Berkebile, supra; Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32, 319 A.2d 903, 907 (1974). This same concern has not evaporated and is no less prevalent today than it was when Section 402A was incorporated into the law of Pennsylvania in 1966. Therefore, the liability incurred by the manufacturer with the presentment of a defective product into the stream of commerce can still be factored into the cost of doing business, and, as always, be passed on to the consuming public. The defendants’ contentions to the contrary are more illusory than real and will not be permitted to convert the strict liability doctrine in this Commonwealth into a hybrid version of comparative negligence. Stated simply, we can discern no justification, as the law presently stands in this jurisdiction, to apply comparative negligence precepts to the law of strict products liability.

Notwithstanding the consensus emerging among the courts of other jurisdictions on the use of comparative negligence in strict liability suits, we recognize that it is not within our province to change the existing law, at least as we perceive it, in this Commonwealth. We are charged with complying with those principles adopted and announced by our Supreme Court. Our view of the present state of the law on the issue before us is, we believe, controlled by McCown and its progeny (e.g., Azzarello), and, in accordance therewith, the defendants are not entitled to the relief requested. See Conti, supra at 1434-35; McKay v. Sandmold Systems, Inc., 333 Pa.Super. 235, 245, 482 A.2d 260, 266 (1984); Timby & Plevyak, supra at 476.

We can now turn to the second issue proffered by the defendants, which contends that the trial court erred in failing to grant their motion for compulsory non-suit because of the plaintiff’s alleged assumption of the risk of his injury.

We must bear in mind that the evidence must be read in the light most favorable to Staymates, as well as all reasonable inferences arising therefrom, in deciding whether the plaintiff knew of the defect and voluntarily and unreasonably proceeded to use the product or encounter a known danger to constitute a complete defense to the strict liability action. Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966).

Additionally, voluntary assumption of risk must rest upon the subjective awareness of the defect; this cognizance can be proven by circumstantial evidence sufficient to permit an inference that the user was aware thereof and understood the risk. Weaver v. Clabaugh, 255 Pa.Super. 532, 536, 388 A.2d 1094, 1096 (1978); Restatement (Second) of Torts § 496D, Comment d. “Whether the plaintiff knows of the existence of the risk, or whether he understands and appreciates its magnitude and its unreasonable character, is a question of fact, usually to be determined by the jury under proper instructions from the court. The court may itself determine the issue only where reasonable men could not differ as to the conclusion.” Restatement (Second) of Torts § 496D, Comment e.

Applying the preceding to the case at bar, we notice that the plaintiff admitted being “generally familiar with the fact that there was an impeller” inside an exhaust port which had no guard or screen. However, he never examined it because there was no reason for him to do so. Also, the plaintiff stated that in his prior job he had sold dust collectors, but he had never had experience with dust collectors of the type placed at Paul Bunyan. All the plaintiff was ever told about the dust collector during demonstrations at Metwood Industrial and at Paul Bunyan before its securement was that it was “much like a vacuum that you would use around your home but much larger — and that’s about it.”

The plaintiff testified that he never performed any maintenance or repairs on the dust collector. Further, although the plaintiff trained other employees in the shop on how to operate the sander, the same was not true as to the dust collector. As for operating the dust collector with the power “on”, the plaintiff remarked: “The danger was not necessarily readily apparent.”

Additionally, the plaintiff and his witnesses denied being given a manual on the operation of the dust collector. This was contradicted by a witness for the defendants whose job it was to insert such a manual/instructions in all dust collectors shipped. There was also disagreement as to the inclusion of an “extension” with the paraphernalia shipped with the dust collector to Paul Bunyan. This unit was to have been attached to (and located between) the exhaust port and the cloth bag of the dust collector. Further, the experts for both sides were at odds as to whether this “extension”, if it were ever received, would have made the product safer. Accordingly, the trial court properly deferred to the jury the resolution of the factual discrepancies, and, because the plaintiff did not believe that his hands were in an unsafe position, the jury was justified in concluding that he had not in fact assumed the risk of injury. See Rutter v. The Northeastern Beaver County School District, 496 Pa. 590, 601, 437 A.2d 1198, 1203 (1981); Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 452, 467 A.2d 615, 619 (1983). On this same basis we find the case of Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603 (1968) to be distinguishable in that there the plaintiff voluntarily put himself at an obvious risk by reaching into a moving glass-breaking machine.

The third issue raised, i.e., whether the trial court erred in submitting the defendant’s liability for failure to warn of an obvious danger to the jury, has merit and warrants a new trial upon scrutiny of the facts against the applicable case law.

In Pennsylvania, liability for failure to warn exists where the lack of a warning is “unreasonably dangerous and the proximate cause of the accident.” Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85, 96-97 (3rd Cir.1976). The absence of either factor of “unreasonably dangerous” or “proximate cause” is fatal to a plaintiff’s cause of action when premised upon a failure-to-warn assertion. See Davis v. R.H. Dwyer Industries, Inc., 548 F.Supp. 667, 670 (E.D.Pa.1982); cf. Berkebile, supra, 462 Pa. at 100, 337 A.2d at 902 (“If the product is defective absent ... warnings, and the defect is a proximate cause of the plaintiff’s injury, the seller is strictly liable without proof of negligence.”); Fraust v. Swift and Co., 610 F.Supp. 711, 713 (W.D.Pa.1985) (semble).

Additionally, where the theory of liability is failure to warn adequately, the evidence must be such as to support a reasonable inference, rather than a guess, that the existence of an adequate warning may have prevented the accident before the issue of causation may be submitted to the jury. Conti v. Ford Motor Co., 743 F.2d 195, 198 (3rd Cir.1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1396, 84 L.Ed.2d 784 (1985).

At bar, only a caution tag was purportedly attached to the top of the motor housing of the dust collector. It read:

Caution. Removal of any parts or accessories from this unit is in violation of current federal and local safety and health laws. Manufacturer is not responsible if any alterations are made to this equipment.

Staymates testified that no other literature was received by him as to the operation or maintenance of the unit in question.

As to the circumstances surrounding the accident and the mental thought processes of the victim during that time, the record discloses that when the bag was blown from the exhaust port of the dust collector and landed at Staymates’ feet, he “just instinctively grabbed the bag”. He stated further that he “reacted immediately” and had no time to consider his options. He did not stop to “think” about where the “off-on” switch was located.

The type of instinctive, knee-jerk reaction exhibited by the plaintiff would not, we believe, have been preventable by the attachment of a warning label that, in the words of the plaintiff’s expert, would “alert” the user of the product to the potential danger associated with the equipment.

In Conti, the “momentary inadvertence” of the driver of a vehicle to disengage the clutch caused it to move and knock the victim over as she was attempting to enter the vehicle at the moment it lurched backwards.

The Third Circuit, in reversing and remanding for entry of judgment for the manufacturer for the District Court’s instructing the jury on a “failure to warn” in the products liability case, stated in Conti:

We find the evidence insufficient as a matter of law to support a reasonable inference that the existence of additional warnings may have prevented the accident from occurring. There is absolutely no evidence in the record to suggest that Mr. Conti would have paid any greater attention to what he was doing when starting the car if additional warnings were contained in Ford’s operator manual, or even if a sticker reminding the operator to disengage the clutch before starting the car in gear was prominently displayed in the interior of the car. Rather, the jury’s conclusion was based on the mere speculation that if Mr. Conti’s eyes had caught a sticker warning him to depress the clutch pedal as he was talking to his wife, he may have remembered to either shift the car to neutral or to disengage the clutch prior to starting the car. Ford cannot be held liable on a failure-to-warn theory merely because a jury concludes that more warnings are needed to remind drivers of the intricacies of standard transmissions. Rather, liability may result only when there is sufficient evidence that additional warnings or reminders may have made a difference. See. e.g., Sherk v. Daisy-Heddon, A Division of Victor Comptometer Corporation, 498 Pa. 594, 450 A.2d 615 (1982).

743 F.2d at 198-99 (Emphasis added).

Instantly, as in Conti, we fail to discern how a different or more prominently displayed warning label would have prevented Staymates from acting, using his own words at trial, without thinking and instinctively during the few seconds that elapsed between the retrieval of the cloth bag and the injury.

Neither the victim nor his expert witness proffered any evidence to substantiate a finding by the jury that had a different or additional warning or reminder been affixed to the exterior of the dust collector the outcome may have been averted. Id.

Therefore, because we cannot ascertain from the verdict whether the jury found as it did because of the absence of a “guard” over the discharge port (the lack of which rendered the product defective and the manufacturer strictly liable) or the “failure to warn” charge prompted them to reach a similar conclusion, we must reverse the judgment entered in favor of the plaintiff and remand for a new trial. See Smith v. Chardak, 291 Pa.Super. 173, 435 A.2d 624 (1981). The former would be a proper basis for the award, but the latter is not for the reasons stated supra. Accordingly, the course to pursue is a reversal and remand for a new trial. Id.

The remaining issues presented to this Court on behalf of the defendants have been thoroughly analyzed and, albeit not given in depth discussion, have been found to be merit-less.

Judgment reversed and case remanded for a new trial. Jurisdiction is relinquished.

CIRILLO, President Judge, concurs in the result.

      . The defendant First Seneca Bank and Trust Company, successor to defendant Keystone Bank, was dismissed from the case when its motion for summary judgment was granted. As for Metwood Industrial, the jury entered its verdict against the defendants ITT Holub Industries and Cincinnati Fan and Ventilator Company only. Thus, no appeal is presently before us as to Metwood Industrial.

        . See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984); Star Furniture Co. v. Pulaski Furniture Co., 297 S.E.2d 854 (W.Va.1982); Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (1978); see also Bowling, Admx. v. Jake Sweeney Chevrolet, Inc., No. 84-05-054 (Ohio App., March 31, 1986) [Available on WEST-LAW, OH-CS database]; Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978); Sun Valley Airlines, Inc. v. Avco-Lycoming Corp., 411 F.Supp. 598 (D.Idaho 1976); Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967).

      . Section 402A provides:
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property, if
      (a) The seller is engaged in the business of selling such a product, and
      (b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) The seller has exercised all possible care in the preparation and sale of his product, and
      (b) The user or consumer has not bought the product from or entered into any contractual relation with the seller.

      . ,It reads:
      (a) General rule. — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the' plaintiff.
      The Act of April 28, 1978, P.L. 202, No. 53, § 10(89), effective June 27, 1978, 42 Pa.C.S. § 7102(a).

      . The highest courts of seventeen states and one territory have done so, while nine state legislatures have enacted statutes which make comparative negligence principles applicable to strict products liability. For a listing of these jurisdictions and the case citings see Comment, Comparative Negligence and Strict Products Liability: Where Do We Stand? Where Do We Go?, 29 Vill.L.Rev. 695 (1984).

      . The two remaining issues not discussed, but found to be wanting, are:
      IV. WHETHER THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF SUBSEQUENT DESIGN CHANGES IN THE PRODUCT. V. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENDANTS’ EXPERT WITNESS TO OPINE ON AN "ULTIMATE ISSUE.”
      As to Point IV see Matsko v. Harley Davidson Motor Co., 325 Pa.Super. 452, 473 A.2d 155 (1984); and for Point V see Huck-Gerhardt Co. v. Kendall, 189 Pa.Super. 126, 149 A.2d 169 (1959); Kleiner and Rome, Trial Handbook For Pennsylvania Lawyers § 276 (1980).