author: WATKINS, Senior Judge:

text:
    537 A.2d 1390
    COMMONWEALTH of Pennsylvania v. Bryan SHURGALLA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 14, 1987.
    Filed March 3, 1988.

      Anthony J. Urban, Assistant Public Defender, Mahanoy City, for appellant.
    Claude A. Shields, Assistant District Attorney, Pottsville, for Com., appellee.
    Before MONTEMURO, WATKINS and HESTER, JJ.
   WATKINS, Senior Judge:

This case comes to us on appeal from the Court of Common Pleas of Schuylkill County and involves defendant-appellant’s contentions that the offenses of aggravated assault and attempted murder should have been merged by the trial court, and that the court erred when it applied the weapons enhancement provisions of the Crimes Code to the defendant’s sentence.

On July 27, 1986, the appellant shot his girlfriend in the back after she refused to continue seeing him. Appellant was charged with Criminal Attempt to Commit Murder, Aggravated Assault, Recklessly Endangering Another Person, and Simple Assault as a result of the incident. On December 30, 1986, appellant signed a written plea agreement which expressly contained a twelve to twenty-four month additional prison sentence for Weapons Enhancement. The trial court refused to accept the plea agreement and deferred sentence pending a pre-sentence investigation. Appellant pled guilty and on June 1, 1987, the court sentenced him to $40,000.00 restitution (the victim was partially paralyzed as a result of the gunshot wound) and imprisonment of thirty-six (36) to seventy-two (72) months on the attempted murder charge and an additional twelve (12) to twenty-four (24) months imprisonment on the aggravated assault charge. The court also added an additional prison sentence of twelve to twenty-four months to the attempted murder charge under the Weapons Enhancement Act and held that the recklessly endangering charge and simple assault charge merged with the other offenses. On June 5, 1987, appellant filed a Motion to Modify Sentence with the trial court on which the court conducted a hearing on June 23, 1987. On June 30, 1987, the appellant filed the instant appeal. On November 20, 1987, the trial court entered an order consolidating the Aggravated Assault and Attempted Murder offense but affirming its twelve (12) to twenty-four (24) months sentence on the Weapons Enhancement. The Commonwealth now argues that the instant appeal should be dismissed as improvidently taken since the trial court had scheduled a hearing on appellant’s motion to modify the sentence prior to the filing of the instant appeal.

In Commonwealth v. Lee, 278 Pa.Superior Ct. 609, 420 A.2d 708 (1980), we held that the filing of a motion requesting sentence modification and the fixing of hearing date thereon do not toll the time for filing an appeal from a judgment of sentence to our court. In the instant case the trial court not only fixed a date for hearing the modification motion, but also actually conducted the hearing thereon prior to the expiration of the thirty (30) day appeal period. Nevertheless, the sentence was not modified within the thirty-day appeal period. As such the thirty-day appeal period was not tolled and the appellant was correct in taking the appeal when he did. See Pa.Rule Criminal Procedure ÍJ^IO. As such, jurisdiction over this issue is properly before this Court.

Appellant’s first argument is that the offense of aggravated assault merges with the offense of attempted murder for sentencing purposes. The trial court so found in its November 20, 1987, order (which was entered subsequent to the time that this appeal was taken). Where the essential elements of one offense are also the essential elements of another offense, the lesser offense merges into the greater one. Commonwealth v. Mitchell, 319 Pa.Superior Ct. 170, 465 A.2d 1284 (1983). In the instant case the Commonwealth and the trial court agree with appellant’s contention that the aggravated assault offense merges with the one for attempted murder. This Court also agrees that the offense merged as the one act of shooting the victim constituted the essential elements of both offenses. We hold that the offenses are merged in this case. Commonwealth v. Ford, 315 Pa.Superior Ct. 281, 461 A.2d 1281 (1983).

Appellant’s next contention is that the sentence should not have been subject to the Weapons Enhancement provisions of 204 Pa. Code Section 303.4. Appellant argues that since the wording of the criminal information contains an allegation of the fact that appellant shot the victim with a .9 mm pistol that the use of the weapon was an essential element of the crime of attempted murder and that, therefore, the Weapons Enhancement provisions of the law do not apply to this case. In 204 Pa. Code Section 303.4(b) the act provides that there shall be no weapons enhancement for convictions of aggravated assault, the Pennsylvania Uniform Firearms Act, violations of the crimes codes relating to possession of instruments of crime or prohibited offensive weapons or of any other offense for which possession of a deadly weapon is an element of the statutory definition. We do not agree with appellant’s contention regarding this issue. A person commits homicide if he intentionally, knowingly or negligently causes the death of another human being. 18 Pa.C.S.A. § 2501. A person commits criminal attempt when he does any act which constitutes a substantial step toward the commission of a specific crime with the intent to commit that specific crime. 18 Pa.C.S.A. § 901(a). Thus, while the shooting of another person may indeed constitute the means by which a person attempts to cause the death of another person the use of the weapon does not constitute the essence of the crime because there are many other ways to cause the death of another person other than by shooting him or her with a gun. As such the court did not err in applying the Weapons Enhancement provision to appellant’s sentence.

Finally, we find that the plea agreement form itself contained notice to the defendant that his sentence was to be increased by the Weapons Enhancement provisions of 204 Pa- Code Section 303.4(b). Appellant signed this agreement. He was provided adequate notice of the Commonwealth’s intention to seek an additional sentence pursuant to its terms.

Judgment of sentence is vacated; the case is remanded to the trial court for re-sentencing consistent with this opinion. Jurisdiction relinquished.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    538 A.2d 1
    Sherry L. RYAN v. Kenneth E. DeLONG, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 10, 1987.
    Filed Nov. 9, 1987.

      Ambrose R. Campana, Williamsport, for appellant.
    Barbara A. Reed, Assistant District Attorney, Middle-burg, for appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal from an order modifying an award of child support. We vacate and remand.

Appellant Kenneth DeLong and appellee Sherry Ryan are the unmarried parents of Robbie Royer, who was born on December 18, 1980. Various custody petitions and orders have been filed over the years on behalf of the child. This dispute concerns support rather than custody.

The support order appealed from requires the father to pay $55.00 per week for the support of his child. This same order vacated an order of August 1981 which required the appellant to pay $20.00 per week in child support. The trial court derived the $55.00 figure by applying the Snyder County support guidelines. The court stated that appellant had presented no testimony which required it to deviate from the guidelines.

Appellant presents two issues for our review: “(1) Did the lower court follow the guidelines recently enunciated in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984)? [and] (2) Did the lower court err in refusing to follow the rule of comity?”

Appellant claims that the support order at issue violates the guidelines enunciated in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). This court has recently had occasion to summarize the appellate scope of review in a child support case. In DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987), we stated:

On appeal, a child support order will not be disturbed unless the trial court committed an abuse of discretion. Kopp v. Turley, 359 Pa.Super. 106, 109, 518 A.2d 588, 590 (1986). An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment. Id., 359 Pa.Superior Ct. at 109, 518 A.2d at 590.
In order to calculate the support obligation of each parent, the court must first determine the reasonable needs of the children. Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 324-325, 513 A.2d 448, 452 (1986). Reasonable expenses are not limited to the bare necessities. A child is entitled to a reasonable standard of living based upon the social station, fortune and financial achievements of their parents. Commonwealth ex rel. Stump v. Church, 333 Pa.Super. 166, 172, 481 A.2d 1358, 1361 (1984).
The court must next determine, the respective abilities of the parents to support their children. To arrive at this amount, the court must make an allowance for the reasonable living expenses of each parent. The court must then calculate the parent’s net income or earning capacity if that figure differs from actual income. Lyday [360 Pa.Super. 16] at 21, 519 A.2d [967] at 970 [1986]. The trial court must consider every aspect of a parent’s financial ability to pay support. The actual and potential cash flow from his property interests, financial resources, stock holdings and other investments should all be considered. Id.
In Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), a plurality of our Supreme Court, per Justice Larsen, established guidelines for the calculation of child support awards. Id., 505 Pa. at 472-75, 480 A.2d at 996. Justice Larsen’s formula provides:
A = amount available to parent A;
B = amount available to parent B
However, a majority of the Court eschewed strict mechanical formulas and endorsed a flexible approach in these cases. Id., 505 Pa. at 477-78, 480 A.2d at 999 (Flaherty and Hutchinson, JJ. concurring).
A majority of the Court did agree that each parent’s support obligation should be determined based upon the reasonable needs of the children and the parent’s reasonable expenses and earning capacities. The members of the Court differed over whether these criteria should be applied via a mathematical formula or whether we should trust in the judgment and discretion of our trial courts.
In interpreting Melzer, the Superior Court has adhered to a middle course. We have recognized the validity of the Melzer formula but at the same time we have remained aware of the majority’s admonition that the formula should not be inflexibly applied. Therefore, we have required trial courts to calculate the Melzer formula but we have allowed them to adjust the resulting support obligation if deviation from the formula is warranted under the particular circumstances. Riess v. Deluca, 353 Pa.Super. 622, 625, 510 A.2d 1239 1241 (1986); Reitmeyer v. Reitmeyer, 355 Pa.Super. 318, 324-325, 513 A.2d 448, 452 (1986).

Id.

The Melzer court recognized the need to give similar treatment to similarly situated parties. It also acknowledged the importance of allowing trial courts to deal with each case in an individualized manner based upon an actual quantification of the reasonable needs of the parties and the parental standard of living. The Melzer formula ingeniously achieves all of these seemingly conflicting objectives. Persons in similar situations will have the same support obligation but that determination will be based upon an individual assessment and not upon broad “averages.”

Subsequent to the Melzer decision, the Pennsylvania legislature authorized support guidelines in 23 Pa.C.S.A. § 4322, which states:

The courts of common pleas shall develop guidelines for child and spousal support so that persons similarly situated shall be treated similarly. The guidelines shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guidelines shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.

Section 4322 plainly endorses the Melzer approach. The terminology used is the same as in the caselaw as are the underlying policies. The statute directs the counties to calculate the reasonable needs of the children based upon parental income and assets. Thus, it requires an individualized determination. The legislation also requires that allowance be made for exceptional circumstances. These were the very concerns of the Melzer court.

The statute was enacted pursuant to a federal mandate arising from concern that similarly situated children were not being treated similarly. See U.S. Department of Health and Human Services, Development of Guidelines for Establishing and Updating Child Support Orders, 2-3 (1985). Only a formula like that employed in Melzer balances the twin goals of individualized determination and similar treatment. Guidelines based on a hypothetical “average” situation abrogate each of these policies. The parties are not afforded particularized treatment and they are similarly treated only as to those parties also grouped in their grid. Within that range, there will necessarily be great deviation from the average. Use of a fixed formula based upon individual needs sidesteps what will otherwise be an unavoidable dilemma.

As noted above, Melzer preceded enactment of § 4322. The legislature’s use of statutory language similar to that used in a prior judicial decision is assumed to constitute legislative approval of that decision. In re Lack’s Estate, 431 Pa. 251, 244 A.2d 677 (1968). Thus, the statute and the caselaw are harmonious.

As described above, Melzer adopted a flexible, individualized approach for support cases. Use of the formula forces trial judges to quantify the reasonable needs of the parties involved. It also enables courts to deal with each case in an individualized manner. At the same time, the strictures of the formula insure that similarly situated persons will be treated similarly. This approach is known as “cost sharing.” See Cassetty, The Parental Child-Support Obligation (1983). As defined by Cassetty: “The cost sharing approach begins with the assumption that there are rather fixed and measurable costs associated with raising a child and that once known, they can be apportioned in some way between a child’s parents.” Id. at 5. Usually, these formulas do not rely on a precise specification of the minimal amount necessary to support the child. Instead, they set an idealized figure based upon the income of the parents. See O’Donnell, Smith v. Smith: No Magic Formula for Determining Child Support Payments of the Noncustodial Parent, 18 Will.L.Rev. 353-67 (1982). This method is in contrast with the Income Sharing Approach whereby a specified percentage of parental income is set aside for the child. See U.S. Department of Health and Human Services, Review of Literature and Statutory Provisions Relating to the Establishment and Updating of Child Support Awards, 6-7 (1984). Similar to the approach of the Melzer court, both of these methods commonly eschew establishment of specified numerical amounts as to the child’s needs. Because § 4322 adopted this principle, county guidelines to the contrary are presumptively invalid.

County guidelines which do not follow the Melzer formula may still be useful as a pre-trial aid for practitioners. It may give them a benchmark figure which can be used during negotiations. Because the figure will represent an “average” it should at least identify when a party is making an outrageous demand. However, the trial court is required to follow the edict of Melzer as explained in subsequent cases such as DeWalt.

In this case, the trial court made no attempt to calculate the Melzer formula. It relied instead on the County guidelines. This was error. If trial courts simply plug the parties’ situation into a support grid, they ignore the requirements of Melzer. To insure that an actual dollar figure is determined as to the reasonable needs and expenses of the parents and children the calculated Melzer formula must be in the record. If the trial court wishes to deviate from the resulting amount it is free to do so if sufficient reasons are placed in the record.

Our decision today does not invalidate county guidelines. It does disapprove of their improper use. Failure to adhere to the flexible and individualized approach of Melzer is inconsistent with the policies statutorily mandated in § 4322. Individuals have a right to have their situation subjected to particularized scrutiny by a court. They should not be namelessly plugged into a chart based upon assumptions no one understands.

Based upon the foregoing, the order of the Court of Common Pleas of Snyder County is reversed and this case is remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . Our disposition of this case precludes the need to address appellant’s second issue. Nonetheless, we note that appellant has not provided an adequate legal foundation upon which to base his argument of "judicial comity.”

      . It has been suggested that the various County support guidelines should be held invalid because they have resulted in tremendous variation from county to county. We do not herein accept or reject this view. We do note that such is not the situation in this case.

        Applying various county guidelines to the facts of this case, the resulting order would be:
      Philadelphia: $60.50
      Chester: $60.50
      Montgomery: $63.50
      Northampton: $55.50
      Lehigh: $55.50
      Bucks: $56.00
      Lancaster: $55.20
      Berks: $45.24
      These are hardly evidence of a dramatic deviation from county to county. Half of the counties surveyed would reach the same result as did Snyder County. Though it may be possible to make a viable argument that the guidelines vary unacceptably in some situations, this is not the case to support such a claim.


author: CAVANAUGH, Judge:

text:
    538 A.2d 4
    Sandra L. GARDNER, Appellee, v. Larry P. GARDNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1987.
    Filed Jan. 6, 1988.
    Reargument Denied Feb. 24, 1988.

      O. Howard Mummau, York, for appellant.
    Marc A. Roberts, York, for appellee.
    Before CAVANAUGH, BROSKY and WATKINS, JJ.
   CAVANAUGH, Judge:

In this appeal at No. 680 Harrisburg, 1986, the issue is whether in a petition to terminate support, the alleged father against whom the support order was entered, from which an appeal to this court was nol prossed, may be granted on the grounds that the petitioner was not in fact the child’s father.

The facts and procedure in this case are quite complex and must be stated for an understanding of the issue involved. On February 14, 1971, Sandra Gardner (at that time Sandra Crone), who was the appellee herein, gave birth to a daughter, Angela. At that time Ms. Gardner was married to Robert Crone. The child was originally given the surname, Gilbert, the appellee’s maiden name, as she did not believe that Mr. Crone was the father of her child. The birth certificate for Angela Gilbert named the father as . Jeff Eugene Johnson, whom the mother believed was Angela’s father.

The appellee testified that before Angela was born, that she had sexual relations with Larry Gardner. Her testimony in this respect was as follows:

Q. When you became pregnant, did you tell Larry? Did Larry know you were pregnant pretty soon after you found out?

A. I think I was three month after I found out, and yes, I did tell Larry.

Q. What was his reaction?

A. I guess he was happy.

Q. Did you tell Larry that he was the father of this child?

A. No.

Q. What did you tell him?

A. I told him I was pregnant.

Q. Well, did you tell him anything about who the father was?

A. I told him that there was ... I tried to be very candid with him. I told him that there was a time span in between there that there was a possibility the child could have been Jeffs. I did not know.

Q. When you say Jeff, you mean Jeff Johnson?

A. Yes.

Ms. Gardner was divorced from Mr. Clone and on August 5, 1972 she and Larry Gardner, the appellant herein, were married. In December, 1973, the appellant signed a “Change in Civil Status Form” which noted his name as the father of Angela Gilbert and Sandra Gilbert as the mother. The original birth certificate listed Jeff Eugene Johnson as the father. In 1974 the parties had a son Lanny Gardner who is not involved in these proceedings.

The parties separated in 1979 and the appellee filed a petition for support for herself and Angela Gardner. On August 3, 1979 an order for support of Angela was entered by the court below by Buckingham, J. The appellant took an appeal to this court from the order of support which was nol prossed in February, 1980, as the appellant failed to proceed with the appeal. In the support proceedings, the appellant did not raise the issue of paternity. The appellant was represented by counsel in the initial support proceedings.

The appellant complied with the support order for Angela. However, in January, 1985, the appellee sought an increase in child support. In May, 1985, the appellant through counsel filed a “Petition for Termination of Support” in which he alleged for the first time that he was not Angela’s father. The appellant also sought to have blood tests taken to determine paternity. The petition was dismissed and no appeal was taken from the order of dismissal.

In January, 1986, the appellant, through counsel, filed a second “Petition for Termination of Support”. In these proceedings he was represented by new counsel who is also counsel on appeal. The petition alleged that the first time that the support order was “grounded on both fraud and mutual mistake” in several respects including the allegation in (a):

a) Petitioner and Respondent were not personally acquainted at the time Angela Gardner was born to Respondent in 1971. There has never been any question for either Petitioner or Respondent that Petitioner is not the natural father of Angela Gardner.

The petition also requested that blood tests be ordered pursuant to the Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S. § 6131 et seq. The court below, through Horn, J., denied the petition for termination of support by order of October 6, 1986. The appellant has taken an appeal from that order. The basis for the decision of the court below was that the order of support of August 3, 1979 was res judicata as to the issue of paternity of Sandra Gardner. The doctrine of res judicata provides that a final judgment or order entered by a court of competent jurisdiction in the absence of fraud or collusion is conclusive of facts litigated, or that could have been litigated, as to the parties in all other actions in the same jurisdiction. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 464 A.2d 1313 (1983). In order for the doctrine of res judicata to apply, there must be a coalescence of (1) identity of cause of action; (2) identity of persons to the action; (3) identity of the quality or capacity of the parties and (4) identity of the thing sued upon. Brandschain v. Lieberman, 320 Pa.Super. 10, 466 A.2d 1035 (1983). The appellant does not challenge the existence of any of the identities and a challenge would not have been sustained. The entry of the support order established by implication that the appellant was Angela’s father. We stated in Commonwealth ex rel Nedzwecky v. Nedzwecky, 203 Pa.Super. 179, 182, 199 A.2d 490, 491 (1964):

[It was] implicit in the entry of the original support order that appellant was the father ... In the absence of an appeal from that order, the fact of appellant’s paternity ... became established as a matter of law. A relevant fact necessarily determined as a prerequisite to the entry of an original support order may not, under the doctrine of res judicata, be challenged or put at issue in any subsequent proceeding. Cf. Commonwealth ex rel. Howard v. Howard, 138 Pa.Super. 505, 508, 10 A.2d 779.

We upheld the refusal of the court below to permit blood tests for a petitioner who denied paternity of a child whom he had previously been ordered to support. The appellant in Nedzwecky, supra, argued, to no avail, that at the time of the original order requiring him to support his alleged son, that he could not apply for blood tests under the statute then in effect. We note in the instant case that the Uniform Act on Blood Tests was in effect at the time of the original support proceedings and the appellant could have petitioned for a blood test if he wanted to dispute his paternity.

Commonwealth ex rel Palchinski v. Palchinski, 253 Pa.Super. 171, 384 A.2d 1285 (1978) applied Nedzwecky, supra. We stated at 253 Pa.Super. 174-5, 384 A.2d 1287: “If a party wishes to challenge a finding of paternity, he must do so by appealing directly from the support order. In the absence of an appeal, a finding of paternity is established as a matter of law.” While the appellant took an appeal to the court from the order of August 3, 1975, it was nol prossed by this court and in effect an appeal was not taken.

This court recently held in Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987) that once an order for support is entered and no appeal is taken, the putative father cannot assert his lack of paternity as a basis for terminating support payments notwithstanding that blood tests showed that he was not the natural father. We stated at 362 Pa.Super. 159-60, 523 A.2d 824:

In the instant case, the issue of paternity was determined in December of 1980 when appellant chose to enter into a court order to support Deborah. Appellant could have demanded blood tests at that time but neglected to do so. As pointed out by the trial court, while appellant may not have known of his inability to procreate at the time he signed the support order, he was aware of other circumstances surrounding appellee’s pregnancy which gave him reason to question Deborah’s paternity. Having entered into the support order under these circumstances and having failed to appeal, appellant may not now challenge paternity.

See also Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1984); Barclay v. Barclay, 367 Pa.Super. 529, 533 A.2d 143 (1987).

The appellant acknowledges the general law that in support proceedings the issue of paternity is res judicata in the absence of an appeal from the order of support. However, he argues that he may now question paternity after the passage of several years on the grounds of fraud, mistake and ineffective assistance of counsel. He argues that he was entitled to effective assistance of counsel when the support order of August 3, 1979 was entered. He bases his argument on our decision in Banks v. Randle, 337 Pa.Super. 197, 486 A.2d 974 (1984). In that case, Stella Banks brought an action to determine support and/or paternity concerning her daughter. The putative father denied paternity and requested a blood test. A jury trial was held attended by defense counsel, but not by the defendant. The jury’s verdict determined that the appellant, William Randle, was the father. On appeal, we decided that the appellant may raise the issue of ineffective assistance of counsel in an appeal from a civil proceeding in paternity. The basis for the decision in Banks v. Randle was our opinion in Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982) which held that in a civil paternity case indigent defendants have a constitutional due process right to appointed counsel. In Corra v. Coll, supra, the defendant denied paternity and requested counsel which was denied. Both of these cases involved a disputed issue of paternity. 42 Pa.C.S. § 6704(g) which was repealed by the Act of October 30, 1985 P.L. 264, No. 66 § 3, was in effect at the time of the original support proceedings in our case and provided:

(g) Trial of paternity. — Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court without a jury unless either party demands trial by jury. The trial, whether or not a trial by jury is demanded, shall be a civil trial and there shall be no right to a criminal trial on the issue of paternity. The burden of proof shall be by a preponderance of the evidence.
1978, April 28, P.L. 202, No. 53, § 10 (88), effective June 27, 1978. As amended 1980, Oct. 5, P.L. 693, No. 142 § 207(a), effective in 60 days.

The appellant contends in his second petition to terminate support that “Petitioner and Respondent were not personally acquainted at the time Angela Gardner was born to Respondent in 1971.” Since the appellant claims he did not know Sandra Gardner prior to the time that her daughter, Angela was born, he was certainly aware at the time of the support proceedings that he was not Angela’s father. Sandra Gardner testified on deposition that she told the appellant when she was pregnant, but that Jeff Johnson might be the father of the child.

Mr. Johnson testified that Sandra indicated to him that she thought he was the father of her child. It is important to note that all of the above testimony referred to took place on depositions taken many years after the original support proceedings.

Although today the proceedings pertaining to support and paternity are found in the Pennsylvania Rules of Civil Procedure, the civil-criminal distinction is unavailing in determining whether competent counsel is constitutionally required. Where paternity is denied and a trial is held on that issue, such counsel is necessary. See Banks v. Randle, supra. We decline to extend the requirement of effective assistance of counsel to the situation where a defendant does not deny that he is the father of the child when an action for support for the child is brought. In the case before us the issue of paternity was never raised in the original support proceeding and the appellant defended only on the grounds that the support was too high. He had the opportunity to deny paternity had he so desired, but chose not to do so. We hold that only where there is a trial on a disputed issue of paternity, is the putative father entitled to counsel. To hold otherwise would be tantamount to providing the right to appointed counsel in support cases. This has never been the law.

The appellant also contends that the support order was based on fraud and mutual mistake as to circumstances “documenting” his paternity. The appellant relies on R.J.K. v. B.L., 279 Pa.Super. 71, 420 A.2d 749 (1980) to support his argument that questions of fraud and mistake can be raised at this late date to challenge the support order entered in 1979. In that case, the court stated, “It is well settled that entry of a court order for support of a child necessarily determines the issue of paternity.” The court further stated at 279 Pa.Super. 74-75, 420 A.2d 751:

Assuming the support order did constitute an admission of paternity, appellant next contends that the trial judge erred in refusing to permit introduction of evidence contesting that conclusion of fact. However, as a final decree, a support order can only be attacked on direct appeal. Armstead v. Dandridge, 257 Pa.Super. 415, 390 A.2d 1305 (1978); Commonwealth ex rel. Palchinski v. Palchinski, supra. No appeal from either support order was ever pursued in this case. The doctrine of res judicata now operates to foreclose any subsequent challenge, on the issue of paternity. Commonwealth ex rel. Nedzwecky v. Nedzwecky, supra.
The fact that both support orders were consensual and not the result of a full evidentiary hearing makes them no less final and no more subject to challenge.

The court added by way of dicta that: “Allegations of fraud or mutual mistake would provide the only bases upon which a court would review such a final decree. Baran et al. v. Baran, supra 279 Pa.Super. 75, 420 A.2d 751. The appellant does not indicate any fraudulent conduct on the part of appellee that would have prevented him from denying paternity at the original support proceedings. The fraud alleged is that appellant’s first counsel gave him incorrect legal advice. Referring to the support proceedings in 1979, appellant states in his appellate brief at page 5: “At the time, Larry and Sandra were embroiled in a custody battle for their son, Lanny, and Larry’s attorney advised him not to raise the issue of Angela’s paternity during the custody battle. He told Larry that this could be taken care of later.” We fail to see how counsel’s advice or misadvice, if it be so, can be held to amount to fraud.

With respect to mistake, there is no indication that appellant was mistaken as to his status concerning Angela’s paternity. The appellant did not raise the question of fraud or mutual mistake in an appeal to this court as the appeal was abandoned, nor was it raised in the first petition for termination of support. We conclude that the court below properly dismissed the petition to terminate on the grounds of res judicata.

The appeal at 0179 Harrisburg, 1987, is from an order of the court of March 26, 1987, holding the appellant in contempt of court for failing to comply with an earlier support order in the amount of $96.00 per week. It was also agreed at the contempt hearing on March 26, 1987 that there were arrearages owed by the appellant for support for Angela in the amount of $10,691.60. The following took place at the contempt hearing:

BY MR. ROBERTS: (Attorney for appellee)

Q. Let me ask you this, Mr. Gardner. I am trying to get into what your true feelings are about this, if you misunderstand my question I will try to do a better job rephrasing it. If there were a way you could satisfy the court you were acting in good faith and yet also satisfy your goal that Sandra Gardner shouldn’t get any of your money, you would be willing to go along with that, wouldn’t you?

A. No, if I understand the question, let me tell you in language terms, okay. In all due respect, I’m not paying anything until I have expended every possible legal avenue there is to go.

Q. You mean to say that if we could establish an escrow account for you to pay fifty dollars ($50.00) a week into and you would have been given absolute assurance that money wouldn’t be touched by Sandra Gardner until all your appeals were exhausted and Sandra Gardner won, and you wouldn’t be willing to go that way?

A. Let me make this simple, in all due respect [sic] nothing am I paying under any circumstances or any given — I’m not going to do it. (Emphasis added)

There is no doubt that the appellant willfully failed to comply with the support order. Contempt proceedings are civil in nature and the court following a hearing in which it determined that the respondent had wilfully failed to comply with a previously entered support order, properly imposed a coercive, conditional sentence for contempt. Commonwealth ex rel. Heimbrook v. Heimbrook, 295 Pa.Super. 300, 441 A.2d 1242 (1982). The order set forth a manner in which the appellant could be purged of contempt and in fact the appellant did purge himself of contempt and was released from incarceration.

The appellant argues that the order of January 26, 1986 to pay $96.00 per week entered by Judge Roe, who subsequently died, was only a temporary order and could not be the subject of a contempt proceeding. This argument is without merit. The Civil Procedural Support Law, 23 Pa.C.S. § 4345 provides:

§ 4345. Contempt for noncompliance with support order
(a) General rule. — A person who willfully fails to comply with any order under this chapter ... may, as prescribed by general rule, be adjudged in contempt. Contempt shall be punishable by any one or more of the following:
(1) Imprisonment for a period not to exceed six months.
(2) A fine not to exceed $500.
(3) Probation for a period not to exceed six months.
(b) Condition for release. — An order committing a defendant to jail under this section shall specify the condition the fulfillment of which will result in the release of the obligor.
1985, Oct. 30, P.L. 264, No. 66 § 1.

The order of the court complied with the law and will be affirmed. Even though the order of Judge Roe may have been temporary, as appellant alleges, it was nevertheless the proper basis for the entry of a contempt order based on noncompliance. The fundamental basis for imprisonment for failure to support, is the contemptuous disregard of the court’s authority. Commonwealth ex rel. Taylor v. Keenan, 173 Pa.Super. 418, 98 A.2d 460 (1953).

Finally, the appellee contends that she is entitled to further costs under Pa.R.A.P. 2744 on the grounds that the appeal is frivolous and that the conduct of the appellant in taking the appeal is vexatious. Considering the complex nature of these proceedings, we find that the appeal is neither frivolous nor vexatious, and accordingly we shall impose no additional costs on the appellant under the Pennsylvania Rules of Appellate Procedure.

Order at appeal 680, Harrisburg 1986 affirmed and order at appeal 179, Harrisburg 1987 affirmed.

      . The order of August 3, 1979 stated in part:
      ORDER
      That retroactive to and commencing with Saturday, June 23, 1979, the Defendant shall pay to the Domestic Relations Office for the support of his wife, Sandra L. Gardner, the sum of One Hundred Dollars ($100) a week, and for the support of his child, Angela, born February 14, 1971, the sum of One Hundred Dollars ($100) to continue weekly thereafter until further Order of Court.

      . The court below filed a memorandum opinion dated October 17, 1979 in accordance with Pennsylvania Rule of Appellate Procedure 1925(a) in which it was stated “The defendant has appealed from our order requiring him to pay One Hundred Dollars a week for the support of his wife and One Hundred Dollars a week for support of one of his children, Angela.” The opinion goes solely to the issue of whether the support order was too high and in no way indicates a denial of paternity by the appellant.

      . The appellant alleged in paragraph 6 of his first petition to terminate support:
      6. Petitioner was informed prior to, and during his marriage to the Respondent, that he was not the natural father of Angela Gardner. Petitioner was also informed of the identity of the child’s natural father by the Respondent on several occasions. Information supplied by Respondent as to the identity of the natural father was confirmed by Petitioner several times in conversations he had with the natural father.

      . The order of Buckingham, J. was as follows:
      Under the circumstances, on the offer of proof presented to this Court, we enter the following Order: That the Defendant’s petition to terminate the support order in this case is dismissed. This is because the record indicates that an Order was entered against the Defendant for the support of a child, he paid the Order, at least for some period of time, and now attempts to disclaim paternity saying that he has information that he has been told that he is not the father of the child and that somebody else will come in and testify that he is the father of the child.
      My recollection of the case law is that despite all this, collateral or equitable estoppel applies and the Defendant is now precluded from raising the question of paternity, and that is the reason for our Order.

      . The order of October 6, 1986 by Horn, J. stated:
      ORDER
      AND NOW, TO WIT, this 6th day of October, 1986, the Petitioner’s Motion to Bifurcate the Trial on Termination of Support and to First Conduct a Trial by Jury on the Issue of Paternity, and the Petition for Termination of Support are dismissed and denied on the basis of claim preclusion.

      . In Mitchell v. Randall, 368 Pa.Super. 421, 534 A.2d 508 (1987) we held that the doctrine of res judicata does not apply to bar a petition for confirmation of paternity where a prior petition for visitation filed by the same individual was denied, as an action brought on a petition for visitation and a petition to confirm paternity are distinct causes of action involving separate issues. Clearly, a denial of visitation rights is not a determination that the petitioner is not the father, as visitation may be denied on many grounds other than lack of paternity. In
        Mitchell v. Randall, supra, there was no determination of paternity at the conclusion of the hearing on visitation.

      . At present, the proceedings pertaining to support and paternity are found in Pa.R.C.P. 1910.1 et seq., entitled Actions for Support. Pa.R. C.P. 1910.15 deals with issues of paternity.

      . The appellant also alleged in his brief at page 15: "At the time Larry Gardner married Sandra he was aware that Jeffrey Johnson was the father of Angela and that was so indicated on her birth certificate.”

      . Appellant contends that Jeff Johnson is Angela’s father. Mr. Johnson testified:

        Q. Were you aware during the time that you were seeing Sandra that she was having any kind of a relationship with another man?
      A. No.
      Q. So you were not aware if or if she was not seeing Larry Gardner.
      A. She knew him.
      Q. She knew Larry Gardner?
      A. I introduced them.
      Q. Oh, you introduced Sandra?
      A. Yes.

      . Baran v. Baran, 166 Pa.Super. 532, 72 A.2d 623 (1950) involved an action in equity brought by minority stockholders. A consent decree was entered without a hearing. This court stated at 166 Pa.Super. 537, 72 A.2d 625:
      The consent decree derived its efficacy from the agreement of the parties and the approval of the chancellor. It bound the parties with the same force and effect as if a final decree had been rendered after a full hearing upon the merits. A decree entered by consent of the parties is so conclusive that it will be reviewed only on a showing that an objecting party's consent was obtained by fraud or that it was based upon a mutual mistake.
      This does not support the theory that a support order can be challenged at any time on the grounds of fraud, where the putative father is aware of the circumstances surrounding the birth of the child, and the fraud alleged is that of the putative father’s own attorney.


author: WIEAND, Judge:

text:
    538 A.2d 11
    AUSTIN J. RICHARDS, INC., Appellant, v. Violet I. McCLAFFERTY, Appellee. Violet I. McCLAFFERTY v. Maurice A. NERNBERG, Jr., Appellant, v. Gary M. DAVIS and Steven Abramovitz.
    Superior Court of Pennsylvania.
    Argued May 13, 1987.
    Filed Jan. 4, 1988.
    Reargument Denied March 1, 1988.

      James R. Cooney, Pittsburgh, for Richards, appellant in No. 1165.
    Paul G. Mayer, Jr., Pittsburgh, for Nernberg, appellant in No. 1602.
    Michael Louik, Pittsburgh, for appellee in Nos. 1165 and 1602.
    James R. Farley, Pittsburgh, for Davis and Abramovitz, appellees in No. 1602.
    Before WIEAND, KELLY and POPOVICH, JJ.
   WIEAND, Judge:

Presently before the Court for review are summary judgments entered in separate actions, both of which were spawned by a disputed real estate transaction. Except for a common factual background, the issues are different and must be considered separately.

Austin J. Richards, Inc. v. Violet I. McClafferty

Violet I. McClafferty retained the services of the law firm of Davis and Abramovitz to assist her in selling real estate known as No. 719 Bellefonte Street, Pittsburgh. The employment of counsel was general, however, and there was no written agreement which defined the duties or authority of the lawyers to act on McClafferty’s behalf. McClafferty’s asking price was $44,000.00. Austin J. Richards, Inc., a corporation engaged in making real estate investments, made a written offer to Abramovitz to purchase the premises for $36,000.00. McClafferty rejected the offer. However, she made a counter-offer via an agreement of sale, which she had signed, reciting the price to be $40,000.00. Richards did not accept this counter-offer. However, Maurice A. Nernberg, the sole shareholder in the Richards corporation, spoke with Davis — Abramovitz was then out of town — and suggested that Richards would be willing to pay $38,500.00 for the premises provided that certain changes were made in the terms of the written agreement which had been submitted. Nernberg testified in depositions that Davis told him the price and amended terms were satisfactory. Later on the same day, Nernberg changed the price to $38,500.00 and made other changes in the written agreement of sale. He then initialed the changes and signed the agreement. Davis did not initial the changes or sign the agreement but told Nernberg that the altered agreement would have to be submitted to McClafferty. By the time the altered agreement was presented to McClafferty for review, she had received an offer from Infil Corporation to purchase the real estate for $44,000.00. McClafferty elected to accept the Infil offer, and a written agreement of sale was drafted and executed. She rejected the Richards corporation’s offer of $38,500.00.

Richards then commenced an action against McClafferty for breach of contract. By way of defense, McClafferty denied the existence of any agreement to sell to Richards, denied that her attorneys had had authority to accept the Richards offer on her behalf, and alleged an affirmative statute of frauds defense that Davis had not had written authority to bind her to sell the real estate for $38,500.00. After discovery had been completed, the trial court granted a motion for summary judgment in favor of McClafferty. Richards appealed.

In Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984), this Court defined the role of a motion for summary judgment under Pa.R.C.P. 1035 as follows:

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). See also: Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono Internation al Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82-83, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 124-125, 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa.Super. 479, 482, 460 A.2d 288, 289-290 (1983). It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra, 313 Pa.Superior Ct. at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1977).

Id., 328 Pa.Superior Ct. at 140-141, 476 A.2d at 930-931.

There can be no dispute in this case that Violet I. McClafferty did not sign a written agreement to sell her real estate to Richards for $38,500.00. It is also clear that neither Abramovitz nor Davis had written authority, signed by McClafferty, to sell or agree to sell the real estate on her behalf. Therefore, an attempt by Davis to bind his principal to sell the real estate to Richards for $38,500.00, if that is what happened, was unenforceable by virtue of the statute of frauds. Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1; Feingold v. Davis, 444 Pa. 339, 282 A.2d 291 (1971). See also: Charles v. Henry, 460 Pa. 673, 677, 334 A.2d 289, 291 (1975); Glasgow v. G.R.C. Coal Co., 295 Pa.Super. 498, 501, 442 A.2d 249, 250 (1981); The need for written authority, signed by the principal, is not obviated where the agency springs from a lawyer-client relationship. Cf. Starling v. West Erie Ave. Building & Loan Ass’n, 333 Pa. 124, 3 A.2d 387 (1939).

Appellant concedes that there was no written agreement of agency between McClafferty and her attorneys. It is argued, however, that the agreement which McClafferty did sign is sufficient to satisfy the requirements of the statute of frauds even though she did not see or agree to it after the price had been changed to $38,500.00. This defect, it is argued, is obviated because her attorney agreed to the changes. Appellant also contends that references in appellee’s pleadings to the existence of an attorney-client relationship are sufficient to satisfy the statute of frauds and demonstrate authority of the attorneys to bind their principal. We disagree with both of these contentions.

“The statute of frauds is not satisfied ... by a written offer and a written acceptance which annexes additional terms, conditions, or other variations which are not in turn accepted in writing by the party making the original offer. Even where oral modifications of a written offer or acceptance are agreed to by the other party, the contract, being partly in parole [sic], is deemed to be an oral contract and insufficient under the statute.” Target Sportswear, Inc. v. Clearfield Foundation, 327 Pa.Super. 1, 15, 474 A.2d 1142, 1149-1150 (1984), quoting 37 C.J.S. Statute of Frauds § 180(c) (emphasis by Target court). It is clear, therefore, that the proposed agreement, signed by McClafferty, to sell at a price of $40,000.00, did not satisfy the requirements of the statute of frauds with respect to Richards’s counter-offer to buy for $38,500.00. When Richards changed the price in the agreement to $38,500.00, a figure to which McClafferty had not agreed, there was no writing demonstrating an agreement by McClafferty to sell. Moreover, Davis did not have written authority to accept the proposed amendment on her behalf. In short, there was no enforceable agreement to sell the real estate for $38,500.00 and no written authority to the lawyers to bind McClafferty to such a sale.

It is correct, as appellant contends, that the requirements of the statute of frauds can be met by admissions contained in the pleadings. Lehner v. Montgomery, 180 Pa.Super. 493, 498, 119 A.2d 626, 628 (1956). The admissions, however, must be clear and unequivocal. Kirk v. Ford, 330 Pa. 579, 200 A. 26 (1938). In the instant case there is no clear and unequivocal admission by McClafferty that her lawyers had authority to bind her to an agreement to sell her property for $38,500.00. The discovery depositions establish, on the contrary, that there was no special relationship between McClafferty and her attorneys which would have authorized them to agree to the terms of a sale on her behalf. It is also abundantly clear that Davis did not represent that he had authority to bind his firm’s client, for he refused to initial the changes in the agreement made by the buyer and told Nernberg that those changes would have to be submitted to Mrs. McClafferty for approval.

We conclude, therefore, that the entry of summary judgment in favor of McClafferty was proper and must be affirmed.

McClafferty v. Nernberg, et al.

After McClafferty had accepted the offer made by Infil Corporation, Richards filed a lis pendens notice of a claim for specific performance of the alleged contract with McClafferty. As a result, Infil was unable to obtain title insurance, and its closing with McClafferty was delayed. McClafferty then filed an action against Nernberg for interference with contract and slander of title. Nernberg joined Davis and Abramovitz as additional defendants. The averments of the defendant’s complaint were that the attorneys had negligently advised McClafferty to reject offers of settlement made by Richards and Infil, and that it had been this negligent advice which had caused the damages allegedly sustained by McClafferty. The trial court granted summary judgment in favor of Davis and Abramovitz, the additional defendants, on the ground that the defendant had failed to demonstrate a valid cause of action against them.

Pa.R.C.P. 2252(a), which enumerates those circumstances in which an additional defendant may be joined, provides as follows:

(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.

Under this rule, an additional defendant may be joined by a defendant if the additional defendant is alone liable to the plaintiff or liable over to the defendant on the cause of action alleged by the plaintiff or jointly liable on that cause of action with the defendant. An additional defendant may also be joined by a defendant if the additional defendant is liable to the defendant on any cause of action which the defendant may have against the additional defendant arising out of the same transaction upon which plaintiffs cause of action is based.

In the instant case, the defendant attempted to join the plaintiffs attorneys on the grounds that they were guilty of malpractice in failing to recommend settlement to their client. However, the defendant can have no cause of action against the attorneys because of advice which the attorneys gave their client. The general rule is that an attorney cannot be held liable for negligence to a third person with whom he has no contract of employment. Smith v. Griffiths, 327 Pa.Super. 418, 476 A.2d 22 (1984). Under this rule, therefore, Nernberg can have no cause of action against the attorneys for advice which they gave to their client regarding offers to settle.

It is the litigant and not the attorney who is the master of his cause of action, and he may press it to the end regardless of the facts and law arrayed against him. Senyshyn v. Karlak, 450 Pa. 535, 539, 299 A.2d 294, 296 (1973). The attorney cannot release the client’s claim or compromise the litigation without special authority to do so. Id., quoting McLaughlin v. Monaghan, 290 Pa. 74, 78, 138 A. 79, 80 (1927). It follows that the attorney cannot be liable to the third party adversary because of the client’s refusal to settle a claim.

Appellant’s attempt to join the attorneys on the ground that they were solely liable to McClafferty, their client, or jointly liable with appellant must also be rejected. To attempt to interject a legal malpractice claim and compel the plaintiff to seek recovery against her attorneys because of alleged negligent advice regarding settlement wab clearly improper and outside the joinder permitted by Pa.R.C.P. 2252(a). The plaintiff did not assert a claim for malpractice against her attorneys, and the defendant will not be allowed to force her to do so in her action against the defendant.

Pa.R.C.P. 2252(a) permits joinder of an additional defendant on grounds that the additional defendant is solely liable to the plaintiff on the cause of action alleged in the complaint or on the grounds that the additional defendant is jointly liable with the defendant on the cause of action alleged in the complaint. Although the phrase “cause of action declared upon by the plaintiff” has been broadly construed, see 8 Goodrich-Amram 2d § 2252(a):6, it does not permit the joinder of plaintiff’s attorneys on the grounds that their malpractice in recommending rejection of an offer of settlement has contributed to the plaintiff’s loss. This is an entirely separate cause of action and cannot be made the basis for joining the attorneys as additional defendants. Counsel’s malpractice, even if it existed, would not render them jointly liable with defendant on the cause of action alleged by the plaintiff, and plaintiff, apparently satisfied with the services rendered by her attorneys, has not made any claim against her attorneys. To permit the defendant to join the attorneys as additional defendants on the grounds that their advice regarding settlement contributed to plaintiff’s loss would have unfortunate consequences. The rule does not permit it and neither do we. The trial court did not err when it disallowed the joinder and dismissed the claim against the additional defendants.

The orders of the trial court entering summary judgments are affirmed.

      . There is no merit in appellant’s contention that it was error to grant summary judgment because to do so was to overrule an earlier, interlocutory order of the same court which had denied a motion for judgment on the pleadings. Cf. DiAndrea v. Reliance Savings & Loan Ass’n, 310 Pa.Super. 537, 542-543, 456 A.2d 1066, 1068-1069 (1983) (prior denial of preliminary objection in nature of demurrer does not preclude consideration of motion for judgment on pleadings). The failure to present a cause of action upon which relief can be granted may be raised at any time. A motion for summary judgment is based not only upon the averments of the pleadings but may also consider discovery depositions, answers to interrogatories, admissions and affidavits. See: Pa.RX.P. 1034 and 1035. Therefore, the trial court, when the motion for summary judgment was made, had a better view of the alleged cause of action and the evidence or lack of evidence in support thereof than immediately following the closing of the pleadings.

      . Infil Corporation also filed an action against McClafferty to recover damages allegedly caused by the delayed closing.

      . Defendant’s complaint contains no averments which would support a claim that the additional defendants were liable over to the defendant on the cause of action alleged in the complaint.


author: TAMILIA, Judge:

text:
    538 A. 2d 16
    Joseph F. CERVONE and Cheryl A. Cervone, His Wife v. Michael A. READING and Schwans Sales Enterprises v. Joseph F. CERVONE, Appellant. Joseph F. CERVONE and Cheryl A. Cervone, His Wife v. Michael A. READING and Schwans Sales Enterprises, Appellants, v. Joseph F. CERVONE.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1987.
    Filed Jan. 12, 1988.
    Reargument Denied March 2, 1988.

      T. Warren Jones, Erie, for Cervone, appellant in No. 1478 and appellee in No. 1569.
    Yolanda G. Barco, Meadville, for Cervone, appellees in Nos. 1478 and 1569.
    William C. Wagner, Erie, for Reading, appellees in No. 1478 and appellants in No. 1569.
    Before BROSKY, TAMILIA and KELLY, JJ.
   TAMILIA, Judge:

Appellants, Michael A. Reading (Reading), Schwan’s Sales Enterprises, Inc. (Schwan’s) and Joseph F. Cervone, appeal from the judgment entered following the October 6, 1986 Order of the trial court which denied all motions for post-trial relief.

Procedurally, the history surrounding the appeal is as follows: Joseph F. Cervone was operating a motorcycle on July 26, 1980, which was involved in a collision with a truck owned by Schwan’s and operated by Reading. Cervone’s passenger, his wife, Cheryl A. Cervone, sustained leg injuries. On June 18, 1981, the Cervones filed a summons in trespass against Reading and Schwan’s, and later, on January 18, 1982, the Cervones filed a complaint against Reading and Schwan’s seeking damages for Mrs. Cervone’s injuries. Schwan’s and Reading filed an answer and counterclaim on February 9, 1982, which denied the allegations of the complaint, and joined Joseph F. Cervone as an additional defendant. The cases were consolidated and went to trial before a jury on February 11, 1985. On February 14, 1985, the jury rendered a verdict in the amount of $600,000 in favor of Cheryl A. Cervone. The jury found Cheryl A. Cervone was not negligent, her husband was 80 per cent negligent and Reading was 20 per cent negligent.

Joseph F. Cervone filed a timely motion for new trial on February 25, 1985. Reading and Schwan’s filed a motion for post-trial relief on March 4,1985, which requested a new trial on the issue of damages. Joseph F. Cervone filed a supplemental motion for post-trial relief on August 6, 1985. On October 6, 1985, the trial court entered the Order in question, denying all motions for post-trial relief. Additional defendant Joseph F. Cervone and the original defendants, Reading and Schwan’s, filed separate appeals which have been consolidated.

The facts of the case are as follows. On July 26, 1980, the Cervones were traveling north on Route 19 en route to Edinboro, Pennsylvania, when their motorcycle collided with a delivery truck owned by Schwan’s and operated by Reading. Appellant Cervone admits in his brief at No. 1478 Pittsburgh, 1986, that the collision occurred in a two-lane section of that highway which was marked with a double yellow line but was not designated by any signs as a "no passing zone” at that time. Reading had pulled off to the side of the road to make a delivery to a customer, and he then reentered the north bound lane. Cervone, who observed the truck’s reentry to the north bound lane, attempted to go around the truck. Cervone testified he crossed the yellow lines and continued to travel about two feet west of the western most yellow line when the truck decided to make a left turn so it could make its next delivery. At that point, the truck and the motorcycle collided and appellee’s leg was severely injured upon impact with the truck. Reading testified he did not see the motorcycle until after the impact.

I. LIABILITY

The trial court notes in its Opinion there were a number of factual disputes going to the matter of liability which had to be resolved by the jury; for instance, whether the truck suddenly pulled out from the private drive onto the highway or whether there had been ample time for appellant Cervone to have seen it and, also, whether appellant Cervone was negligent in attempting to pass or whether Cervone had, rather, been forced to move over by the truck’s sudden entry to the roadway.

On appeal, Cervone argues the court erred in charging the jury with respect to the no-passing zone law, 75 Pa.C.S.A. § 3307, because 1) absent the statutorily required signs, a no-passing zone did not exist and 2) even if § 3307 had been violated, the section was not enacted to protect against the type of harm which resulted. We find the jury instruction was proper. The jury was not instructed that if they determined Cervone was passing the truck in a no-passing zone at the time of the accident that they should find him liable. To the contrary, the judge stressed that the crossing of the double yellow lines would not be negligence per se. He said:

I read that only because of another section that sort of ties in, which says in addition to those things, the intersections where you’re not supposed to pass on the crest of a hill and curve, and so on, and so forth, the Department, meaning the Department of Transportation, may determine those portions of any highway where overtaking and passing or driving on the left side of the roadway would be especially hazardous and shall by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when the signs or markings are clear and visible to an ordinary and observant person, every driver of a vehicle shall obey the directions of the signs or markings.
Now I explain that to you for two reasons. Number one is sort of a negative. You will recall that in the tape you saw of the scene, there are some “No Passing” signs. But you will also recall that everybody agrees they weren’t there in July of 1980. So do not assume from those signs that are there now or were there last fall when that tape was taken because everyone agrees they were not there at that time.
Now we have also had testimony that there was a double yellow line on the highway there. And there is sometimes some confusion over the meaning of a double yellow line. The regulations of the Department of Transportation say that a double yellow line is intended to indicate that that’s a place where it’s not safe to pass. But the cases have said that it’s not a violation of the statute, so that it’s not negligence per se to cross a yellow line unless these other things exist. In other words, if there’s a yellow line and there’s also a curve, a hill or an intersection where you’re not allowed to pass, then it’s against the law to cross that line. But sometimes there are yellow lines simply in sort of an advisory capacity and it is not a violation of the statute per se to cross that. It is not negligence per se, but it is a factor that you can take into consideration; the fact that there were yellow lines there.
I guess what I’m saying is a person couldn’t be arrested and fined for crossing a double yellow line unless one of the other factors — There were no passing zones, hatch marks on the road like they sometimes paint or an intersection or the crest of a hill, or something else. But that doesn’t mean that the double yellow line doesn’t mean anything. It just means that is itself not negligence per se and you may take into consideration the existence of a double yellow line in overall determining the negligence of any party.

Jury charge, 2/14/85, pp. 16-18.

While appellant Cervone’s argument as to the necessity of no-passing signs under § 3307 might have merit had he been cited for violating the section, that was not the case here. See Commonwealth v. Yorty, 11 D. & C.3d 206 (1979). The jury was called upon to make a factual determination as to whether Cervone was passing at all, and the judge noted this in his instruction. Thus, whether Cervone had attempted to pass the truck in the face of double yellow lines advising that the area was not safe for passing and whether Cervone was negligent in disregarding the lines were questions properly before the jury. In fact, Cervone, himself, admitted at trial that double yellow lines on the road had indicated “no passing” to him (T.T., 1/22/85, p. 49). He maintained, however, he had not been attempting to pass. As such, we find no error in the court’s instruction on this matter.

Cervone next argues the trial judge erred in instructing the jury on the assured clear distance rule. We disagree, since the evidence in this case conflicted as to whether the truck did or did not suddenly move onto the highway. “[Wjhere the evidence leaves some doubt as to whether an emergency situation existed, there is a question of fact for the jury, and the jury should be instructed on both the assured clear distance ahead and sudden emergency doctrines. The dual instructions assures that the jury has the applicable law for whatever factual scenario they find occurred.” Papandrea v. Hartman, 352 Pa.Super. 163, 170, 507 A.2d 822, 826 (1986) (emphasis in original). See also Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474 (1984). Here, it was proper for the judge to instruct the jury on both doctrines; moreover, the instructions given on the doctrines were correct.

Additionally, appellant/Cervone contends the verdict was contrary to the law and evidence. At the outset we note appellant’s post-verdict motion contains a mere boilerplate allegation in this regard. See Jackson v. Spagnola, 349 Pa.Super. 471, 503 A.2d 944 (1986). Even so, a review of the evidence belies appellant’s assertion. “In reviewing a denial of a new trial where the appellant argues that the verdict was against the weight of the evidence, we must award a new trial only where the verdict is so contrary to the evidence as to shock this Court’s sense of justice.” Bolus v. United Penn Bank, 363 Pa.Super. 247, 259, 525 A.2d 1215, 1221 (1987). The attribution of 80% of the liability to Cervone does not shock this Court’s sense of justice.

II. DAMAGES

Appellants Reading and Schwan’s urge this Court to find the trial court erred in refusing to grant their motion in limine to exclude from evidence plaintiff’s exhibits 12-19 which depicted appellee’s open wound prior to and subsequent to a skin graft operation. We disagree. In Fahringer v. Rinehimer, 283 Pa.Super. 93, 423 A.2d 731 (1980), we said:

The admission of photographs into evidence is within the discretion of the lower court. Nyce v. Muffley, 384 Pa. 107, 119 A.2d 530 (1956); Piso v. Weirton Steel Co., 235 Pa.Super. 517, 345 A.2d 728 (1975). Merely because a photograph is gruesome is not a reason to exclude it. Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962). The court must consider whether the evidentiary value of the photograph outweighs the danger that it will upset the jury. Even when a witness has described an injury, a photograph may still have evidentiary value in that it may make the description more intelligible. West v. Morgan, 345 Pa. 61, 27 A.2d 46 (1942).

Id., 283 Pa.Superior Ct. at 99, 423 A.2d at 734.

We affirm the trial court’s admission of the photographs in question and we agree with its finding that while the pictures were not particularly pleasant, neither were they particularly gruesome.

Appellants Reading and Schwan’s next argue the court erred in permitting plaintiff’s exhibit 29, which they say was a synopsis of her possible injuries, to be taken by the jury for its consideration during deliberation. The trial court in its Opinion, however, says the appellants’ description of the document is erroneous; in fact, it was a synopsis of the various categories of damages which would flow from plaintiff’s injuries. As we noted in Kearns v. Clark, 343 Pa.Super. 30, 493 A.2d 1358 (1985), “The general rule in Pennsylvania is that exhibits properly admitted into evidence, with the exception of depositions and transcripts of testimony, may, within the discretion of the trial court, be sent out with the jury.” Id., 343 Pa.Superior Ct. at 38, 493 A.2d at 1362. At trial, appellants’ counsel objected to both the admission of the exhibit and to its going out with the jury (T.T. 2/11/85, pp. 364-65). He specifically stated that he was concerned the jury would take the 25 per cent disability figure given by Dr. McLamb and treat that figure as economic disability rather than anatomical disability. The judge responded:

We are overruling the objection to that portion of Exhibit 29 which simply is a list of the factors that should be considered and it’s from incidental expenses up that we’re permitting it to be used.

In regard to the argument, I have said that she may argue so long as she prefaces her arithmetic by saying something to the effect that if you find certain facts to be true. If you find that there is, if you find from the evidence a logical inference that there is some percentage of economic loss. I agree with Mr. Marnen that his testimony, from Dr. McLamb, Dr. McLamb’s testimony was as to an anatomical. And whether that translates by inference to an economic percentage or not, I think is a jury question, and I’m going to let them decide that.

(T.T. at 367-68.) We find no abuse of discretion, especially in light of the fact that in his instructions, the judge charged the jury that the percentage of disability given was anatomical, and. it was up to the jury to consider what impact that loss would have on appellee’s economic horizon.

Reading and Schwan’s additionally contend it was error for the court to permit Cheryl Cervone to testify that she had a miscarriage in March of 1982. She testified:

My doctors told me that they could not connect my leg to the loss of the pregnancy, there was nothing physically wrong with the baby, and my own mind, I attributed it to my leg, because I was off and on.

(T.T. 2/11/85, p. 305.)

After an objection by defense counsel, the judge permitted the testimony to stand saying it was “an expression of her mental state of mind, which goes into her pain and suffering.” (T.T. at 306.) We find the judge abused his discretion when he overruled the objection. The testimony concerning the miscarriage was not proper for consideration as an injury resulting from the accident, since even appellee admitted at trial that there was no causal connection between the miscarriage and her leg injuries. Likewise, the miscarriage was not a proper element of her pain and suffering as it occurred almost two years after the mishap.

Next, Reading and Schwan’s urge the court erred in permitting appellee to present evidence of lost wages she incurred during her voluntary leave of absence for maternity in 1983. Mrs. Cervone testified she worked full-time following the March 1982 miscarriage, until she became pregnant again. Then, in January of 1983, the sixth month of this second pregnancy, she went to part-time status and subsequently, in February, took a leave of absence from the hospital because she was willing to risk her job or anything for this baby (T.T. at 314). She acknowledged she was aware that if she took a leave of more than twelve weeks, her job would not be held and she would receive the first available position for which she qualified (T.T. at 315). Counsel, on direct examination of Mrs. Cervone, then read part of a letter written by the employment manager where Mrs. Cervone had been employed during this time. Counsel read:

Because Mrs. Cervone had requested a six-month leave, her position was filled and was not available for her, to her August 4, she was told she would be notified as soon as an available position developed.
She was recalled for part-time work one day a week on January 12, 1984 and worked part-time until December 29, 1984, at which time a full-time position became available.

(T.T. at 316.) The trial judge admitted plaintiff’s Exhibit 26a, and acknowledged defense counsel’s dispute as to whether these damages were caused by the accident. This Court finds no damages for lost wages from February 1, 1983 until December 29, 1984 should have been submitted for the jury’s consideration. Appellee failed to establish any connection between the lost wages and the accident. She testified she had taken the extended leave because she did not want to risk the baby, even for her job. Had she introduced any evidence that the first miscarriage was caused by injuries she sustained in the accident and that she had reason to fear another miscarriage would result from those injuries, submission of the items of damage in question to the jury might have been proper. Where, however, appellee showed only that she had voluntarily taken a leave of absence which resulted in her loss of permanent employment, the matter should not have been put before the jury.

Lastly, appellants allege the court committed prejudicial error by permitting appellee’s counsel to argue the jury could award future productivity increases to Cheryl Cervone. The statement objected to is as follows:

Now that is the horizon; that’s what she would earn over her working lifetime. You can decide that she would work for a less period of time. You can decide that perhaps you should increase based on some of the advances she might make. Whatever. But you determine over her lifetime how much if she hadn’t been injured you think she would have earned. Now that’s the base.

(T.T. at 386.) While counsel for neither appellant objected to the appellee’s closing argument, counsel had previously objected to the admission of evidence bearing on damages for work advancement as no foundation had been established for such. (T.T. at 366.) Moreover, appellant Cervone raised the matter as error in his supplemental motion for post-trial relief. Regardless, since we are remanding the decision for a new trial as to damages, and because such comments likely influenced the jury verdict, we feel compelled to address the point. Speaking to damages for loss of future earnings, our Supreme Court in Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980) said:

[I]n this Commonwealth, damages will be awarded for lost future earnings that compensate the victim to the full extent of the injury sustained. Upon proper foundation, the court shall consider the victim’s lost future productivity.

Id., 491 Pa. at 583, 421 A.2d at 1038.

In the case before us, such a foundation was not produced. Appellee Cheryl Cervone testified she was a trained technician in ultrasound and x-ray, and had worked as a registered ultrasound sonographer at the time of the accident. (T.T. at 289.) There was no testimony adduced at trial that she would not be able to function in her occupation as a result of her injury or that her future capacity would be diminished. Thus, the comments made by counsel in closing argument with reference to loss of future earnings were not only improper but were most likely prejudicial to the appellants.

We reverse the judgment of the trial court and remand for a new trial limited to the issue of damages and in accordance with the foregoing Opinion.

Judgment reversed.

Jurisdiction relinquished.

      . See Pa.R.C.P. 227.1(c), which provides:
      If a party has filed a timely post-trial motion, any other party may file a post-trial motion within ten days after the filing of the first post-trial motion.


text:
    538 A.2d 22
    John LONON and Rebecca Lonon v. The PEP BOYS, MANNY, MOE & JACK and General Battery Corp. Appeal of GENERAL BATTERY CORP. John LONON and Rebecca Lonon v. The PEP BOYS, MANNY, MOE & JACK and General Battery Corporation Appeal of The PEP BOYS, MANNY, MOE & JACK
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1987.
    Filed Jan. 26, 1988.
    Reargument Denied March 21, 1988.

      James M. Marsh, Philadelphia, for appellant (at 1680) and for appellee (at 1892).
    Maria Zulick, Philadelphia, for appellant (at 1892) and for appellee (at 1680).
    Daniel J. Siegel, Philadelphia, for Lonon, appellee.
    Before CAVANAUGH, McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

This case involves two consolidated appeals. All appellants appeal from judgment entered on May 26, 1987. The facts and procedural history surrounding the case are as follows.

In April of 1983, John and Rebecca Lonon brought an action against appellee/cross-appellant, The Pep Boys, Manny, Moe and Jack. The complaint alleged that on December 7, 1981, John Lonon purchased from Pep Boys a sixty-month automobile battery which Pep Boys installed in Lo-non’s automobile. When, on December 21, 1981, the battery failed to operate, John Lonon attempted to boost or jump-start it from another battery. While Lonon was affixing the battery booster cables to the battery, the battery:

burst or exploded causing the plaintiff to be violently struck with battery fragments, causing sulfuric acid solution to be splashed onto his eyes, face and body and causing him to fall backwards onto the ground injuring his neck, back and left knee.

Complaint at p. 2. The initial complaint alleged breaches of both implied warranties of fitness for a particular purpose and merchantability, as well as trespass.

Later, on October 3, 1983, The Pep Boys filed a complaint seeking to join as an additional defendant General Battery Corporation, as designer, manufacturer and distributor of the battery in question. Pep Boys made the following averments:

If the allegations contained in Plaintiffs Complaint should be proved at the trial of this action, then plaintiffs [sic] injuries were cause[d] by the battery in that the said battery was defective in its design and/or manufacture and/or it lacked adequate warnings and instructions, and/or it was not properly tested or inspected and/or it was in breach of express or implied warranty and such defective condition, lack of warning, failure to inspect or breach of warranty was the result of acts, ommissions [sic], or other conduct of additional defendant, General Battery Corporation.

Complaint to join additional defendant at pp. 2-3. The Pep Boys demanded that the Lonon’s complaint be dismissed or, in the alternative, that sole liability be found against the additional defendant or that there be a finding of contribution or indemnity from the additional defendant.

At trial, in February of 1986, appellee Lonon produced an expert who theorized that an internal spark caused by a defective weld in the battery had produced the explosion. General Battery offered expert testimony to the effect there was no defect in the battery. Instead, the expert opined Lonon’s failure to heed the warning on the battery which advised persons to consult instructions before attempting to jump-start a battery and Lonon’s subsequent improper attempt at jump-starting had created an external spark which produced the explosion, o On direct examination, Lonon testified his eyes had been burned by the explosion and that the force of the explosion had propelled him to the ground, causing him to sustain back and knee injuries. Counsel for Lonon stated medical bills and lost wages totaled $10,500. After deliberation, the jury returned a verdict in the amount of $160,000 in favor of the plaintiff.

On February 26, 1986, General Battery filed a motion for new trial or other post-trial relief. On March 3, 1986, Pep Boys filed a motion for judgment n.o.v. or new trial, as well as a motion for indemnification, court costs and attorney fees against General Battery; Pep Boys also filed a motion to mold the verdict. The Lonons filed a motion nunc pro tunc for award of delay damages pursuant to Pa.R.C.P. 238, on March 30, 1987. On May 9, 1987, the trial court entered an Order reducing the jury verdict to $80,000 and directing General Battery to indemnify the Pep Boys. The court further ordered that delay damages in the amount of $22,575.33 be added to the $80,000 award. Post-trial motions were otherwise denied. Judgment was entered on May 26, 1987. General Battery filed its appeal on June 3, 1987, while Pep Boys filed their cross appeal on June 17, 1987.

On appeal, General Battery urges the court erred in refusing to charge the jury on assumption of the risk by appellee. In his Opinion dated May 7, 1987, the trial judge stated:

[T]his court did err in stating that the doctrine of assumption of risk is no longer the law in this commonwealth. A correct statement would have indicated that assumption of risk remains the law in Product Liability cases. However, this remark was not communicated to the jury and remains academic unless the facts of the case warranted such instruction.

Slip Op., Wright, J., 5/7/87, p. 3.

The doctrine of assumption of risk is a viable defense in a 402A products liability action. See Common wealth v. Harris, 104 Pa.Commw. 580 n. 1, 522 A.2d 184 n. 1 (1987); Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981). In Staymates v. ITT Holub Industries, 364 Pa.Super. 37, 527 A.2d 140 (1987), our Court said a complete defense to a strict liability action can be made out by a showing that the plaintiff knew of the defect and voluntarily and unreasonably proceeded to use the product or encounter a known danger. We stated:

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.

Id., 364 Pa.Superior Ct. at 49, 527 A.2d at 146. Thus the question before us is whether reasonable men could differ as to the court’s conclusion that the plaintiff-appellee had not assumed the risk which would be created by a defective weld. We agree with the court’s conclusion plaintiff could not have known of such a defect and, therefore, could not have assumed that risk, since the battery was a “maintenance free” type battery and appellee had not installed it himself. As there was an absence of evidence from which the jury could conclude appellee had knowledge of the defect when he acted, we find the court properly did not submit the question of assumption of risk to the jury as to a defective weld. However, this does not end the consideration of assumption of risk as in this situation there exists an additional risk related to attaching the jumper cables to the battery, whether in the appropriate or inappropriate manner, which can lead to the damages of which appellee complained.

General Battery asserts appellee assumed the risk of the battery exploding, in general. It cites his experience working at a service station, his testimony that he had jump-started cars fifty times or more, his knowledge that batteries contain acid, as well as his testimony that he had witnessed sparks created when jump-starts were given and that he had heard of batteries exploding, as bases of his knowledge of the risk he was undertaking. If the evidence was such that reasonable men could conclude, as an alternative to a manufacturer defect, that the manner in which the battery was used, in the face of a known danger, could produce an explosion and the resulting damages, then the assumption of risk was an issue which should have been considered by the jury. This becomes very relevant when we consider the implications of the charge on the malfunction doctrine. By refusing to instruct the jury that the doctrine of assumption of the risk is a viable defense in this Commonwealth, the trial court precluded any consideration of that issue by the jury. Upon remand, therefore, we direct that assumption of the risk be included in the jury charge.

General Battery next urges the court erred in instructing the jury as to the applicability of the malfunction doctrine. The court gave the standard jury instruction on the doctrine.

[A] plaintiff, as Mr. Lonon is, in a strict liability case, as this is, may prove his case merely by showing the occurrence of a malfunction of a product during normal use. The plaintiff doesn’t have to prove the existence of a specific defect in the product. He must prove three facts; that the product — in this instance, the battery — malfunctioned; that it was given only normal or anticipated usage prior to the accident, and that no reasonable secondary causes were responsible for the accident.

T.T., 2/21/86, pp. 319-20. See Pa. Suggested Standard Civil Jury Instructions at 8.05.

In a case which involved malfunction allegations, Lenkiewicz v. Lange, 242 Pa.Super. 87, 363 A.2d 1172 (1976), this Court stated:

We do not hold a plaintiff must refute all possible explanations offered by a defendant. But where an explanation consistent with the existence of a defect is as probable as an explanation inconsistent with the existence of a defect, the plaintiff cannot be held to have met his burden. A jury may not be permitted to speculate.
‘[I]t is not necessary that plaintiff prove with mathematical exactness that the accident could only have been caused in one manner to the exclusion of all other possibilities ... but he must eliminate those other causes, if any, as were fairly suggested by the evidence____ And it is the duty of the trial court to determine whether or not this requirement has been met in the first instance before the issue can be submitted to the jury.... ’

Id., 242 Pa.Superior Ct. at 92, 363 A.2d at 1175.

Here, there was expert testimony offered by General Battery that the explosion could likely have been caused by an external spark created by Lonon’s attempt to improperly jump-start the battery. That explanation is inconsistent with the existence of a defect, and is just as probable as the existence of a defect. Thus, appellee-Lonon did not meet his burden of demonstrating a malfunction occurred and the jury should not have been instructed on the doctrine. In addition, as we stated above in our discussion on assumption of risk, if an experienced person, knowing of a risk of explosion in jumping a battery, causes a spark triggering the explosion, he assumes the risk of a secondary cause that is outside the malfunction doctrine. Accordingly, we also reverse the trial court decision as to these points.

Pep Boys contend the court erred in failing to charge that sellers are not guarantors of their products, that a jury must consider all factors which may have caused the accident, and that a seller cannot be held liable for failure to warn if the accident would have occurred despite the proposed warning. They urge judgment n.o.v. or a new trial should have been granted, because the experience of appellee-Lonon in jump-starting batteries precludes a finding of a failure to warn defect.

In Brandimarti v. Caterpillar Tractor Co., 364 Pa.Super. 26, 527 A.2d 134 (1987), this Court recognized:

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).

Id., 364 Pa.Superior Ct. at 29, 527 A.2d at 136.

Upon review of the entire charge of the court, we find the instructions were proper here in light of the evidence introduced in this matter. The jury could find no liability as to Pep Boys, solely on the product liability issue, from that charge. It properly permitted the jury to consider whether Pep Boys, if they improperly installed the battery, might have contributed to or caused the resulting damage.

General Battery argues the court erred in charging the jury that the conduct of Pep Boys in allegedly not passing on to consumers instructions to be followed when jump starting a battery could not exculpate General Battery from liability. We agree with the trial court’s determination that the duty to provide a nondefective product is nondelegable, and it is the duty of the manufacturer to provide such warnings in a form that will reach the ultimate consumer. See Mackey v. Maremont Corp. 350 Pa.Super. 415, 504 A.2d 908 (1986); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975).

Pep Boys additionally urge the court erred in instructing the jury plaintiff could recover for embarrassment and humiliation, since there was no evidence to support that claim. As Pep Boys did not preserve this point for appellate review, we deem it waived. See Pa.R.A.P. 302 (specific exception shall be taken to the language or omission complained of in a jury charge); Pa.R.C.P. 227.1(b)(1) (if no objection is made, error which could have been corrected during trial by timely objection may not constitute a ground for post-trial relief). However, since this case must be retried, to prevent incorporation of this error into the second trial, we find Pep Boys’ point well taken as no evidence exists to support a charge of embarrassment or humiliation.

General Battery also contends the court erred in refusing to instruct the jury that if it were to find a defect caused the accident, it should indicate the nature of the defect and the point at which it arose. We agree with the trial judge this should be treated as a request for special interrogatories or a special verdict and that it is within the trial court’s discretion whether to submit requests for special findings. See Hutchison v. Pa. Railroad Company, 378 Pa. 24, 105 A.2d 356 (1954). “If special findings would add to a logical and reasonable understanding of the issue, it is within the discretion of the trial judge to grant such a request.” Krock v. Chroust, 330 Pa.Super. 108, 117, 478 A.2d 1376, 1381 (1984).

In the case at hand, we find the court committed an abuse of discretion when it refused to submit special findings to the jury. On remand, such findings should be submitted to the jury so that the jury can have a reasonable understanding as to the factual findings it is being called upon to make, and to clarify the theory of liability under which the jury finds each defendant liable, should the jury determine on remand that the defendants are, in fact, liable. In this way, the disposition of a request for indemnification will also be facilitated.

Judgment reversed and remanded for new trial as to both liability and damages in accordance with this Opinion.

Jurisdiction relinquished.

      . We note there is no record of a request to submit such findings to the jury. Since, however, the trial court deals with the issue as if the request were made, we will treat the matter in a similar fashion.