J-A15020-14
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                           2015 PA Super 83

THOMAS AMATO AND JEAN AMATO, HIS            IN THE SUPERIOR COURT OF
WIFE                                              PENNSYLVANIA

                 v.

BELL & GOSSETT, CLARK-RELIANCE
CORP., COPES-VULCAN, INC., CRANE
CO., DEZURIK/COPES-VULCAN,
ELECTROLUX HOME PRODUCTS, INC.,
GOODYEAR CANADA, INC., GREENE,
TWEED & COMPANY, INDUSTRIAL
HOLDINGS CORP. F/K/A CARBORUNDUM
COMPANY, INC., J.A. SEXAUER, INC.,
JOHN CRANE, INC., LINCOLN ELECTRIC
CO., NIBCO, INC., PARKER-HANNIFIN
CORP., SAINT-GOBAIN ABRASIVES,
INC., SEPCO CORP., SPX CORP., VELAN
VALVE COMPANY, TRANE US, INC.,
INDIVIDUALLY AND F/K/A AMERICAN
STANDARD, INC., SUCCESSOR TO THE
TRANE CO., AMERICAN RADIATOR &
STANDARD SANITARY CORP., KEWANEE
BOILER, CO., AND/OR KEWANEE BOILER
DIV. OF AMERICAN STANDARD, UNION
CARBIDE CORP., AND WARREN PUMPS,
LLC.

APPEAL OF: CRANE CO.
                                                No. 2344 EDA 2013


            Appeal from the Judgment Entered July 19, 2013
          In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): No. 3373 Aug. Term 2011


CHARLOTTE VINCIGUERRA, EXECUTRIX            IN THE SUPERIOR COURT OF
OF THE ESTATE OF FRANK                            PENNSYLVANIA
VINCIGUERRA, DECEASED, AND
CHARLOTTE VINCINGUERRA, WIDOW IN
HER OWN RIGHT

                 v.
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BAYER CROPSCIENCE, INC., AS
SUCCESSOR TO AMCHEM PRODUCTS,
INC., F/K/A BENJAMIN FOSTER
COMPANY, BELL & GOSSETT, BRAND
INSULATIONS, INC., CERTAIN-TEED
CORP., CLEAVER-BROOKS, A DIVISION
OF AQUA-CHEM, INC., CRANE CO.,
DAVID MOSER, DFT, INC., DURABLA
CANADA, LTD., E.I. DUPONT DE
NEMOURS & COMPANY, FOSTER
WHEELER CORPORATION, GEORGIA-
PACIFIC CORP., GOODYEAR CANADA,
INC., THE GOODYEAR TIRE & RUBBER
CO., GOULDS PUMPS, INC., GREENE,
TWEED & COMPANY, INC., GRINNELL
CORPORATION, HAJOCA CORPORATION,
HERMAN GOLDNER CO., INC.,
HONEYWELL, INC., INGERSOLL RAND
COMPANY, JOHN CRANE, INC.,
KEELER/DORR-OLIVER BOILER CO.,
MARLEY COOLING TOWER,
METROPOLITAN LIFE INSURANCE CO.,
OWENS-ILLINOIS, INC., PECORA CORP.,
RILEY STOKER CORP., SEPCO
CORPORATION, INC., SID HARVEY
INDUSTRIES, INC., F/K/A SID HARVEY
MID ATLANTIC, INC., UNION CARBIDE
CORP., WARREN PUMPS, LLC., WEIL
MCLAIN, A DIVISION OF THE MARLEY
CO., A WHOLLY OWNED SUBSIDIARY OF
UNITED DOMINION INDUSTRIES, INC.,
YARWAY CORPORATION, AVOCET
ENTERPRISES, INC., F/K/A
VENTFABRICS, INC., DAP PRODUCTS,
INC., DURO DYNE CORP., AND TREMCO,
INC.

APPEAL OF: CRANE CO.
                                      No. 2388 EDA 2013




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             Appeal from the Judgment Entered August 6, 2013
           In the Court of Common Pleas of Philadelphia County
         Civil Division at No(s): September Term, 2010, No. 2682


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

OPINION BY LAZARUS, J.:                              FILED APRIL 17, 2015

     Crane Co. (“Crane”) appeals from judgments entered in the Court of

Common Pleas of Philadelphia County in two asbestos-related lawsuits.

Because the issues raised on appeal in both matters are substantially

similar, we have, sua sponte, consolidated the cases for purposes of

disposition. After careful review, we affirm both judgments.

     Thomas Amato worked as a boilermaker at the Philadelphia Naval

Shipyard (“PNSY”) from 1972 through 1980. During that time, he worked

with asbestos-containing products.      As a result of his exposure to those

products, Amato developed asbestos-related malignant mesothelioma.         In

2012, Amato filed the instant suit against twenty-four companies, in which

he alleged his malignant mesothelioma was caused by exposure to Cranite

and other asbestos-containing materials during his time at the PNSY.

Cranite was a sheet gasket material Crane Co. purchased from another

manufacturer for use in its business.    At trial, the jury found that Amato’s

exposure to Cranite was a factual cause of his mesothelioma and awarded

him and his wife damages in the amount of $2.5 million.

     Beginning in 1951 and, except for a two-year break, continuing until

1985, Frank Vinciguerra worked as a sheet metal worker at E.I. DuPont de


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Nemours and Company’s Chambers Works plant in Deepwater, New Jersey,

which brought him into contact with asbestos-containing materials.            From

1955 to 1973, Vinciguerra regularly fabricated and installed asbestos-

containing gaskets made from, among other products, Cranite. As a result,

Vinciguerra developed, and ultimately died from, asbestos-related malignant

mesothelioma. As with Amato, the jury found that Vinciguerra’s exposure to

Cranite was a factual cause of his mesothelioma and awarded his estate

damages in the amount of $2.3 million.

        Crane filed motions for post-trial relief in both cases, which were

denied. These timely appeals followed.

        Crane has raised the following issues in both cases:1

        1.     Whether, in cases that turned on witnesses’ ability to
        identify an asbestos-containing gasket material about 40 years
        after the fact, the trial court erred by excluding the testimony of
        Crane’s psychology expert, Dr. Charles Weaver, whose proffered
        testimony regarding human cognitive ability and related
        scientific studies extended far beyond the knowledge of the
        average juror?

        2.     Whether the trial court erred by failing to consider
        payments that Plaintiffs received from non-parties, including
        asbestos personal injury trusts, which potentially enabled
        Plaintiffs to recover in excess of the full amount of their
        damages?

        3.    Whether the trial court’s failure-to-warn jury instruction
        was inappropriate in light of the Supreme Court’s recent decision
        in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014)?


____________________________________________


1
    We have rephrased certain of Crane’s issues for ease of disposition.



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      Crane raises the following additional claims in the Amato matter:

      4.    Whether, in an asbestos personal injury action tried solely
      on strict-liability/failure-to-warn theory, upon concluding that
      the Navy was a sophisticated user of asbestos-containing
      materials, the trial court erred by not granting Crane a
      compulsory nonsuit, or charging the jury on Crane’s
      “sophisticated user” defense?

      5.    Whether the trial court properly admitted, as Plaintiffs’ sole
      evidence against Crane regarding Navy shipyard practices, an
      out-of-court statement of a third-party attorney – who lacked
      personal knowledge of any such matters – regarding the alleged
      use of another company’s asbestos-containing products at a
      Navy shipyard, when the statement in question was neither
      subject to cross-examination nor corroborated by other reliable
      evidence?

      Finally, Crane raises the following issue in the Vinciguerra matter:

      6.    Whether the trial court erred in refusing to remit the
      verdict by at least $500,000 to account for the duplicative loss-
      of-consortium and loss-of-society damages awarded to Plaintiff
      by the jury?

      Crane first asserts that the trial court erred by excluding the testimony

of its psychology expert, Dr. Charles Weaver, whose testimony was

proffered in an attempt to refute the Plaintiffs’ identification, 40 years after

the fact, of Cranite being present in their workplaces.      Crane offered Dr.

Weaver “to address the complex intricacies of refreshing human recollection,

which are particularly apposite in an asbestos case, where the plaintiff’s

lawyer, not plaintiff, often controls the product identification evidence.”

Brief of Appellant (Amato Case), at 28. This testimony was relevant to the

instant cases because, in the Amato case, Crane maintains that “neither



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Nemours and Company’s Chambers Works plant in Deepwater, New Jersey,

which brought him into contact with asbestos-containing materials.            From

1955 to 1973, Vinciguerra regularly fabricated and installed asbestos-

containing gaskets made from, among other products, Cranite. As a result,

Vinciguerra developed, and ultimately died from, asbestos-related malignant

mesothelioma. As with Amato, the jury found that Vinciguerra’s exposure to

Cranite was a factual cause of his mesothelioma and awarded his estate

damages in the amount of $2.3 million.

        Crane filed motions for post-trial relief in both cases, which were

denied. These timely appeals followed.

        Crane has raised the following issues in both cases:1

        1.     Whether, in cases that turned on witnesses’ ability to
        identify an asbestos-containing gasket material about 40 years
        after the fact, the trial court erred by excluding the testimony of
        Crane’s psychology expert, Dr. Charles Weaver, whose proffered
        testimony regarding human cognitive ability and related
        scientific studies extended far beyond the knowledge of the
        average juror?

        2.     Whether the trial court erred by failing to consider
        payments that Plaintiffs received from non-parties, including
        asbestos personal injury trusts, which potentially enabled
        Plaintiffs to recover in excess of the full amount of their
        damages?

        3.    Whether the trial court’s failure-to-warn jury instruction
        was inappropriate in light of the Supreme Court’s recent decision
        in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014)?


____________________________________________


1
    We have rephrased certain of Crane’s issues for ease of disposition.



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Pa.R.E. 702.        The admission of expert testimony is a matter for the

discretion of the trial court and will not be disturbed unless there is a clear

abuse of discretion. Mendez, 74 A.3d at 262.

       Here, the trial court refused to permit Dr. Weaver’s testimony on the

grounds that our Supreme Court has “clearly and repeatedly” held that

credibility questions may not be the subject of expert opinion testimony. For

its part, Crane argues that the criminal cases relied upon by the trial court

are distinguishable, in that they involve the testimony of eyewitnesses to

crimes,2 who perceived an event that was “unquestionably noteworthy” and

testified to what they saw within a relatively short amount of time.

Conversely here, Crane argues, the “identity of the product would not have

been significant” at the time the witnesses worked with it. Brief of Appellant

(Vinciguerra Case), at 20.          In addition, in the Vinciguerra case, Crane

asserts that the issue is not one of witness credibility; rather that “it was

____________________________________________


2
  We acknowledge our Supreme Court’s recent decision in Commonwealth
v. Walker, 92 A.3d 766 (Pa. 2014), which was issued after the date that
these cases were argued. In Walker, the Court reconsidered and overruled
its longtime decisional law absolutely banning expert testimony in the area
of eyewitness identification, finding that such testimony does not improperly
intrude upon the jury’s credibility determinations.        While the Walker
decision partially undermines the trial court’s rationale for excluding Dr.
Weaver’s testimony, we ultimately affirm the court’s decision because we
find the subject matter not to be beyond the knowledge possessed by the
average layperson. See Pa.R.E. 702(a). Moreover, the Court in Walker
explicitly limited its ruling to criminal eyewitness testimony, a “unique area
of the law, where . . . the case law from other jurisdictions and the research
is compelling.” Walker, 92 A.3d at 788.



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possible for [the witness’s] memory to have been prompted in a manner

such that he was disposed to testify to what he was recently told, and not to

what he actually recalled[.]” Id. at 20.

      Amato argues that a jury is “fully equipped, by virtue of its collective

knowledge and experience,” to assess the reliability of an eyewitness, and

that “[t]he workings and reliability of memory and the possibility of

forgetting over time are not concepts that elude the jury without the aid of

expert testimony.” Brief of Appellee (Amato Case), at 21.

      With respect to the Amato case, it is clear that an assessment of the

credibility and reliability of a witness who is recalling events that occurred

forty or more years ago is well within the scope of an average juror’s

knowledge and experience. Expert testimony is not necessary to assist the

jury in coming to the conclusion that, for example, a witness’s recollection of

an event occurring two weeks prior to his testimony might be more reliable

and accurate than his recollection of events that transpired during the Carter

administration.   Accordingly, it is clear that the court did not abuse its

discretion in excluding Dr. Weaver’s expert testimony, as it was unnecessary

and would clearly have infringed upon the jury’s basic function, that of

assessing witness credibilty. Mendez, supra.

      Our conclusion is the same in the Vinciguerra case, in which Crane

sought to introduce Dr. Weaver’s testimony not simply to demonstrate that

older memories can be faultier than new ones, but to show that it was


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      Crane raises the following additional claims in the Amato matter:

      4.    Whether, in an asbestos personal injury action tried solely
      on strict-liability/failure-to-warn theory, upon concluding that
      the Navy was a sophisticated user of asbestos-containing
      materials, the trial court erred by not granting Crane a
      compulsory nonsuit, or charging the jury on Crane’s
      “sophisticated user” defense?

      5.    Whether the trial court properly admitted, as Plaintiffs’ sole
      evidence against Crane regarding Navy shipyard practices, an
      out-of-court statement of a third-party attorney – who lacked
      personal knowledge of any such matters – regarding the alleged
      use of another company’s asbestos-containing products at a
      Navy shipyard, when the statement in question was neither
      subject to cross-examination nor corroborated by other reliable
      evidence?

      Finally, Crane raises the following issue in the Vinciguerra matter:

      6.    Whether the trial court erred in refusing to remit the
      verdict by at least $500,000 to account for the duplicative loss-
      of-consortium and loss-of-society damages awarded to Plaintiff
      by the jury?

      Crane first asserts that the trial court erred by excluding the testimony

of its psychology expert, Dr. Charles Weaver, whose testimony was

proffered in an attempt to refute the Plaintiffs’ identification, 40 years after

the fact, of Cranite being present in their workplaces.      Crane offered Dr.

Weaver “to address the complex intricacies of refreshing human recollection,

which are particularly apposite in an asbestos case, where the plaintiff’s

lawyer, not plaintiff, often controls the product identification evidence.”

Brief of Appellant (Amato Case), at 28. This testimony was relevant to the

instant cases because, in the Amato case, Crane maintains that “neither



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Crane Co. nor Cranite was ever identified as a qualified supplier or product

for use on Navy ships” and, thus, would not have been present at the Navy

Yard, despite Amato’s claim to the contrary. Id. at 14. In the Vinciguerra

matter, the Plaintiffs relied upon a videotaped deposition of one of

Vinciguerra’s former co-workers to establish the presence of Cranite at the

DuPont plant.   Crane asserts that the co-worker’s identification of Cranite

was prompted by plaintiff’s counsel, who showed him “several pictures of

gasket materials” and asked him if he could “relate to that.”         Brief of

Appellant (Vinciguerra Case), at 11.

     It is well-settled that the purpose of expert testimony is to assist the

jury in grasping complex issues not within the ordinary knowledge,

intelligence and experience of its members. Commonwealth v. Mendez,

74 A.3d 256, 262 (Pa. Super. 2013).          Pennsylvania Rule of Evidence 702

governs the admission of such testimony and provides as follows:

     Rule 702. Testimony by Expert Witnesses

           A witness who is qualified as an expert by knowledge, skill,
     experience, training, or education may testify in the form of an
     opinion or otherwise if:

          (a) the expert’s scientific, technical, or other specialized
     knowledge is beyond that possessed by the average layperson;

           (b) the expert’s scientific, technical, or other specialized
     knowledge will help the trier of fact to understand the evidence
     or to determine a fact in issue; and

           (c) the expert’s methodology is generally accepted in the
     relevant field.



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Pa.R.E. 702.        The admission of expert testimony is a matter for the

discretion of the trial court and will not be disturbed unless there is a clear

abuse of discretion. Mendez, 74 A.3d at 262.

       Here, the trial court refused to permit Dr. Weaver’s testimony on the

grounds that our Supreme Court has “clearly and repeatedly” held that

credibility questions may not be the subject of expert opinion testimony. For

its part, Crane argues that the criminal cases relied upon by the trial court

are distinguishable, in that they involve the testimony of eyewitnesses to

crimes,2 who perceived an event that was “unquestionably noteworthy” and

testified to what they saw within a relatively short amount of time.

Conversely here, Crane argues, the “identity of the product would not have

been significant” at the time the witnesses worked with it. Brief of Appellant

(Vinciguerra Case), at 20.          In addition, in the Vinciguerra case, Crane

asserts that the issue is not one of witness credibility; rather that “it was

____________________________________________


2
  We acknowledge our Supreme Court’s recent decision in Commonwealth
v. Walker, 92 A.3d 766 (Pa. 2014), which was issued after the date that
these cases were argued. In Walker, the Court reconsidered and overruled
its longtime decisional law absolutely banning expert testimony in the area
of eyewitness identification, finding that such testimony does not improperly
intrude upon the jury’s credibility determinations.        While the Walker
decision partially undermines the trial court’s rationale for excluding Dr.
Weaver’s testimony, we ultimately affirm the court’s decision because we
find the subject matter not to be beyond the knowledge possessed by the
average layperson. See Pa.R.E. 702(a). Moreover, the Court in Walker
explicitly limited its ruling to criminal eyewitness testimony, a “unique area
of the law, where . . . the case law from other jurisdictions and the research
is compelling.” Walker, 92 A.3d at 788.



                                           -7-
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possible for [the witness’s] memory to have been prompted in a manner

such that he was disposed to testify to what he was recently told, and not to

what he actually recalled[.]” Id. at 20.

      Amato argues that a jury is “fully equipped, by virtue of its collective

knowledge and experience,” to assess the reliability of an eyewitness, and

that “[t]he workings and reliability of memory and the possibility of

forgetting over time are not concepts that elude the jury without the aid of

expert testimony.” Brief of Appellee (Amato Case), at 21.

      With respect to the Amato case, it is clear that an assessment of the

credibility and reliability of a witness who is recalling events that occurred

forty or more years ago is well within the scope of an average juror’s

knowledge and experience. Expert testimony is not necessary to assist the

jury in coming to the conclusion that, for example, a witness’s recollection of

an event occurring two weeks prior to his testimony might be more reliable

and accurate than his recollection of events that transpired during the Carter

administration.   Accordingly, it is clear that the court did not abuse its

discretion in excluding Dr. Weaver’s expert testimony, as it was unnecessary

and would clearly have infringed upon the jury’s basic function, that of

assessing witness credibilty. Mendez, supra.

      Our conclusion is the same in the Vinciguerra case, in which Crane

sought to introduce Dr. Weaver’s testimony not simply to demonstrate that

older memories can be faultier than new ones, but to show that it was


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possible for the witness’s memory “to have been prompted in a manner such

that he was disposed to testify to what he was recently told, and not to what

he actually recalled, even if he was doing so subconsiously.”         Brief of

Appellant (Vinciguerra Case), at 20.       Here, Crane claims that plaintiff’s

counsel planted a “false memory” of Cranite into the mind of Louis Faverio,

Mr. Vinciguerra’s former co-worker, whose testimony was key in linking

Cranite to Vinciguerra’s workplace, by showing him a picture of Cranite and

asking if he recalled using it.   Crane claims that Dr. Weaver would have

testified as to how “biasing cues at the [memory] retrieval stage can

seriously compromise the accuracy of the memory retrieval.” Id. at 17-18.

      We find that expert testimony would not have aided the jury in

evaluating the reliability of Faverio’s testimony. Rather, the members of the

jury would need only draw upon their common knowledge and experience,

aided by vigorous cross-examination, to evaluate whether it was possible or

likely that Faverio’s identification of Cranite was unduly influenced by the

photograph shown to him by plaintiff’s counsel.         The average person

understands not only that memories fade and people forget, but that the

human mind may be susceptible to suggestion. Accordingly, the trial court

did not abuse its discretion in excluding the testimony of Dr. Weaver.

      Next, Crane claims that the trial court erred by failing to consider

payments that Plaintiffs received from settling non-party tortfeasors, which

potentially enabled Plaintiffs to recover in excess of the full amount of their


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damages, determined by the jury to be $2.5 million and $2.3 million in the

Amato and Vinciguerra cases, respectively. Crane claims that the trial court

should have ruled either that Plaintiffs were entitled to recover no additional

sums from Crane or that the verdict should be offset to reflect recoveries

obtained from non-party tortfeasors.3 Crane asserts that the trial court also


____________________________________________


3
  To the extent that Crane’s appellate claim encompasses settlements
reached with entities found by the jury to be joint tortfeasors, Crane is
entitled to a pro rata setoff. The Uniform Contribution Among Tort-feasors
Act (“UCATA”), 42 Pa.C.S.A. §§ 8321-8327, establishes a framework for
accounting for settlement payments made by joint tortfeasors. The UCATA
“dictates the effect of a release to other tortfeasors, the method for
computing set-off, and under what circumstances an action in contribution is
to be allowed.” Baker v. AC&S, 755 A.2d 664, 667 (Pa. 2000). The
provision controlling set-offs states that:

         A release by the injured person of one joint tort-feasor, whether
         before or after judgment, does not discharge the other tort-
         feasors unless the release so provides, but reduces the claim
         against the other tort-feasors in the amount of the consideration
         paid for the release or in any amount or proportion by which the
         release provides that the total claim shall be reduced if greater
         than the consideration paid.

42 Pa.C.S.A. § 8326.

         Accordingly, in Pennsylvania, three separate set-off scenarios can
arise.

         First, if the settlement agreement is silent, the set-off
         mechanism defaults to a pro tanto set-off and the nonsettling
         defendant is entitled to have the verdict reduced by the amount
         of consideration paid by the settling tortfeasor. In the second
         scenario, where the settlement agreement specifically provides
         for a pro tanto set-off, the UCATA envisions that such a specific
         election will always control.
(Footnote Continued Next Page)


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erred in refusing to allow discovery regarding the sources and amounts of

these other recoveries.

      In support of its claim, Crane relies on Brown v. City of Pittsburgh,

186 A.2d 300 (Pa. 1962), which it asserts stands for the general rule that

“for the same injury, an injured party may have but one satisfaction.” Id. at

402. However, Crane ignores the underlying context from which that quote

arose; indeed, Brown is distinguishable from the case at bar. In Brown,

the plaintiff was injured walking on a sidewalk in front of a church in the City

of Pittsburgh. The church paid plaintiff the sum of $2,000 in exchange for a

release, fully discharging it from all claims related to the fall. The plaintiff

then sued the City of Pittsburgh, which joined the church as an additional

defendant.    In ruling on cross-motions for judgment on the pleadings, the




                       _______________________
(Footnote Continued)

      The third scenario is where the settlement agreement specifies a
      form of set-off other than a pro tanto set-off . . . In other words,
      the settling parties may opt for a set-off mechanism such as a
      pro rata set-off.

Baker, 755 A.2d at 667-68. When the parties opt for a pro rata release, the
amount of recovery against the non-settling joint tortfeasor is reduced by
the settling tortfeasor’s share of the verdict. Id.

      Here, the Plaintiffs signed pro rata releases with all settling parties.
Therefore, Crane is entitled to a reduction based on each settling joint
tortfeasor’s pro rata, and not pro tanto, share of the verdict.




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trial court found that the church was immune from tort liability and entered

judgment in its favor, while allowing suit against the City to proceed.4

       On allowance of appeal, the Supreme Court held that any recovery

against the City “must be limited to the amount of the judgment that is in

excess of the sum that has already been paid” by the church. Id. at 403.

However, contrary to Crane’s assertion, this ruling was not made in blind

furtherance of a “one injury/one satisfaction” rule.        Rather, it was the

particular circumstances of the case, including the church’s immunity from

liability, which led to the Court’s determination.       The Court noted that,

ordinarily, the City would have had a right of indemnity to recover any

money which should have been paid by the abutting property owner, i.e.,

the church.       However, the Court concluded that where “the right of

indemnity is barred by the defense of charitable immunity, and the charity

has nevertheless made a payment to the injured party, justice demands that

such a payment be looked upon as a partial satisfaction of the plaintiff’s

claim, because the primary obligation is that of the charity.” Id. (emphasis

added). In other words, because the City’s liability was predicated upon the

negligence of the church, justice required that the City be allowed to offset


____________________________________________


4
  Five years after its decision in Brown, the Supreme Court held in Nolan v.
Tifereth Isr. Synagogue, 227 A.2d 675 (Pa. 1967), that the doctrine of
immunity of charitable institutions from liability in tort no longer exists in the
Commonwealth of Pennsylvania.



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the church’s settlement payment in lieu of the right of indemnity that was

denied to the City by virtue of the church’s charitable immunity.

       In contrast, in the case at bar, Crane’s liability is not predicated upon

the liability of any third party, i.e., the settling defendants or non-parties.

Rather, its liability is based upon the deleterious effects of its own products

upon the Plaintiffs.     Thus, the rationale in Brown is inapplicable and does

not militate in favor of offsetting against the Crane verdict any non-party

settlement monies received by the Plaintiffs.5

       Crane also relies heavily on the decision of a United States Bankruptcy

Court in In re Garlock Sealing Techs., Inc., 504 B.R. 71 (Bankr. W.D.N.C.

Jan. 10, 2014). In particular, Crane cites Garlock in support of its claim of

entitlement to offsets for potential post-verdict recoveries by the Plaintiffs.

However, as Crane is surely aware, a decision of a federal bankruptcy court

is in no way binding upon this Court. Crane presents no binding precedent



____________________________________________


5
   The two other Pennsylvania cases relied upon by Crane are also
distinguishable.   Thompson v. Fox, 192 A. 107 (Pa. 1937), and
Lasprogata v. Qualls, 397 A.2d 803 (Pa. Super. 1979), both address the
unique situation involving the apportionment of liability between an
accident-causing tortfeasor and a treating physician whose subsequent
negligence aggravates the original injury. The language Crane extracts from
those cases would, in isolation from the broader factual and legal context,
seem to support Crane’s argument. However, when read in context, it
becomes apparent that the cherry-picked language quoted by Crane
inappropriately characterizes the salient issues upon which the holdings of
the cases are based.



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in support of its claim to offsets for such unrealized and speculative

recoveries.

      In short, Crane has failed to demonstrate that Pennsylvania law

requires the offset of settlement funds provided by non-parties not

determined to be joint tortfeasors.

      We are aware of no principle of Pennsylvania law that allows a
      jury to make a finding of liability against a party who has not
      been sued. In fact, as a panel of this court has recently
      observed:

         While some states . . . [permit] the apportionment of
         liability among all tortfeasors, even those who have not
         been made parties, Pennsylvania's statute does not so
         provide.

Ball v. Johns-Manville Corp., 625 A.2d 650, 659-60 (Pa. Super. 1993),

citing Kemper National P & C Companies and American Motorists Ins.

Co. v. Smith, 615 A.2d 372, 380 (Pa. Super. 1992). Here, Crane failed to

(1) join other settling tortfeasors into the action or (2) submit evidence to

establish that the non-parties were joint tortfeasors. Therefore, Crane is not

entitled to a reduction of the jury verdict for non-parties to the litigation who

settled with the Plaintiffs prior to trial. Instead, the company is only entitled

to a reduction of the jury verdict based on settlements made by parties

found to be joint tortfeasors by the court.

      Finally, we note that Crane’s “one injury/one recovery” argument is

premised on the assumption that a jury verdict is the only accurate

measurement of the “amount of wrong” done to a plaintiff.           However, in



                                      - 14 -
J-A15020-14
J-A15021-14

concluded that, generally, the question of whether a product is unreasonably

dangerous is one for the fact finder.

      Shortly after Tincher was issued, Crane filed a motion to allow

supplemental briefing seeking permission to file a supplemental brief to

address Tincher’s impact on Crane’s request for a new trial as to liability.

We granted Crane’s request and, in its supplemental brief, Crane argued

that it was entitled to a new trial as to liability because the trial court’s

failure-to-warn instruction did not comply with the new “properly calibrated”

analysis announced by the Court in Tincher.

      We conclude that Crane has properly preserved its failure-to-warn jury

instruction argument for appellate review. At trial, in post-trial motions and

in its original appellate brief, the crux of Crane’s argument was that the

                       _______________________
(Footnote Continued)

             (a) the seller is engaged in the business of selling such a
             product, and

             (b) it is expected to and does reach the user or
             consumer without substantial change in the condition in
             which it is sold.

             (2)       The rule stated in Subsection (1) applies although

             (a) the seller has exercised all possible care in the
             preparation and sale of his product, and

             (b) the user or consumer has not bought the product
             from or entered into any contractual relation with the
             seller.




                                           - 19 -
J-A15020-14
J-A15021-14

court’s instruction should include a consideration of the reasonableness of

Crane’s conduct under the circumstances.        The Third Restatement, the

adoption of which was under consideration by the Supreme Court at the

time, provided a framework for such a factual determination. Although the

Court ultimately declined to adopt the Third Restatement, it nevertheless

rejected Azzarello insofar as that decision had concluded that the term

“unreasonably dangerous” had no place in a strict liability jury instruction

and was, instead, a legal determination to be made by the court. Thus, the

Court, while not adopting the Third Restatement, nonetheless embraced the

consideration by juries of whether a product is unreasonably dangerous, as

advocated by Crane throughout the pendency of the matter sub judice.

Accordingly, we will address Crane’s claim on its merits.

      We begin by noting Plaintiffs’ assertion that Tincher is distinguishable

from the instant matter and is not controlling with respect to claims based

on failure to warn. Plaintiffs argue that Tincher was a design defect case

and that the Court’s holding was specifically limited to such claims.         In

support of this claim, Plaintiffs cite the following language from Tincher:

      We recognize – and the bench and bar should recognize – that
      the decision to overrule Azzarello and to articulate a standard
      of proof premised upon alternative tests in relation to claims of a
      product defective in design may have an impact upon other
      foundational issues regarding manufacturing or warning claims,
      and upon subsidiary issues constructed from Azzarello, such as
      the availability of negligence-derived defenses, bystander
      compensation, or the proper application of the intended use
      doctrine. These considerations and effects are outside the scope


                                    - 20 -
J-A15020-14
J-A15021-14

      of the facts of this dispute and, understandably, have not been
      briefed by the Tinchers or Omega Flex.

Supplemental Brief of Appellee Amato, at 18-19, quoting Tincher, 104 A.3d

at 409-10 (emphasis added by Appellee). Accordingly, prior to determining

whether the instruction, as given by the trial court, included an erroneous or

misleading statement of the law as applied to the facts, we must first

determine whether Tincher is applicable to this case or whether, as

Plaintiffs assert, it is distinguishable and not controlling.

      As Plaintiffs correctly note, the underlying claim in Tincher was one of

defective design, not failure to warn. As Plaintiffs also correctly observe, the

Supreme Court emphasized the limited reach of its decision in Tincher,

citing the prudence of an “incremental” development of the common law,

“within the confines of the circumstances of cases as they come before the

court.” Id. at 352, quoting Scampone v. Highland Park Care Ctr., LLC,

57 A.3d 582 (Pa. 2012).           The Court rejected adoption of the Third

Restatement, in part, because it “presumes too much certainty about the

range of circumstances, factual or otherwise, to which the ‘general rule’

articulated should apply.” Id. at 398.

      Despite this emphasis on flexibility and factual nuance, the Tincher

Court nevertheless provided something of a road map for navigating the

broader world of post-Azzarello strict liability law.           Indeed, the Court

acknowledged that, although its “decision is limited to the context of a

‘design defect’ claim by the facts of this matter, . . . the foundational


                                       - 21 -
J-A15020-14
J-A15021-14

principles upon which we touch may ultimately have broader implications by

analogy.”   Id. at 384 n.21. Of particular relevance to the instant matter,

the Court rejected the blanket notion that “negligence concepts create

confusion in strict liability cases” and, thus, should not be placed before a

jury, a notion which Azzarello had elevated to a “doctrinal imperative.” Id.

at 381. Azzarello also

      approved, and thereby essentially required, instructions which
      informed the jury that, for the purposes of a supplier’s strict
      liability in tort, ‘the product must, therefore, be provided with
      every element necessary to make it safe for its intended use.’

Tincher, 104 A.3d at 376, quoting Azzarello, 391 A.2d at 1027 n.12.

      In Tincher, the Court noted that strict liability jurisprudence in the

years following Azzarello applied the case “broadly, to the point of directing

that negligence concepts have no place in Pennsylvania strict liability

doctrine[.]” Id. The Court further acknowledged the confusion created by

those decisions and concluded that the Azzarello court’s concerns regarding

jury confusion were overstated.       Indeed, in a jurisdiction applying the

Second Restatement, “whether a product is defective depends upon whether

that product is ‘unreasonably dangerous’” and to entirely separate the

inquiry into the former from the inquiry into the latter “is incompatible with

basic principles of strict liability.” Id. at 380. Accordingly, in Tincher, the

Court returned to the finder of fact the question of whether a product is

“unreasonably dangerous,” as that determination is part and parcel of

whether the product is, in fact, defective.



                                     - 22 -
J-A15020-14
J-A15021-14

concluded that, generally, the question of whether a product is unreasonably

dangerous is one for the fact finder.

      Shortly after Tincher was issued, Crane filed a motion to allow

supplemental briefing seeking permission to file a supplemental brief to

address Tincher’s impact on Crane’s request for a new trial as to liability.

We granted Crane’s request and, in its supplemental brief, Crane argued

that it was entitled to a new trial as to liability because the trial court’s

failure-to-warn instruction did not comply with the new “properly calibrated”

analysis announced by the Court in Tincher.

      We conclude that Crane has properly preserved its failure-to-warn jury

instruction argument for appellate review. At trial, in post-trial motions and

in its original appellate brief, the crux of Crane’s argument was that the

                       _______________________
(Footnote Continued)

             (a) the seller is engaged in the business of selling such a
             product, and

             (b) it is expected to and does reach the user or
             consumer without substantial change in the condition in
             which it is sold.

             (2)       The rule stated in Subsection (1) applies although

             (a) the seller has exercised all possible care in the
             preparation and sale of his product, and

             (b) the user or consumer has not bought the product
             from or entered into any contractual relation with the
             seller.




                                           - 19 -
J-A15020-14
J-A15021-14

court’s instruction should include a consideration of the reasonableness of

Crane’s conduct under the circumstances.        The Third Restatement, the

adoption of which was under consideration by the Supreme Court at the

time, provided a framework for such a factual determination. Although the

Court ultimately declined to adopt the Third Restatement, it nevertheless

rejected Azzarello insofar as that decision had concluded that the term

“unreasonably dangerous” had no place in a strict liability jury instruction

and was, instead, a legal determination to be made by the court. Thus, the

Court, while not adopting the Third Restatement, nonetheless embraced the

consideration by juries of whether a product is unreasonably dangerous, as

advocated by Crane throughout the pendency of the matter sub judice.

Accordingly, we will address Crane’s claim on its merits.

      We begin by noting Plaintiffs’ assertion that Tincher is distinguishable

from the instant matter and is not controlling with respect to claims based

on failure to warn. Plaintiffs argue that Tincher was a design defect case

and that the Court’s holding was specifically limited to such claims.         In

support of this claim, Plaintiffs cite the following language from Tincher:

      We recognize – and the bench and bar should recognize – that
      the decision to overrule Azzarello and to articulate a standard
      of proof premised upon alternative tests in relation to claims of a
      product defective in design may have an impact upon other
      foundational issues regarding manufacturing or warning claims,
      and upon subsidiary issues constructed from Azzarello, such as
      the availability of negligence-derived defenses, bystander
      compensation, or the proper application of the intended use
      doctrine. These considerations and effects are outside the scope


                                    - 20 -
J-A15020-14
J-A15021-14

      of the facts of this dispute and, understandably, have not been
      briefed by the Tinchers or Omega Flex.

Supplemental Brief of Appellee Amato, at 18-19, quoting Tincher, 104 A.3d

at 409-10 (emphasis added by Appellee). Accordingly, prior to determining

whether the instruction, as given by the trial court, included an erroneous or

misleading statement of the law as applied to the facts, we must first

determine whether Tincher is applicable to this case or whether, as

Plaintiffs assert, it is distinguishable and not controlling.

      As Plaintiffs correctly note, the underlying claim in Tincher was one of

defective design, not failure to warn. As Plaintiffs also correctly observe, the

Supreme Court emphasized the limited reach of its decision in Tincher,

citing the prudence of an “incremental” development of the common law,

“within the confines of the circumstances of cases as they come before the

court.” Id. at 352, quoting Scampone v. Highland Park Care Ctr., LLC,

57 A.3d 582 (Pa. 2012).           The Court rejected adoption of the Third

Restatement, in part, because it “presumes too much certainty about the

range of circumstances, factual or otherwise, to which the ‘general rule’

articulated should apply.” Id. at 398.

      Despite this emphasis on flexibility and factual nuance, the Tincher

Court nevertheless provided something of a road map for navigating the

broader world of post-Azzarello strict liability law.           Indeed, the Court

acknowledged that, although its “decision is limited to the context of a

‘design defect’ claim by the facts of this matter, . . . the foundational


                                       - 21 -
J-A15020-14
J-A15021-14

principles upon which we touch may ultimately have broader implications by

analogy.”   Id. at 384 n.21. Of particular relevance to the instant matter,

the Court rejected the blanket notion that “negligence concepts create

confusion in strict liability cases” and, thus, should not be placed before a

jury, a notion which Azzarello had elevated to a “doctrinal imperative.” Id.

at 381. Azzarello also

      approved, and thereby essentially required, instructions which
      informed the jury that, for the purposes of a supplier’s strict
      liability in tort, ‘the product must, therefore, be provided with
      every element necessary to make it safe for its intended use.’

Tincher, 104 A.3d at 376, quoting Azzarello, 391 A.2d at 1027 n.12.

      In Tincher, the Court noted that strict liability jurisprudence in the

years following Azzarello applied the case “broadly, to the point of directing

that negligence concepts have no place in Pennsylvania strict liability

doctrine[.]” Id. The Court further acknowledged the confusion created by

those decisions and concluded that the Azzarello court’s concerns regarding

jury confusion were overstated.       Indeed, in a jurisdiction applying the

Second Restatement, “whether a product is defective depends upon whether

that product is ‘unreasonably dangerous’” and to entirely separate the

inquiry into the former from the inquiry into the latter “is incompatible with

basic principles of strict liability.” Id. at 380. Accordingly, in Tincher, the

Court returned to the finder of fact the question of whether a product is

“unreasonably dangerous,” as that determination is part and parcel of

whether the product is, in fact, defective.



                                     - 22 -
J-A15020-14
J-A15021-14


      In the instant matter, Crane’s claim is that it was entitled to a failure-

to-warn instruction incorporating considerations of reasonableness. Because

Tincher returned such considerations to the purview of the jury as a

question of fact in cases concerning strict liability, we hold that it is

applicable to the case sub judice. We now turn to a discussion of whether

Crane is entitled to relief in light of this conclusion.

      On appeal, this Court examines jury instructions to determine
      whether the trial court abused its discretion or offered an
      inaccurate statement of law controlling the outcome of the case.
      A jury charge is adequate unless the issues are not made clear,
      the jury was misled by the instructions, or there was an omission
      from the charge amounting to a fundamental error. This Court
      will afford a new trial if an erroneous jury instruction amounted
      to a fundamental error or the record is insufficient to determine
      whether the error affected the verdict.

Tincher, 104 A.3d at 351 (internal citations and quotation marks omitted).

      A jury charge will be deemed erroneous only if the charge as a
      whole is inadequate, not clear or has a tendency to mislead or
      confuse, rather than clarify, a material issue. A charge is
      considered adequate unless the jury was palpably misled by
      what the trial judge said or there is an omission which is
      tantamount to fundamental error. Consequently, the trial court
      has wide discretion in fashioning jury instructions. The trial court
      is not required to give every charge that is requested by the
      parties and its refusal to give a requested charge does not
      require reversal unless the Appellant was prejudiced by that
      refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)

(citation omitted).

      Crane takes issue with the trial court’s failure-to-warn jury instruction,

which provided as follows:



                                       - 23 -
J-A15020-14
J-A15021-14

      Even a perfectly made and designed product is defective if not
      accompanied by proper and necessary warnings and instructions
      concerning its use. A supplier must give the user warnings and
      instructions of the risks of using the product that are required or
      that are created and necessitated by the inherent limitations in
      the safety of the use of that product. If you find that necessary
      warnings or instructions were not given, then the defendant is
      responsible for all harm caused by the failure to warn. And in
      this case the claim is these suppliers failed to warn of the
      dangers of using asbestos.

                                       ...

      The claim is that they failed to warn. And the law presumes;
      that is, the law assumes and you have to presume or assume,
      that if there had been adequate warning or instruction the
      plaintiff would have followed those instructions.

N.T. Jury Charge, 2/19/13, at 72-73.

      Crane asserts that this instruction “permits no consideration of

whether the absence of a warning rendered a product ‘unreasonably

dangerous’” and, thus, is at odds with Tincher, which requires that a jury be

permitted   to   consider   that   issue.    Supplemental   Brief   of   Appellant

(Vinciguerra Case), at 10.     Crane claims that, based on Tincher, it is

entitled to a “state-of-the-art” jury instruction, which would permit the jury

to make a determination as to the reasonableness of Crane’s actions based

upon whether or not the risk inherent to asbestos was known or knowable in

light of the scientific knowledge available at the time the product was sold.

      Plaintiffs argue that the trial court’s instruction was appropriate based

on the evidence presented at trial. Specifically, Plaintiffs assert that Crane

defended these cases on two principle bases: (1) that the identification of

Cranite in the Plaintiffs’ workplaces was erroneous and (2) that the form of


                                     - 24 -
J-A15020-14
J-A15021-14


asbestos used in Cranite did not pose a risk of disease as compared to other

forms of the substance. Accordingly,

      Crane’s argument in favor of its proposed jury instruction suffers
      from a fatal flaw. The ‘state-of-the-art’ defense as advanced by
      Crane in its proffered jury instruction includes as an evidentiary
      predicate a recognition . . . that the product in question does, in
      fact, pose a risk of harm that could be reduced or avoided by the
      provision of reasonable warnings.

Supplemental Brief of Appellee Amato, at 11.        Because Crane contended

that, even if Cranite had been present, it posed no risk, Plaintiffs argue that

the trial court properly rejected the instruction. We agree.

      In charging the jury, the trial court’s objective is to explain to the

panel how it should approach its task and the factors it should consider in

reaching its verdict. Tincher, 104 A.3d at 408 (citation and quotation marks

omitted).   Where evidence supports a party-requested instruction on a

theory or defense, a charge on the theory or defense is warranted. Id.

      At trial, Crane proceeded under the two theories described above. In

support of its claim that Cranite was not present in the Plaintiffs’ workplaces,

Crane presented the testimony of Admiral David Sargent, an expert in

marine engineering, naval architecture, navy ship design, construction,

operation and repair, including the Navy’s contract and procurement

procedures. Admiral Sargent testified that the Navy had specific procedures

for acquiring consumable materials such as Cranite, including Navy-pre-

approved qualified products lists (“QPL”).    Admiral Sargent testified that a

naval shipyard, such as the Philadelphia location where Amato worked,

                                     - 25 -
J-A15020-14
J-A15021-14


      THE COURT: Okay. So you don’t have to argue that one. Argue
      that it’s the law of Pennsylvania, if it is, in a products liability
      case.

N.T. Trial, 2/14/13 (P.M. Session), at 85-87 (emphasis added).

      In Phillips v. A.P. Green Refractories Co., 630 A.2d 874 (Pa.

Super. 1993), this Court purported to adopt the sophisticated user doctrine

embodied in section 388 of the Second Restatement of Torts as a defense to

strict liability, as well as negligence, actions.   However, as Judge Hudock

correctly noted in his concurring and dissenting statement, “[s]ince the

majority found the strict liability issue should not have been submitted to

the jury, its ‘holding’ that the doctrine is an affirmative defense is dicta.”

Id. at 884 (Hudock, J., concurring and dissenting). On allowance of appeal,

the Supreme Court also concluded that no strict liability action would lie and,

thus, to address the sophisticated user defense “would be to engage in mere

obiter dicta.” Phillips Phillips v. A-Best Prods. Co., 665 A.2d 1167, 1172

(Pa. 1995).   Accordingly, the sophisticated user defense has never been

adopted in Pennsylvania and, thus, the trial court properly denied Crane’s

requested instruction.

      Even if the defense were available in Pennsylvania, Crane would not

have been entitled to a jury instruction on the doctrine, as it is undisputed

that it never provided any warnings to the U.S. Navy regarding the dangers

and risks associated with Cranite. Thus, although the Navy may well have

been a “sophisticated user” of the material, Crane did not discharge its duty

                                     - 30 -
J-A15020-14
J-A15021-14

under section 388 in that it failed to act “in a manner reasonably calculated

to assure either that the necessary information would be passed on to the

ultimate handlers of the product or that their safety would otherwise be

attended to.”     Id.    Accordingly, the trial court did not err in refusing the

proffered instruction.

        Crane next claims, with regard to the Amato matter, that the trial

court erred by permitting the Plaintiffs to introduce, on rebuttal, a stipulation

demonstrating that the U.S. Navy “had a practice of using gasket materials

at the Philadelphia Naval Shipyard that were not included on the Navy’s list

of qualified, approved gasket materials.” Brief of Appellant (Amato Case), at

33. The stipulation in question was signed by counsel for John Crane, Inc.,10

which was no longer a party to the instant action, in the context of another

lawsuit and read, in relevant part, as follows:

        Beginning in 1939, and continuing until 1983, John Crane sold
        asbestos-containing packing and asbestos-containing sheet
        gasket material (Style No. 2150) to the Philadelphia Naval
        Shipyard.

Plaintiffs’ Exhibit PA-25, Stipulation of Counsel in Tiberio v. John Crane,

Inc., C.C.P. March Term 2011, No. 01661 (Phila. 2011), dated 4/25/12, at ¶

1.     Crane argues that the stipulation is irrelevant and inadmissible as

hearsay.



____________________________________________


10
     John Crane, Inc. is an entity distinct from appellant Crane Co.



                                          - 31 -
J-A15020-14
J-A15021-14


      In order to preserve a claim on appeal, a party must lodge a timely

objection.   Commonwealth v. Murray, 83 A.3d 137 (Pa. 2013), quoting

Commonwealth v. Montalvo, 956 A.2d 926, 936 (Pa. 2009).              Failure to

raise such objection results in waiver of the underlying issue on appeal.

Commonwealth v. Charleston, 16 A.3d 505 (Pa. Super. 2011), appeal

denied, 30 A.3d 486 (Pa. 2011).         Here, counsel for co-defendant J.A.

Sexauer objected to the admission of the stipulation in question. However,

at no time did counsel for Crane lodge an objection. Accordingly, Crane has

waived this issue on appeal.

      Finally, as to the Vinciguerra matter, Crane claims that the trial court

erred in refusing to remit the verdict to account for the “duplicative” loss-of-

consortium and loss-of-society damages awarded to the plaintiff.         Crane

asserts that “when the jury awarded [Mrs. Vinciguerra] damages for her loss

of society under the wrongful death statute, by operation of law, it awarded

damages for all of [her] loss of society, whether arising before or after Mr.

Vinciguerra’s death.” Brief of Appellant (Vinciguerra Case), at 35. Because

Crane fails to understand the distinct natures of wrongful death, survival and

loss-of-consortium actions, this claim is meritless.

      In this case, Mrs. Vinciguerra asserted three separate causes of action.

First, on behalf of Mr. Vinciguerra’s estate, she made a claim under the

Pennsylvania Survival Act, 42 Pa.C.S.A. § 8302. Under the statute, survival

damages are essentially those for pain and suffering endured by the

decedent between the time of injury and death. Moyer v. Rubright, 651

                                     - 32 -
J-A15020-14
J-A15021-14


A.2d 1139, 1141 (Pa. Super. 1994). The survival action has its genesis in

the decedent’s injury, not his death and, as such, the recovery of damages

stems from the rights of action possessed by the decedent at the time of

death. Id.

     Second, on behalf of Mr. Vinciguerra’s statutory survivors, she made a

claim under the Pennsylvania Wrongful Death Act, 42 Pa.C.S.A. § 8301.

     The purpose of the Wrongful Death Statute . . . is to compensate
     the decedent’s survivors for the pecuniary losses they have
     sustained as a result of the decedent’s death. This includes the
     value of the services the victim would have rendered to his
     family if he had lived.     A wrongful death action does not
     compensate the decedent; it compensates the survivors for
     damages which they have sustained as a result of the decedent’s
     death.

     Under the wrongful death act the widow or family is entitled, in
     addition to costs, to compensation for the loss of the
     contributions decedent would have made for such items as
     shelter, food, clothing, medical care, education, entertainment,
     gifts and recreation.

Hatwood v. Hosp. of the Univ. of Pa., 55 A.3d 1229, 1235 (Pa. Super.

2012), quoting Machado v. Kunkel, 804 A.2d 1238, 1245-46 (Pa. Super.

2002) (internal citation and punctuation omitted). Enumerated members of

the decedent’s family may recover not only for medical, funeral, and estate

administration expenses they incur, but also for the value of the decedent’s

services, including society and comfort, lost as a result of his death.   Id.

The sole focus of a wrongful death claim is on post-death damages.

     Finally, Mrs. Vinciguerra asserted a claim for loss of consortium on her

own behalf.   Such a claim is intended to compensate one for the loss of


                                   - 33 -
J-A15020-14
J-A15021-14


      THE COURT: Okay. So you don’t have to argue that one. Argue
      that it’s the law of Pennsylvania, if it is, in a products liability
      case.

N.T. Trial, 2/14/13 (P.M. Session), at 85-87 (emphasis added).

      In Phillips v. A.P. Green Refractories Co., 630 A.2d 874 (Pa.

Super. 1993), this Court purported to adopt the sophisticated user doctrine

embodied in section 388 of the Second Restatement of Torts as a defense to

strict liability, as well as negligence, actions.   However, as Judge Hudock

correctly noted in his concurring and dissenting statement, “[s]ince the

majority found the strict liability issue should not have been submitted to

the jury, its ‘holding’ that the doctrine is an affirmative defense is dicta.”

Id. at 884 (Hudock, J., concurring and dissenting). On allowance of appeal,

the Supreme Court also concluded that no strict liability action would lie and,

thus, to address the sophisticated user defense “would be to engage in mere

obiter dicta.” Phillips Phillips v. A-Best Prods. Co., 665 A.2d 1167, 1172

(Pa. 1995).   Accordingly, the sophisticated user defense has never been

adopted in Pennsylvania and, thus, the trial court properly denied Crane’s

requested instruction.

      Even if the defense were available in Pennsylvania, Crane would not

have been entitled to a jury instruction on the doctrine, as it is undisputed

that it never provided any warnings to the U.S. Navy regarding the dangers

and risks associated with Cranite. Thus, although the Navy may well have

been a “sophisticated user” of the material, Crane did not discharge its duty

                                     - 30 -
J-A15020-14
J-A15021-14

under section 388 in that it failed to act “in a manner reasonably calculated

to assure either that the necessary information would be passed on to the

ultimate handlers of the product or that their safety would otherwise be

attended to.”     Id.    Accordingly, the trial court did not err in refusing the

proffered instruction.

        Crane next claims, with regard to the Amato matter, that the trial

court erred by permitting the Plaintiffs to introduce, on rebuttal, a stipulation

demonstrating that the U.S. Navy “had a practice of using gasket materials

at the Philadelphia Naval Shipyard that were not included on the Navy’s list

of qualified, approved gasket materials.” Brief of Appellant (Amato Case), at

33. The stipulation in question was signed by counsel for John Crane, Inc.,10

which was no longer a party to the instant action, in the context of another

lawsuit and read, in relevant part, as follows:

        Beginning in 1939, and continuing until 1983, John Crane sold
        asbestos-containing packing and asbestos-containing sheet
        gasket material (Style No. 2150) to the Philadelphia Naval
        Shipyard.

Plaintiffs’ Exhibit PA-25, Stipulation of Counsel in Tiberio v. John Crane,

Inc., C.C.P. March Term 2011, No. 01661 (Phila. 2011), dated 4/25/12, at ¶

1.     Crane argues that the stipulation is irrelevant and inadmissible as

hearsay.



____________________________________________


10
     John Crane, Inc. is an entity distinct from appellant Crane Co.



                                          - 31 -
J-A15020-14
J-A15021-14

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2015




                          - 36 -
