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2015 PA Super 83

THOMAS AMATO AND JEAN AMATO, HIS 

WIFE

IN THE SUPERIOR COURT OF

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 

OF THE ESTATE OF FRANK 

VINCIGUERRA, DECEASED, AND 

CHARLOTTE VINCINGUERRA, WIDOW IN 

HER OWN RIGHT

IN THE SUPERIOR COURT OF

PENNSYLVANIA

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, GEORGIAPACIFIC 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 asbestoscontaining 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 lossof-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. 
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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 tortfeasors 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 
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Charles v. Giant Eagle Markets, 522 A.2d 1 (Pa. 1987), our Supreme 

Court noted that it creates a fundamentally flawed premise to 

assume[] that the jury verdict more accurately measures the 

tortfeasor’s obligation than that which is agreed upon between 

the parties by way of settlement. Such an assumption is without 

foundation either in reason or experience. There is no basis for 

concluding the jury verdict must serve as a cap on the total 

recovery that a plaintiff may receive. 

Id. at 3 (emphasis added). 

For the foregoing reasons, the trial court did not err in declining to 

offset the jury’s verdict based on the recoveries obtained from non-party 

tortfeasors.

Next, Crane asserts that the trial court’s failure-to-warn jury 

instruction was inappropriate6in light of the Supreme Court’s recent decision 

in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014). Prior to 

addressing the merits of this claim, however, we must determine whether it 

is waived. In their supplemental briefs, Plaintiffs argue that Crane waived its 

current claim – that the Court’s ruling in Tincher entitles it to a new trial on 

liability, even though the Court declined to adopt the Third Restatement –

because Crane “neither preserved nor presented a claim that Azzarello [v. 

Black Brothers Company, 391 A.2d 1020 (Pa. 1978),] should be overruled 

____________________________________________

6 We note that Crane does not claim that it was precluded from introducing 

any evidence that would now be admissible under Tincher or that any 

evidence was improperly admitted at trial that would now be precluded 

under Tincher. Rather, Crane challenges only the jury instruction issued by 

the court. 
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either to the [t]rial [c]ourt or to this Court on appeal.” Supplemental Brief 

of Appellee Amato, at 7. For the following reasons, we disagree. 

The general rule followed in Pennsylvania is that we apply the law in 

effect at the time of an appellate decision. Blackwell v. State Ethics 

Comm'n, 589 A.2d 1094 (Pa. 1991), citing Commonwealth v. Cabeza, 

469 A.2d 146 (Pa. 1983). Thus, “a party whose case is pending on direct 

appeal is entitled to the benefit of changes in law which occur before the 

judgment becomes final.” Commonwealth v. Brown, 431 A.2d 905, 906-

07 (Pa. 1981). This general rule assumes, of course, that the issue in 

question is properly preserved at all stages of adjudication up to and 

including direct appeal. Commonwealth v. Parker, 644 A.2d 1245, 1250 

n.2 (Pa. Super. 1994).

Here, in its original brief, Crane’s jury instruction issue was framed in 

terms of trial court error for failure to apply section 2 of the Restatement 

(Third) of Torts: Products Liability, as opposed to the current Pennsylvania 

version of strict liability based on section 402A of the Restatement (Second) 

of Torts. Crane’s claim was premised on its assumption that the 

Pennsylvania Supreme Court would, in Tincher, adopt section 2 of the Third 

Restatement, which would alter Pennsylvania’s approach to strict liability 

inquiries by, inter alia, reintroducing fact-finder inquiry into the 

reasonableness of the defendant’s conduct. Pennsylvania’s then-current 

strict liability jurisprudence, based on section 402A of the Second 
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Restatement of Torts as applied by the Supreme Court in Azzarello,

essentially excised section 402A’s “unreasonably dangerous” language7 and 

required that any questions related to the risks and utility of a product were 

to be decided by the trial court and not the jury. 

The Supreme Court granted allowance of appeal on the Tincher case 

shortly after the verdict was issued in the instant matter. In doing so, the 

Court limited its review to the following issue:

Whether [the Supreme] Court should replace the strict liability 

analysis of Section 402A of the Second Restatement with the 

analysis of the Third Restatement.

Tincher, 104 A.3d at 343. 

At trial, Crane submitted a proposed failure-to-warn jury instruction 

that incorporated a reasonableness test:

A product is defective because of inadequate instructions or 

warnings when, at the time of sale or distribution, the 

foreseeable risks of the harm posed by the product could have 

been reduced or avoided by the provision of reasonable 

instructions or warnings by the seller and the omission of the 

instructions or warnings renders the product not reasonably 

safe.

Defendant Crane Co.’s Proposed Instruction No. 3. The trial court declined 

to issue Crane’s instruction. 

____________________________________________

7 The Azzarello court “premised its broad holding on the assumption that 

the term ‘unreasonably dangerous’ is misleading to jurors because it ‘tends 

to suggest considerations which are usually identified with the law of 

negligence.’” Tincher, 104 A.3d at 376, quoting Azzarello, 391 A.2d at 

1025. 
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Subsequently, in its post-trial motion as well as its original appellate 

brief,8 Crane again framed its argument in terms of whether the trial court 

should have issued its jury charge based on the Third Restatement and 

directed the jury to consider the reasonableness of Crane’s conduct. 

While this appeal was pending, the Supreme Court decided Tincher on 

November 19, 2014. In doing so, the Court explicitly declined to adopt the 

Restatement (Third) of Torts in Pennsylvania. See id. at 335 n.4 (“To the 

extent relevant here, we decline to adopt the Restatement (Third) of Torts: 

Product Liability §§ 1 et seq.”). However, the Court overruled its previous 

decision in Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 

1978), in which it had held that, in applying section 402A of the Second 

Restatement, the determination of whether a product was “unreasonably

dangerous”9 was a question of law for the trial court. The Tincher court 

____________________________________________

8 The trial court did not order Crane to file a statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b).

9 Section 402A provides as follows:

§ 402A Special Liability of Seller of Product for Physical Harm to 

User or Consumer

(1) One who sells any product in a defective condition 

unreasonably dangerous to the user or consumer or to his 

property is subject to liability for physical harm thereby 

caused to the ultimate user or consumer, or to his 

property, if

(Footnote Continued Next Page)
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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.
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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 
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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 
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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. 
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In the instant matter, Crane’s claim is that it was entitled to a failureto-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:
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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 
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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-preapproved qualified products lists (“QPL”). Admiral Sargent testified that a 

naval shipyard, such as the Philadelphia location where Amato worked, 
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would not have utilized gaskets that were not on the QPL. Crane argues 

that “it is undisputed that neither Crane Co. nor Cranite was ever identified 

as a qualified supplier or product for use on Navy ships.” Brief of Appellant 

(Amato Case), at 14. Accordingly, Crane asserts, Cranite could not have 

been present at the PNSY during Amato’s tenure there. 

In support of its claim that Cranite was not dangerous and, therefore, 

not defective, Crane presented the testimony of Donna Ringo, an expert in 

the field of industrial hygiene. Ringo testified that work with gasket 

materials would not have exposed plaintiff Amato to “any significant levels of 

asbestos.” N.T. Trial, 2/15/13 (A.M. Session), at 62. Crane also presented 

the testimony of Charles Blake, another industrial hygienist. Blake testified 

that Vinciguerra would have been exposed to significant levels of asbestos 

working with asbestos insulation, but not while working with Cranite 

gaskets. Doctor Charles Sawyer, an expert in the fields of occupational and 

preventive medicine, also testified on Crane’s behalf. He testified that he did 

not believe that working with gaskets made of Cranite could give rise to 

mesothelioma and that the risk was “unmeasurable.” N.T. Trial, 2/14/13 

(A.M. Session), at 95. He testified that he did not believe that the 

mesothelioma suffered by Amato and Vinciguerra was caused by Cranite 

gaskets but, rather, by asbestos contained in insulation that they also 

worked with. 

Based on the testimony adduced at trial, Crane asserts that “[t]he jury 

should have been permitted to decide . . . whether the absence of a warning 
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rendered Cranite ‘unreasonably dangerous.’” Supplemental Brief of 

Appellant, at 10. Specifically, Crane requested, but was denied, the 

following instruction:

A product is defective because of inadequate instructions or 

warnings when, at the time of sale or distribution, the 

foreseeable risks of the harm posed by the product could have 

been reduced or avoided by the provision of reasonable 

instructions or warnings by the seller and the omission of the 

instructions or warnings renders the product not reasonably 

safe.

Defendant Crane Co.’s Proposed Instruction No. 3.

Upon review of the record, we conclude that the requested instruction 

was not justified by Crane’s theory of the case and the evidence it presented 

at trial. Crane’s defense was not that Cranite was not “unreasonably 

dangerous.” Rather, Crane asserted that Cranite was not dangerous at all. 

Supplemental Brief of Appellant (Amato Case), at 10 (“Cranite would not 

have presented a risk of asbestos-related disease to users or bystanders.”). 

Based on this argument, Crane would have no need for a “state-of-the-art” 

instruction as to the foreseeability of the risks or the reasonableness of its 

conduct; under Crane’s theory of the case, there was no risk, and warnings 

were not required, because Cranite presented no danger to users or 

bystanders. Accordingly, Crane was not prejudiced by the failure-to-warn 

instruction issued by the trial court. 

Next, Crane claims that the trial court erred by not charging the jury 

on its “sophisticated user” defense in the Amato case. Crane asserts that 

the trial court made a finding that the Navy was a sophisticated user of 
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asbestos-containing products, yet refused to grant a nonsuit or, failing that, 

to charge the jury accordingly. 

Section 388 of the Restatement (Second) of Torts, otherwise known as 

the sophisticated user doctrine, provides as follows:

§ 388. Chattel known to be Dangerous for Intended Use

One who supplies directly or through a third person a chattel for 

another to use is subject to liability to those whom the supplier 

should expect to use the chattel with the consent of the other or 

to be endangered by its probable use, for physical harm caused 

by the use of the chattel in the manner for which it is supplied, if 

the supplier

(a) knows or has reason to know that the chattel is or is likely to 

be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel 

is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its 

dangerous condition or of the facts which make it likely to be 

dangerous.

Restatement (Second) of Torts § 388. Comment n to section 388, 

“Warnings given to third person,” states that a supplier’s duty to warn is 

discharged by providing information about the product’s dangerous 

propensities to a third person upon whom it can reasonably rely to 

communicate the information to the ultimate users of the product or those 

who may be exposed to its hazardous effects. 

Crane requested the following jury instruction, which the trial court 

declined to give:

The supplier of a product can reasonably rely on a 

knowledgeable employer to convey warnings. The supplier is 
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liable for the user’s injuries if its reliance upon the employer was 

unreasonable under the circumstances.

Defendant Crane’s Proposed Instruction No. 6.

The following exchange occurred out of the hearing of the jury 

between counsel and the trial court:

THE COURT: Are there any other points for charge hanging out? 

. . . What’s hanging from your perspective?

MR. ROSS [Counsel for Crane]: Crane Co. had asked –

requested instructions on the sophisticated user doctrine in the 

Amato/Vinciguerra cases. It is Crane Co.’s position that both 

DuPont and the United States Navy, the jury could find they 

were sophisticated users of asbestos-containing materials. 

DuPont is an extremely large sophisticated company.

THE COURT: Is that going to be testified to tomorrow?

MR. ROSS: No, no.

THE COURT: Has it been testified to yet?

MR. ROSS: No.

THE COURT: . . . So let’s talk about it with respect to the Navy 

because there certainly has been more than enough testimony 

that the Navy is a sophisticated user. 

MR. ROSS: Dr. Richard Lemen, plaintiff’s expert in occupational 

medicine, Your Honor, testified that he began working at OSHA –

with OSHA in 1970, or perhaps with NIOSH, and that the very 

first issue that NIOSH and OSHA had to tackle in 1970 was 

asbestos. OSHA is part of the same government that the U.S. 

Navy is part of, and this predates Mr. Amato’s period of work at 

the shipyard.

THE COURT: Well, there’s no question the Navy is a 

sophisticated user. There was all kinds of testimony about that 

from everybody. 

MR. ROSS: That’s true, yes.
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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 
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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. 
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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-ofconsortium 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 
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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 
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services, society, and conjugal affection of one’s spouse occasioned by an 

injury to that spouse. Smalls v. Pittsburgh-Corning Corp., 843 A.2d 410, 

417 (Pa. Super. 2004). Loss-of-consortium damages are limited to the time 

between the spouse’s injury and his death. Novelli v. Johns-Manville 

Corp., 576 A.2d 1085, 1087 (Pa. Super. 1990). 

In support of its claim, Crane relies on Linebaugh v. Lehr, 505 A.2d 

303 (Pa. Super. 1986), for the proposition that a spouse cannot maintain a 

separate action for loss of consortium alongside claims for wrongful death 

and survival. There, the plaintiff’s husband was killed when the bicycle on 

which he was riding was struck by an automobile. Plaintiff filed suit, 

asserting wrongful death and survival actions. She subsequently settled 

those claims with the tortfeasor’s insurance company. However, she also 

sought to pursue an independent loss of consortium claim, which the trial 

court dismissed. 

In upholding the trial court’s decision, this Court focused its entire 

analysis on the plaintiff’s claim under the wrongful death act and concluded:

It is clear, therefore, that recovery in a wrongful death action 

includes damages for the loss of the decedent’s society, which is 

also the essential nature of a claim for loss of consortium. To 

allow a surviving spouse to maintain a separate cause of action 

for loss of consortium in addition to the action brought on behalf 

of the deceased spouse under the wrongful death statute would 

permit a double recovery for the same death.

Id. at 305. This conclusion is correct, as far as the wrongful death act is 

concerned. However, for whatever reason, the Court did not acknowledge 

the distinction between a stand-alone pre-death loss of consortium claim and 
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post-death loss of society recoverable under the wrongful death act. We 

speculate this may be because the decedent in Linebaugh died a sudden 

death and, thus, no pre-death loss of consortium would have occurred. 

However, we are not presented with sufficient facts to arrive at a firm 

conclusion as to the Court’s seeming omission. In any event, we find the 

facts of Linebaugh distinguishable and, thus, inapt. 

As the foregoing makes clear, damages awarded under the wrongful 

death act are intended to compensate the decedent’s enumerated family 

members for damages arising as a result of the death. Included in a 

wrongful death award may be a recovery for loss of post-death services, 

including society and comfort. Hatwood, supra. A loss of consortium 

claim, on the other hand, is intended to compensate a surviving spouse for 

her loss of services, society, and conjugal affection while her spouse was still 

living, yet suffering from the injury in question. Smalls, supra. 

Accordingly, contrary to Crane’s argument, there is no duplication of 

damages, as one award is for pre-death loss and the other for that sustained 

post-death. Thus, the trial court did not err in denying post-trial relief on 

this claim.

Judgments affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/2015