dissenting and concurring:
I join in the opinion of the majority insofar as it concludes that the trial court erred in submitting the negligence theory to the jury. I dissent, however, from the majority’s decision to enter judgment in favor of the appellant Amsco on the strict liability claim.
At the conclusion of the trial, the jury was instructed on two possible theories of liability: (1) negligence under § 388 of the Restatement (Second) of Torts and (2) strict liability under § 402A of the Restatement. In order to obtain a precise jury finding on the issue of strict liability, the trial court presented to the jury the following special interrogatory;
Was the product (mineral spirits) in a defective and unreasonably dangerous condition at the time of delivery by the defendants by reason of inadequate warnings concerning flammability?
As the majority recognizes, “on its face this interrogatory presents only a narrow view of liability under section 402A; it focuses on a supplier’s responsibility for the condition of its product at the time of delivery.” Maj. op. at 98. Therefore, the negative response given by the jury to the question posed relates only to the adequacy of the warnings given by the appellant Amsco to the purchaser at the time of sale. It is not a finding that Amsco fulfilled its duty to ensure that adequate warnings were given to the ultimate users of the product. The jury was not asked, and therefore did not decide, whether the warnings were adequate as to the purchaser’s employees. If the law of Pennsylvania requires that the adequacy of warnings pertaining to dangerous products be evaluated in terms of the ultimate user,1 then the jury was not asked to make a finding on one of the ultimate and critical issues in the case. For this reason, I would remand for a new trial on the issue of strict liability.
The interrogatory was framed in narrow terms consistent with the trial court’s belief that under § 402A, a supplier could not be strictly liable if the warnings given to the purchaser at the time of delivery were sufficient to alert the purchaser of any dangers involved in using the product. That the trial court viewed § 402A in this manner is evidenced by the court’s statement in molding the verdict:
“It was and is my view that § 402A was not really implicated in this case, since adequate warnings were given to the purchaser at or before the time of delivery, and therefore the product was not ‘defective.’ ”
App. at 306a. Further, this same limited view of strict liability is reflected throughout the instructions to the jury. For example, the court charged the jury that:
“on this phase of the case you would analyze the situation as it existed when the mineral spirits were delivered by the defendants to the plaintiff’s employer.... You would ask yourselves: do you conclude from those circumstances and from the other evidence in the case that Hanover Wire Works — whatever the name of the employer is — knew full well the dangerous characteristics of the mineral spirits?
* * * * * *
If you conclude that at the time the product was delivered to the plaintiff’s employer no warnings had been given that were adequate concerning the dangerous propensities of this product, in short, while there may have been some general awareness on the part of the *100employer as to the characteristics of this material, they did not realize that it was dangerous to smoke near it or when you had it splashed on your clothes, then you would have the right to conclude that there would be liability for a defective product.”
App. at 248a-249a (emphasis added). Later in the charge, the trial court stated that:
“When we talk about inadequate warnings, we are talking about the sum total of information known by the employer, Hanover Wire Cloth, at the time of delivery.”
Id. at 255a (emphasis added).
When the jury reported its response to the aforesaid interrogatory, the trial judge interpreted the response in accordance with his charge and his view of § 402A:
“I think that the answer to interrogatory No. 1 on the 402A theory relates to the adequacy of warnings given by the seller to the purchaser at the time of sale. It would not necessarily relate to periods subsequent to the delivery and also it would not necessarily encompass the adequacy of warnings as extended to the employees of the purchaser.”
App. at 274a (emphasis added). In the trial judge’s opinion, the jury was not asked to consider, and therefore did not determine, the adequacy of Amsco’s warnings vis-a-vis the employees.
The mere absence of a question on an ultimate issue from a set of special interrogatories does not without more require a new trial. A finding not made by the jury on an ultimate issue can be made by the trial court. Fed.R.Civ.P. 49(a). If the trial court does not make such a finding, the judgment entered by the trial court may be deemed to encompass all the necessary ingredients to support the judgment. John R. Lewis Inc. v. Newman, 446 F.2d 800, 806 (5th Cir. 1971); C. Albert Sauter Co., Inc. v. Richard S. Sauter Co., Inc., 368 F.Supp. 501, 510 (E.D.Pa.1973). In this case, however, the trial judge did not answer the question that was left unanswered by the jury, viz. whether or not Amsco fulfilled its duty to warn of the dangers inhering in its product with respect to the ultimate users. In fact, the trial judge indicated that the jury, if asked, could have found for the plaintiff on this issue:
“From the evidence as a whole, the jury could conceivably have reached a rational determination that the defendant should have been aware that the employer’s warnings to its employees were inadequate.”
App. at 305a. Therefore, it cannot be said that the omission of an ultimate question from the special interrogatories was cured, expressly or impliedly, by the findings of the trial court. To the contrary, the statements of the trial court indicate that if § 402A required the warnings to be adequate as to the ultimate users, then the plaintiff could have prevailed. In light of the trial court’s evaluation of the evidence, it would be improper to conclude that either the jury or the court made the necessary finding to support a judgment in favor of the defendant.
Nor is the omission cured by the court’s charge, as the majority suggests. Despite the trial court’s conclusion that the jury could have found for the plaintiff on this issue if it had been asked, the majority has decided that judgment for the appellant Amsco is proper on the § 402A claim. This decision rests upon a portion of the charge given to the jury, which is said to cure any defect in or omission from the interrogatories. That portion of the charge reads as follows:
“The plaintiff’s theory of the case or one of the plaintiff’s theories of the case is that in order to avoid this product being in a defective condition unreasonably dangerous to the user or consumer, the notice of its dangerous proclivities, the notice of its flammability and so forth should have been in such form that it would be appreciated by the ultimate consúmer. And the question for you to resolve is: under the circumstances under which these deliveries were made who was the ultimate consumer? Were the defendants aware and should they have been aware that the product was being *101used by persons in the plant would not be aware of its dangerous proclivities?
As I pointed out, this aspect of the case does overlap to a large extent the negligence aspect of the case and you could find the product unreasonably dangerous if you conclude that under all of the circumstances the form of the warning was inadequate to bring the relevant information to the attention of the ultimate user or consumer; and I leave all of those factual nuances and inferences for you to sort out and resolve on the basis of the evidence in case.”
App. at 263a. (emphasis added). Although this portion of the charge does give to the jury a broader theory of liability under § 402A, at no time was the jury informed that this charge was to be considered in reaching a decision on Interrogatory # 1. In fact, the language of this portion of the charge more closely tracks the language and the approach in Interrogatory # 3:
“Did the defendants know or should they have reasonably foreseen, that the product would be used by persons, that is, such as plaintiff, unaware of its flammability and of the hazards of smoking while using the product?”
Therefore, it is more probable that the jury considered this supplemental charge in answering Interrogatory # 3, rather than Interrogatory # 1.2
Even if there were no confusion as to the scope of the § 402A charge, (which there is) the direction does not furnish the answer. If the jury received the proper instruction, it is pure speculation as to how they resolved it. Neither this court nor the trial court can conclude that the warnings to the employees were adequate, because the jury has never spoken on that issue. In the absence of such a finding, no judgment should be entered.
Therefore, if Pennsylvania law requires that the adequacy of warnings under § 402A be evaluated in terms of the ultimate user, then a jury should be afforded the opportunity to decide that question, and accordingly a remand for a new trial on the issue of strict liability is required.
. Support for the view that Pennsylvania law requires that warnings must be considered with regard to the ultimate user is found in Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (Pa.1978), Pegg v. General Motors Corp., 391 A.2d 1074 (Sup.Ct.Pa.1978), and the Comments to § 402A of the Restatement (Second) of Torts.
. The trial judge stated that in his view, the question omitted from Interrogatory # 1 was in fact answered in Interrogatory # 3:
“It may be that ... there can be liability under § 402A itself, notwithstanding the adequacy of warnings to the purchaser, if the warnings to the purchaser’s employees are likely to be inadequate.... This latter set of issues was presented to the jury as of § 388 question ...”
The reference to “a § 388 question” refers to Interrogatory # 3.