concurring and dissenting.
I concur with the majority’s conclusion that the trial court properly charged the jury as to the Seminary’s duty to provide a lifeguard. I also concur in the majority’s discussion of the issues pertaining to the trial court’s assessment and calculation of delay damages. However, I disagree with the majority’s finding that the participation by the plaintiff-administratrix (hereinafter referred to as Rivera) did not exceed the scope of the remand instructions of the Supreme Court. Further, I disagree with the majority’s conclusion that the cautionary instruction given by the trial court was sufficient to cure counsel’s prejudicial remarks pertaining to the jury verdict in Rivera I. Hence, I must respectfully dissent.
Although the majority has correctly recognized that the Supreme Court placed the burden of proving the Seminary’s liability upon the Church, see ante at p. 1345, it nevertheless proceeds to affirm the trial court’s decision to permit Rivera to re-litigate her case. Because I would interpret the remand instructions of the Supreme Court in a different *280manner, I find that appellee’s participation in this case exceeded the scope of participation permitted by the Supreme Court.
Prior to the beginning of the second trial, both counsel for the Seminary and Rivera’s counsel had a lengthy discussion with the trial court regarding the proper interpretation to be accorded the Supreme Court’s opinion in Rivera I. See N.T., 4/11/88, Volume I. Rivera’s counsel and the trial court appeared to operate under the assumption that if Rivera was not permitted to relitigate her case as to the issue of liability, then Rivera’s cause of action against the Seminary would be eliminated. See N.T., 4/11/88, Volume I at p. 51. Based on this conclusion, the trial court permitted Rivera to relitigate the liability portion of her case against the Seminary and the Church. However, this reasoning was erroneous.
This is a case involving joint tortfeasors. In cases of this type, the plaintiff may collect the judgment against any one of the tortfeasors found to be liable. See 42 Pa.C.S.A. § 7102(b) and Rivera I, 510 Pa. at 23-25, 507 A.2d at 12-13. After the first trial in this case, the Church failed to raise the finding of liability either in its post-trial motions, or in its direct appeal to the appellate courts. As a result, all issues pertaining to the liability of the Church were deemed waived, and the judgment against the Church became binding and enforceable. Consequently, the Church became liable for the entire amount of the judgment. Because the judgment for the full amount of the damages remained intact, there was no need for Rivera to fully participate in the second trial as if the judgment had been eradicated. See Rivera, id. Therefore, the idea that Rivera’s cause of action would be eliminated if she were not allowed to relitigate her case is unfounded.1
*281In Rivera I, the Supreme Court awarded a new trial to the Seminary “solely for the purpose of determining the Seminary’s proportionate responsibility to the Church, if any.” Id., 510 Pa. at 25, 507 A.2d at 13 (emphasis added). In addition, the Supreme Court directed that Rivera should be permitted to participate in the new trial, if she so desired. The permission to participate, however, was not for the purpose of allowing Rivera to relitigate her entire case against the Seminary; rather, the only purpose of the new trial was to determine whether the Seminary’s negligence, if any, caused the death of Rivera’s son, and the burden of proof on this issue was to be allocated to the Church, not Rivera. Id., 510 Pa. at 26, 507 A.2d at 14.
Although the Supreme Court expressly stated that Rivera was permitted to “participate” in the new trial, the extent of Rivera’s participation was not further defined, limited or explained by the Supreme Court. The majority concludes that Rivera’s excessive participation was immaterial and of no consequence, since the same evidence would undoubtedly have been presented by the Church. I disagree with this statement. This case involved the drowning of a teenage boy. Certainly, in comparing his mother to the Church, she appears as a plaintiff with whom the jury is likely to *282sympathize. Thus, by having Rivera litigate the case instead of the Church, the jury might have been more inclined to find against the Seminary. For this reason, I am unable to conclude that Rivera’s participation was immaterial and of no consequence.
In addition, I believe that if the Supreme Court had intended that Rivera should re-try her case in its entirety against the Seminary, then it could easily have directed that the second trial would be held between Rivera and the Seminary. In the alternative, the Supreme Court could have remanded for a new trial as to all parties. Because it chose neither of these options, I would infer that the Supreme Court envisioned a more limited scope of participation for Rivera.2 Because the new trial was to be specifically between the Church and the Seminary instead of Rivera and the Seminary, I would find that the trial court erred in failing to comply with the remand instructions of the Supreme Court. Accordingly, I would reverse and remand for a new trial to be held in accordance with those instructions.
The next point on which I disagree with the majority concerns the highly prejudicial remarks made by Rivera’s counsel. Prior to trial, counsel for all the parties agreed upon what information should be provided to or withheld *283from the jury. See N.T., 4/11/88, Volume I at p. 11-13 and 56-62. Specifically, it was determined that the jury would not be instructed of the result of the first trial. However, in the rebuttal portion of his closing, Rivera’s counsel, Mr. Stopford, discussed the results of the first trial and the fact that the jury found the Seminary to be liable. He stated:
Mr. Penders [counsel for the Seminary] also says that his expert agrees with what the first jury found, that Father Flynn was solely responsible. That’s not what the first jury found. The first jury found they were both responsible. [Emphasis added.]
N.T., 4/18/88, Volume VI at p. 88. These comments, however, were made in response to the closing remarks of Mr. Penders, who stated:
He [Mr. Harris, the expert witness for the Seminary] ... would have been the perfect expert for Mr. Stopford to use ... because he believes what the first jury in this case concluded, that Fred Rivera drowned because Father Flynn did not perform his job as the lifeguard in a safe and competent manner.
N.T., 4/18/88, Volume VI at p. 85.
In his opening charge to the jury, the trial court informed the jury that the Church had been found liable. See N.T., 4/12/88, Volume II at p. 16. Mr. Penders’ closing remarks did nothing more than reiterate this fact; they did not imply that the jury did not find the Seminary to be free from liability. Mr. Stopford violated the parties’ agreement, however, by specifically informing the jury that the jury in the first trial had found the Seminary liable. This statement, although made in response to Mr. Penders’ comments, clearly exceeded the scope of fair argument, and as recognized by the majority, was prejudicial and indefensible. See majority opinion ante at p. 1345. Despite this conclusion, the majority believes that the trial court’s instruction was sufficient to cure any prejudice to the Seminary.
In the charge to the jury, the trial judge admonished the jury that these comments should be ignored. See N.T., *2844/18/88, Volume VI at pp. 99-101. Due to the highly prejudicial nature of these remarks, I believe that they exerted some influence upon the jury, even though the trial court admonished the jury to ignore this comment. The jury in this case found the Seminary to be 70% negligent, which is almost twice the amount of liability which the first jury imposed. Thus, it is certainly possible that these remarks, despite the trial court’s charge, influenced the jury’s verdict to some degree. Therefore, I would find that a new trial should be awarded on this basis as well.
. The real problem in this case is not that the cause of action would be eliminated; rather, the difficulty lies in collecting the judgment from the Church. It appears from the record that the limits of the Church’s liability policy were substantially less than the amount of the judgment. Thus, if it had been determined in the second trial that the Seminary had not been negligent, the Church would have been liable *281for the entire amount of the judgment. Under this scenario, it is probable that Rivera would have been unable to collect the remainder of the judgment once the policy limits had been exhausted. On the other hand, if the Seminary is found to be liable, then it is evident that Rivera’s chances of collecting a greater portion of the judgment are substantially increased.
Problems of collecting a judgment from a tortfeasor, however, are irrelevant to the question of whether a valid, enforceable judgment is in existence. Rivera successfully obtained a judgment against one of the tortfeasors who was found to have caused the death of her son. Once this event occurred, she was precluded from obtaining a judgment against any of the other tortfeasors for the same cause of action. Consequently, the only question to be resolved in the new trial was whether the Seminary was negligent in causing the death of Rivera’s son, and if so, then in what proportion. Although Rivera’s participation in the Church’s action against the Seminary would certainly be prudent and might enable her to protect and possibly increase her chance of ultimately recovering a larger portion of the judgment, her presence at the second trial was completely unnecessary, since her right to collect the judgment had been previously established.
. The reason for Rivera's limited role arises out of the fact that Rivera and the Church would stand in a similar position in the second trial, as both parties have an interest in having the Seminary found liable. Due to the identity of interests between Rivera and the Church, there would be no need for each party to present its case since any evidence presented by Rivera would in all likelihood be cumulative to that presented by the Church. Further, the presence and limited participation by Rivera’s counsel would protect Rivera’s interest by decreasing the chance that the Church would not vigorously litigate its case or otherwise appear to be acting in collusion with the Seminary. Therefore, I would interpret the Supreme Court's instructions as limiting Rivera's participation to the cross-examination of witnesses, if necessary, and the presentation of evidence in the Church’s case, if it is not merely cumulative to the evidence presented by the Church. Finally, I would not permit opening or closing statements to be made to the jury, since Rivera’s case was not subject to relitigation. A procedure of this type would enable Rivera to protect her interest, and would be in compliance with the remand instructions of the Supreme Court.