The opinion
*137 JOHNSON, Judge,
dissenting.
The above-captioned case is another case in which an asbestos plaintiff “with asymptomatic pleural thickening” has received a jury award. In each of these cases, Murray v. Philadelphia Asbestos Corporation et al., 433 Pa.Super. 206 , 640 A.2d 446 (1993); Didio v. Philadelphia Asbestos Corporation et al., (Nos. 2867-2869 Philadelphia 1992) 1994 WL 119817 (1993); a proposed Opinion has been circulated which would apply retroactively this Court’s decision in Giffear v. Johns-Manville Corp., 429 Pa.Super. 327 , 632 A.2d 880 (1993), to these cases. Giffear has been applied retroactively on the basis that:
Where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.
Blackwell v. Commonwealth, State Ethics Comm’n, 527 Pa. 172, 188 , 589 A.2d 1094, 1102 (1991), quoting Commonwealth v. Cabeza, 503 Pa. 228, 233 , 469 A.2d 146, 148 (1983).
However, Blackwell , states that “although retroactivity is the general rule, a sweeping rule of retroactive application is not justified. Retrospective application is a matter of judicial discretion which must be exercised on a case by case basis.” 527 Pa. at 182 , 589 A.2d at 1099 . As Blackwell states:
The U.S. Supreme Court has viewed the decision of whether to apply a new rule retroactively or prospectively as a function of three considerations: (1) the purpose to be served by the new rule, (2) the extent of the reliance on the old rule, and (3) the effect on the administration of justice by the retroactive application of the new rule. We have adopted this three-factor standard and apply it when a question of the retroactivity or nonretroactivity of a new decision is before us.
Id. at 183 , 589 A.2d at 1099 (citation omitted).
Blackwell recounts three separate factors that are to be considered in arriving at this determination:
*138 First, the decision to be applied nonretroaetively must establish a new principle of law, either by overruling clear prior precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed---- Second, it has been stressed that “we must * * *weigh the merits and demerits in each case by looking to the past history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” ____ Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.[”]
Id. at 184 , 579 A.2d at 1100, citing Chevron Oil Company v. Huson, 404 U.S. 97, 106-107 , 92 S.Ct. 349, 355 , 30 L.Ed.2d 296, 306 (1971).
We have not actually considered whether Giffear should apply retroactively or prospectively. See Dissents by Johnson, J., in Murray v. Fibreboard Corporation et al., 433 Pa.Super. 206 , 640 A.2d 446 (1993); Didio v. Fibreboard Corporation et al., 1994 WL 119817 (1993) (Docket Nos. 2867-2869 Philadelphia 1992). Rather, there has been an unconsidered assumption that Giffear is to be applied retroactively. This assumption has prevailed notwithstanding that the issue has not been directly raised before our Court; and, notwithstanding that we have not had the benefit of reasoned argument by the parties on whom the burden of these decisions would fall.
I am unable to join decisions which quote Giffear to deem requests for remittitur sufficient to preserve risk of cancer/fear of cancer issues. I fail to see that a request for remittitur has the particularity or precision to adequately preserve this issue. See Murray, supra; Didio, supra; Dissents by Johnson, J. I reject this rationale as misplaced, lacking interpretation and critical analysis.
*139 I am concerned that our Court would allow Giffear to be applied retroactively, absent considered and reasoned reflection. I find this reflexive adoption of retroactivity, absent argument by the parties immediately concerned with this application of Giffear to be unfortunate. I am forced to express my views given the number of these cases at issue in the courts of our Commonwealth.
Accordingly, I dissent.