text:
    515 A.2d 927
    John CASTRONUOVO and Hazel Castronuovo, H/W v. Andrew J. SORDONI, III and Susan Sordoni, H/W, Edmund C. Wideman, III and Jeanne C. Wideman, H/W, Appellants.
    Superior Court of Pennsylvania.
    Argued May 14, 1986.
    Filed Sept. 22, 1986.

      Ronald V. Santora, Wilkes-Barre, for appellants.
    Mark A. Peleak, Kingston, for appellees.
    Before CAVANAUGH, WICKERSHAM and ROBERTS, JJ.
   WICKERSHAM, Judge:

The present litigation was initiated to determine ownership of approximately 3.8 acres of unimproved land (parcel C) situated in Wilkes-Barre, Pennsylvania. Parcel C shares its eastern bound with a 50' X 100' rectangular lot (parcel B) and a 76/ioo acre triangular plot of land (parcel A). See Appendix. It is undisputed that parcels A and B are owned and occupied by John and Hazel Castronuovo.

This appeal is before our court from the verdict of the Court of Common Pleas of Luzerne County granting Hazel and John Castronuovo quiet title to parcel C by adverse possession. Appellants present the following issue for our review:

Whether the Lower Court committed an error of law in finding that the Appellees acquired title to the land in question by adverse possession absent any purported conveyance of the same by Appellees’ predecessor.

Brief for Appellants at 3. For reasons stated herein, we reverse.

By deed of Albert Lewis, dated February 16, 1916, and recorded in Luzerne County Deed Book 507, page 544, William MacNeal acquired title to a triangular parcel of land containing approximately seventy-six one-hundredths (76/ioo) acres of land (parcel A). See Appendix. Shortly thereafter, MacNeal built a house on parcel A where he, his wife, and daughter (appellee herein) lived. In, or around, 1939, MacNeal erected what are referred to as a “barn” and “candy stand” outside the boundaries of parcel A. Mac-Neal used and occupied the land immediately surrounding the structures under a claim of right.

On July 1, 1940, by deed recorded in Luzerne County Deed Book 798, page 193, William MacNeal conveyed parcel A to Michael Donahue. Donahue apparently deeded parcel A back to MacNeal the same day recorded in Luzerne County Deed Book 798, page 194. MacNeal thereafter continued his use of parcel A and the land surrounding the “barn” and “candy stand” until illness forced him to leave his residence to live with his daughter in New York in 1963. From this time until 1973, a friend of the family, Simeon J. Bogan, acted as caretaker for MacNeal, and later Hazel Castronuovo. Bogan lived in the MacNeal house and maintained the grounds of parcel A and the roads leading from the main road to the house. During the same years another friend, Charlie Steckler used the “barn” and area immediately surrounding it to repair trucks. This was done with the permission of William MacNeal.

By deed dated April 22, 1965 and recorded in Luzerne County Deed Book 1565, page 200, MacNeal conveyed parcel A plus the 50' X 100' plot of land on which the “barn” and “candy stand” are situated (parcel B), and rights of ingress and egress to his daughter Hazel Castronuovo, appellee. In said deed MacNeal claimed he entered parcel B in 1939 and had built on, used, and occupied it continuously and under a claim of right. There was no mention of the nearly 3.85 acres of land (parcel C) which adjoins parcels A and B.

Andrew J. Sordoni, III, Edmund C. Wideman, III, and their wives acquired title to the acreage which encompasses parcels B and C from the Blue Coal Corporation by quitclaim deed on August 6, 1973 recorded in Luzerne County Deed Book 1793, page 50.

On July 26, 1974, Hazel Castronuovo filed a Declaration of Taking claiming ownership of parcels B and C by adverse possession as a result of her succession to her father’s continuous adverse use of the same from 1916 until 1969. Castronuovo and her husband commenced a quiet title action on March 5, 1980 in an attempt to confirm their title or ownership of parcel C. This matter was tried before the Honorable Bernard J. Podcasy commencing on December 3, 1984. The court issued its verdict and opinion on March 14, 1985, finding in favor of Hazel and John Castronuovo. Appellants’ motion for post-trial relief was denied on October 3, 1985. Judgment was entered on April 30, 1986. Appellants thereafter filed a timely notice of appeal with this court on October 25, 1985.

The burden of proof in an action to quiet title is on the plaintiff. Cox’s, Inc. v. Snodgrass, 372 Pa. 148, 152, 92 A.2d 540, 541-42 (1952). In such an action, the plaintiffs Castronuovo in the matter sub judice, can recover only on the strength of their title and not upon the weakness of the defendants’ (Sordoni-Wideman) title. Albert v. Lehigh Coal and Navigation Co., 431 Pa. 600, 607, 246 A.2d 840, 843 (1968). Where, as here, the trial court has determined that the Castronuovos have met their burden of proving title, that determination will not be reversed in the absence of an error of law or a capricious disregard of evidence. See Piccinini v. Teachers Protective Mutual Life Insurance Co., 316 Pa.Super. 519, 524, 463 A.2d 1017, 1021 (1983). Upon review of the record, applicable statutory authority, and caselaw, we conclude that the lower court committed an error of law in its interpretation and application of the principle of “tacking” by a grantee to acquire his grantor’s interest by adverse possession in land not described in the conveyance.

The foundation for title by adverse possession in this Commonwealth is the Act of March 26, 1785, 2 Sm.L. 299 § 2, 12 P.S. § 72 (see 42 Pa.C.S. § 5530; 68 B.S. § 81) which provided:

§ 72. No entry or right of action allowed after twenty-one years.
From henceforth no person or persons whatsoever shall make entry into any manors, lands, tenements or hereditaments, after the expiration of twenty-one years next after his, her or their right or title to the same first descended or accrued; nor shall any person or persons whatsoever have or maintain any writ of right, or any other real or possessory writ or action, for any manor, lands, tenements or hereditaments, or the seisin or possession of him, her or themselves, his, her or their ancestors or predecessors, nor declare or allege any other seisin or possession of him, her or themselves, his, her or their ancestors or predecessors, than within twenty-one years next before such writ, action or suit, so hereafter to be sued, commenced or brought.

Lisowski v. Mastromarco, 281 Pa.Super. 303, 305, 422 A.2d 180, 181 (1980).

Thus, it has long been the law in Pennsylvania that, “one who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years____ Each of these elements must exist, otherwise the possession will not confer title.” Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949) (citations omitted).

Further, “[a]n adverse possessor must intend to hold the land for himself, and that intention must be made manifest by his acts____ He must keep his flag flying and present a hostile front to all adverse pretensions.” Smith v. Peterman, 263 Pa.Super. 155, 161, 397 A.2d 793, 796 (quotations and citations omitted).

The testimony established that William MacNeal kept his flag flying on parcel B from 1939 until he conveyed parcel B, parcel A, and rights of ingress and egress to his daughter, Hazel Castronuovo, by deed dated April 22, 1965. Because MacNeal met the requirements to obtain title by adverse possession in excess of the twenty-one-year statutory period, he could freely convey these rights to Hazel by deed in 1965. There was, however, no attempt in the deed to convey any portion of parcel C. For this reason, Hazel Castronuovo brought the present quiet title action under principles of adverse possession by tacking onto the inchoate interests of her father in parcel C.

The possession of successive occupants may be tacked, but only where there is privity between them. Masters v. Local Union No. 472, United Mine Workers, 146 Pa.Super. 143, 22 A.2d 70 (1941). For our purposes, “privity” refers to a succession of relationship to the same thing, whether created by deed or other acts or by operation of law. Stark v. Lardin, 133 Pa.Super. 96, 1 A.2d 784 (1938).

But a deed does not of itself create privity between the grantor and the grantee as to land not described in the deed but occupied by the grantor in connection therewith, although the grantee enters into possession of the land not described and uses it in connection with that conveyed * * * The deed, in itself, creates no privity as to land outside its calls. Nor is privity created by the bare taking of possession of land previously occupied by the grantor.

Gerhart v. Hilsenbeck, 164 Pa.Super. 85, 88, 63 A.2d 124, 126 (1949) (quotations omitted). Our court has held that acceptance of a deed describing boundary lines confined the premises to the area within the boundaries, and that such a deed did not convey inchoate rights acquired by incompleted adverse possession. Masters, supra. Each predecessor must have claimed title to the property in dispute, and in transferring to his successors must have purported to include it. Shaffer v. Lauria, 50 Pa.Super. 135 (1912). In the absence of a conveyance by MacNeal of inchoate interests in parcel C, which may have been acquired by possession, it must be assumed that he occupied parcel C either permissively, or that he had abandoned every intention of an adverse holding before conveyance. Masters, supra.

Accordingly, we find the lower court’s determination that Hazel and John Castronuovo proved title to parcel C by adverse possession to be an error of law and in capricious disregard of the evidence. We therefore reverse.

Judgment reversed.

APPENDIX

      . We note that although the record indicates that Mrs. Castronuovo’s first name is spelled "Hazle,” her signature on the Declaration of Taking presents the proper spelling as “Hazel.”

      . The testimony of witnesses indicate that from approximately 1932 until his illness in 1963, MacNeal used much of the land adjacent to parcel A for various purposes. MacNeal had rented parking spaces, rented land to gypsies, and at one time had a saw mill and barbecue pits on the land bordering parcel A. There is also testimony to the effect that MacNeal fenced and posted portions outside the bounds of parcel A. Although the above-mentioned uses of the land adjacent to parcel A are evident from the 1930's through the mid 1950's, such usages have since been discontinued.

      . Hazel Castronuovo, MacNeal's daughter, was raised on parcel A until she moved to Long Island, New York in 1940. Hazel married John Castronuovo in 1942 and they resided in the State of New York until 1973 when they moved into the MacNeal house situated on parcel A. MacNeal died while under Hazel's care in 1969.

      . Blue Coal Corporation acquired title to same from The Hudson Coal Company by deed dated November 21, 1960 and recorded in Luzerne County Deed Book 1470, page 24.

      . The Widemans have since acquired the Sordonis’ interest in the property in question.

      . Because Castronuovo admittedly has not satisfied the requirements to gain title by adverse possession for the statutory period of 21 years, she attempts to "tack” onto her father’s alleged possession of parcel C from 1916 until his death in 1969.

      . We take note of the exception recognized by the Gerhart court in cases such as Scheetz v. Fitzwater, 5 Pa. 126 (1847), where “an intent to convey more land than the described premises may be inferred from circumstances and perhaps from the deed itself.” Id., 5 Pa. at 128. In the case sub judice, however, the deed is void of such an intent and the circumstances reflect a gradual abandonment of parcel C between the 1950’s and conveyance of parcels A and B to Hazel Castronuovo in 1965.

      . We recognize that:
      In the middle of the 19th century, Chief Justice Gibson, in Scheetz v. Fitzwater, supra, held that the purchaser of record title to certain land may, at the same time, acquire his grantor’s interest by adverse possession in land not described in the conveyance, and may tack his grantor's possession to his own. However, subsequent cases contain contrary language, and in 1941 the Superior Court held that a grantee of certain lands could not tack his grantor’s possession as to land not described in the deed. This decision was followed by Gerhart v. Hilsenbeck, supra, which held that the deed in question could not convey the grantor’s rights, by adverse possession, in land outside the description, but recognized an exception in cases such as Scheetz v. Fitzwater where "an intent to convey more than the described premises may be inferred from circumstances, and perhaps from the deed itself." 1 P.L.E. Adverse Possession § 34 (footnotes omitted).


source: Caselaw Access Project

author: TAMILIA, Judge: MONTGOMERY, Judge,

license: Public Domain

text:
    515 A.2d 933
    John C. KRIVIJANSKI, Administrator of the Estate of Michael E. Krivijanski, Deceased, Appellant v. UNION RAILROAD COMPANY, a Corporation. Edward H. NASSAN, Administrator of the Estate of Jeffrey A. Nassan, Deceased, Appellant v. UNION RAILROAD COMPANY, a Corporation. John C. KRIVIJANSKI, Administrator of the Estate of Michael E. Krivijanski, Deceased v. UNION RAILROAD COMPANY, a Corporation, Appellant. Edward H. NASSAN, Administrator of the Estate of Jeffrey A. Nassan, Deceased, v. UNION RAILROAD COMPANY, a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued April 17, 1986.
    Filed Sept. 26, 1986.

      Robin S. Wertkin, Pittsburgh, for appellants in Nos. 989 and 990 and appellees in Nos. 996 and 997.
    Gerald C. Paris, Pittsburgh, for appellants in Nos. 996 and 997 and appellees in Nos. 989 and 990.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   TAMILIA, Judge:

These appeals and cross appeals involve two actions which were consolidated for trial. The executors for the respective estates of Michael Krivijanski and Jeffrey Nassan sought damages from the Union Railroad Company under the Pennsylvania Wrongful Death and Survival Acts. (42 Pa.C.S.A. §§ 8301, 8302)

The decedents were involved in a fatal accident while riding motorcycles on a private unpaved road owned by the Union Railroad Company. There were no witnesses to the incident and the cause was disputed at trial. The plaintiffs contended the decedents collided with an unmarked wire cable which the railroad maintained across the road. The railroad disputed this theory and offered alternative explanations for the accident.

Special interrogatories were separately answered by the jury concerning each plaintiff. The responses were indicative of a jury determination that the actions of the railroad constituted willful or wanton misconduct and those of each decedent negligence.

In both instances the jury attributed 60 per cent of the accident to the railroad’s conduct and 40 per cent to the decedent with the total damages to the estate and parents of each decedent set at $25,000. The court then applied the comparative negligence law (42 Pa.C.S.A. § 7102) and molded the verdict to reflect the fault of the parties. After adding delay damages, the court awarded $19,375.00 to each of the plaintiffs.

Appeals and cross appeals filed in each of the actions are presently before us. The appellants/plaintiffs argue the lower court erred in (1) refusing to grant a new trial on the issue of damages because the verdicts were patently inadequate; (2) instructing the jury that the measure of damages in the survival act claim was “accumulations” and (3) refusing to give further clarifying instructions concerning how the jury should compute “total damages”. The appellants/plaintiffs also contend the court erred in submitting the issue of the negligence of the decedents to the jury thus invoking the application of comparative negligence.

The cross appellant/railroad asserts trial court error in admitting into evidence the testimony of a police officer concerning a statement made by Jeffrey Nassan and in refusing to grant a mistrial due to the conduct of a plaintiff’s witness who had contact with the jury.

Initially, in reviewing the issues raised concerning the amount of damages awarded we find no merit to the arguments put forth. Whether to grant a new trial because of the alleged inadequacy of a verdict is a matter within the discretion of the trial court and will be sustained absent an abuse of that discretion. Stokan v. Turnbull, 480 Pa. 71, 389 A.2d 90 (1978); Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983). The court reviewed the evidence presented concerning the earnings potential of the parties and found no basis to disturb the jury’s findings. We can find no abuse of discretion in this holding and thus affirm the trial court’s action.

In examining the jury charge as a whole, we find the court properly instructed the jury on damages in general and specifically as to lost earnings. Appellant’s claims are thus devoid of merit. Kearns v. Clark, 343 Pa.Super. 30, 493 A.2d 1358 (1985); McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972).

We likewise find no merit in cross-appellant’s claims of trial court error. We believe the statement made by Jeffrey Nassan to the police officer was properly admitted as part of the res gestae exception to the hearsay rule. The police officer spoke with Jeffrey Nassan at the hospital approximately two hours after the accident. The officer recounted how when he asked Jeffrey “what happened?” he replied “I hit the cable.” (N.T. 5/4/84, Vol. I, p. 287) In light of the total circumstances surrounding the statement, particularly the serious nature of the injuries and the physical condition of Jeffrey Nassan at the time, we find it was properly admitted. There was little possibility of this being a self-serving remark based on reflective thought. See Cody v. S.K.F., 447 Pa. 558, 291 A.2d 772 (1972); Thompson v. City of Philadelphia, 222 Pa.Super. 417, 294 A.2d 826 (1972); Commonwealth v. Blackwell, 343 Pa.Super. 201, 494 A.2d 426 (1985).

We also find the court acted properly in refusing to grant a mistrial when it was discovered that a potential witness had made comments to some of the jurors at a restaurant and later in the court room.

The court questioned the potential witness and certain members of the jury in chambers (N.T. 5/3/84, Vol. I, pp. 194-224) and ascertained that nothing was said about the case nor was there any indication that the party was trying to influence the jurors. In addition a cautionary instruction was given. Under these circumstances, a mistrial was properly denied. Printed Terry Finishing v. City of Lebanon, 247 Pa.Super. 277, 372 A.2d 460 (1977); Brancato v. Kroger Co., Inc., 312 Pa.Super. 448, 458 A.2d 1377 (1983).

The single issue on which we do not agree with the lower court is the applicability of the Comparative Negligence Law (42 Pa.C.S.A. § 7102, see footnote 1).

It is clear that the duty owed to a trespasser by a property owner is to refrain from willful or wanton misconduct. Antonace v. Ferri Contracting Co., Inc., 320 Pa.Super. 519, 467 A.2d 833 (1983); Engel v. Friends Hospital, 439 Pa. 559, 266 A.2d 685 (1970); Evans v. Philadelphia Transportation Company, 418 Pa. 567, 212 A.2d 440 (1965).

The jury was asked in a special interrogatory to determine whether the conduct of the railroad constituted willful or wanton misconduct and they determined that it did. The question then becomes whether this willful or wanton conduct is a form of negligence under the comparative negligence statute or whether it is a distinct form of conduct to which comparative negligence is inapplicable.

This issue although mentioned in other cases before this Court has never been specifically decided. See Emerick v. Carson, 325 Pa.Super. 308, 472 A.2d 1133 (1984); Stubbs v. Frazier, 308 Pa.Super. 257, 454 A.2d 119 (1982); Antonace, supra.

Courts of other states have been divided in resolving this issue. See Stubbs, supra, 308 Pa.Superior Ct. at 262, 454 A.2d at 121; 10 A.L.R. 4th 946, 948; 78 A.L.R.3d 339, 389. Those holding that comparative negligence applies even when willful or wanton misconduct is involved have at times relied on the theory that this type of conduct is a form of negligence and a comprehensive statute requires inclusion. They also note that the concepts of willful and wanton conduct were brought into the law to ameliorate the harsh effects of contributory negligence. Once comparative negligence was enacted this basis for differentiating these types of conduct was no longer considered necessary. Courts have also looked with disfavor on the all or nothing approach, preferring to compare the fault of the parties. See Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962); Amoco Pipeline Co. v. Montgomery, 487 F.Supp. 1268 (1980), (construing Oklahoma law); Sorenson v. Allred, 112 Cal.App.3d 717, 169 Cal.Rptr. 441 (1980).

Other courts have examined prior rulings within the state wherein a distinction was not drawn between willful and wanton conduct, instead the terms were related to negligence. Based on this lack of distinction the practice was carried over to the comparative negligence area. Billingsley v. Westrac Company, 365 F.2d 619 (1966) (applying Arkansas law) (Arkansas later passed a comparative negligence law specifically including willful and wanton conduct).

Courts which have not applied comparative negligence statutes when willful or wanton conduct is involved have held such conduct to be distinct from negligence. In discussing the basis for originally providing an exception to the contributory negligence rule when willful or wanton conduct was involved an additional reason is set forth. The first as stated previously was to ameliorate the harshness of the rule prohibiting recovery when the plaintiff was also negligent. The second reason is that the willful or wanton conduct is deemed to be so close to intentional wrongdoing that the perpetrator should not have the benefit of contributory or comparative negligence being applied. See Draney v. Bachman, 138 N.J.Super. 503, 351 A.2d 409 (1976); Danculovich v. Brown, 593 P.2d 187 (1979) (Wyoming Supreme Court); Davies v. Butler, 95 Nev. 763, 602 P.2d 605 (1979). See also V. Schwartz, Comparative Negligence, (1974).

Legislative intent has also been discussed and the failure of the legislature to include willful and wanton conduct within the statute has been viewed as indicating a desire to exclude it when gross negligence was specifically included. Davies, supra.

After considering the various arguments set forth, we hold that when willful or wanton misconduct is involved, comparative negligence should not be applied. Our primary reason for so holding is the longstanding distinction Pennsylvania courts have made between willful or wanton conduct and negligent conduct.

Wanton conduct has been defined as “something different from negligence, however gross, different not merely in degree but in kind and evincing a different state of mind on the part of the tort feasor”. Kasanovich v. George, 348 Pa. 199, 203, 34 A.2d 523, 525 (1943); Zawacki v. Pennsylvania Railroad Company, 374 Pa. 89, 97 A.2d 63 (1953); Geelen v. Pennsylvania Railroad Company, 400 Pa. 240, 161 A.2d 595 (1960); Stubbs v. Frazier, supra. “Negligence consists of inattention or inadvertance, whereas wantonness exists where the danger to the plaintiff, though realized, is so recklessly disregarded that, even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.” Kasanovich, supra, 348 Pa. at 203, 34 A.2d at 525. Wanton misconduct

... means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences.

Prosser, Torts § 33 at 151 (2d ed. 1955) cited in Evans, supra, 418 Pa. at 567, 212 A.2d at 443; Moss v. Reading Company, 418 Pa. 598, 212 A.2d 226 (1965). Antonace, supra. See also 57 Am.Jur.2d § 102.

The Restatement (Second of Torts) § 500 provides:

§ 500. Reckless Disregard of Safety Defined
The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

In a special note to this section it states:

Special Note: The conduct described in this Section is often called “wanton or willful misconduct” both in statutes and judicial opinions. On the other hand, this phrase is sometimes used by courts to refer to conduct intended to cause harm to another.

Comment g of Section 500 provides:

g. Negligence and recklessness contrasted. Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. It differs not only from the above-mentioned form of negligence, but also from that negligence which consists in intentionally doing an act with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

Section 500 of the Restatement (Second) of Torts has been cited with approval by Pennsylvania courts in discussing wanton misconduct. See Turek v. Pennsylvania R. Co., 369 Pa. 341, 85 A.2d 845 (1952); Evans, supra; Junk v. East End Fire Department, 262 Pa.Super. 473, 396 A.2d 1269 (1978); Stubbs, supra. See also 57 Am.Jur.2d § 102.

With this longstanding practice of Pennsylvania courts defining willful and wanton conduct as different in kind from negligence, we think it proper to continue the distinction in construing the comparative negligence statute.

Words used in legislation are to be accorded their common meaning and usage. Brinkley v. Pealer, 341 Pa.Super. 432, 491 A.2d 894 (1985). “Statutes are not presumed to make changes in rules and principles of the common law or prior existing law beyond what is expressly declared in their provisions.” Harka v. Nabati, 337 Pa.Super. 617, 624, 487 A.2d 432, 435 (1985) citing. Commonwealth v. Miller, 469 Pa. 24, 27-28, 364 A.2d 886, 887 (1976).

The legislature could, if it so desired, have specifically included forms of conduct not considered to be negligence by our courts in the statute. Negligence describes a specific form of conduct and absent a clear directive from the legislature we do not think it appropriate to expand the scope of the legislation to include conduct which is under our definition not negligent conduct.

One of the roots of the problem of separating the types of conduct involved in this case is the inexactness of courts when discussing forms of conduct. Terms such as “wanton negligence” have been employed thus equating wanton conduct with a degree of negligence. See Frederick v. Philadelphia Rapid Transit Company, 337 Pa. 136, 10 A.2d 576 (1940); Evans, supra, (Musmanno, J. Dissenting Opinion); Emerick, supra. This inexactness was specifically recognized in Kasanovich, supra where the court noted the use of the term “wanton negligence” and stated “a better term would be “wanton misconduct”, 348 Pa. at 199, 34 A.2d at 525.

Negligence in the legal sense is a word of art and “although inadvertent conduct characterized as willful, wanton or reckless, is said to come within the term ‘negligence’ when used in its broadest sense ... (it) is not, properly speaking, within the meaning of ‘negligence’, however gross, when ‘negligence’ is used as a term of art.” 57 Am.Jur.2d § 103.

Considering the use of the word negligence in the statute as a word of art and further applying the definition given to willful and wanton misconduct by our courts, we think construing the language to include willful and wanton misconduct would be improper.

In further support of this decision, we note our agreement with those courts who have found in the nature of willful and wanton misconduct a basis for denying the benefits of comparative negligence. In such situations when viewing the conduct of the parties, the willful or wanton misconduct has been found to outweigh any negligence by the other party. Draney, supra; Davies, supra. Comparative negligence attempts to balance two equal forms of conduct and in so doing allocate the cost in terms of whose action was most responsible for the injury. To involve a comparison of unequal forms of conduct would not fit within this scheme.

The trial court in determining comparative negligence should apply relied upon this court’s actions in Antonace, supra where we reversed the lower court for submitting a case involving a trespasser to the jury on a negligence theory. The lower court viewed the failure of this court to comment on the submission of possible comparative negligence to the jury as condoning this action. We do not agree, for in our view the court in Antonace was setting forth examples of how the lower court treated the case as one involving negligence. After reviewing the lower court’s actions this Court found them to be improper because willful or wanton misconduct was involved and thus negligence was not at issue.

Our decision that comparative negligence is not applicable does not require a new trial to be granted on the issue of liability or damages.

The finding of the jury that the railroad’s conduct constituted willful or wanton misconduct was sufficient to impose liability whether or not comparative negligence is involved and need not be disturbed. Likewise, the amount of damages awarded was determined independently of the comparative negligence issue and need only be modified to eliminate the reduction made to reflect comparative negligence.

The jury dealt specifically with comparative negligence in responding to a special interrogatory and placing a percentage of responsibility on the parties. The jury as noted prior was properly instructed on the manner in which to compute the damages and was specifically instructed to find the total damages without applying percentages and without regard to who was responsible (N.T. 5/15/84, Vol. Ill, p. 1218).

At 989 Pittsburgh, 1985; John C. Krivijanski, Administrator of the Estate of Michael E. Krivijanski, Deceased, Appellant v. Union Railroad Company, A Corporation, plaintiff/appellant’s request for a new trial limited to damages is denied; the judgment entered on the molded verdict of the jury is vacated and the initial finding of the jury in the amount of $25,000 is hereby instated. Delay damages of $11,041.66 are added to the amount of $25,000 for a total award of $36,041.66.

At 990 Pittsburgh, 1985; Edward H. Nassan, Administrator of the Estate of Jeffrey A. Nassan, Deceased, Appellant v. Union Railroad Company, A Corporation, plaintiff/appellant’s request for a new trial limited to damages is denied; the judgment entered on the molded verdict of the jury is vacated and the initial finding of the jury in the amount of $25,000 is hereby instated. Delay damages of $11,041.66 are added to the amount of $25,000 for a total award of $36,041.66.

At 996 Pittsburgh, 1985; John C. Krivijanski, Administrator of the Estate of Michael E. Krivijanski, Deceased v. Union Railroad Company, A Corporation, Appellant, and at 997 Pittsburgh, 1985; Edward H. Nassan, Administrator of Jeffrey A. Nassan, Deceased v. Union Railroad Company, A Corporation, Appellant, defendant/appellant’s cross-appeals are dismissed.

MONTGOMERY, Judge,

dissenting:

I must respectfully dissent. I strongly disagree with the conclusion of the Majority that the lower court erred in applying the doctrine of comparative negligence in the circumstances of this case. I would adopt the discussion and conclusions on that issue set forth in the lower court Opinion. Further, I would rely upon the decisions from other jurisdictions, cited in that Opinion and noted in the Majority Opinion, which would allow the trier of fact to consider the possible negligence of the Plaintiffs as a factor diminishing damages, by applying the doctrine of comparative negligence in such cases. I would not disturb the verdicts of the lower court in these cases.

      . § 7102. Comparative negligence
      (a) General rule.—In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
      (b) Recovery against joint defendant; contribution—Where recovery is allowed against more than one defendant, each defendant shall be liable for the proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

      . We have continued to hold this distinction as recently as Pachesky v. Getz, 353 Pa.Super. 505, 510 A.2d 776 (1986), where we held that in applying the Rescue Doctrine, so long as the rescuer acts in a reasonable manner, despite some negligence, full recovery is permissible. Willful or wanton negligence by the rescuer would trigger the comparative negligence application.
      Conversely, where the defendant’s negligence is wanton and willful, as here, and the plaintiff’s negligence is simple or ordinary, comparative negligence principles may not be applied.

      . Computation of delay damages pursuant to Pa.R.C.P. 238.
      Total damages = $25,000.00 at 10% per year, $2,500 x 4 years = $10,000.00
      _$208.33 per month x 5 months = $ 1,041.66
      Total delay damages = $11,041.66
      Total award = $36,041.66


author: POPOVICH, Judge: WIEAND, Judge,

text:
    515 A.2d 939
    Dominick DiLAURO v. ONE BALA AVENUE ASSOCIATES and Bala Realty Associates, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued March 12, 1986.
    Filed Sept. 29, 1986.

      Lawrence S. Sarowitz, Philadelphia, for appellants.
    Alan B. Epstein, Philadelphia, for appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the trial court which denied the motion of appellants-defendants, One Bala Avenue Associates and Bala Realty Advisors, Inc., the owner and manager of a commercial building, respectively, to join an additional defendant, nunc pro tunc. We must reverse and remand for proceedings consistent with this opinion.

The record reveals the following set of facts which were summarized by the trial court:

On February 16, 1982, appellee-plaintiff, Dominick DiLauro, attempted to enter the premises of his employer, Technical Aid Corporation (T.A.C.), located at One Bala Avenue, Bala Cynwyd, Pennsylvania. Appellee lost his footing while descending the stairs leading to his employer’s offices, fell down the stairs and sustained “serious and totally disabling injuries.”

On January 17, 1984, appellee filed a complaint in trespass and assumpsit against appellants. Appellee alleged that his injuries were the “direct result of the negligence of the [appellants-djefendants in failing to design and maintain proper ingress and egress to the building and more specifically failing to provide properly placed handrails for use while descending the stairs.”

Ten months later, appellants filed a motion to join the employer, Technical Aid Corporation, as an additional defendant pursuant to Pa.R.C.P. 2252. Technical Aid was the lessee of the premises and appellants asserted that the lease contract contained an indemnity clause which relieved them from all liability for “injury or damage to any person or property in or about the demised premises.”

Appellants claimed that the indemnity clause constituted a proper case for joinder. Appellee stated that he would not be prejudiced by the late joinder.

After oral argument was held, the trial court dismissed appellants’ joinder motion. This appeal followed.

Appellants argue that the trial court erred in denying their motion to join Technical Aid Corporation nunc pro tunc because there existed a valid indemnification agreement which predated the appellee’s accident.

The following guidelines must be applied in determining the merits of appellants’ argument:

Pa.R.Civ.P. 2253 requires that leave of court be sought, upon cause shown, to secure joinder of an additional defendant after the expiration of the sixty-day period. See Zakian v. Liljestrand, 438 Pa. 249, 255, 264 A.2d 638, 641 (1970). “Whether there is ‘cause shown’ for the allowance of an extension of time for the joinder of an additional defendant is a matter within the discretion of the lower court, and its decision will not be reversed absent an abuse of discretion.” Kovalesky v. Esther Williams Swimming Pools, 345 Pa.Super. 95, 104, 497 A.2d 661, 665 (1985). Accord Zakian v. Liljestrand, supra, 438 Pa. at 255, 264 A.2d at 641; Farmer v. General Refractories Co., 271 Pa.Super. 349, 351, 413 A.2d 701, 702 (1979); Welch Foods Inc. v. Bishopric Products Co., 254 Pa.Super. 256, 258, 385 A.2d 1007, 1008 (1978).

DeAngelis v. Newman, 350 Pa.Super. 536, 538, 504 A.2d 1279, 1280 (1986).

We also recognize that:

The defendant’s petition seeking an extension of time to join an additional defendant must contain:
(1) some reasonable justification or excuse for the delay; (2) a statement of the facts alleged to render the proposed additional defendant alone liable, or liable with, or liable over to defendant, or liable to the defendant on a proper cross claim; and (3) allegations that the late joinder will not be prejudicial to the proposed additional defendant. It should ask for leave to file both the praecipe and the complaint called for by Rule 2252(b).
Goodrich-Amram 2d § 2253:3.1 at 108 (1977) (footnotes omitted) (emphasis added); see also Farmer v. General Refractories Co., 271 Pa.Superior Ct. 349, 352, 413 A.2d 701, 702 (1979).
* * * * * *
Additionally, “the burden of demonstrating sufficient cause to allow the unseasonable joinder rest[s] with defendant.” Welch Foods, Inc. v. Bishopric Products Co., supra 254 Pa.Super. at 258-59, 385 A.2d at 1008; accord Coopers & Lybrand v. Penn State Mutual Insurance Co., 32 Pa.Commonwealth Ct. 435, 438, 379 A.2d 901, 903 (1977). In determining what is sufficient cause for an extension of time for joinder of an additional defendant, courts
should be guided by the objectives sought to be achieved by use of the additional defendant procedure in conjunction with the purpose for which a 60-day limitation was placed on its unrestricted use. In a capsule, these rules were an attempt to provide a means to simplify and expedite the disposition of matters involving numerous parties ... without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation. Zakian v. Liljestrand, supra 438 Pa. at 256, 264 A.2d at 641 (citation omitted). See also Coppage v. Smith, supra 381 Pa. at 405, 113 A.2d at 250 (procedural rules should “be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable”); Ianni v. Pantalone, 238 Pa.Superior Ct. 548, 553, 361 A.2d 772, 774 (1976) (procedural rules governing third party procedure should “be construed to accomplish the purpose of ‘[avoiding] multiplicity of suits by adjudicating in one suit the rights and liabilities of all of the parties to a single transaction which constitutes the cause of action’ ... ”); Martinelli v. Mulloy, 223 Pa.Superior Ct. 130, 135, 299 A.2d 19, 21 (1972) (Rule 2252(a) should be broadly interpreted “not only to compel every interested person to defend the action by the plaintiff, but also to save the original defendant from possible harm resulting from loss of evidence as might result if compelled to await the end of the suit before proceeding against those from whom he seeks contribution”).

Kovalesky v. Esther Williams Swimming Pools, 345 Pa. Super. 95, 103-05, 497 A.2d 661, 665-666 (1985).

According to appellants, their petition was not filed earlier because “[t]he delay in filing the instant petition has resulted from a misunderstanding concerning the transfer of this matter from Philadelphia to Montgomery County.” Motion at Allegation # 13. Appellee admitted this allegation in its answer; however, appellee denied that joinder was necessary.

The trial court held that the appellants’ petition to join should not be granted citing our Supreme Court’s decision in Stokes v. Loyal Order of Moose Lodge, 502 Pa. 460, 466 A.2d 1341 (1983). We disagree with the trial court’s interpretation of Stokes.

At the outset, we note that appellants’ petition satisfied the three prong test because the petition contained: (1) a reasonable justification for the delay, i.e., a misunderstanding concerning the transfer of this matter from Philadelphia to Montgomery County; (2) a statement of the facts alleged to render the proposed additional defendant liable over to the defendant, i.e., an indemnification clause which would entitle appellants to indemnification from Technical Aid should any liability by the plaintiff be established at the time of trial; and (3) allegations that the late joinder will not be prejudicial to the proposed additional defendant, i.e., “said additional defendant will not be prejudiced since the within matter is in the preliminary discovery stages and said additional defendant would have a full opportunity to participate in the various avenues of discovery permitted under the Pennsylvania Rules of Civil Procedure.” Motion of Appellants-Defendants to Join T.A.C., Allegation at No. 12.

In Pennsylvania, an injured employee or other third party cannot seek contribution or indemnity from the injured employee’s employer in the absence of an express contractual undertaking. Gerard v. Penn Valley Constructors, Inc., 343 Pa.Super. 425, 430, 495 A.2d 210, 212 (1985). Section 481(b) of the Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, No. 338, as amended, by the Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. § 1 et seq.

Section 481(b) states:

(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.
77 P.S. § 481(b).

The instant contractual undertaking provides for the following:

$ * * # * *
8 Lessor shall not be held responsible for and is hereby expressly relieved from any and all liability by reason of any injury, loss or damage to any person or property in or about the demised premises whether the same be due to fire, breakage, leakage, use, misuse or abuse of elevators, hatches, openings, defective construction, failure of water supply, light or power, electric wiring, plumbing, machinery, wind, lightning, storm, or any other cause whatsoever, which liability is expressly assumed by Lessee whether the loss, injury or damage be to the person or property of the Lessee or any other person.
* * # * * *
“AGREEMENT”.

Our Supreme Court’s decision in Stokes is the leading case in this area. In Stokes, the plaintiffs, Jacqueline and Robert Stokes filed a complaint in trespass against the defendant-appellee, the Loyal Order of Moose # 696. The cause of action arose when Jacqueline Stokes was injured after a folding chair collapsed at appellee’s premises.

The appellee filed a third party complaint to join an insurance agency, appellant, the General Accident Fire and Life Assurance, Ltd. and the James W. Doncaster Agency, Inc. According to appellee, the insurance agency

breached an insurance policy by refusing either to defend appellee in the action by plaintiffs or to agree to indemnify appellee for any liability; that General Accident is liable for the negligence of its agent, Doncaster, in failing to obtain or renew an insurance policy; and that General Accident is estopped by denying coverage because of Doncaster’s conduct.

Id. 502 Pa. at 462, 466 A.2d at 1342.

Our Supreme Court held that the trial court acted properly in disallowing the joinder of an additional defendant based upon a denial of insurance coverage. Our Supreme Court also said the following:

The complaint against appellee was based on wife plaintiffs fall on appellee’s premises. The complaint to join appellant was based on appellant’s alleged obligation to insure and defend appellee. We find that this was a distinct transaction and that the complaints did not arise out of the same transaction or occurrence. We are persuaded by the reasoning in Hottner that such complaints should not be joined because they do not involve a common factual background or common factual or legal questions. The evidence that would establish appellant’s obligation to insure is distinct from the evidence that would establish appellee’s liability.

Id., 502 at 467, 466 A.2d at 1345.

The case of Hottner v. Boeltz, No. 9405 of 1978 (C.P. Allegheny, filed April, 1979), which was relied upon by our Supreme Court also provides some insight into the instant appeal.

In Hottner, the plaintiff, Armand Hottner, filed an action in trespass against the defendant, Deborah Boeltz, for the injuries sustained in an automobile accident. The defendant attempted to join as an additional defendant, Allstate Insurance Company because Allstate refused to indemnify or present a defense.

The issue before the Allegheny Court of Common Pleas in Hottner revolved around the effect of the 1969 amendments to Pa.R.C.P. 2252. Prior to 1969, Rule 2252 provided:

In any action the defendant or any additional defendant may file as of course a praecipe for a writ or a complaint to join as an additional defendant any person not a party to the action who may be alone liable or liable over to him on the cause of action declared upon or jointly or severally liable thereon with him.

However, in 1969, the rule was amended to read:

In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be liable or liable over to him on the cause of action declared upon the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.

In Hottner the trial court said:

The case law is split on the question of whether the 1969 amendments alter prior case law barring joinder of any person whose liability over to the defendant rests upon an express contract of insurance or indemnity. Compare Szemanski v. Vulcan Materials Company, 126 P.L.J. 167 (1978); Fitzgerald v. Rottner, 56 D. & C. 2d 750 (Dauphin, 1972); F.A. Cray v. Engineered Building Systems Co., 6 Butler 48 (1976) with Nagle v. Split Rock Lodge, Inc., 52 D. & C. 2d 497 (Carbon, 1971); Caldearo v. County of Delaware, 50 D. & C. 2d 147 (Del.1970); Lang v. Beishline, 56 D. & C. 2d 633 (Bucks, 1972).
In the case of Graybar Electric Company, Inc. v. Bruns Electric, Inc., 5 D. & C. 3d 429 (1978), this member of the Court considered this issue and ruled that the 1969 amendments altered the case law which completely barred joinder.* We have based our ruling on appellate court case law which has given a broad interpretation to the 1969 amendments to Rule 2252(a).
“The very purpose of Rule 2252 was to permit the bringing together in a single law suit causes of action ‘arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.’ ” Free v. Lebowitz, 463 Pa. 387, 392, 344 A.2d 886, 887 (1975). Rule 2252(a) permits joinder where the party to be joined “may be liable to the joining party separately on an independent cause of action which arose out of the same transaction(s) or occurrence(s) as the plaintiff’s original cause of action.” Extrudo Film Corp. v. Beck Electric Construction, Inc., 220 Pa.Super. 164, 167, 286 A.2d 687, 689 (1971). “Rule 2252(a) governing the joinder of additional defendants should be given a ‘broad interpretation'” (Martinelli v. Mulloy, 223 Pa.Super. 130, 135, 299 A.2d 19, 21 (1972)) and the requirement for joinder that the original defendant’s cause of action arises out of the transaction or occurrences upon which the plaintiff’s cause of action is based should be construed to permit joinder “so long as the additional defendant’s alleged liability is related to the original claim which plaintiff asserts against the original defendant” (Incollingo v. Ewing, 444 Pa. 263, 290, 282 A.2d 206, 221 (1971)) in order to “avoid multiplicity of suits by providing for the adjudication of all the rights and liabilities of those present and concerned in a single suit” (Ragan v. Steen, 229 Pa.Super. 515, 525, 331 A.2d 724, 730 (1974)).
Because we reject Allstate’s contention that Rule 2252(a) absolutely bars the joinder of an express indemnitor or insurer, we must consider whether in this case defendant’s claim against Allstate arises out of “the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based” within the meaning of Rule 2252(a).
There is considerable merit to defendant’s contention that her claim against Allstate arises out of the series of transactions or occurrences upon which the plaintiff’s cause of action is based. Plaintiff’s claim against defendant and defendant’s claim against Allstate each arise out of the automobile accident in that neither claim would arise but for this occurrence. Thus by permitting joinder we in the one lawsuit adjudicate all rights and liability arising out of this automobile accident. Moreover, the established Pennsylvania policy prohibiting disclosure that a defendant is insured (see 8 Goodrich-Amram 2d § 2252(a):7.1) should no longer apply to claims arising out of motor vehicle accidents because of the Pennsylvania No-fault Motor Vehicle legislation which requires insurance.

However, in the present case, the claims of plaintiff against defendant and defendant against Allstate do not arise out of a similar factual background and do not involve common issues of fact and law. The issues in the plaintiff/defendant claim are whether defendant’s negligence caused the accident and if so, what are the damages which plaintiff sustained. The issues in the defendant/ Allstate claim, on the other hand, are whether Allstate had agreed to provide insurance coverage and if so, whether defendant-through action or inaction-has forfeited her right to coverage.

Joinder is permitted only so long as the additional defendant’s alleged liability is related to the claim which the plaintiff asserts against the original defendant. In the present case the transaction or occurrence which is the basis of plaintiff’s claim against defendant is a traffic accident while the transaction or occurrence which is the basis of defendant’s claim against Allstate is an alleged purchase of an automobile liability insurance policy. The only relationship between the claims is that neither would have arisen but for the automobile accident. This relationship is insufficient to permit joinder. Compare Schladensky v. Ellis, 442 Pa. 471, 275 A.2d 663 (1971) and Katz v. Schuster and Bentz, 58 Erie County Legal Journal 172 (1975) with Incollingo v. Ewing, supra; Harker v. Farmers Trust Company, 248 Pa.Super. 427, 375 A.2d 171 (1977); Galdo v. First Pennsylvania Bank, 250 Pa.Super. 385, 378 A.2d 990 (1977); Extrudo Film Corp. v. Beck Electric Construction, Inc., supra.

Slip Opinion at 2-6.

In the instant case, the joinder of the appellants should have been permitted. The original claim which was initiated by appellee was based upon the injuries he received while descending the stairs which led to the offices of his employer, Technical Aid Corporation. The alleged liability of Technical Aid Corporation was based upon the existence of an indemnification clause in the lease agreement which was executed between the employer and the appellants, the landlord of the commercial building in which the fall occurred.

Because the employer in this instance “may be liable over to” the owner and manager of the building “on the cause of action declared upon by the plaintiff, joinder should have been permitted.

We have said that “[cjorrectly defining what is meant by ‘the plaintiffs cause of action’ is essential to [a] proper application of the rule.” Derry Township School District v. Day & Zimmerman, 345 Pa.Super. 487, 492, 498 A.2d 928, 931 (1985). We also have said that “[c]ase law has defined ‘the plaintiff’s cause of action’ to mean ‘damages or injuries,’ for which the plaintiff seeks recovery.” Id.

In this case, the plaintiff’s injuries were allegedly sustained when he fell down the steps while working for Technical Aid Corporation in a building which was owned and managed by appellants. Although the indemnification clause which forms the basis for appellants attempt to join T.A.C. as an additional defendant was sounded in assumpsit, it is not the theory of recovery which is the controlling factor. Id. (where the trial court erred when it “equated ‘the plaintiff’s cause of action’ with its theory of recovery.”)

Rather, the third party complaint against T.A.C. also is predicated on the same “disputed set of circumstances as those underlying the plaintiff’s claim of relief” i.e., the events which occurred when appellee fell down the steps of the premises at One Bala Avenue on or about February 16, 1982. Nechwedowich v. Great Atlantic and Pacific Tea, 300 Pa.Super. 152, 446 A.2d 275 (1982). Compare Stokes v. Loyal Order of Moose Lodge, 502 Pa. at 467, 466 A.2d at 1345 (joinder of an additional defendant as an insurer not permitted because “[t]he evidence that would establish appellant’s obligation to insure is distinct from the evidence that would establish appellee’s liability.”) (Emphasis added).

The case of Brown Boveri Building Automation, Inc. v. Midland Ross Corporation, 333 Pa.Super. 261, 482 A.2d 557 (1984) does not compel a contrary result. In Brown, the plaintiff-appellee, Brown Boveri Building Automation, Inc. (BBBA) instituted an action against appellant-defendant, Ramesh T. Wadhani, who was then President and a member of the Board of Directors of the acquired corporation-appellee, Brown Boveri Compu-gard Corporation (hereinafter referred to as Compu-gard) alleging breach of warranty, misrepresentation and fraud.

Appellant then filed a third party complaint against Compu-gard alleging that Compu-gard was responsible for the losses sustained by BBBA. Appellant also alleged in a second count that his employment was terminated in breach of his employment contract with appellee.

Compu-gard had been acquired by BBBA pursuant to a written agreement. On the same date, Compu-gard agreed to retain appellant for a five year period. However, appellant’s employment was terminated for reasons other than “cause or disability” four years before the expiration date.

In dictum, this Court cited certain cases, Stokes v. Loyal Order of Moose Lodge # 696, 302 Pa.Super. 256, 448 A.2d 624 (1982), reversed by Stokes v. Loyal Order of Moose Lodge #696, supra, Szemanski v. Vulcan Materials Co., 272 Pa.Super. 240, 415 A.2d 92 (1979) and Eads v. Smith, 276 Pa.Super. 129, 419 A.2d 129 (1980). We also said that “[ajppellant relies on these cases for authority and correctly interprets them, however they are no longer the law.” Brown Boveri Building Automation, Inc. v. Midland-Ross Corporation, 333 Pa.Super. at 264, 482 A.2d at 559. (Emphasis added).

While it is clear that the Stokes and Eads decisions of this Court which involved the joinder of an additional defendant based upon general liability policies, were reversed by our Supreme Court in Stokes v. Loyal Order of Moose Lodge # 696, supra, it is not at all clear that Szemanski also was overruled. In fact, our reading of the cases reveals that Szemanski currently has precedential value. Accord Rankin v. Sherwin-Williams Company, 337 Pa.Super. 78, 81, 486 A.2d 489, 490 (1984) (“The case now at bar is procedurally on all fours with Szemanski and Nechwedowich.”).

Larry Szemanski, an employee of United Industrial Maintenance (United) was injured when he fell from an elevated platform while working above the floor and railroad tracks in the plant of Vulcan Materials Company (Vulcan). United agreed to do repair work on a crane owned by Vulcan and located on Vulcan’s premises.

The indemnification clause at issue provided that United agreed to indemnify Vulcan against:

all losses and all claims, demands, payments, suits, actions, recoveries and judgments ... arising out of any act or omission” of United or “arising out of the use, occupancy or possession of premises of Vulcan” by United.

Id. 272 Pa.Super. at 242, 415 A.2d at 93.

This Court held that the attempted joinder of United as an additional defendant on negligence grounds was barred by Section 303(b) of the Workmen’s Compensation Act, supra.

This Court also held that Vulcan was to be joined as an additional defendant based upon the express indemnification clause which was executed between the parties.

However, we note that Szemanski and Stokes involved the applicability of different aspects of Pa.R.C.P. 2252(a). In Szemanski, the question was whether the additional defendant “may be liable over to” the defendant pursuant to an express indemnification clause. Pa.R.C.P. 2252(a). However, the issue in Stokes was whether the additional defendant may be liable to the defendant “on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.” Pa.R.C.P. 2252(a). Thus, these two cases invoked different aspects of the same rule. Accordingly, the discussion of Szemanski which appeared in Stokes was not controlling law in the Stokes decision. Hence, Szemanski was not overruled by Stokes.

The Supreme Court’s reference to overruled cases must be read in context. The pertinent language was framed in the following manner:

We therefore conclude that the amendment to Rule 2252(a) does not allow a complaint alleging wrongful denial of coverage under a general policy of insurance to be joined in a liability action. All decisions to the contrary are overruled. Stokes v. Loyal Order of Moose Lodge #696, 502 Pa. at 467, 466 A.2d at 1345. (Emphasis added).

Because the Supreme Court’s holding in Stokes was limited to the application of the amendment of Rule 2252(a) to “a complaint alleging wrongful denial of coverage under a general policy of insurance”, Szemanski was not reversed. Id.

Perhaps the language which led the trial court to conclude that Szemanski was overruled appeared in the early portion of the Stokes opinion when our Supreme Court said:

We have not ruled on the propriety of joinder of an indemnitor or insurer under the current version of Rule 2252(a). Id., 502 Pa. at 465, 466 A.2d at 1344.

It is evident that neither did this language reflect a statement of the factual issue presented nor did it constitute a holding of the case.

More importantly, the Stokes analysis relied upon Hottner, supra, which, as previously mentioned, distinguished between the joinder of an additional defendant based upon a general denial of insurance and pursuant to an express indemnification clause. We are persuaded that the propriety of a joinder of an insurer, and not that of an indemnitor, was ruled upon in Stokes.

However, a different result must be reached with respect to the precedential vitality of Eads v. Smith, supra. In Eads, the plaintiff was injured when he was stricken by the defendant’s car while riding a bicycle. The defendant’s insurance agent was permitted to be joined as an additional defendant on the basis of a denial of coverage. Hence, because Eads did involve a “wrongful denial coverage under a general policy of insurance,” Eads was overruled by Stokes.

Under the circumstances of this case, the trial court must be reversed. The matter is remanded to the Court of Common Pleas for proceedings consistent with this opinion.

Jurisdiction is relinquished.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I join the majority’s decision to reverse and remand. I write separately only to make several observations. First, the only reason given by the trial court for refusing to allow the late joinder of the plaintiff’s employer as an additional defendant was that Pa.R.C.P. 2252(a) did not allow the joinder of an express indemnitor in an action based on negligence. I agree with the majority that this issue is controlled by the prior decision of this Court in Szemanski v. Vulcan Materials Co., 272 Pa.Super. 240, 415 A.2d 92 (1979).

The second observation which I would make is that neither the trial court nor this Court has considered whether the stairway leading to the employer’s office was a part of the “demised premises” within which the agreement to indemnify was operative. The applicability of the indemnification agreement to the facts of this case, therefore, is still an open question. We hold only that it was error to disallow the late joinder in this case solely on grounds that plaintiff’s employer, allegedly an express indemnitor, could not be joined in the plaintiff’s action against the landlord for defective design or maintenance of the stairs to the offices of plaintiff’s employer.

      . The order which denied appellants’ petition to join an additional defendant is a final order, which is appealable. Commercial Banking v. Culp, 297 Pa.Super. 344, 443 A.2d 1154 (1982).

      . Pa.R.C.P. 2252.

      . This section was the predecessor section to § 481(b), supra.

      . Stokes v. Loyal Order of Moose Lodge # 696, 502 Pa. at 467, 466 A.2d at 1345.

         In this case the plaintiff furnished electrical supplies to Bruns Electric Inc.; payments were guaranteed under a March 23, 1976 surety bond. However, the surety company had agreed to serve as surety for Bruns only after two individuals had executed a March 22, 1976 agreement to indemnify or hold harmless the surety company. The plaintiff sued Bruns and the surety company for payments due for supplies which the plaintiff had furnished. The surety company joined the two individuals who had executed the March 22, 1976 agreement and the plaintiff sought to dismiss this complaint on the ground that the claim did not arise out of the transaction upon which the plaintiffs cause of action was based. Because the plaintiff had not furnished supplies until payment was guaranteed by the surety company and because the surety company had guaranteed payment only after the two individuals had executed the March 22, 1976 agreement, we ruled that the plaintiffs claim against the surety company and the surety company’s claim against the two individuals arose out of the same series of transactions and permitted joinder.


author: JOHNSON, Judge:

text:
    515 A.2d 948
    Cheryl C. PIERCE v. W. Robert PENMAN, M.D. and Dorothy I. Lansing, M.D., Appellants.
    Superior Court of Pennsylvania.
    Argued March 4, 1986.
    Filed Sept. 29, 1986.

      Hugh Hutchinson, Philadelphia, for appellants.
    George A. Brutscher, Kennett Square, for appellee.
    Before McEWEN, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

In this case we consider whether a patient, with a history of emotional problems known to her physicians, may recover compensatory and punitive damages from those physicians for severe emotional distress suffered when the physicians repeatedly refused to turn over to the patient copies of her medical records under circumstances where the physicians conceded that the patient was legally entitled to receive promptly copies of her medical records.

Appellee, Cheryl C. Pierce (hereinafter referred to as “patient” or “Appellee”), filed an equity complaint on January 19, 1981 against Appellants, Robert Penman, M.D. and Dorothy Lansing, M.D. (hereinafter sometimes referred to as “physicians” or “Appellants”), alleging that Appellants refused to provide copies of Mrs. Pierce’s medical records to her. The complaint sought copies of the medical records, compensatory damages, punitive damages and attorney’s fees. The case was tried non-jury before the Honorable Lawrence E. Wood of the Court of Common Pleas of Chester County in June of 1984.

On September 11, 1984, Judge Wood, in a Decree Nisi, ordered payments by the physicians of the patient’s counsel fees, plus $1,000 for compensatory damages and $7,000 for punitive damages. In the Decree Nisi the chancellor found, and on appeal the physicians concede, that copies of the patient’s requested medical records should have been promptly turned over to her. Both sides filed exceptions, and on May 9, 1985, a court en banc amended the Decree Nisi to increase compensatory damages to $2,500 and increase punitive damages to $10,000, while striking the earlier award of attorney’s fees.

Apparently the May 9, 1985 Order was never sent by the trial court to counsel for the physicians, and their counsel never saw the order until June 18, 1985. The physicians’ post-trial motion seeking leave to appeal nunc pro tunc was granted on July 8, 1985 giving them ten days to file an appeal. On July 17, 1985, the physicians filed a timely appeal to this Court.

On appeal the physicians contend that the trial court abused its discretion:

a) in failing to grant their Motion for Continuance,
b) by awarding compensatory damages for mental anguish and emotional distress,
c) in awarding punitive damages, and
d) by awarding excessive compensatory and punitive damages.

Finding no merit to these contentions, we affirm.

Before addressing the issues raised by the physicians, we note that the instant appeal was filed more than thirty days after the trial court’s May 9, 1985 adjudication. Pennsylvania Rule of Appellate Procedure 903(a) expressly provides that a notice of appeal “shall be filed within 30 days after the entry of the order from which the appeal is taken.” However, an extension of the statutory period of time during which an appeal may be taken may be justified where there is fraud or some breakdown in the court’s operation. West Penn Power Company v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975). We find the trial court properly granted the physicians additional time to appeal, since failure to notify their counsel of the court’s adjudication obviously represents a breakdown in the operation of the court.

Turning to the issues raised by the physicians, we first address their contention that the trial court erred in not granting their Motion for Continuance. The power to grant or refuse a request for a continuance is within the discretion of the trial court and will be reversed only where it is clear that the trial court's discretion has been abused. Phoenix Mutual Life Insurance Co. v. Radcliffe on the Delaware, Inc., 439 Pa. 159, 266 A.2d 698 (1970); Walasavage v. Marinelli, 334 Pa.Super. 396, 483 A.2d 509 (1984).

We find no abuse of discretion by the trial court in the instant case. The physician’s present counsel, Hugh J. Hutchison, Esquire, who requested a continuance on June 28, 1984, is the fourth attorney to represent Appellants in this case. The trial court, in denying Attorney Hutchison’s motion, made specific reference to “prior continuances and change of counsel” (N.T., 6/28/86 at 5; R. at 35a) and went on to indicate that a continuance would have delayed the start of the trial for two months or possibly longer because of the court’s busy schedule. Id. Moreover, the physicians’ treatment of this issue in their brief cites no specific examples of prejudice incurred by Appellants as a result of the trial court’s ruling.

Next, the physicians challenge the trial court’s award of compensatory and punitive damages for mental anguish and emotional distress. In Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 381, 492 A.2d 1382, 1385-86 (1985) we recently stated:

Intentional infliction of emotional distress is an actionable wrong in Pennsylvania. See Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970); Bartanus v. Lis, 332 Pa.Super. 48, 480 A.2d 1178 (1984). This actionable wrong is described in Section 46 of the Restatement (Second) of Torts (1965).

The trial court’s award of damages in the instant case was based upon Section 46, which states:

§ 46. Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.

Section 46 does not recognize liability for mere negligent infliction of emotional distress. However, reckless conduct causing emotional distress renders an actor as liable as if he had acted intentionally. See Chuy v. Phila delphia Eagles Football Club, 595 F.2d 1265 (3rd Cir.1979); Comment i to Section 46.

Moreover, the conduct must be of an extreme and outrageous type in order to support an action under Section 46. See Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976); Comment d to Section 46.

Our scope of review on appeals from a decree in equity is a limited one. Facts found by the chancellor in a court of equity, when supported by competent evidence in the record, are binding upon an appellate court. Presbytery of Beaver-Butler v. Middlesex Presbyterian Church, 507 Pa. 255, 489 A.2d 1317, cert. denied, — U.S. —, 106 S.Ct. 198, 88 L.Ed.2d 167 (1985). However, the chancellor’s conclusions of law are reviewable. Village Beer and Bev erage, Inc. v. Vernon D. Cox and Co., Inc., 327 Pa.Super. 99, 475 A.2d 117 (1984).

In the chancellor’s September 11, 1984 Adjudication, he made the following findings of fact:

1. Plaintiff, Cheryl C. Pierce is an adult individual who resides at 45 Ivy Road, Rockford Village, Wilmington, Delaware.
2. Defendants are husband and wife and duly licensed physicians specializing in the field of obstetrics and gynecology and are associated in business with offices in West Chester and Paoli, in this County.
3. Starting approximately in 1968 and continuing until 1977, Defendants rendered various professional services to Plaintiff and generally administered to the obstetrical and gynecological care and treatment of Plaintiff.
4. In 1977 Plaintiff and her husband moved to Wilmington, Delaware, and she decided to start going to a local Wilmington doctor.
5. She went to see a Dr. Hochman and signed a release authorizing him to obtain her medical records from Defendants. Dr. Hochman wrote for Plaintiff’s records but never got any response. He presumably made his request to Defendants although he was unable to recall on the day of the hearing to whom he sent the request and the release and Defendants deny receiving them.
6. In 1978 Plaintiff switched to yet another OBGYN, Dr. D’Amico. To fill Dr. D’Amico in on her past medical history, Plaintiff went to Dr. Hochman to get her records. His office informed her that they never received them.
7. In Spring of 1979, Plaintiff made an unannounced visit at Defendant’s Paoli office seeking to obtain her records. For some reason, Defendant Lansing failed to provide Plaintiff with copies of her records. Instead, the meeting deteriorated into a confrontation over Plaintiffs right to have her “records”. The visit ended with Dr. Lansing refusing to turn over the records but assuring Plaintiff that they would be made available to any subsequent treating physician through normal channels. Plaintiff was also informed that her records were at the West Chester office.
8. Plaintiff thereupon phoned George Brutscher, Esquire. As a result of that conversation with her lawyer Plaintiff decided that she wasn’t entitled to the original records. From that point on she requested only copies of her records from Defendants. She then made an appointment to see Dr. Lansing at her West Chester Office to obtain copies of her records.
9. Plaintiff arrived at Defendant’s office at the appointed time, but this visit ended similarly to her first visit in Paoli. Defendants never provided any copies of Plaintiff's records, but only agreed to give specific information from the file to any treating physician who requested it. The visit ended with Dr. Lansing stating that any further communications should come through the parties’ attorneys.
10. On June 19, 1979, Plaintiff through her attorney requested that Defendants provide to Plaintiff a true and correct copy of her medical file. In that letter Plaintiff agreed to pay any reasonable costs which Defendants might incur occur [sic] and agreed to any reasonable conditions concerning reproduction and delivery so as not to inconvenience Defendants. Defendants made no response.
11. Plaintiff got her attorney’s brother, who is a doctor, to send a written request to Defendants for a copy of her records. Defendants again made no response.
12. From late 1979 until early 1981 there was some communication between the attorneys but no progress was made towards obtaining copies of Plaintiff’s records. We do find, however, that Plaintiff and her attorney made every reasonable effort to avoid any inconvenience or expense to Defendants in making those records available to Plaintiff, and that there is simply no good reason apparent on this record why Defendants did not produce copies of the requested records.
13. Finally, in January 1981, Plaintiff brought this action in Equity seeking a mandatory injunction ordering Defendants to produce her records. Service was accepted by counsel for Defendants on February 4, 1981 but Defendants profess not to have found out about this suit from their attorney until May, 1981. They filed their Answer and New Matter on June 25, 1981.
14. In the meantime, on March 30, 1981, Defendants’ Paoli office was burglarized. (Defendants claim that, for some reason not on the record, the records were transferred to the Paoli office.) Defendants now claim that they are willing to produce the requested records at Plaintiff’s expense but are unable to because they were allegedly taken during the burglary.
15. Although the police were contacted in connection with the burglary, the Detective in charge of the investigation was never notified that any charts or files were taken.
16. Defendants earn approximately $107,000.00 per year and have a net worth of over $500,000.00.
17. Plaintiff’s counsel fees and costs for this suit are $3,534.95.

R. at 4a-8a.

Our review of the record satisfies us that the facts as found by the chancellor are supported by competent evidence. Based on the findings, we agree that the physicians have recklessly caused the patient severe emotional distress. The physicians were aware of the patient’s history of emotional problems. In fact, Dr. Penman testified that he actually referred the patient to a psychiatrist for treatment of her emotional problems. N.T., 6/28/84 at 109; R. at 139a. With this knowledge of her emotional problems, the physicians were, or reasonably should have been, substantially certain that their repeated refusal to provide the patient with her medical records over a period of years would cause her severe emotional distress. See Hoffman v. Memorial Osteopathic Hospital, supra. While the physicians may not have actually intended to cause the patient severe emotional distress, their reckless actions brought their conduct within the parameters of Section 46.

We now look to the question of whether the patient is entitled to compensatory damages. While the trial court found that Appellee had not suffered any monetary loss, this does not prevent her from recovering compensatory damages since emotional distress alone may result in the recovery of such damages. Reist v. Manwiller, 231 Pa.Super. 444, 332 A.2d 518 (1975). We find no error in the trial court’s award of compensatory damages.

With respect to punitive damages, we note that in Kirkbride v. Lisbon Contractors, Inc., 357 Pa.Super. 322, 516 A.2d 1 (1986) an en banc panel of our Court recently held “that an award of punitive damages must bear some relationship to the amount awarded as compensatory damages.” Id., 357 Pa.Superior Ct. at 328, 516 A.2d at 3. In Kirkbride our President Judge, the Honorable Vincent A. Cirillo, set forth the following succinct history of the relationship between punitive damages and compensatory damages in Pennsylvania:

[S]everal earlier Supreme Court decisions held that the amount of punitive damages must bear a reasonable relationship to the award of compensatory damages. See Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944); Givens v. W.J. Gilmore Drug Co., 337 Pa. 278, 10 A.2d 12 (1940); Thompson v. Swank, 317 Pa. 158, 176 A. 211 (1934); and Mitchell v. Randal, 288 Pa. 518, 137 A. 171 (1927). These Supreme Court decisions were cited as authority and followed by our Court in Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983), and Feld v. Merriam, 314 Pa.Super. 414, 461 A.2d 225 (1983), reversed on other grounds, 506 Pa. 383, 485 A.2d 742 (1984). They were also discussed in the case of Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983). To date, none of these cases has been overruled by the supreme court. Rather, their viability has recently been confirmed by a plurality decision of our Commonwealth’s highest court in Martin v. Johns-Manville Corporation, 508 Pa. 154, 494 A.2d 1088 (1985). In Martin, Justice Hutchinson, joined by Justice Flaherty, reiterated that punitive damages must bear a reasonable relationship to actual compensatory damages. Justice McDermott, who filed ¿ concurring opinion, did not take issue with Justice Hutchinson’s statement of the law concerning the relationship between punitive and compensatory damages. Justice Papadakos joined Justice McDermott while Chief Justice Nix and Justice Zappala concurred in the result and Justice Larsen did not participate.

Id., 357 Pa.Superior Ct. at 325-326, 516 A.2d at 3.

In the instant case we have concluded that a reasonable relationship exists between the $2,500 awarded in compensatory damages and the $10,000 awarded in punitive damages. As we indicated in Feld v. Merriam, 314 Pa.Super. 414, 437, 461 A.2d 225, 237 (1983), “punitive damages cannot be measured by a yardstick. They are not considered to be disproportionate to compensatory damages unless they are greatly in excess of compensatory damages.” The finder of fact should be given broad discretion in assessing the amount of punitive damages which will be sufficient to punish the defendant and to set an example which may deter the defendant and others from similar conduct. Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983). While the punitive damages awarded by the trial court in the instant case may be at the outer limit of reasonableness, we are not prepared to disturb the trial court’s award of punitive damages on grounds that they bear no reasonable relationship to compensatory damages.

Appellants also contend that the patient’s claim for medical records were placed in the hands of their attorney and that they took no affirmative action on the request but simply relied in good faith on the advice of counsel. It is argued that this reliance on the advice of counsel serves as a barrier to the award of punitive damages.

The record in the instant case reflects very little about the legal advice that the physicians received from their attorney. Dr. Penman testified that after the matter was turned over to Attorney Fred Cadmus, he asked Mr. Cad-mus to get the problem solved as promptly as possible. Dr. Penman indicated that Attorney Cadmus notified him about this instant lawsuit and, at one point, advised that copies of the patient’s medical chart should be made to see if the case could be settled. R. at 168a-170a. Cadmus also allegedly told Dr. Penman that the records were withheld for almost two years because the patient’s legal counsel was insisting on receiving the original chart. R. at 176a. Dr. Lansing, in her testimony, made no reference to advice which she may have received from Attorney Cadmus and Attorney Cadmus never testified.

The question of whether good faith reliance on advice of legal counsel may insulate a defendant from punitive damages appears to be an issue of first impression in Pennsylvania. The Third Circuit Court of Appeals has recently addressed this particular question in Stanton By Brooks v. Astra Pharmaceutical Products, 718 F.2d 553 (3rd Cir.1983) in the following manner:

Pennsylvania courts do not appear specifically to have addressed the question whether advice of counsel may be raised as a defense (albeit not an absolute one) to a claim for punitive damages, but a number of courts have held that “good faith reliance upon advice of counsel may prevent imposition of punitive damages,” Henderson v. United States Fidelity & Guaranty Co., 695 F.2d 109, 113 (5th Cir.1983); accord Fox v. Aced, 49 Cal.2d 381, 317 P.2d 608, 610-11 (1957); see also 22 Am.Jur.2d Damages § 253 (1965) (citing cases). We are persuaded by these decisions, and we predict that Pennsylvania law would allow a jury considering punitive damages to take into account [advice received from the defendant’s counsel]. Counsel’s testimony to that effect thus was properly admitted as relevant to the claim for punitive damages.

Id. at 580. We agree that good faith reliance on advice of counsel may be raised as a defense to the imposition of punitive damages and, if raised, should be considered by the finder of fact.

The finder of fact in the instant case, over objection, heard testimony concerning the advice which the physicians received from their legal counsel and concluded, in spite of that testimony, that an award of punitive damages was warranted. Therefore, the chancellor as the finder of fact in the instant case did consider the defense of good faith reliance on advice of counsel. We find no abuse of discretion in the chancellor’s conclusion that the advice of counsel defense did not, on these facts, overcome the plaintiff’s case.

Appellants’ final contention is that the damage awards are excessive. The gravamen of Appellants’ argument is that the en banc court increased the compensatory and punitive damages in its May 9, 1985 Memorandum Order to compensate for the reversal of that portion of the chancellor’s Decree Nisi which awarded attorney’s fees. The record does not support this argument.

Appellee filed exceptions to the Decree Nisi asserting that the damages awarded were not adequate. The court en banc, in considering the adequacy of the initial damage awards, heard oral argument, considered briefs, reviewed the record, considered the extent and possible duration of the patient’s mental anguish caused by the physicians, and concluded that $1,000 represented inadequate compensation. In light of the physicians’ outrageous conduct and their wealth, the court en banc also concluded that the punitive damage award of $7,000 was inadequate. Order, 5/9/85; R. at 14a. The court en banc agreed with the patients exceptions and increased both the compensatory and the punitive damages. Under our limited scope of review, we will not disturb the damages awarded since we find no abuse of discretion by the court en banc.

Order affirmed.

      . Because Appellants do not challenge this finding by the chancellor, we take no position as to whether the physicians were legally required to promptly turn over to the patient copies of her requested medical records.

        . Comment i reads: “Intention and recklessness. The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts recklessly ... in deliberate disregard of a high degree of probability that the emotional distress will follow.”

      . Comment d reads: “Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’
      The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt____’’

      . We note that in Chuy v. Philadelphia Eagles Football Club, supra, punitive damages six times that of compensatory damages were held not to be excessive.