author: CIRILLO, Judge:

text:
    461 A.2d 225
    Samuel FELD and Peggy Feld v. John W. MERRIAM and Thomas Wynne, Inc., Co-Venturers, T/A Cedarbrook Joint Venture and Globe Security Systems, Inc. Appeal of John W. MERRIAM and Thomas Wynne, Inc., Co-Venturers T/A Cedarbrook Joint Venture.
    Superior Court of Pennsylvania.
    Argued June 2, 1982.
    Filed May 13, 1983.
    Petition for Allowance of Appeal Granted Sept. 2, 1983.

      Marvin Comisky and William H. Roberts, Philadelphia, for appellants.
    Marshall A. Bernstein, Philadelphia, for Feld, appellees.
    Joseph R. Livesey, Philadelphia, for Globe, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

Appellees, Samuel and Peggy Feld, brought suit against appellant, Cedarbrook Joint Venture (Cedarbrook) to recover for injuries which resulted from a criminal incident that originated in the garage of building number one of the Cedarbrook apartment complex on June 27, 1975. The Felds alleged that Cedarbrook had a duty to provide adequate security for its tenants and that the breach of this duty on the part of Cedarbrook was the proximate cause of their injuries. Following an eight day jury trial, a verdict was rendered in favor of the Felds. Peggy Feld was awarded two million dollars ($2,000,000) in compensatory damages and Samuel Feld was awarded one million dollars ($1,000,000) in compensatory damages. Each of the Felds was also awarded one million, five hundred thousand dollars ($1,500,000) in punitive damages. In addition, damages for delay in the amount of eighty three thousand eight hundred and thirty five dollars and twenty four cents ($83,835.24) were awarded pursuant to Pa.R.C.P. 238. Cedarbrook’s post-trial motions for judgment n.o.v., a new trial and remittitur were denied and this appeal followed.

In evaluating the trial court’s decision to deny a motion for judgment n.o.v., it is fundamental that the evidence must be viewed in the light most favorable to the verdict winners. All conflicts must be resolved in their favor and they must be given the benefit of every reasonable inference arising from the evidence. Carswell v. S.E. P.T.A. 259 Pa.Super. 167, 393 A.2d 770 (1978); Winkler v. Seven Springs Farm, Inc., 240 Pa.Super. 641, 359 A.2d 440 (1976).

Cedarbrook apartments is a complex of approximately one thousand units located on a 36 acre tract of land in Cheltenham, Pennsylvania. The grounds can be entered by vehicle through two entrances, each of which was manned by security guards for 16 hours a day in June, 1975. At that time, Samuel and Peggy Feld were tenants in building number one of the Cedarbrook complex. They rented a parking space for their automobile in a garage located beneath that building. This facility had space for 160 cars. Access to the garage could be gained through two entrances, neither of which was equipped with doors. Additionally, the lighting in the garage was poor.

Cedarbrook provided security services for the entire apartment complex pursuant to a contract with Globe Security Services. These services consisted of stationing non-security trained doormen at the entrances to the buildings, and at the two main entrances to the complex. In addition, Globe provided one walking guard who patrolled the entire complex on foot and an additional guard who patrolled the complex in a car at irregular intervals. No regular guard services were provided for the garages.

During the years 1970 to 1975, the crime rate in the Cheltenham area had risen. Additionally, in the three month period preceeding the criminal attack on the Felds, twenty one separate incidents of criminal activity on the Cedarbrook complex were reported to Globe. These incidents included, a robbery, several apartment burglaries, car thefts, and an assault on a tenant in a hallway in one of the buildings.

The Cedarbrook Tenant’s Association, as well as individual tenants, complained to the Cedarbrook management about these incidents and requested that additional security be provided. The Tenants Association, Globe, and its predecessor, Diamond Security Services, made specific recommendations to Cedarbrook regarding security measures that should be taken. These recommendations included: better lighting in the garages and the installation of mechanized doors on the garages which could be opened by use of a key or special card. It would have cost Cedarbrook $20,000 to install these doors. In addition, it was recommended that more guards be provided to patrol the complex, and that these guards be provided with more security training. It was also suggested that the tenants be provided with decals for their cars so that the guards could better screen the cars entering and leaving the complex. Cedar-brook refused to implement any of these measures. It declined to implement the latter because it was concerned that access by the general public to the professional offices, located on the lower floors of the apartment buildings, would be hampered if unmarked cars were screened at the entrances to the complex.

On June 27, 1975, at approximately 9:00 p.m., Samuel and Peggy Feld drove into the Cedarbrook complex through the Limekiln Pike entrance, and parked their car in garage number one. After getting out of the car and locking it, they walked towards the pedestrian exit. Suddenly, three armed men emerged from behind a parked car, accosted them and robbed them at gunpoint. The men then ordered the Felds back into their car, and two of them drove the Felds off the Cedarbrook grounds through the Limekiln Pike exit. The third’ man followed them in another car.

When the assailants threatened to lock Samuel Feld in the trunk of his car, Peggy Feld, concerned that he would be unable to breath because of his emphysema, told the men that she would do anything they wished if they agreed not to harm her husband. They assented and, after being raped at gunpoint by one of the men, she succeeded in convincing them to release her husband. Mrs. Feld was raped and sodomized by the men three or four more times before she was finally released.

The Felds testified that they were very upset following the criminal episode and were convinced, during its duration, that they were going to be killed. Mrs. Feld began psychotherapy to help alleviate the severe emotional distress she experienced following the incident. One of Mrs. Feld’s psychiatrists testified that after the attack, she had undergone a complete reorganization in personality with major repression. He stated that she would never fully recover from the emotional trauma that she experienced as a result of the events that occurred on the night of June 27, 1975.

Mrs. Feld and members of her family testified that after the criminal incident, she became extremely argumentative, a heavy drinker, and that she developed an inordinate fear of young black men who reminded her of her attackers. She no longer partakes in the many social and community service activities that she once enjoyed, because she is fearful of leaving her home. She is also unable to enjoy the company of her children or her young grandchildren.

Mr. Feld testified that his marriage to Mrs. Feld had been destroyed and that they remained together out of compassion, but not love. He characterized their relationship as one of “brother and sister” rather than husband and wife.

Mr. Feld stated that he was no longer able to sleep at night and that he was constantly in a fearful, nervous and agitated state. He had not received counseling to help him deal with his emotional problems because, at the time of the trial, he was still unable to discuss the details of the criminal episode with anyone, including Mrs. Feld. His family members corroborated his testimony on these points and described him as a very unhappy man who constantly “barked” at others.

Cedarbrook’s first contention is that insufficient evidence was presented, with respect to its negligence in designing and operating the security system at the apartment complex, to warrant the submission of this issue to the jury. The questions of whether a landlord owes his tenant a duty to provide security and, if so, what the extent of that duty is, are questions of first impression in this Commonwealth. In other jurisdictions, it has been recognized that a landlord is under a duty to exercise reasonable care to protect his tenants from the forseeable criminal actions of third persons. See, Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477 (D.C.Cir.1970); O’Hara v. Western Seven Trees Corp., 75 Cal.App.3d 798, 142 Cal.Rptr. 487 (1977); Holley v. Mt. Zion Terrace Apts., Inc., 382 So.2d 98 (Fla.App.1980); Johnson v. Harris, 387 Mich. 569, 198 N.W.2d 409 (1972); Trentacost v. Brussel, 82 N.J. 214, 412 A.2d 436 (1980).

The primary reason for imposing this duty on the landlord is the recent recognition by the courts that, in modern times, a residential lease should not be viewed as a conveyance of land, but rather, as a contract between landlord and tenant, imposing certain rights and duties upon each of them. See, 43 A.L.R.3d 331 (1972).

In Pugh v. Holmes, 486 Pa. 272, 282, 405 A.2d 897, 902 (1979) (emphasis added), our Supreme Court adopted this characterization of the modern, urban residential lease:

Functionally viewed, the modern apartment dweller is a consumer of housing services. The contemporary leasing of residences envisions one person (landlord) exchanging for periodic payments (rent) a bundle of goods and services, rights and obligations. The now classic description of this economic reality appears in Javins v. First National Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071, 1074, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970) (footnote omitted). When American city dwellers both rich and poor, seek shelter today, they seek a well known package of goods and services—a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation and proper maintenance. Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 467-68, 329 A.2d 812, 820-21 (1974).

This court believes that imposing a duty on the landlord to provide adequate security for his tenants is in keeping with the current trends in- landlord-tenant law in this Commonwealth. Therefore, while we do not consider a landlord to be an insurer of his tenants, we hold that in all areas of the leasehold, particularly in the areas under his control, the landlord is under a duty to provide adequate security to protect his tenants from the forseeable criminal actions of third persons.

The duty to exercise reasonable care to protect certain persons from forseeable criminal acts is not new to Pennsylvania Law. This duty has been imposed in the context of carrier-passenger, see, Kenny v. S.E.P.T.A., 581 F.2d 351 (3rd Cir.1978); Carswell v. S.E.P.T.A. 259 Pa.Super. 167, 393 A.2d 770 (1978); landowner-invitee, see, Moran v. Valley Forge Drive-In Theaters, 431 Pa. 432, 246 A.2d 875 (1968); and inkeeper-guest, see, Buck v. Hankin, 217 Pa.Super. 262, 269 A.2d 344 (1970).

Having found that a landlord is under a duty to provide adequate security for his tenants, we must determine the standard of care to which a landlord will be held in the exercise of this duty. Section 302(B) of the Restatement (Second) of Torts (1965) provides a general standard of care that one is obligated to exercise in protecting a person to whom he owes a duty, against the forseeable criminal acts of third parties:

An act or omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.

See, Coath v. Jones, 277 Pa.Super. 479, 419 A.2d 1249 (1980). This general standard is useful in determining whether a landlord has exercised reasonable care in providing adequate security for his tenants. It is important to note, however, that the conduct of the landlord must be evaluated in light of all the facts of a particular case. Therefore, the custom among landlords of buildings of the same class plays a significant role in determining the reasonableness of a landlord’s actions. See, e.g. Kline, 439 F.2d at 486. In addition, a landlord may be held to the same standard of care that he employed upon the commencement of the lease. See, Kline, supra; Ramsay v. Morrissette, 252 A.2d 509 (D.C.App.1969); Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla.App. 1980). Therefore, in order to establish a prima facie case of negligence against a landlord for his failure to provide adequate security, a plaintiff must present evidence showing that the landlord had notice of criminal activity which posed risk of harm to his tenants, that he had the means to take precautions to protect' the tenant against this risk of harm, and that his failure to do so was the proximate cause of the tenant’s injuries.

In determining whether the Felds presented sufficient evidence to establish a prima facie, case of negligence against Cedarbrook, we note that,

[T]he jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, ... there must be evidence upon which logically its conclusion may be based____ Clearly this does not mean that the jury may not draw inferences based upon all the evidence and the juror’s own knowledge or experiences, for that is, of course, the very heart of the jury’s function. It means only that the evidence presented must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conclusions sought by the plaintiff, and not that that conclusion must be the only one which can logically be reached.
It is not necessary under Pennsylvania law that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability.

Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 138, 153 A.2d 477, 479-480 (1959) (citations omitted), (emphasis in original). See, also, Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973).

Cedarbrook contends that since it did not have prior notice of sexual assaults occurring on the Cedarbrook grounds, that it cannot be held liable under the facts of the instant case. We disagree. Restatement (Second) of Torts, § 281, Comment J (1965) provides:

[T]he fact that the interest to which harm results is a different interest, or a different kind of interest than that which was threatened with harm, will not prevent the actor from being liable, so long as the interest in fact harmed is one entitled to legal protection against negligence. .

See, Morgan v. Bucks Associates, 428 F.Supp. 546, 551 (E.D.Pa.1977). See, also Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977). In the instant case, sufficient evidence was presented to show that Cedarbrook was aware of criminal activity on the Cedarbrook grounds. From this evidence, the jury could have concluded that Cedarbrook had sufficient notice that criminal conduct by third parties was likely to endanger the safety of its tenants.

Cedarbrook also contends that there was insufficient evidence for the jury to hold it liable because the criminal conduct of which it had notice did not occur in garage number one. We disagree. Once it was shown that Cedar-brook had notice of criminal activity, it was a question of fact for the jury as to whether or not Cedarbrook fulfilled its duty to protect its tenants from criminal acts. Moran, 431 Pa. at 437-39, 246 A.2d at 879. The exact location of the prior criminal acts was immaterial as far as Cedar-brook’s duty was concerned. See, Murphy v. Penn Fruit Co., 274 Pa.Super. 427, 418 A.2d 480 (1980). Sufficient evidence was presented upon which the jury could conclude that the criminal attack on the Felds was reasonably forseeable.

Cedarbrook also asserts that insufficient evidence was presented regarding security measures taken at other apartment complexes of the same class as Cedar-brook. We disagree. Two experts testified that the security provided by Cedarbrook did not conform to the accepted standard in buildings of the same class in June of 1975. From this evidence the jury could have logically concluded that Cedarbrook acted unreasonably in failing to implement a more effective security plan. Therefore, we find that the lower court properly refused to grant Cedarbrook’s motion for judgment n.o.v. on the issue of whether it was negligent in failing to provide adequate security.

Cedarbrook’s next contention is that the amount of compensatory damages awarded in the instant case was excessive. We disagree with this assertion. In reaching this conclusion, we begin with the observation that “in any effort to translate such ... loss ... into money damages ..., systematic logic is not helpful and precision is not achievable.” Frankel v. Heym, 466 F.2d 1226, 1228 (3rd Cir.1972); See, also, Robert v. Chodoff, 259 Pa.Super. 332, 393 A.2d 853 (1978). It is well established that the amount of damages to which a person is entitled for past and future pain and suffering is primarily a jury question. James v. Ferguson, 401 Pa. 92, 162 A.2d 690 (1960). A substantial verdict, if supported by the evidence, will be permitted to stand if there is nothing to suggest that the jury was in any way guided by partiality, prejudice, mistake or corruption. Tonik v. Apex Garages, 442 Pa. 373, 275 A.2d 296 (1971); Prather v. H-K Corp., 282 Pa.Super. 556, 423 A.2d 385 (1980). In determining whether a jury’s award of compensatory damages is excessive, the following factors are considered:

1. ) the severity of the injury;
2. ) whether the injury is supported by objective physical evidence or only by subjective evidence;
3. ) whether the injury is permanent;
4. ) the plaintiff’s ability to continue his employment;
5. ) the disparity between the amount of out-of-pocket expenses and the amount of the verdict; and
6. ) the damages a plaintiff requested in his complaint.

Fretts v. Pavetti, 282 Pa.Super. 166, 422 A.2d 881 (1980); Kemp v. Philadelphia Transportation Co., 239 Pa.Super. 379, 361 A.2d 362 (1976).

The evidence presented at the trial amply supports the jury’s finding that the injuries sustained by Samuel and Peggy Feld were severe. We disagree with Cedar-brook’s assertion that the verdicts in the instant case were not supported by the evidence because the Felds’ only presented subjective evidence of their injuries. In a personal injury action, it is totally within the jury’s province to disbelieve or believe all or part of the testimony of any witness and to arrive at a verdict of damages which they determine will compensate a plaintiff for his loss. Rodgers v. Hammett, 229 Pa.Super. 6, 323 A.2d 394 (1974). In the instant case, the Feld’s testimony regarding the severity of their injuries was corroborated by both lay and expert witnesses. Additionally, Mrs. Feld suffered a severe weight loss following the criminal incident which was attributed to her severely depressed emotional state. The lower court fully instructed the jury on the legal rules regarding credibility. We will not disturb the verdicts merely because the jury chose to believe the testimony of the Felds’ and their witnesses. Stoughton v. Kinzey, 299 Pa.Super. 499, 445 A.2d 1240 (1982). The evidence supported the jury’s finding that the injuries suffered by Mrs. Feld are permanent. Expert witnesses for both Cedarbrook and the Felds testified to this effect. The evidence also supports the jury’s conclusion that the Feld marriage will never return to its former, happy state. See, Baccare v. Mennella, 246 Pa.Super. 53, 369 A.2d 806 (1976); Fretts v. Pavetti, 282 Pa.Super. 166, 422 A.2d 881 (1980).

Moreover, we disagree with Cedarbrook’s contention that the verdicts in the instant case were excessive because neither Peggy nor Samuel Feld presented evidence showing that they were unable to continue their employment. This consideration is not relevant in the instant case because the Felds did not seek damages for lost wages and the jury was not instructed to consider them in arriving at a damage figure. See, Stoughton v. Kinzey, 299 Pa.Super. 499, 445 A.2d 1240 (1982), compare, Lambert v. PBI Industries, 244 Pa.Super. 118, 366 A.2d 944 (1976). We also disagree with Cedarbrook’s assertion that the disparity between the out-of-pocket expenses and the amount of the verdicts compels the conclusion that the verdicts were excessive. As stated by Justice Musmanno in Carminati v. Philadelphia Transportation Co., 405 Pa. 500, 507-508, 176 A.2d 440, 444 (1962), “[T]o prove excessiveness by making a comparison between the medical expense incurred and the amount of the verdict ... may be as unreliable as an elastic ruler.” It is well established that there is no legal requirement that an award for pain and suffering bear any particular relationship to the special damages incurred. Murphy, supra; Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892 (1974). See, also, Moran, supra; Fretts, supra.

Additionally, we reject Cedarbrook’s assertion that the Felds are not entitled to the verdicts they were awarded in light of the fact that they only requested damages in excess of $10,000. Pa.R.C.P. 1044(b) provides, in pertinent part,

Any pleading demanding relief for unliquidated damages shall without claiming any specific sum, set forth only whether the amount is in excess, or not in excess of $10,000.

Under this rule, the Felds were prohibited from demanding a specific amount of damages and could only request relief in excess of $10,000, which they did.

We find, therefore, that the compensatory damages awarded to Samuel and Peggy Feld, while substantial, were not excessive. In addition, there is no support in the record to support Cedarbrook’s assertion that the jury awarded compensatory damages out of passion or prejudice. Therefore, the lower court correctly denied Cedarbrook’s motions for a new trial and for remittitur.

Cedarbrook also contends that there was not sufficient evidence of “outrageous conduct” on its part to submit the issue of its liability for punitive damages to the jury.

Pennsylvania has adopted the rule of punitive damages as set forth in the Restatement of Torts, section 908 (1939). Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963); Focht v. Rabada, 217 Pa.Super. 35, 268 A.2d 157 (1970). Section 908(1) provides: “Punitive damages are damages other than compensatory or nominal damages awarded against a person to punish him for his outrageous conduct.” Punitive damages are awarded only for outrageous conduct which is defined as acts done with a bad motive or with reckless indifference to the interests of others. Focht v. Rabada, supra. See, Restatement (Second) Torts, section 908(2) and comment (b) (1965). As our Court pointed out in Focht v: Rabada, 217 Pa.Super. 35, at 39, 268 A.2d 157, at 159 (1970), “Some direction in determining the nature of a ‘reckless’ act may be obtained by reference to section 500 of the Restatement of Torts titled Reckless Disregard of Safety (Defined).” Restatement of Torts, Section 500 (1939) provides:

The actor’s conduct is in reckless disregard of the safety of another if he intentionally does an act or 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 that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.

Sufficient evidence was presented to establish each element of section 500. Sufficient evidence was presented to establish that Cedarbrook intentionally failed to do an act which it was its duty to another to do: that is, Cedarbrook intentionally failed to provide adequate security for its tenants. The jury could find this element of intent from the evidence presented of Cedarbrook’s knowledge of the increasing incidence of crime in the Cheltenham area and in the Cedarbrook complex itself, and Cedarbrook’s refusal in the face of this increased criminal activity to implement the security measures recommended by Diamond Security Services, Globe Security and the Tenants Association. The jury could find from the evidence that Cedarbrook’s refusal to implement these increased security measures was the result of a conscious business decision.

Sufficient evidence was also presented to establish that Cedarbrook knew or had reason to know of facts which would lead a reasonable man to realize its conduct in failing to provide adequate security not only created an unreasonable risk of bodily injury to its tenants but also involved a high degree of probability that substantial harm would result to them. As we have already pointed out, evidence was presented that Cedarbrook had knowledge of the increasing incidence of criminal activity in the Cheltenham area and in the Cedarbrook complex itself. Furthermore, evidence was also presented that in the three month period preceding the attack on the Felds, twenty-one incidents of criminal activity in the Cedarbrook complex were reported to Globe. Two of these incidents involved crimes of violence: an assault, in which a woman was thrown to the floor and a strong arm robbery.

Knowledge of the increasing incidence of crime, including crimes of violence, in the Cedarbrook complex and the surrounding area, would lead a reasonable man to realize that Cedarbrook’s failure to provide adequate security created an unreasonable risk of bodily injury to its tenants and also involved a high degree of probability that substantial harm would result to them.

Finally we note that Restatement of Torts section 500, comment (d) (1939) provides: “If the actor’s conduct is such as to involve a high degree of chance that serious harm will result from it to anyone who is within the range of its effects, the fact that he knows or has reason to know that others are within such range is conclusive of the recklessness of his conduct towards them.” See also, Focht v. Rabada, 217 Pa.Super. 35, 39, 268 A.2d 157, 159 (1970). As has already been pointed out, the evidence was sufficient to support a finding by the jury that Cedarbrook’s intentional failure to provide adequate security involved a high degree of chance that serious harm would result to its tenants and Cedarbrook can clearly be charged with the knowledge that its tenants were within the range of that risk.

In sum, there was sufficient evidence of outrageous conduct on Cedarbrook’s part to submit the issue of its liability for punitive damages to the jury.

Cedarbrook also contends that the punitive damages awarded to Samuel and Peggy Feld in the instant case were excessive. We find that the award of $1,500,000 in punitive damages to Samuel Feld is not supported by the evidence and, therefore, modify the verdict rendered in his favor.

The purpose of punitive damages is to punish the wrongdoer for his outrageous conduct and to deter him and others from engaging in similar conduct in the future. Esmond v. Liscio, 209 Pa.Super. 200, 224 A.2d 793 (1966). In cases where an award of punitive damages is proper, the decisions of whether to award them and the amount to be awarded are within the discretion of the jury. See, Focht v. Rabada, supra; Restatement Torts, § 908(2) (1939). In determining the amount of punitive damages to be awarded, the jury must consider the tortious act itself, the relationship between the parties, and all other attendant circumstances, including the motives of the wrongdoer. Thomas v. American Cystoscope Makers, Inc., 414 F.Supp. 255 (E.D.Pa.1976); Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944). An award of punitive damages will only be reduced on appeal if the reviewing court determines that it is excessive under the facts of the individual case. International Electronics Co. v. N.S.T. Metal Products Co., 370 Pa. 213, 88 A.2d 40 (1952).

Punitive damages are considered to be excessive when they are so large as to indicate that the jury was influenced by passion or prejudice; when they do not bear a reasonable relation to the injury or the cause of it; or when they are disproportionate to the amount of compensatory damages awarded. See, 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); Mitchell v. Randal, 288 Pa. 518, 137 A. 171 (1927), Contra, Rhoads v. Heberling, 306 Pa.Super. 35, 451 A.2d 1378 (1982). 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. See, Givens, Thompson, Mitchell, supra.

Applying these standards to the facts of the instant case, we find ihat the award of $1,500,000 in punitive damages to Peggy Feld was adequately supported by the evidence. This award bears a reasonable relation to the injuries she sustained and is not disproportionate to the $2,000,000 in compensatory damages which she was awarded. Additionally, there is no support in the record for Cedarbrook’s contention that she was awarded such a large amount of punitive damages due to passion or prejudice on the part of the jury.

We note, however, that Samuel Feld’s injuries were less severe than Peggy Feld’s, that he received $1,000,000 less in compensatory damages than she did, and yet, was awarded the same amount of punitive damages. This leads us to conclude that his punitive damage award does not bear a reasonable relation to the injuries he sustained. Therefore, we reduce Samuel Feld’s punitive damage award to $750,000 so that the damages awarded to him bear the same relationship of compensatory to punitive damages as do the damages awarded to Peggy Feld.

Cedarbrook also contends that it is entitled to a new trial due to the trial court’s refusal to grant its motion for separate trials on the issues of liability and punitive damages. Cedarbrook avers that this alleged error was compounded when the trial court admitted into evidence the fact that John W. Merriam, the principal of Cedarbrook, was worth forty million dollars ($40,000,000).

We reject these contentions. A new trial will not be granted absent a palpable abuse of discretion which clearly influenced the outcome of the case. Phelps v. Paul L. Britton, Inc., 412 Pa. 55, 192 A.2d 689 (1963). Additionally, the decision of whether or not to grant separate trials lies within the discretion of the trial court. Separate trials should not be allowed where prejudice is not likely to result from a joint trial, Pa.R.C.P. 213(b). See also, Swanger v. Pyles, 204 Pa.Super. 72, 203 A.2d 488 (1964).

It is well established that evidence of a defendant’s net worth is admissible in cases where punitive damages are sought. Thomas v. American Cystoscope Makers, Inc., 414 F.Supp. 255 (E.D.Pa.1976); Aland v. Pyle, 263 Pa. 254, 106 A. 349 (1919); Restatement of Torts, section 908(2) (1939). Such evidence, however, should not be admitted until a plaintiff has presented a prima facie case on the issue of a defendant’s outrageous behavior. Givens v. W.J. Gilmore, 337 Pa. 278, 10 A.2d 12 (1940). Additionally, the reception of such evidence should be carefully safeguarded by the court to prevent injustice to the defendant. Ayre v. Dickstein, 337 Pa. 471, 12 A.2d 19 (1940). All of these procedures were followed by the court below in the instant case. See, Pa.R.C.P. 224. Moreover, in its charge to the jury, the lower court cautioned:

This evidence, members of the jury, of the net worth of $40 million dollars is to be used by you as an aid or as a guide to determine the amount of damages which will serve the punishment purposes. It is not to be used by you as a method of inflaming your patience (sic), or prejudice, against this defendant because he happens to be a wealthy or prosperous person.

In view of the precautions taken and the instructions given, we fail to discern how Cedarbrook was prejudiced by the trial court’s refusal to grant its motion for separate trials. Therefore, it is not entitled to a new trial on that basis.

Cedarbrook also contends that the lower court erred in refusing to allow it to introduce evidence of a net tax loss resulting from the operation of the Cedarbrook Apartment Complex. On direct examination, John W. Merriam, the owner of the complex, testified as to the amount Cedar-brook spent on security and Cedarbrook’s annual income from apartment rentals. Another witness for Cedarbrook testified, on direct examination, as to what Cedarbrook’s annual apartment rental income would have been with 100% occupancy. These questions were asked in order to determine the feasibility of spending more money to provide additional security services. See, Hyndman v. Pennsylvania Railroad, 396 Pa. 190, 152 A.2d 251 (1959); Bethay v. Philadelphia Housing Authority, 271 Pa.Super. 366, 413 A.2d 710 (1979). Cedarbrook then sought to introduce evidence that in the years 1970 through 1975, it had sustained a net tax loss in the operation of the apartment complex. The trial court refused to admit this evidence on the ground that it would have introduced collateral matters into the trial which were not relevant to the immediate issues.

It is well established that it is the trial court’s function to exclude evidence that would confuse the jury and divert their attention from the primary issues in a cáse. Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973): Geesey v. Albee Pennsylvania Homes, 211 Pa.Super. 215, 235 A.2d 176 (1967). Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court and will not be disturbed absent a clear indication that that discretion has been abused. Catina, v. Maree, 272 Pa.Super. 247, 415 A.2d 413 (1979). Had Cedarbrook’s proffered evidence been admitted, the jury might have been led to believe that Cedarbrook had not made a profit for five years. Additionally, appellees would have attempted to offer evidence regarding tax shelters to dispel this notion. This would clearly have diverted the jury’s attention from the issue of whether Cedarbrook had the financial means to provide better security services. Therefore, we cannot say that the trial court abused its discretion when it refused to allow Cedarbrook to introduce evidence of its net tax loss.

Cedarbrook’s final contention is that Pa.R.C.P. 238, under which delay damages were awarded, is unconstitutional. This argument was neither raised in, nor considered by, the court below. Therefore, the issue has been waived and will not be considered by this court on appeal. Pa.R.A.P. 302(a); Robert F. Felte, Inc. v. White, 451 Pa. 137, 302 A.2d 347 (1973); Scuro v. Scuro, 226 Pa.Super. 592, 323 A.2d 49 (1974).

Order affirmed as modified.

      . Cedarbrook's ownership is legally designated as John W. Merriam and Thomas Wynne, Inc., co-venturers, t/a Cedarbrook Joint Venture. The apartment complex, however, is owned solely by John W. Merriam.

      . These entrances were not guarded between 9:00 a.m. and 3:00 p.m.

      . Globe Security Systems (Globe) was also named as a defendant in the instant action. Globe provided security services for the apartment complex under an oral contract with Cedarbrook. The jury found that Globe had not been negligent for failing to stop the assailants as they entered and left the Cedarbrook grounds, and for failing to discover their presence in the garage. Neither of the parties on the instant appeal have raised any issues with regard to Globe’s liability.

      . These complaints and recommendations were made to the manager of Cedarbrook. John W. Merriam bore the ultimate responsibility for determining what security measures were to be provided.

      . The guards provided by Globe were paid the minimum wage. Globe would have been able to provide more qualified guards if Cedarbrook had consented to pay a higher hourly wage.

      . A security guard was posted at this entrance at the time, but he did not stop the car.

      . The assailants were apprehended and convicted for the crimes perpetrated on the Felds. See, Commonwealth v. Guess, 266 Pa.Super. 359, 404 A.2d 1330 (1979).

      . The analogy between inkeeper-guest and landlord-tenant is especially persuasive in the instant case. The inn has been described as the only medieval multiple dwelling house. Kline, supra.

      . It is important to note that this is just one factor to be considered in evaluating the reasonableness of the landlord’s conduct. As the Supreme Court of Pennsylvania, quoting Mr. Justice Holmes, pointed out, "What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not." Hudson v. Grace, 348 Pa. 175, 181, 34 A.2d 498, 502 (1943). See abo, Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971). Therefore, if a landlord does not provide locks for the doors in a building located in a high crime district, his conduct may be unreasonable despite the fact that no other landlord in the area provides such locks. At the same time, a landlord may be found to have acted reasonably in refusing to provide a 24 hour a day doorman for a townhouse which has been converted to walk-up apartments.

      . Section 281 of the Restatement (Second) of Torts (1965) sets forth the elements for a cause of action in negligence.

      . Additionally, Cedarbrook contends that there was insufficient evidence that its negligence was the proximate cause of the Feld's injuries, in light of the fact that the jury absolved Globe of liability. We disagree. In the instant case, the jury was presented with conflicting evidence on the question of whether Cedarbrook’s failure to provide adequate security or Globe’s failure to prevent the criminal assault, was the proximate cause of the Feld’s injuries. Therefore, the issue was properly submitted to the jury. See, Ross v. Vereb, 481 Pa. 446, 392 A.2d 1376 (1978); Kuzmics v. Santiago, 256 Pa.Super. 35, 389 A.2d 587 (1978). From the evidence, the jury could have logically concluded that Globe's failure to discover the criminal act was due to Cedarbrook’s failure to provide enough guards to patrol the complex, and Cedarbrook’s refusal to institute a screening system at the entrances to the complex.

      . We disagree with Cedarbrook’s contention that Samuel Feld is precluded from recovering compensatory damages because he did not mitigate damages by undergoing professional counseling. Where a plaintiff’s general rejection of psychiatric treatment is a manifestation of his emotional injuries, as in the instant case, he is not precluded from recovering damages. See, Browning v. United States, 361 F.Supp. 17 (E.D.Pa.1973).

      . Peggy Feld incurred out-of-pocket expenses of $8,900, for 179 hours of psychiatric counseling at $50.00 per hour. Samuel Feld incurred no out-of-pocket expenses.

      . Cedarbrook also places great emphasis on the fact that smaller verdicts have been awarded in other personal injury actions. We find this argument unpersuasive. "[S]uch a comparative approach is only of limited usefulness. Each case must be evaluated on its merits within the framework of its distinctive facts." Weaver v. Ford Motor Co., 382 F.Supp. 1068, 1076 (E.D.Pa.1974).

      . Restatement (Second) Torts section 908 (1967) is in all material parts identical to the Restatement of Torts, section 908 (1939).

      . Restatement (Second) Torts, section 500 (1967) is in all material parts identical to the Restatement of Torts, section 500 (1939). The Reporter to the Second Restatement stated: "This Section has been changed from the first Restatement by rewording it in the interest of clarity. No change in substance is intended.” Restatement (Second) Torts section 500 (Appendix). In the instant case the trial court correctly charged the jury in accordance with the first Restatement and use of the Restatement Second would in no way effect this decision.

      . Pa.R.C.P. 224 provides:
      Regulation of Order of Proof
      The Court may compel the plaintiff in any action to produce all his evidence on the question of the defendant’s liability before he calls any witness to testify solely to the extent of the injury or damages. The defendant's attorney may then move for a non-suit. If the motion is refused, the trial shall proceed.
      This practice has been recommended as a means of protecting against the danger that a jury will base its award of compensatory damages on the wealth of a defendant. See, V. Lcvit, Punitive Damages: Yesterday, Today and Tomorrow, 1980 Ins.LJ. 257, 261-61 (1980).

      . These figures included income from apartment rentals alone and did not include income from the other commercial enterprises located in the Cedarbrook Hills Apartment Complex. The annual rental income was between four and five million dollars.

      . Pa.R.C.P. 238 provides, in pertinent part:
      Rule 238. Award of Damages for Delay in an Action for Bodily Injury, Death or Property Damage
      (a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15, 1975, P.L. 390, 40 P.S. § 1301.101 et seq., shall
      (1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court’s decision in a nonjury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict or decision;
      (2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision.
      (c) Except as provided in subdivision (e), damages for delay shall be added to the award, verdict or decision against all defendants found liable, no matter when joined in the action.
      (d) The court may, and on request of a party shall, charge the jury that if it finds for the plaintiff, it shall not award the plaintiff any damages for delay because this is a matter for the court.
      (e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of the offer, the court or the arbitrators shall not award damages for delay for the period after the date the offer was made.
      (f) If an action is pending on the effective date of this rule, or if an action is brought after the effective date on a cause of action which accrued prior to the effective date, damages for delay shall be computed from the date plaintiff files the initial complaint or from a date one year after the accrual of the cause of action, or from a date six (6) months after the effective date of this rule, whichever date is later.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    461 A.2d 239
    COMMONWEALTH of Pennsylvania v. Mark YANT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 6, 1983.
    Filed May 13, 1983.

      Elaine G. DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   PER CURIAM:

Once again we are asked to determine whether the Commonwealth has conformed to the requirements of Pa.R. Crim.P. 1100, which is designed to guarantee criminal defendants a speedy trial by imposing a 180 day limit on the time between the complaint is filed and the accused’s trial is held. Appellant Mark Yant was convicted of burglary and other charges at a trial held on October 17, 1980, and he was given a probationary sentence. He claims that the Commonwealth violated Rule 1100, and that he is entitled to discharge.

The dates relevant to this appeal are as follows:

Jan. 20, 1980 Complaint filed.

Jan. 30 Preliminary Hearing scheduled; Commonwealth requests continuance until February 20.

Feb. 20 Preliminary Hearing held.

Mar. 5 Arraignment.

Apr. 25 First listing for trial; Yant in custody for another offense and no order for bringdown issued.

Jun. 20 Second listing for trial; case marked “Ready, not reached” and continued to August 7.

Jun. 25 Commonwealth files timely Petition to Extend.

Jul. 18 End of 180 day run date from Complaint of January 20.

Jul. 28 Yant petitions to dismiss.

Jul. 31 Hearing on Petition to Extend scheduled but continued.

Aug. 1

Aug. 4

Aug. 6

Aug. 7 ” ”. Trial also continued; Commonwealth witnesses not present.

Oct. 17 EXTENSION HEARING AND TRIAL HELD (four months after the filing of Petition to Extend, and 271 days after the Complaint was filed).

Yant never requested any continuance and never signed a waiver of his Rule 1100 rights. All continuances came at the request of the Commonwealth.

Rule 1100(c) provides:

(c)(1) At any time prior to the expiration of the period for commencement to trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
(2) A copy of such motion shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.
(3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the commonwealth and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.
(4) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court’s business, and the record shall so indicate.

The sole issue on appeal is whether the Commonwealth met the test of Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976) and reiterated in Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979) by proving due diligence in bringing Yant to trial, and sufficiently explaining or justifying any delay. Mayfield mandates that henceforth a trial court could grant an extension under Rule 1100(c) only upon a showing of (1) “due diligence” of the prosecution, and (2) certifying that trial is scheduled for the earliest date consistent with the court’s business. If the delay is due to the court’s inability to try the defendant within the prescribed period, the record must show the reasons why the delay is unavoidable. Yant claims that these standards were not met, in that the Commonwealth failed to prove due diligence in either bringing him to trial or in holding the hearing on his Petition to Extend. We will address these two related issues separately.

Delay in Trial on the Charges:

The Commonwealth has the burden of showing by a preponderance of the evidence (the least burdensome standard of proof known to the law) that it has met the requirements of Rule 1100(c). Ehredt, supra. In reviewing a hearing court’s ruling that the Commonwealth has met its burden, the appellate Court considers only the evidence presented by the Commonwealth and so much of the defense evidence as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977).

The Commonwealth argues that Yant has waived his Rule 1100 claim by filing a non-specific boiler-plate post-verdict motion, which alleges “the Commonwealth failed to bring the defendant to trial within the permissable time under Rule 1100 Pa.R.Crim.P.” While it is true that waiver has been found in general boiler-plate post-verdict motions claiming insufficiency of the evidence without specific allegations, we believe that Yant’s motion on rule 1100 violation is sufficiently specific to preserve the issue for appellate review. We therefore proceed to address the merits of his appeal.

The first postponement, moving the Preliminary Hearing from January 30 to February 20, was requested by the Commonwealth because Yant’s co-defendant was unable to proceed to trial, and the Commonwealth did not want severance. The second postponement was of the trial itself. Yant, originally released after posting bail, was arrested on new charges while awaiting trial. The Commonwealth was unaware that Yant was in custody in Philadelphia, and therefore failed to prepare an order for forthwith bring-down for trial on April 25, the date of the first listing of the case for trial. A continuance until June 20 resulted. The third delay occurred because on June 20, at 4:47, the case had not yet been heard. It was marked “Ready, not reached” and continued until August 7, beyond the run date of July 18.

At the third rescheduling, Yant’s counsel made no objection to the August 7 date, and the Commonwealth argues that Yant has on that grounds also waived his right to claim a Rule 1100 violation. The Commonwealth relies on Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981) in which the Supreme Court held that failure to object to a rescheduling constituted a Rule 1100 waiver. The circumstances in Brown, however were clearly distinguishable from those in Yant’s case. In Brown, the defendant had already requested one continuance, and had executed a voluntary and knowing waiver of his 1100 rights in connection with that request. The Supreme Court held that because Brown’s prior waiver was valid, he unquestionably understood his 1100 rights at the time of the rescheduling, and therefore he waived those rights by failing to object at the time of the rescheduling. We do not find a waiver by Yant, who had never requested a continuance, and had never executed a waiver, prior to the postponement to August 7.

On August 7, two Commonwealth witnesses failed to appear. One of them subsequently testified (at the October 17 hearing) that they had appeared and testified at the Preliminary Hearing, and had appeared in response to subpoenas relating to the earlier listing dates. He further testified that they would have appeared- on August 7 if they had received subpoenas, for that date, but that they had not received them. The prosecution introduced exhibits of subpoenas for two witnesses for August 7, but in cross examination the defense brought, out that there was no indication of service, and no indication that the subpoenas had been mailed (NT. 7-11).

The record is silent as to whether the August 7 listing was the earliest possible rescheduling after the continuance of June 20, and as to whether the October 17 listing was the earliest possible rescheduling after the continuance of August 7. Mayfield clearly requires “certification that trial is scheduled for the earliest date consistent with the court’s business, provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must show the causes of the court delay and the reasons why the delay cannot be avoided” (469 Pa. at 222, 364 A.2d at 1349-50).

Delay in Hearing on Petition to Extend:

The Commonwealth’s Petition to Extend was timely filed on June 25 but for various reasons no hearing was held on the Petition until October 17, the date of Yant’s trial. This was 91 days beyond the original run date and 114 days after filing the Petition to Extend. This Court has frequently expressed its disapproval of pre-hearing delays which result in the hearing taking place well beyond the 180 day run date. Commonwealth v. Simon, 283 Pa.Super. 203, 423 A.2d 1060 (1981); Commonwealth v. Prillerman, 260 Pa. Super. 211, 393 A.2d 1228 (1978); Commonwealth v. Metzger, 240 Pa.Super. 712, 360 A.2d 227 (1977); Commonwealth v. Mancuso, 247 Pa.Super. 245, 372 A.2d 444 (1977); Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1975). As footnote 2 in Metzger explains: “The risk is obvious: if the court denied the extension after the period had run, the Commonwealth is prevented from bringing the accused to trial. If the petition is denied promptly, the Commonwealth may nonetheless be able to try the accused within the period.” (Metzger, quoting Mancuso, supra, footnote 3). This repeated admonition applies to Yant’s case, for the hearing court was put in the position of having to grant the Petition to Extend or dismiss the accused. This circumstance inevitably puts pressure on the hearing court to grant the petition.

The lower court, in reviewing cases in which extension hearings were held beyond the defendant’s run date, observed that in only one instance, Prillerman, supra, was an Extension Order reversed because of delay. In Prillerman, the delay was seven months. The court below accepted the four month delay in Yant’s case because it “was occasioned by reasons out of the control of the Commonwealth” (Opinion, p. 5). We believe this was error.

We uphold the principle expressed in Ray, supra: “Because the circumstances of each particular case might vary substantially, we will not reduce to a time certain the time limit within which the lower court must dispose of the Commonwealth’s application” (240 Pa.Superior Ct. at 36, 360 A.2d at 927). In the instant case, we do not discern that the four month delay was incurred despite due diligence by the Commonwealth. The Commonwealth offers as explanation for the five continuances on the Petition hearing the following: the assistant district attorney who was to testify was on vacation (two continuances) illness of the judge (one continuance), case not entered on the court list (one continuance) and, for the fifth continuance, no excuse at all. We held that the absence of a police officer on vacation was insufficient showing of due diligence on the part of the Commonwealth in Com. v. Delpiano, 290 Pa.Super. 610, 434 A.2d 1260 (1981). The various other continuances, each standing alone, would perhaps not constitute a violation of the rule. For Yant, however, we hold that the totality of the circumstances and the repeated continuances of the trial and the Extension Hearing resulted in a violation of his rights under Rule 1100. We therefore believe that the proper remedy is discharge.

Judgment of sentence is reversed and appellant is discharged. .

SPAETH, J., concurs in the result.

       The record and the testimony conflict as to whether a hearing was scheduled on July 31 and continued to August 1, or first scheduled for August 1. At the hearing, the prosecution testified that it did not remember and did not have the record (N.T. Extension Hearing, 14). Additional confusion arises from the allusion in appellant’s brief to a scheduling of the Extension Hearing for October 7. This scheduling does not appear in the record. (See appellant’s brief, p. 11, referring to N.T. 23-4 and the quarter sessions file).

      . All the cases that the Commonwealth cites to establish waiver on the basis of lack of specificity in post-verdict motions are claims of insufficiency of evidence rather than Rule 1100 claims. Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980), Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982), Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982).

      . Yant's post-verdict motions also state: "The Commonwealth failed to hold a timely extension hearing. Said hearing was held well beyond the time period required under Rule 1100.” The Commonwealth does not claim lack of specificity in this motion.


author: MONTEMURO, Judge:

text:
    461 A.2d 243
    William E. FITZPATRICK, Appellant, v. Arlo A. SHAY and his wife, Patricia A. Shay. (Two cases).
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1982.
    Filed May 27, 1983.

      Robert Sullivan, Lebanon, for appellant.
    Thomas N. Cooper, Lebanon, for appellees.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

On May 16, 1981, the lower court entered two separate orders granting summary judgment against plaintiff-appellant, William E. Fitzpatrick, and in favor of defendant-appellees, Arlo A. Shay and Patricia S. Shay. One order involved a case in equity, and the other order an action at law, in assumpsit. Appellant takes this appeal from both orders.

Appellant and the husband-appellee were stockholders in a Pennsylvania Corporation, Great Oak Enterprises, Inc. (hereinafter Great Oak), which owned as its sole asset a large tract of land in Lebanon County.

At the time of the transactions complained of herein Shay was an officer and director of the corporation. He also owned two-thirds (%) of the outstanding stock. Fitzpatrick was an officer of the corporation and owned one-third (Vs) of the outstanding stock.

Between April, 1971 and July, 1977, Great Oak, by deed, granted and conveyed individual tracts of land to the appellees in five separate transactions. Appellant contended that at the time of the transfer of each lot, the appellee, Arlo A. Shay, orally agreed to pay the appellant one-third (Vs) of the fair market value of each of the lots. Appellant asserts that no consideration was ever paid to the corporation, nor were any amounts paid to him in satisfaction of the alleged oral promise. However, each deed contains a recital of consideration and each was signed by the appellant as secretary-treasurer of Great Oak.

The land was developed by appellees and an apartment complex was built. Great Oak was subsequently sold to third parties and neither appellant nor appellees retained any interest in the corporation. This sale took place prior to the commencement of this action.

Summary judgment can only be granted in cases where there is no genuine issue of any material fact, and where the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035. In determining whether there is a dispute of material fact, the court must view the evidence most favorably to the non-moving party, giving to that party the benefit of all favorable inferences that might reasonably be drawn from the evidence, and thus placing the burden of proving the absence of any factual issue on the moving party. Badami v. Dimson, 226 Pa.Super. 75, 76-77, 310 A.2d 298, 299-300 (1973). For purposes of clarity, we shall analyze each of the actions separately.

A. EQUITY

In the equity case, appellant asserted a cause of action for “conversion of a corporate purpose.” and demanded an accounting of profits from the land and one-third (V3) of those profits. Appellees admit the sales of land took place, but deny any “conversion of corporate purpose.” They further assert that consideration was paid as evidenced by the recital of consideration in each deed. By way of New Matter, the appellees assert that appellant ratified the transactions by signing the deeds. They also raise the defenses of statute of limitations, statute of frauds, laches and merger.

The depositions of the parties were taken. Subsequently, appellees filed a motion for summary judgment, alleging that: (1) Patricia A. Shay was not a party to any of the transactions, nor was she an officer or director of Great Oak; (2) any claims were barred by the applicable statute of limitations; (3) Great Oak, not the appellant, was the real party in interest; and (4) equity was without jurisdiction because Great Oak was an indispensible party to the action.

The appellant in its answer to the summary judgment motion countered with assertions that appellees waived any argument with respect to the appellant’s party status by failing to include said argument in the pleadings; and that the appellant was the intended third party beneficiary of a contract between Great Oak and appellees.

The trial court disregarded the appellant’s assertion that the real party in interest argument was waived and granted summary judgment on that basis. The court found that any money owed was owed to the corporation and that appellant had no standing to bring the action since he had sold all his interest in Great Oak, without reserving any right of action.

It is axiomatic that a corporation has a cause of action against its officers and directors for breach of a fiduciary duty. 15 P.S. § 1408. Hill v. Hill, 279 Pa.Super. 154, 420 A.2d 1078 (1980). It is also axiomatic that a shareholder may assert a derivative action on behalf of the corporation where the shareholder has demanded that the corporation assert the right underlying the action and the corporation has refused. 15 P.S. § 1516. Pa.R.C.P. 1506(2). While the individual plaintiff need not own stock in the corporation at the time of the institution of the action, he must allege in his complaint, “that each plaintiff was a stockholder or owner of an interest in the corporation or other entity at the time of the transaction of which he complains____” Pa.R.C.P. 1506(1). Moreover, in a derivative action, the corporation is a required party. Pa.R.C.P. 2177. Kauffman v. Dreyfus Fund, Inc., 484 F.2d 727 (3 Cir.1970); cert. denied, 401 U.S. 974, 91 S.Ct. 1190, 28 L.Ed.2d 323 (1971); Hess v. M. Aaron Co., 4 D. & C.3d 153 (1979). Guided by these standards we conclude that the trial court was correct. However, our analysis is somewhat different.

The grant of summary judgment was proper for two reasons. First, the appellant failed to join Great Oak as a party to the action. Second, the appellant ratified the sales of the properties in his capacity as secretary-treasurer.

Pa.R.C.P. 2177 requires that an action shall be prosecuted by a corporation in its corporate name. Davis v. United States Gypsum Company, 451 F.2d 659 (3 Cir.1971); Kauffman v. Dreyfus Fund, Inc., supra; Hess v. M. Aaron Co., supra; c.f. Kenrich Corporation v. Miller, 377 F.2d 312 (3 Cir.1967). Moreover, the injury claimed herein is an “indirect” injury and therefore insufficient to give rise to a direct cause of action. Burdon v. Erskine, 264 Pa.Super. 584, 401 A.2d 369 (1979). Therefore, the appellant’s cause of action was improperly brought in that the real party in interest, Great Oak, an indispensable party to the action, was not made a party. Furthermore, we find that the appellees did not waive this argument by raising it in a motion for summary judgment instead of in their pleadings. Pa.R.C.P. 1032 states, in part:

A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply except
(e) that whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter or that there has been a failure to join an indispensable party, the court shall dismiss the action.

We find that the appellees’ motion for summary judgment was a proper vehicle to effectuate the dismissal of appellant’s action.

The trial court dismissed the appellant’s equity action because the appellant retained no interest in Great Oak at the time of the institution of the suit. Under Pa.R.C.P. 1506(2), the appellant was required only to plead ownership of stock in Great Oak at the time of the transactions in question. Our examination of the pleadings indicates that this requirement was fulfilled. However, this court may affirm on a rationale other than that relied on by the trial court. Gwinn v. Kane, 465 Pa. 269, 348 A.2d 900 (1975); Justin J. Powell, Inc. v. Wian, 456 Pa. 35, 318 A.2d 346 (1974).

Our conclusion that summary judgment was properly granted is supported by the appellant’s ratification of the contested transactions by signing the deeds as secretary-treasurer of Great Oak. Appellee, Arlo Shay, and the appellant shared total control of Great Oak. By ratifying the sale of the properties, the appellant has given his approval to the transaction and thus, the approval of all the shareholders of Great Oak was obtained. Where a director or officer of a corporation engages in transactions with the corporation, those transactions may be approved by the shareholders. Chambers v. Beaver-Advance Corporation, 392 Pa. 481, 140 A.2d 808 (1958). Whether such transactions are approved is a mixed question of law and fact. Zampetti v. Cavanaugh, 406 Pa. 259, 176 A.2d 906 (1962). In the present case however, there are no facts in dispute. The appellant signed the deeds, and therefore we must infer his approval of the transactions. We find the trial court’s grant of summary judgment was correct.

B. ASSUMPSIT

Appellant’s action in assumpsit alleges an oral agreement between appellant and appellees, whereby the appellees would pay the appellant one-third (Vs) of the fair market value of the properties. Appellant sought damages for breach of the alleged contract. The trial court granted summary judgment in favor of the appellees. It found that the oral agreement alleged by the appellant would be an illegal agreement. The illegality was vaguely described as being violative of state and federal tax laws. The court tacitly assumed that the agreement would be unenforceable.

An agreement that cannot be performed without violating a statute is illegal and will not be enforced. Dippel v. Brunozzi, 365 Pa. 264, 74 A.2d 112 (1950); Pennsylvania R. Co. v. Cameron, 280 Pa. 458, 124 A. 638 (1924); Gramby, et al. v. Cobb, 282 Pa.Super. 183, 422 A.2d 889 (1980). However, it must appear that the subject of the agreement is specifically proscribed by statute. Shafer v. A.I.T.S., 285 Pa.Super. 490, 428 A.2d 152 (1981).

The transfer of the properties from Great Oak to the appellees is not per se illegal as long as there is no detriment to the creditors or shareholders of Great Oak. We perceive no detriment from the record. Therefore, if there is any illegality it must be in the alleged promise of payment to appellant of one-third (73) of the fair market value of the properties. The lower court finds that any payments would have rightfully belonged to the corporation and could have only been distributed to the appellant in accordance with state and federal tax and dividend requirements.

In O’Brien v. O’Brien Steel Construction Company, 440 Pa. 375, 271 A.2d 254 (1970), defendant-appellants sought, on appeal, to interpose a defense of illegality of a contract to pay life insurance benefits to plaintiff. They contended that enforcement of the contract to pay over the benefits would result in a tax fraud. The court stated:

We are presented at most with the unilateral wrongdoing of parties on one side of the contract, giving rise to possible federal tax and criminal liability. If there was indeed such wrongdoing, it was not required in any way by the contract. No sound public policy suggests that we hold a contract unenforceable merely because one of the parties misreports or fails to report the transaction to the appropriate taxing authority.
The rule of law that does control the disposition of this case is that a claim connected with an illegal contract is enforceable if the plaintiff does not require the illegal transaction to establish that claim.

First National Bank v. Baer, 277 Pa. 184, 120 A. 815 (1923). Id., 440 Pa. at 380, 271 A.2d 256.

In the present case we cannot say the record is sufficiently supportive of the illegality of the contract so as to merit a grant of summary judgments. The illegality was not raised as a defense by the appellees; rather, it was raised by the trial court sua sponte. There is nothing in the record concerning any of the details of the alleged oral agreement which could conclusively indicate that the transaction was intended to circumvent any laws. Accordingly, we find that summary judgment was improperly granted in the assumpsit action. The appellant is entitled to a determination of whether the alleged oral contract between himself and the appellees was valid and enforceable. RoMed Construction Co., Inc. v. Clyde M. Bartley Co., Inc., 270 Pa.Super. 420, 411 A.2d 790 (1979).

Affirmed in part and reversed in part.

      . Our research has not uncovered any cause of action so entitled. However, we shall treat it as if properly designated: i.e., “usurpation of corporate opportunity.”


author: POPOVICH, Judge:

text:
    461 A.2d 248
    Valerie HALL, Appellant v. Clifford N. LUICK.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1983.
    Filed May 27, 1983.

      Donald Gary Keyser, Uniontown, for appellant.
    Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
    Before CERCONE, P.J., and POPOVICH and VAN der VOORT, JJ.
   POPOVICH, Judge:

This is a child custody case. The trial court granted custody of the parties’ son, now twelve years old, to the father. The mother has appealed. We reverse and remand for the reasons herein stated.

The standard of review which we must apply has been set forth in the following manner:

“It is settled that the paramount concern in a child custody proceeding is to determine what is in the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979). In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). The award must be based on the facts of record and not on mere presumptions; in particular, the tender years presumption is no longer recognized, Sipe v. Shaffer, supra; McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1977).
In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976). Thus, while it will defer to the lower court’s findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, supra; Scarlett v. Scarlett, supra. In conducting this review, the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa.Super. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra. Where the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded. See Valentino v. Valentino, supra; Commonwealth ex rel. Forrester v. Forrester, 258 Pa.Super. 397, 392 A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra.
Parks v. Parks, 284 Pa.Super. 400, 406-407, 426 A.2d 108, 111 (1981).

With this framework in mind, we must examine the procedural history of the case.

At the outset, appellant filed a “COMPLAINT FOR CONFIRMATION OF CUSTODY” which was granted on September 29, 1981. Appellee filed exceptions to this order. A custody hearing was held on November 6, 1981. During this hearing, testimony was presented by appellant, appellant’s husband, appellee, and a caseworker from the Fayette County social services agency. The trial court conducted an in camera hearing with Justin, the parties’ son. At the close of the hearing, the parties agreed that they could supply the court with a “short memorandum” in place of closing argument. It appears from the record that memoranda were not filed. Then on November 13, 1981, the court ordered “investigations to be made upon the natural mother and the natural father to” be completed on or before December 18, 1981.

Subsequently, the court entered a “MEMORANDUM OPINION AND ORDER” dated February 4, 1982, awarding custody to the natural father, appellee, with visitation rights to the “Petitioner mother” for the reason that the “home environment established by respondent father will best promote the physical, intellectual and spiritual well-being of the child.” An appeal was taken. Approximately one month later, the court issued an opinion which included findings of fact. In the interim, on March 18, 1982, the reports of the social service agencies which had investigated the home environment of both parties and the report of Justin’s psychological evaluation were filed with the court. No further hearings were held by the court below.

In the past, we have said:

“The right of a litigant to in-court presentation of evidence is essential to due process: ‘In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.’ Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970) (citing extensive authority.” Wood v. Tucker, 231 Pa.Super. 461, 463, 332 A.2d 191, 192 (1974). Accord Palmer v. Tokarek, 279 Pa.Super. 458, 475, 421 A.2d 289, 298 (1980).

On this subject, we also have recognized the following:

“One requirement of this complete record is that disinterested testimony be heard concerning the fitness of each parent’s home. Rupp v. Rupp, 268 Pa.Super. 467, 408 A.2d 883 (1979); Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 (1979).” Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183, 1187 (1981).

At this stage of the proceedings, we cannot in good conscience exercise our appellate function because appellant was deprived of an opportunity to confront and cross-examine adverse witnesses and also because the record without the reports contains no disinterested testimony concerning the fitness of appellee's home. See Brief for Appellant at 13.

Initially, we note that the trial court made the “ex parte” investigative reports of the Fayette County Children and Youth Services and the Superior Court of the State of California, County of Orange, Family Conciliation Court Services “a part of the record in this case.” See “FACTUAL FINDING” No. 20.

Although the trial court did not state in its opinion that it had relied on the reports, there was no other “disinterested” testimony concerning the fitness of appellee’s home since appellee and Justin gave testimony on this subject. See J.F.G. v. K.A.G., 278 Pa.Super. 25, 419 A.2d 1337 (1980); Rupp v. Rupp, supra; Lewis v. Lewis, supra; Valentino v. Valentino, 259 Pa.Super. 395, 393 A.2d 885 (1978); See also Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 509, 388 A.2d 1082, 1083 (1978) (“unquestionably the most interested parties to the proceeding, the children ____”); Gunter v. Gunter, 240 Pa.Super. 382, 402, 361 A.2d 307, 318 (1976) (the record was deficient where “[n]o one, such as a social worker for the court, inspected the mother’s or father’s respective residence and described them to the court.”)

At the custody hearing,- the trial court did indicate that it would consider the reports in response to a request made by appellant’s attorney in the following portions of the transcript:

“MR. WARMAN [Attorney for Appellant]:
Your Honor, we have no family study of Mr. Luick or his background or his present situation and in that light the only evidence we have is his personality, profile and so on in the incidents in which—of conduct that he displayed towards his wife. And I admit that is far removed in time, and other evidence would be more proper, and I would at this time move for a—the family study ordered to be performed, social study on Mr. Luick and his family situation and his facilities in California which would be permissible and is possible through the Uniform Child Custody Jurisdiction Act to be performed through the California Agency out there.
THE COURT:
Well, we do intend to have studies made. There may be a question of costs, who will pay for it, and we’ll have to determine at that time and, of course, there will be delays in rendering the decision of this case waiting for those studies, but we do intend to have both homes evaluated and reports made to the Court, but we sustain the objection to your present inquiry.”
Notes of Hearing, 11/16/81 at 82-83. (Emphasis added.)

In the final opinion which was issued by the court after the reports were submitted, the trial court said that it “must also carefully evaluate the home environment as established by each parent as an indication of relative fitness for custody ... [and that i]t is the Court’s determination that the home environment established by the respondent, [the apellee,] a loving father, will best promote the physical, intellectual and spiritual well-being of Justin.” See Trial Court Opinion at 6. (Emphasis added).

Under these circumstances, we conclude that disinterested testimony was not presented “concerning the fitness of each parent’s home,” and since the court considered this factor in its determination, we are unable to conclude that the admission of the reports was harmless error. Hugo v. Hugo, 288 Pa.Super. at 10, 430 A.2d at 1187. Because of this defect in the record, the “ex parte” report should not have been admitted without taking testimony and giving an appellant “an opportunity to cross-examine the individual who made up the report and/or to present rebuttal testimony.” Palmer v. Tokarek, 279 Pa.Super. at 475, 421 A.2d at 298 (1980). See Rummel v. Rummel, 263 Pa.Super. at 99, 397 A.2d at 15 (the matter was remanded where “there was a violation of appellant’s rights when the lower court relied on the aforesaid [Cambria County Children’s Services’] report without first submitting it to appellant so that she might call witnesses for the purpose of contradicting or explaining it.”)

In a recent case, we remanded the matter to the trial court and said the following:

“It is settled that in a contested case, reports may not as such be admitted into evidence or considered by the court. The authors of the reports ‘ “must themselves be produced, sworn and examined as witnesses and be subject to cross-examination.” ’ Wood v. Tucker, 231 Pa.Super. 461, 463, 332 A.2d 191, 192 (1974) (quoting Commonwealth ex rel. Oncay v. Oncay, 153 Pa.Super. 569, 570, 34 A.2d 839 (1943)). See also Kessler v. Gregory, 271 Pa.Super. 121, 412 A.2d 605 (1979); Rummel v. Rummel, 263 Pa.Super. 97, 397 A.2d 13 (1979). Moreover, this court ‘has repeatedly made plain that in a child custody case ... the record must be complete .... ’ Gunter v. Gunter, 240 Pa.Super. 382, 390, 361 A.2d 307, 311 (1976). See also Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973); Williams v. Williams, 223 Pa.Super. 29, 296 A.2d 870 (1972).” Dunsmore v. Dunsmore, 309 Pa.Super. 503, 455 A.2d 723, at 724-25 (1983).

Additionally, a psychological report of Justin was filed with the court at the same time as the investigative reports; however, no reference is made to this report in the trial court’s opinion. The psychologist’s examination was conducted because of a referral made by appellee. This report contains information which is favorable to appellee and unfavorable to appellant.

For example, although appellee and Justin were the only ones interviewed by the psychologist, the report concludes that “it would be in the best interest of Justin that he remains in the custody of his natural father, Nick Luick. Also provisions should be granted for Justin’s visitations (vacations) with his mother.” “Psychological Evaluation” at 5.

The report also contains the following:

“The implication [from the psychological tests] is that Justin’s home environment (in Pennsylvania) has probably been inhibiting his verbal intellectual functioning. The other subtests [sic] scores indicate that he has greater intellectual potential and that the better the home environment influences, the more the likelyhood [sic] of scholastic success.” “Psychological Evaluation” at 3. (Emphasis added).

At this time, we express no conclusion concerning whether, indeed, Justin’s best interests would be served by granting custody to the natural father, who resides in California, or with the mother, who resides in Pennsylvania. Instead, we are unable to reach the merits of the case because appellant did not have an opportunity to question the report which was included in the record to this Court. Even though the trial court failed to state how much weight, if any, was accorded the psychologist’s report, a remand is necessary because of this and other previously mentioned unexplained deficiencies. Compare In re Hill, 248 Pa.Super. 415, 419, 375 A.2d 165, 168 (1977) (remand where “[w]e are not able to say with certainty how much weight was afforded the improperly admitted report.”) with Sandra L.H. v. Joseph M.H., 298 Pa.Super. 409, 413, 444 A.2d 1241, 1244 (1982) (no remand where the judge stated that the “study did not weigh in his deliberations and that the autobiographical section [of the report] was not considered at all.”)

The record is remanded for further hearing at which time the parties should be given an opportunity to cross-examine the authors of the reports and/or present rebuttal testimony.

The trial court shall then determine the weight to be accorded the testimony, if any, and file “a comprehensive opinion containing its findings and conclusions.” See Lewis v. Lewis, supra; see also Summers v. Summers, 273 Pa.Super. 285, 292, 417 A.2d 651, 655 (1979) (case remanded for filing of “a more comprehensive opinion setting forth its reasons, including its findings as to the credibility of the witness and the weight to be attached to the testimony.”)

Either party aggrieved by the trial court’s ultimate order may then take a new appeal to this Court. Jurisdiction is relinquished.

Reversed and remanded.

      . We note that the issue concerning the appropriate standard of review in custody cases has been certified for en banc consideration by this Court. See In Re: Donna Williams and Edward Williams, (J. 934/82).

      . A caseworker who had visited appellant’s home in July of 1981 generally described appellant's home.

      . For edification purposes, we note the following directive which was issued in a prior case:
      "Having recognized the parties’ failure to present disinterested testimony evaluating the parties’ home, we direct that the lower court undertake to have an independent examination of both homes made by a social welfare agency.” Gerald G. v. Theresa G., 284 Pa.Super. 498, 504, 426 A.2d 157, 160 (1981).

      . Even though the attorney did not ask the court at the hearing to conduct a further hearing at the time that the reports were submitted to the court, we have said that the court has a duty to insure that the record is complete. See footnote, infra at 1. Cf. Palmer v. Tokarek, 279 Pa.Super. at 474 n. 3, 421 A.2d at 297 n. 3 (theory of waiver inapplicable in a child custody dispute). See generally Pa.R.C.P. 1915.10 (effective date July 1, 1982).

      . As the court indicated at the custody hearing held on November 6, 1981, costs may be an issue. For guidance on this aspect of the case, we refer the trial court to the following:
      "It was not error to place the costs of evaluation on the appellant. Generally, costs inherent in a lawsuit are awarded to the prevailing party.”

        Hugo v. Hugo, 288 Pa.Super. at 10, 430 A.2d at 1187.