author:
BROSKY, Judge:
      JOHNSON, Judge,

text:
    536 A.2d 1337
    Gustine J. PELAGATTI, Esq., Individually and Gustine J. Pelagatti, P.C., Appellant, v. Jill R. COHEN, Esq., Gregory M. Harvey, Esq., Morgan, Lewis & Bockius, Philadelphia National Bank, David H. Marion, Esq., Kohn, Savett, Marion & Graf, P.C. and Gregory T. Magarity, Esq., and Wolf, Block, Schorr & Solis-Cohen.
    Superior Court of Pennsylvania.
    Argued June 8, 1987.
    Filed Nov. 30, 1987.
    Reargument Denied Jan. 20, 1988.

      F. Emmett Fitzpatrick, Jr., Philadelphia, for appellant.
    Jonathan Wheeler, Philadelphia, for Cohen, appellee.
    Marc J. Sonnenfeld, Philadelphia, for Harvey, appellees.
    James J. McCabe, Jr., Philadelphia, for Marion, appellees.
    Bernard M. Borish, Philadelphia, for Magarity, appellees.
    Before BROSKY, TAMILIA and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from an order sustaining preliminary objections, in the nature of a demurrer, to a fourteen-count complaint, and dismissing said complaint with prejudice. Appellant now raises six allegations of trial court error.

Upon review of the record below, and the arguments of counsel, for the reasons set forth herein, we affirm the dismissal of Counts I through VIII, and Counts XIII and XIV as to all appellees. We affirm the dismissal of Counts IX through XII as to appellees Cohen, Magarity, PNB, and the three appellee law firms, but reverse the dismissal of Counts IX through XII as to appellees Marion and Harvey, and remand for further proceedings consistent with this opinion.

The matter before us arises from a rather complex and bizarre history, which has recently been discussed in part in the related case of Cohen v. Pelagatti, 364 Pa.Super. 573, 528 A.2d 657 (1987). The relevant portion of that history is as follows: On April 12, 1983, the Honorable Bernard Snyder of the Philadelphia Court of Common Pleas handed down a decision in the case of National Auto Brokers Corporation (“NABOR”) v. Philadelphia National Bank (“PNB"), Philadelphia County, December Term, 1974, No. 1179, awarding the NABCOR plaintiffs a multi-million dollar verdict. NABCOR had been represented by Gustine Pelagatti, Esquire; PNB had been represented by Gregory M. Harvey, Esquire, of the law firm of Morgan, Lewis and Bockius.

On May 6,1983, in an unrelated case, Edgehill v. Municipal Publications, Philadelphia County, May Term, 1972, No. 2371, Judge Snyder again awarded a multi-million dollar plaintiffs verdict. A motion for Judge Snyder’s disqualification was filed by Municipal’s attorney, David Marion, Esquire, of the firm of Kohn, Savett, Marion, and Graf. On July 14, 1983, the motion was heard before Judge Snyder. Marion called Jill R. Cohen, Esquire, to testify in support of recusal. Cohen had been Judge Snyder’s law clerk while the NABCOR and Edgehill decisions were pending, and was prepared to testify that both NABCOR counsel Pelagatti and Edgehill’s counsel, M. Mark Mendel, had improperly colluded with Judge Snyder prior to verdict. An offer of proof as to the substance of Cohen’s proposed testimony was made in chambers. The testimony was disallowed; that afternoon, however, Marion called a press conference, in which he gave a detailed accounting of the substance of Cohen’s disallowed testimony. Both Cohen and her attorney, Gregory Magarity, Esquire, of the firm of Wolf, Block, Schorr, and Solis-Cohen, declined public comment. As a result of Marion’s conference, however, Cohen’s allegations were publicly disseminated through several newspaper articles and television newscasts.

On July 18, 1983, Cohen signed an affidavit, prepared by Marion, stating that she was prepared to give sworn testimony in conformity with Marion’s July 14 offer of proof. That same day, Gregory Harvey, counsel for PNB in the NABCOR case, telephoned Pelagatti, and indicated that he intended to use Cohen’s affidavit, and Marion’s offer of proof attached thereto, as the basis for a motion requesting that NABCOR be reopened, and that Judge Snyder be disqualified from further participation in NABCOR.

On August 5, 1983, Pelagatti attempted by phone to dissuade Harvey from taking such action, by relating that he had information that “a Jill Cohen” had been a mental patient at Fairmount State Hospital in May, 1981. He further indicated to Harvey that he would further investigate the background of law clerk Jill Cohen, to determine if the two Jill Cohens were the same person, if Harvey filed a motion for recusal based on Cohen’s July 18 affidavit.

On August 9, 1983, Harvey informed Pelagatti that he would be filing a motion for recusal anyway, and using Cohen as a witness in support thereof. As a result, Pelagatti began that same day to issue ex parte subpoenas, under the NABCOR caption, to obtain Cohen’s educational records, in order to determine if Cohen had taken a medical leave of absence in May, 1981, or had had a history of mental illness during her school years.

On August 18, 1983 Cohen’s attorney Gregory Magarity phoned Pelagatti’s office, and informed Pelagatti’s employee, Stephen W. Bruccoleri, Esquire, that he strongly objected to the ex parte subpoenas, and wanted Pelagatti to stop issuing subpoenas and making remarks characterizing his client as the “Jill Cohen” from Fairmount Farms. He further requested a letter from Pelagatti, stating Pelagatti’s position as to the issuance of said subpoenas, and confirming Pelagatti’s phone remarks to Harvey connecting Magarity’s client to Fairmount Farms. In response, Pelagatti that day submitted a letter to Harvey under the NABCOR caption, and forwarded a carbon copy of said letter to Magarity. Upon receipt of Pelagatti’s letter, Harvey wrote a reply letter, indicating what he believed to be inaccuracies in Pelagatti’s account of their phone conversation, and accusing Pelagatti of an “abuse of (the) process” in the issuance of the ex parte subpoenas. Additionally, Harvey contacted Frederick N. Tulsky, a reporter with the Philadelphia Inquirer, and spoke with him concerning the subpoenas.

On the following morning, August 19, 1983, an article by Tulsky appeared in the Inquirer, discussing the subpoenas at some length. The article also made mention, once again, of the substance of Cohen’s disallowed testimony, and contained Harvey’s personal comments that Pelagatti’s actions were “an abuse of process” and “exactly the conduct which (was) described” in Cohen’s testimony. Cohen, Pelagatti, and Magarity did not comment in the Tulsky article; however, to protect Cohen from further harassment, Magarity obtained a temporary restraining order from the Honorable Berel Caesar. The order precluded Pelagatti from issuing any further subpoenas to obtain .Cohen’s records, and from publishing any further statements connecting Cohen with Fairmount Farms.

On the morning of August 20, 1983, Magarity filed a one million dollar lawsuit, on Cohen’s behalf, against Pelagatti and the NABCOR plaintiffs, alleging defamation, invasion of privacy, abuse of process, and intentional infliction of emotional distress. Later that day, another Tulsky article appeared in the Inquirer, reporting the filing of Cohen’s suit, and the issuance of the temporary restraining order the previous day. This Tulsky article did contain some comments from Magarity, who referred to Pelagatti’s use of subpoenas as “improper” and “possibly illegal”.

Pursuant to Judge Caesar’s restraining order, preliminary injunction hearings were held before the Honorable Harry A. Takiff, on August 24, 1983 and September 7,1983. On September 16, 1983, Judge Takiff granted Cohen’s request for a preliminary injunction, and forbade Pelagatti from issuing further subpoenas requesting Cohen’s records, reviewing and/or disseminating any information in the records acquired prior to the restraining order, or otherwise invading Cohen’s privacy. The events of the hearing, and the contents of Judge Takiff’s Memorandum and Order, were reported in various newspaper articles.

On October 15, 1983, Gregory Harvey filed a motion for the recusal of Judge Snyder from further involvement in the NABCOR proceeding. The motion was supported by David Marion’s July 14 offer of proof in the Edgehill recusal hearings, and Cohen’s July 18 affidavit.

On October 18, 1984, Pelagatti filed a fourteen-count civil action against: (1) Jill Cohen, (2) Gregory Harvey, (3) Harvey’s firm, Morgan, Lewis, and Bockius, (4) Harvey’s client, PNB, (5) David Marion, (6) Marion’s firm Kohn, Savett, Marion, and Graf, (7) Gregory Magarity, and (8) Magarity’s firm, Wolf, Block, Schorr, and Solis-Cohen. The counts alleged were as follows:

Counts I, II: Conspiracy to Obstruct Justice
Counts III, IV: Obstruction of Justice
Counts V, VI: Conspiracy to Interfere with Contractual Relationship
Counts VII, VIII: Interfering With Contractual Relationship
Counts IX, X: Conspiracy to Libel and Slander
Counts XI, XII: Libel and Slander
Counts XIII, XIV: Negligence

All named defendants filed preliminary objections to Pelagatti’s complaint. On May 7,1986, the Honorable Joseph T. Labrum, specially presiding by assignment of the Chief Justice, sustained all preliminary objections, and dismissed the entire complaint, as to all defendants, with prejudice. This timely appeal followed.

On appeal from an order sustaining preliminary objections in the nature of a demurrer, our standard of review is well established. This Court is required to accept as true all well-pleaded facts in the complaint, as well as all inferences reasonably deducible therefrom but is not required to accept the pleader’s conclusions or averments of law. Shaffer v. Stewart, 326 Pa.Super. 135, 141-142, 473 A.2d 1017, 1020 (1984). We are only to determine whether sufficient facts have been pled which would permit recovery if ultimately proven. Gordon v. Lancaster Osteopathic Hospital Association, Inc., 340 Pa.Super. 253, 260, 489 A.2d 1364, 1368 (1985). All doubts are to be resolved in favor of the sufficiency of the complaint. Cisco v. United Parcel Services, Inc., 328 Pa.Super. 300, 476 A.2d 1340, 1341 (1984).

With these criteria in mind, we begin our analysis by noting, initially, that appellant Pelagatti has failed to preserve any claim of error with respect to the dismissal of the three appellee law firms and appellee PNB. While the statement of questions involved set forth in appellant’s brief frames the issues on appeal broadly, so as to encompass the dismissal of all defendants, the argument section of appellant’s brief makes no mention whatsoever of these firms or of PNB, nor offers any support for appellant’s theory, as pled in his complaint, that these appellees were somehow “in control” or responsible for the intentional torts alleged to have been committed by attorneys Harvey, Marion, and Magarity. When an appellant fails to carry forward an argument in his brief, the omitted argument is waived. Giant Markets v. Sigma Marketing Systems, 313 Pa.Super. 115, 126 n. 2, 459 A.2d 765, 771 n. 2 (1983).

Turning, then, to the remaining four appellees Cohen, Harvey, Marion, and Magarity, appellant has raised six different challenges to the dismissal of his complaint. As the complaint contains fourteen separate counts, we shall be taking the counts seriatim for simplicity’s sake, and examining appellant’s contentions of error as they arise within the context of each count, and as they pertain to each of the remaining appellees.

Counts I through IV allege that the four remaining appellees conspired to obstruct, and did in fact obstruct, justice by employing: (1) Cohen’s “perjured” proposed testimony; (2) Cohen’s “false verification” of that testimony; and (3) “slanderous press conferences”, to deprive appellant of both his business reputation and his rightful fee from the NABCOR verdict. The trial court dismissed all four counts, stating that there is no civil cause of action for obstruction of justice, and that a civil conspiracy will not lie where a civil cause of action does not exist for the alleged conspiratorial behavior. Appellant does not contest the trial court’s assertion that a civil cause of action for obstruction of justice does not exist; as such, we deem that appellant has waived any argument that Counts III and IV, alleging obstruction of justice, should not have been dismissed. Giant Markets, supra. Appellant does argue, however, that the conspiracy counts state a viable cause of action, in that (1) a civil conspiracy to commit illegal acts is in and of itself actionable upon the commission of an overt act pursuant to the common design, and the sustaining of actual damages; and (2) the perjured testimony, false verification, and slanderous press conferences were overt illegal acts in which the four appellees conspired, to appellant’s detriment and harm.

Initially, we note that appellant has misstated the law of civil conspiracy. The trial court was correct in its assertion that, absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act. See Gordon, supra, 340 Pa.Superior Ct. at 269, 489 A.2d at p. 1372 (no cause of action for conspiracy to defame where no basis for defamation action); also see Rose v. Wissinger, 294 Pa.Super. 265, 275, 439 A.2d 1193, 1199 (1982) (where no basis for defamation or outrageous conduct theories, no basis for conspiracy to commit those acts). Appellant has conceded, through lack of argument, that there is no civil cause of action for “obstruction of justice” per se.

Moreover, were we to grant appellant’s argument that a civil conspiracy to commit an illegal act can be actionable on its own merits, we would nonetheless be constrained to find that appellant has not alleged any facts which would support a finding that appellees committed illegal acts which would subject them to potential damages liability.

With respect to the alleged “perjured” testimony and “false verification” given by Jill Cohen, it is well settled that private witnesses, as well as counsel, are absolutely immune from damages liability for testimony, albeit false, given or used in judicial proceedings. See Smith v. Griffiths, 327 Pa.Super. 418, 476 A.2d 22, 24 (1984); also see Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53, 56 (1971). Clearly, an offer of proof, summarizing the substance of proposed testimony, and an affidavit attesting to the veracity of that testimony are two of the more obvious examples of communications within the confines of judicial proceedings. Hence, Cohen’s proposed testimony and affidavit cannot now form the basis of a damages claim against either Cohen or her attorney; additionally, their usage by Marion at the Edgehill recusal hearing, or by Harvey in his attempt to reopen the NAB-COR matter, is not actionable.

With respect to the alleged “slanderous” press conferences, and statements to the press made by Marion, Harvey, and Magarity, the trial court held that any repetition of Cohen’s proposed testimony and affidavit to the press was likewise absolutely privileged. For reasons to be discussed at greater length, infra, we do not concur in this holding. However, upon review of the conspiracy allegations in Counts I and II pertaining to press matters, we find them to be a mere recasting of the later “conspiracy to libel/slander” counts in a different guise. We do not find them to provide the basis for separate “conspiracy to obstruct justice” counts.

We, therefore, uphold the dismissal of Counts I through IV as to all four remaining appellees.

Counts V through VIII of the complaint allege a conspiracy to interfere, and interference with, appellant’s contractual relationship with the NABCOR plaintiffs in the NAB-COR litigation, on the part of the remaining appellees. Appellant alleges that: (1) the solicitation by Magarity of the August 18 letter, in which Pelagatti committed to writing his previous phone remarks connecting “a Jill Cohen” with Fairmount Farms; (2) the use of that letter by Cohen and Magarity in the filing of Cohen’s “sham” trespass and equity actions; (3) the “leaking” of the Pelagatti letter to the press by Harvey; and (4) the statements to the press made by Marion, Harvey and Magarity, were all perpetrated with the specific intent of depriving appellant Pelagatti of his contingent fee in the NABCOR case, and of injuring his business reputation. The trial court dismissed these counts on the bases that all of the above acts were, again, absolutely privileged as communications pertinent to judicial proceedings, and that, even if unprivileged, the acts in question had yet to cause actual harm to appellant, as the NABCOR matter was still pending. We concur in the trial court’s dismissal of these counts, but only partially concur in this rationale.

To set forth a legally sufficient cause of action for intentional interference with contractual or prospective contractual relations, four elements must be pled:

(1) the existence of a contractual, or prospective contractual relation between the complainant and a third party;

(2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring;

(3) the absence of privilege or justification on the part of the defendant; and

(4) the occasioning of actual legal damage as a result of the defendant’s conduct.

See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 471 (1979); Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472, 474 (1960).

Our review of the complaint reveals that elements (1) and (2) were sufficiently pled. We, therefore, confine our discussion to the latter two elements.

With respect to the question of privilege, we encounter no difficulty in finding the Cohen lawsuits, and Magarity’s solicitation, and later use, of the Pelagatti letter in the protection of his client’s interests, to be absolutely privileged. See Smith, supra; also see Restatement (Second) of Torts, § 568. As for the media activities of Marion, Harvey, and Magarity, however, we do not find, for reasons to be discussed infra in relation to the libel/slander counts, that their conduct was absolutely privileged; their behavior was qualifiedly privileged at best. A qualified privilege is subject to loss by abuse, see Binder, supra; moreover, while the existence of a privilege, and the extent of that privilege, are questions of law for the court, it is a question of fact for the jury as to whether a qualified privilege has been abused. Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456, 463 (1984). As such, we cannot hold, on the basis of privilege alone, that the facts pled as to Marion, Harvey, and Magarity were insufficient to state a cause of action for interference with a contractual relation. We must proceed to the fourth criterion, the occasioning of actual damage, to determine if Counts V through VIII should have been dismissed as to Marion, Harvey, and Magarity.

The Restatement (Second) of Torts defines “actual damages” for interference with a contract as follows, at § 774A:

§ 774A. Damages.
(1) One who is liable to another for interference with a contract or prospective contractual relation is liable for damages for
(a) the pecuniary loss of the benefits of the contract or the prospective relation;
(b) consequential losses for which the interference is a legal cause; and
(c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference____

Appellant has pled both pecuniary loss, as to his contingent fee in NABCOR, and harm to his business reputation. This Court has recently determined that appellant’s claim of pecuniary loss is premature as a matter of law prior to actual deprivation of the NABCOR verdict through final judgment. See Cohen v. Pelagatti, 364 Pa.Super. 573, 528 A.2d 657 (1987). As for appellant’s claim that the alleged interference harmed his business reputation, the gravamen of this tort is the lost pecuniary benefits flowing from the contract itself; other losses, such as emotional distress and loss of reputation, are consequential harms. See Restatement (Second) of Torts, § 766, Comment t. In the absence of pecuniary loss, an action for interference with contract brought for the purpose of recouping damages for loss of reputation only, would be nothing more than a defamation action under a different caption. Appellant has also pled, in libel/slander counts, that Marion, Harvey, Magarity harmed his business reputation through their media involvement. The interference counts, as they relate to Marion and Harvey, are premature and needlessly repetitive.

As we find no basis for the contractual interference counts, as to all remaining appellees, the conspiracy counts must fail as well. Gordon, supra; Rose, supra.

We therefore uphold the dismissal of Counts V through VIII as to all appellees.

Counts IX through XII allege that appellees conspired to, and did in fact, libel and slander appellant, through: (1) Cohen’s “perjured” proposed testimony; (2) Cohen’s “sham” lawsuits; (3) Harvey’s supposed misrepresentations, as evidenced by Harvey’s August 18 reply letter, of Pelagatti’s phone remarks on the subject of Jill Cohen and Fairmount Farms; and (4) the dissemination of various allegations of wrongdoing on the part of Pelagatti, through the media activities of Marion, Harvey, and Magarity. The trial court dismissed all four counts, once again, on the basis of absolute privilege. We find partial merit to appellant’s contention that this was error.

As stated previously, communications pertinent to any stage of judicial proceedings are accorded an absolute privilege, which cannot be destroyed by abuse; therefore, statements made by a party, a witness, counsel, or a judge, cannot be the basis of a defamation action when made in pleadings, open court, or even in less formal circumstances, such as preliminary conferences, negotiations, and routine correspondence exchanges between counsel in furtherance of their clients’ interests. Smith, supra, 476 A.2d at pp. 24-25; Binder, supra. The policy reasons for the absolute privilege are well recognized. A judge must be free to independently administer the law; parties must be afforded freedom of access to the courts; witnesses must be encouraged to give complete and unintimidated testimony; and counsel must be enabled to best represent their clients interests, without fear of reprisal through defamation actions. The courts have the appropriate internal sanctions to deal with defamatory statements given in judicial proceedings, such as perjury and contempt proceedings, and are capable of utilizing these sanctions to ensure protection of the public good, thereby obviating the need for the threat of civil damages liability. Binder, supra.

The same considerations, however, do not apply to newspaper accounts of judicial proceedings, or to remarks uttered at press conferences. These are extra-judicial communications which are not subject to the internal controls of the court system, and do not require the same degree of protection as those communications which are essential to the integrity and independence of the judicial system. As such, they enjoy a qualified immunity only: in the interests of keeping the public informed, newspaper articles are entitled to make fair and accurate report of judicial proceedings and involved parties, witnesses, and counsel are permitted to make remarks to the press relative to proceedings, and no responsibility will attach, even if the contents of articles or remarks are false or defamatory, provided the articles and/or remarks were not published solely for the purpose of causing harm. Binder, supra; also see Barto v. Felix, 250 Pa.Super. 262, 267-271, 378 A.2d 927, 930-31 (1977). Where the plaintiff is able to demonstrate that defamatory communications to the press were made for an improper or malicious motive, the qualified privilege is lost. Binder, supra; Barto, supra. It is a question of fact for the jury as to whether a qualified privilege has been lost by abuse. Agriss, supra.

Turning now to appellant’s allegations of defamatory behavior, we have already concluded, with respect to the dismissal of the contractual interference counts, that Cohen’s proposed testimony at the Edgehill recusal hearings, as well as Cohen’s trespass and equity actions, were absolutely privileged judicial communications. Likewise, we conclude that Harvey’s August 18 reply letter to Pelagatti was absolutely privileged, as pertinent and material to the redress sought by Harvey and his client, PNB, in the NABCOR proceedings. However, the media statements disseminated by Marion, Harvey, and Magarity, even in their reiteration of the contents of privileged judicial documents, were extra-judicial communications protected by a qualified immunity only. Hence, we must now review the specific allegations contained within the defamation counts to determine if appellant pled sufficient facts to establish the elements of defamation. If the elements of defamation were sufficiently pled, appellant was entitled to a jury determination as to whether the media statements were defamatory, and made by the attorney-appellees solely for the purpose of causing harm, thereby defeating any claim of privilege.

Generally, a defamatory action must allege: (1) the defamatory character of the communication; (2) publication; (3) that the communication refers to the complainant; (4) the third party’s understanding of the communication’s defamatory character; and (5) injury. Walder v. Lobel, 339 Pa.Super. 203, 213, 488 A.2d 622, 627 (1985); 42 Pa.C.S. § 8343(a).

Our review of the various press statements, as summarized in our initial recitation of the facts, indicates that discussion of elements (2) and (3) is unwarranted; clearly, all three attorneys made remarks, pertaining to the propriety of Pelagatti’s conduct, which were published in the Philadelphia newspapers. We need only concern ourselves with (1), (4), and (5).

With respect to (1) and (4), the character of the remarks, and the perception of those remarks by the public, it is well-settled law that a communication which ascribes to another conduct, character, or a condition that would adversely affect his fitness for the proper conduct of his business, trade, or profession, is defamatory per se. See Fram v. Yellow Cab Co. of Pittsburgh, 380 F.Supp. 1314 (D.C.Pa.1974); also see Gordon, supra, 489 A.2d at p. 1368. Where there is any doubt that the communication disparages or harms the complainant in his business or profession, that doubt must be resolved in favor of the complainant; even where a plausible innocent interpretation of the communication exists, if there is an alternative defamatory interpretation, it is for the jury to determine if the defamatory meaning was understood by the recipient. Gordon, supra.

Turning to the various press statements, as incorporated by exhibits attached to appellant’s complaint, we deem the statements sufficient, as a matter of law, to support a possible jury determination that they were defamatory per se. In the various articles following the July 14 Edgehill recusal hearing, Marion repeated the allegations, contained within Cohen’s proposed testimony, that Pelagatti met privately with Judge Snyder in chambers, as well as socially, while NABCOR was pending, and that Pelagatti was to author the NABCOR post-trial opinion. Harvey, following the August 18 Pelagatti letter, commented to the press that Pelagatti’s behavior, in sending out ex parte subpoenas, was “an abuse of process” and “exactly the conduct which (was) described” in Cohen’s proposed testimony, which was then reiterated by the articles in question for the benefit of the reader. Magarity, following the issuance of Judge Caesar’s temporary restraining order, told the press that Pelagatti’s conduct was “improper” and “possible illegal”. Clearly, statements to the effect that an attorney has committed improper, illegal actions within the context of his practice, would tend to impugn his integrity, and thereby blacken his business reputation.

However, it is also well settled that defamatory words, even if defamatory per se, will not provide a basis for recovery where the words are true; truth is a complete and absolute defense to a civil action for defamation. Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899, 910 (1971). Furthermore, while the affirmative defense of truth is generally to be pled in new matter, an affirmative defense may be raised by way of preliminary objections where it is established on the face of the complaint, or where the plaintiff fails to object to the procedural irregularity. See Iudicello v. Commonwealth of Pennsylvania, Department of Transportation, 34 Pa.Cmwlth. 361, 383 A.2d 1294 (1978) (sovereign immunity may be raised by demurrer when appearing on the face of the complaint); Cooper v. Downington School District, 238 Pa.Super. 404, 357 A.2d 619, 621 (1976) (demurrer based upon affirmative defense of statute of limitations upheld where defense was clearly applicable). As we are empowered to affirm the action of the trial court upon any ground, see Butler v. DeLuca, 329 Pa.Super. 383, 390, 478 A.2d 840, 843 (1984), and all appellees raised truth, without objection from appellant, in their preliminary objections, it is appropriate that we consider whether the absolute defense of truth was apparent on the face of the complaint.

Again, reviewing the remarks of counsel, it would appear that all of Magarity’s remarks, which related to the propriety of the ex parte subpoenas, and the bulk of Harvey’s remarks to the same effect, are discernibly true from the face of the complaint. Exhibits to the complaint include both the transcripts of the preliminary injunction hearing before Judge Takiff, and the newspaper articles following the issuance of Judge Takiff’s order and opinion, in which Judge Takiff held the subpoenas to be “grossly improper and patently inappropriate”. This holding has been affirmed on appeal, and is res judicata on the propriety of the subpoenas. See Cohen v. Pelagatti, 342 Pa.Super. 626, 493 A.2d 767 (1985). As such, appellant’s complaint admits the defense of truth as to the thrust of these remarks on its face. However, a different scenario is presented by Harvey’s additional comment that the improper issuance of the subpoenas was “exactly the same” type of conduct on Pelagatti’s part as alleged in Cohen’s proposed testimony; it has yet to be established as true that Pelagatti engaged in improper collusion with Judge Snyder in the NABCOR case. Likewise, Marion’s statements merely reiterate the collusion allegations, which are potentially false.

Hence, we find Marion’s remarks, in their entirety, and Harvey’s remarks pertaining solely to Pelagatti’s conduct as alleged by Jill Cohen, legally sufficient to support a possible jury finding of defamation per se, thereby satisfying the first and fourth criteria for the pleading of a legally sufficient cause of action in defamation.

With respect to element (5), the pleading of injury, appellant alleges both economic injury, through loss of the NAB-COR contingent fee, and harm to his business reputation. We have already deemed any claim of pecuniary loss pertaining to the NABCOR verdict to be premature prior to final judgment. However, the law is clear that reputational damage alone is actionable without proof of special damages, where the claim is one of slander per se to business reputation. Chicarella v. Passant, 343 Pa.Super. 330, 494 A.2d 1109, 1115 n. 5 (1985); Agriss, supra, 483 A.2d at p. 473.

Therefore, we now hold that counts XI and XII, in libel/slander, should not have been dismissed as to appellees Marion and Harvey.

As for the conspiracy counts, a civil conspiracy becomes actionable when some overt act is done in pursuance of the common purpose or design, and actual legal damage results. Baker v. Rangos, 229 Pa.Super. 333, 351, 324 A.2d 498, 506 (1974). Where the existence of identifiable damages, even if nominal, is established by the facts alleged, the gravamen of the civil conspiracy has been sufficiently pled: it is the fact of damages, rather than the amount, that is the key inquiry. Baker, supra; also see Mariscotti v. Tinari, 335 Pa.Super. 599, 602, 485 A.2d 56, 57 (1984). In the matter at hand, appellant has certainly pled damages which are neither futuristic nor speculative; clearly, any reputational harm from the allegedly defamatory remarks of Marion and Harvey was sustained upon publication of the various newspaper articles. Counts IX and X, alleging a “conspiracy to libel/slander”, were also improperly dismissed as to Marion and Harvey.

The final two counts of appellant’s complaint, Counts XIII and XIV, allege negligence on the part of the remaining appellees in: (1) permitting a “false” offer of proof and “false” verification to be used in connection with judicial proceedings; and (2) giving “slanderous” statements to the press based upon these “false” judicial communications. The trial court dismissed these counts on the basis of the privity rule: the privity rule states that an attorney will be held liable for negligence only to his client, and not to anyone else. Smith, supra, 476 A.2d at p. 26; also see Mentzer & Rey, Inc. v. Ferrari, 367 Pa.Super. 123, 532 A.2d 484 (1987). Appellant now contends that this was error, in that attorneys may be liable to third parties regardless of privity where their conduct is motivated by malice, or involves the commission of the intentional tort. Id. Appellant, while rendering a correct statement of the law as to the potential liability of an attorney to a third party upon the commission of an intentional tort, fails to explain how this exception to the privity requirement permits him to sustain a negligence action against the attorney-appellees. We adopt the trial court’s dismissal of Counts XIII and XIV as to all appellees.

In light of the foregoing, we now enter the following order. The dismissal of Counts I through VIII and Counts XIII and XIV is affirmed as to all appellees. The dismissal of Counts IX through XII is affirmed as to Cohen, Magarity, PNB, and the three appellee law firms. The dismissal of Counts IX through XII is reversed as to Marion and Harvey, solely with respect to those allegations pertaining to their media statements relating to Cohen’s proposed testimony. Order affirmed in part, reversed in part. Remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

JOHNSON, J., files a concurring opinion.

JOHNSON, Judge,

concurring:

I join the Majority’s decision and analysis with respect to the following: Counts I through VIII; Counts XIII and XIV as to all Appellees; and, the affirmance of the dismissal of Counts IX through XII as to Appellees Cohen, Magarity, PNB, and the three Appellee law firms. I also join the Court’s decision to reverse the dismissal of Counts IX through XII as to Appellees Marion and Harvey and to remand these counts for Amendment of the Complaint.

I do not agree, however, with that part of the Majority’s analysis of Counts IX through XII which discusses the possibility of a qualified privilege providing immunity to Marion and Harvey for their statements to the press. Slip Opinion at 14 and 18. The majority relies upon the case Binder v. Triangle Publishing Inc., 442 Pa. 319, 275 A.2d 53 (1971), and describes the qualified immunity that applies to extra-judicial communications as follows:

in the interests of keeping the public informed, newspaper articles are entitled to make fair and accurate report of judicial proceedings and involved parties, witnesses, and counsel are permitted to make remarks to the press relative to proceedings, and no responsibility will attach, even if the contents of articles or remarks are false and defamatory, provided the articles and/or remarks were not published solely for the purpose of causing harm.

Majority opinion at 437. According to Binder, extra-judicial statements are protected by a qualified immunity when the statements refer directly to court proceedings. The court in Binder held that there was no defamation when a newspaper used vivid words to characterize the judicial proceedings it was reporting because the words were not unfair or inaccurate. Binder, supra.

The statements to the media made by Marion and Harvey do not rise to the level of those discussed by the Court in Binder as privileged extra-judicial statements. Marion called a news conference and repeated Cohen’s allegations contained in her disallowed private offer of proof in the recusal hearing of Judge Snyder. A voluntary act of disseminating information which has been barred from court proceedings cannot afford the basis for a consideration of conditional immunity.

Harvey’s statement to the press, characterizing Pelagatti’s behavior in sending out ex parte subpoenas as “an abuse of process” and “exactly the conduct which was described” in Cohen’s offer of proof, as well as “improper ... and possibly illegal” also did not come from the record of court proceedings. Majority opinion at 439. This statement must be analyzed for defamatory content in the same manner as any out of court statement.

I have carefully reviewed the facts of this case and find that they provide no basis for the extension of a qualified privilege. I am concerned that the Court appears to be analyzing the activities of attorneys, who make out of court statements not directly associated with court proceedings, at a different level than similar statements made by non-attorneys.

I would find that the relevant statements made by Marion and Harvey were not privileged. Analyzed for defamatory content on this basis, those statements support a possible jury finding of defamation per se. Walder v. Lobel, 339 Pa.Super. 203, 213, 488 A.2d 622, 627 (1985). I therefore join the Court’s decision to reverse the dismissal of Counts IX through XII.

      . Mendel is not a party to this litigation.

      . Judge Takiff’s order was affirmed on appeal to the Superior Court. See Cohen v. Pelagatti, 342 Pa.Super. 626, 493 A.2d 767 (1985).

      . For the record, appellant alleges, in his statement of questions involved, that the trial court erred in finding:
      (1) privilege to be an absolute defense when an attorney is sued for intentional or malicious conduct;
      (2) that an attorney cannot be liable to third parties when he acts out of a malicious motive;
      (3) that untrue remarks made at a press conference are absolutely privileged as within the course of regular judicial proceedings;
      (4) that a civil conspiracy is not actionable in the absence of a civil cause of action for the alleged conspiratorial behavior;
      (5) that a witness may plead judicial immunity as a defense to conspiracy to commit perjury; and
      (6) that actual damages must be sustained before one may bring an action for slander, conspiracy, and interference with a contract.
      Clearly, as framed, each contention relates to more than one count, while no one contention relates to all counts or all remaining appellees.

      . It is indisputable, on the basis of the record, that Cohen did not participate in, and in point of fact, deliberately avoided, press conferences and public comment. As such, she cannot now be held accountable for the content thereof; her participation was strictly limited to her proposed testimony, verification of that testimony, and filing of actions in trespass and in equity.

      . Cohen’s equity action, in fact, has already been upheld, by a panel of this Court, as a legitimate action seeking relief to which Cohen was entitled. This Court upheld Judge Takiffs granting of a preliminary injunction, preventing appellant Pelagatti from issuing further ex parte subpoenas for Cohen’s educational records, and forbidding further invasion into her privacy. See Cohen v. Pelagatti, 342 Pa.Super. 626, 493 A.2d 767 (1985).

      . As appellant’s arguments relate solely to negligence on the part of the attorney-appellees, and attorney negligence is not actionable against the client, these counts were properly dismissed as to Cohen.


source: Caselaw Access Project

author: CIRILLO, President Judge: KELLY, Judge,

license: Public Domain

text:
    536 A.2d 1348
    COMMONWEALTH of Pennsylvania v. Edward PICKFORD, Appellant.
    Superior Court of Pennsylvania.
    Argued May 22, 1986.
    Filed Dec. 18, 1987.
    Reargument Denied Feb. 5, 1988.

      Edward J. Bilik, Assistant Public Defender, Greensburg, for appellant.
    Donna J. McClelland, Assistant District Attorney, Greens-burg, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY and KELLY, JJ.
   CIRILLO, President Judge:

Appellant Edward Vernon Pickford was convicted of rape, conspiracy to commit rape, theft, terroristic threats, and involuntary deviate sexual intercourse. Appellant was sentenced to 6V2 to 15 years imprisonment on the charge of rape, 5 to 10 years on the charge of conspiracy to commit rape, 6V2 to 15 years on the charge of involuntary deviate sexual intercourse, and 1 to 2 years on the charge of terroristic threats. These sentences were to be served concurrently. On appeal, Pickford raises issues concerning the alleged failure of the Commonwealth to comply with appellant’s discovery requests, the admission of testimony relating to the victim’s post-rape trauma, the admission of testimony concerning appellant’s prior sexual relations with a third party, and the trial court’s consideration of certain guidelines established by the Pennsylvania Commission on Sentencing. We affirm.

The evidence established that in the early morning hours of March 15, 1984, appellant and his co-conspirator, Paul Pastor, entered the victim’s apartment. At that time, the victim was in her seventh month of pregnancy. Appellant grabbed her, forced her into the bedroom, and proceeded to engage in sexual intercourse with her. It was also established that appellant threatened to kill her if she told anyone of the incident. A short time later Pastor also raped the victim. The testimony revealed that appellant and the victim had known each other since August of 1983. Following the victim’s separation from her husband in January, 1984, the victim and appellant had a sexual relationship, which was terminated by the victim some three weeks prior to the incident.

Appellant’s first contention is that the Commonwealth failed to provide him with full discovery of all exculpatory and inculpatory statements, thereby entitling him to a new trial. Prior to trial, appellant’s counsel filed a written request for discovery. At a subsequent discovery hearing, the Commonwealth’s attorney stated that their entire file had been turned over to appellant’s counsel. At trial, it was revealed for the first time that the victim had admitted to a state trooper that she had had a consensual sexual relationship with appellant which occurred approximately one month prior to the incident. Appellant’s counsel objected, claiming that the Commonwealth had violated Pa.R.Crim.P. 305 by failing to provide these statements. The court overruled the objection.

Rule 305(B)(1) requires the Commonwealth to provide “[a]ny evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the Commonwealth.” Moreover, Rule 305(E) gives the court broad discretion in fashioning a proper remedy for any violation of the discovery rules, including the granting of a continuance. Here, the trial court recessed during cross-examination of the victim in order to allow appellant’s counsel to interview the state trooper regarding the victim’s statements. Appellant’s counsel utilized this information in cross-examination of both the victim and the state trooper. In these circumstances, it is clear that whatever prejudice may have resulted from the tardy disclosure of this potentially exculpatory evidence was cured by giving appellant’s counsel the opportunity to investigate the new information. See Commonwealth v. Woodell, 344 Pa.Super. 487, 496 A.2d 1210 (1985). Thus, appellant’s request for a new trial, on this ground, was properly denied.

Appellant also claims that the court erred in not granting a mistrial when the Commonwealth did not disclose until trial certain inculpatory statements made by appellant. On direct examination the victim testified as to certain terroristic threats made by appellant prior to and following the rape. The first threat occurred when the victim terminated her relationship with appellant, when appellant said that he would “mess her up.” The victim also testified that, following the incident of March 15, 1984, appellant threatened, to “burn her house down,” and stated he had “burned other houses down” on prior occasions. However, the information charging appellant with terroristic threats specifically avers that the basis of that charge was that appellant had threatened the victim with murder and arson. Having been put on notice of the nature of the terroristic threats charge, it would appear that appellant was not prejudiced by the failure to disclose these particular statements. Where the only prejudice is surprise to defense counsel, the remedy of declaring a mistrial, as appellant requests, iá clearly inappropriate. See Commonwealth v. Johnson, 310 Pa.Super. 385, 395, 456 A.2d 988, 993 (1983). Appellant has not shown that the claimed violation of discovery denied him a fair trial. Hence, the court did not err in denying his motion for a mistrial. Commonwealth v. Cacek, 358 Pa.Super. 381, 386, 517 A.2d 992, 994 (1986).

Appellant’s next contention is that the court erred in allowing the Commonwealth to introduce evidence of the victim’s post-rape trauma in order to prove lack of consent. Prior to trial, the Commonwealth sought to have an expert testify regarding the symptoms of rape trauma syndrome, a psychological condition observable in rape victims. The court denied this request, but permitted the Commonwealth to introduce evidence concerning the victim’s behavior and conduct several days after the incident. The victim testified that, following the rape, she moved out of the apartment for several days and when she returned she was frightened. She also testified that she had difficulty sleeping and eating because her nerves were “shot.” The victim’s mother testified that for some time following the incident the victim would wake during the night screaming. She also testified that her father stayed with her for several days so as to get her accustomed to living alone again. Appellant objected to this testimony as irrelevant and as being unduly prejudicial because it tended to bolster the victim’s credibility.

While there is an abundance of case law dealing with the admissibility of expert testimony concerning rape trauma syndrome, see, e.g., Commonwealth v. Gallagher, 353 Pa. Super. 426, 510 A.2d 735 (1986); People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291 (1984); State v. Taylor, 663 S.W.2d 235 (Mo.1984); State v. Saldana, 324 N.W.2d 227 (Minn.1982); People v. Pullins, 145 Mich.App. 414, 378 N.W.2d 502 (1985), the question of the admissibility of lay testimony has been dealt with only sporadically. In Gallagher, the only Pennsylvania case dealing with rape trauma syndrome, the question presented dealt with the qualifications of the Commonwealth’s expert, and not whether the expert testimony was per se inadmissible. However, Gallagher does provide a useful summary of the current state of the law in this field. The majority in Gallagher notes that in those states which have excluded expert testimony, the primary factor has been the development of the theory of rape trauma syndrome as a therapeutic tool rather than as a fact finding device. Gallagher, 353 Pa.Super. at 442, 510 A.2d at 743. However, in two of those cases, People v. Pullins, and People v. Bledsoe, supra, the courts have addressed the admissibility of lay testimony of post-rape trauma to prove lack of consent. In Bledsoe, the Supreme Court of California, while excluding expert testimony concerning rape trauma syndrome, held that it was not error to allow the victim, her mother, and several other witnesses to testify as to the victim’s post-rape trauma. The court said:

We hasten to add that nothing in this opinion is intended to imply that evidence of the emotional and psychological trauma that a complaining witness suffers after an alleged rape is inadmissible in a rape prosecution. As discussed in the statement of facts, in this case numerous witnesses — in addition to the rape counselor — described the severe emotional distress that Melanie exhibited both in the house immediately following the attack and in subsequent weeks, and, as defendant implicitly concedes, there is no question but that such evidence was properly received. Lay jurors are, however, fully competent to consider such evidence in determining whether a rape occurred____

Bledsoe, supra, 36 Cal.3d at 251, 203 Cal.Rptr. at 400, 681 P.2d at 301. Similarly, in People v. Pullins, supra, the Michigan Court of Appeals specifically relied on Bledsoe in holding that non-expert testimony of post-rape trauma is relevant in determining whether a rape occurred. Pullins, 378 N.W.2d at 505.

We agree with the trial court that “it is within the lay-person’s ability to understand the possible and probable effect of a forcible rape upon a person.” Appellant’s claim that he was unduly prejudiced by this testimony cannot prevail.

Appellant next contends that the court erred in permitting the Commonwealth to cross-examine appellant concerning his prior sexual relations with a third person on the same date as the alleged rape. This contention is meritless in light of the fact that appellant presented evidence of a red mark on his neck, apparently received on the day of the attack, and apparently revealed to the jury for the purpose of showing that the victim was kissing appellant quite forcefully on the neck. Since this was relevant to the issue of consent, there was nothing improper in allowing the Commonwealth to cross-examine appellant to determine how he may have received the mark.

Appellant’s final argument is that the court erred in imposing sentence under the Sentencing Guidelines. 204 Pa.Code Ch. 303. Specifically, appellant claims that the Pennsylvania Sentencing Commission exceeded its legislative authority in promulgating guidelines which permit the sentencing court to: (1) include juvenile adjudications, misdemeanor or otherwise, in computing defendant’s prior record score; and (2) to include prior adult convictions, defined as “a case in which a verdict of guilty has been entered in the record and sentence has been imposed for an offense which occurred prior to the date of the offense[,]” 204 Pa. Code § 303.7(g), in determining defendant’s prior record score.

We find Pickford’s claims relating to the Guidelines to be moot in light of our supreme court’s recent opinion in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). In Sessoms, the court held that since the present Guidelines were the “product of a rejection resolution that was not presented to the Governor in violation of Article III, § 9 [of the Pennsylvania Constitution], they must be declared to be of no force at all.” Sessoms, 516 Pa. at 38, 532 A.2d at 782.

However, we do not read Sessoms to require review of an otherwise legal sentence. See id., 516 Pa. at 380, 532 A.2d at 783 (Papadakos, J., concurring). Accordingly, we affirm the judgment of sentence.

KELLY, J., concurs and dissents with an opinion.

KELLY, Judge,

concurring and dissenting:

I join in that portion of the majority opinion which rejects appellant’s assertions of trial error and affirms appellant’s convictions. I dissent from that portion of the majority opinion which affirms judgment of sentence. I would remand for compliance with Pa.R.A.P. 2119(f) or, as there has been no compliance, deny allowance of appeal from the discretionary aspects of sentence.

I do not find that our Supreme Court’s recent opinion in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987) permits as simple a disposition of appellant’s challenge to the discretionary aspects of sentence as the majority opinion suggests. I do not read Sessoms, supra, to have declared that the guidelines shall in all cases be treated as being invalid and of “no force at all.” Majority, supra, at 453. To the contrary, the Sessoms majority strictly circumscribed its holding as follows:

This ruling is applicable to cases where the issue has been ‘properly preserved at all stages of adjudication up to and including direct appeal.’ Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983).

516 Pa. at 380 n. 2, 532 A.2d at 782 n. 2. Thus, the issue of the general invalidity of the 1982 guidelines due to the unconstitutionality of the rejection procedures followed the legislature in 1981 (hereinafter Sessoms issue) may be waived, and in such cases the guidelines would not be treated as generally invalid. See e.g. Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987) (hereinafter Samuels, supra, Pa.1987) (addressing merits of challenge to the validity of a particular provision when Sessoms issue was not preserved); accord Commonwealth v. Hartz, 367 Pa.Super. 267, 532 A.2d 1139 (1987) (Cirillo, P.J., concurring, Brosky and Johnson, JJ., join) (challenge to the constitutionality of a guideline provision may be waived); id., 367 Pa.Superior Ct. at 270, 532 A.2d at 1140 (Kelly, J., concurring) (same).

Therefore, when the Sessoms issue has not been properly preserved, challenges to the discretionary aspects of sentence based upon alleged misapplication of guideline provisions (including challenges to the application of allegedly unconstitutional provisions) remain a proper basis for reversal, and would not be rendered moot by the Sessoms decision. 42 Pa.C.S.A. § 9781(c)(1); see e.g. Samuels, supra (Pa.1987). Logically, a sentence tainted by improper considerations is equally invalid whether it is tainted by consideration of invalid guidelines, an invalid provision of otherwise valid guidelines, or misapplication of a valid provision of valid guidelines. Accord Commonwealth v. Sessoms, supra (consideration of invalid guidelines was prejudicial error); Commonwealth v. Samuels, 354 Pa.Super. 128, 161—62, 511 A.2d 221, 238-39 (1986) (consideration of improperly increased guideline ranges was prejudicial error); rev’d on other grounds 516 Pa. 300, 532 A.2d 404 (1987) (Samuels, supra Pa.1987); and Commonwealth v. Dickison, 334 Pa. Super. 549, 553, 483 A.2d 874, 876 (1984) (error in application of guidelines provisions was prejudicial, even when same sentence could be imposed if the guidelines had been properly applied).

On the other hand, the Sessoms decision has a profound effect on challenges advanced under 42 Pa.C.S.A. § 9781(c)(2) and (3). The Supreme Court in Sessoms, supra, continued its erosion of the basis for our former dictum that “only in exceptional cases and for sufficient reasons may a court deviate from the guidelines.” The majority explained:

Most important, the court has no ‘duty’ to impose a sentence considered appropriate by the Commission. The guidelines must only be ‘considered’ and, to ensure that such consideration is more than mere fluff, the court must explain its reasons for departure from them. Viewed in this manner, the guidelines are essentially a sophisticated compilation and distillation of a vast range of factors affecting the sentencing process in the abstract, accomplished by persons of expertise representing a broad spectrum of interests. The legislature with the governor’s approval has deemed it proper that the findings of such a body, assembled to assist it in developing and overseeing a sound sentencing system, be given practical application in individual cases as well. We may say that in directing courts to consider these guidelines, just as they must consider a number of listed though non-exclusive factors in imposing probation, the legislature has done no more than direct that the courts take notice of the Commission’s work.

516 Pa. at 377, 532 A.2d at 781.

The Sessoms opinion supports our conclusion in Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987) that:

... while the sentencing court is required to ‘consider’ the applicable guidelines, and while the reason's for any deviation from the applicable standard range of the guidelines must be in writing, the determination of whether the sentence is ‘not appropriate,’ ‘clearly unreasonable,’ or ‘unreasonable’ must be made with reference to the sentencing code as a whole, not solely with reference to the provisions of the sentencing guidelines. Commonwealth v. Tuladziecki, supra, 522 A.2d at 20; see also 42 Pa.C.S.A. 9781(b) and (c).

366 Pa.Super. at 608, 531 A.2d at 1150. (Emphasis in original). Thus, the refusal to impose (as opposed to consider) the applicable minimum sentence recommended by the guidelines, by itself, provides no basis to vacate sentence and raises no substantial question under 42 Pa.C.S.A. § 9781(b). See 42 Pa.C.S.A. § 9781(c)(2) and (3). Rather, to justify reversal, the sentence must: 1) be inside the guidelines and be clearly unreasonable considering the sentencing code as a whole; or 2) be outside guidelines and be unreasonable, considering the sentencing code as a whole.

In Commonwealth v. Taylor, 516 Pa. 21, 531 A.2d 1111 (1987), decided the same day as Sessoms and Samuels, our Supreme Court dismissed as moot an appeal by the Commonwealth from a judgment of sentence in which the trial court refused to apply the deadly weapon enhancement provision of the sentencing guidelines; apparently, all appeals alleging the failure to apply the 1982 guidelines are moot. It is a general rule of appellate review that an order may be affirmed for any reason, whether or not raised or assigned in support of the order in the court below; thus, the failure to preserve the Sessoms issue would not appear to prevent affirmance on Sessoms grounds when an appeal is taken from a judgment of sentence alleging as error the refusal of the trial court to apply the 1982 guidelines or any provision thereof. There can be no prejudicial error in the trial court’s refusal to apply invalid guidelines.

Appellant raises the following issues on appeal:

DID THE PENNSYLVANIA SENTENCING GUIDELINE COMMISSION EXCEED IT’S [sic] LEGISLATIVE AUTHORITY IN PROMULGATING SENTENCING GUIDELINES WHICH PERMIT:"
(a) The sentencing court to include juvenile adjudications, misdemeanor or otherwise, in computing defendant’s prior record score.
(b) The sentencing court to include adult convictions subsequent to said conviction by which offense occurred prior to the incident conviction.

(Appellant’s Brief at 1). Based upon the foregoing analysis of Sessoms, Samuels and Taylor, I find that neither of these challenges are rendered moot by our Supreme Court’s decision in Sessoms, supra. This case is, in this respect, analytically indistinguishable from Samuels, supra (1987). Moreover, because appellant challenges the application of the guidelines as opposed to the failure to apply the guidelines, the Taylor decision does not control.

II.

Appellant challenges a legal sentence based upon the application of guideline provisions which appellant alleges to be invalid; these contentions are challenges to discretionary aspects of sentence. See 42 Pa.C.S.A. §§ 9781(b), 9781(c)(1); Commonwealth v. Hartz, supra (Cirillo, P.J., concurring; Brosky and Johnson, JJ., join); id. (Kelly, J., concurring).

Under Pennsylvania law, neither the defendant nor the Commonwealth may take an appeal as of right from the discretionary aspects of sentence. Rather, “[t]he defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under [the Sentencing Code].” 42 Pa.C.S.A. § 9781(b). Our Supreme Court indicated in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), that three distinct steps must be taken to properly raise a challenge to the discretionary aspects of sentence: there must be a timely notice of appeal (see Pa.R.A.P. 902 & Note; Pa.R.A.P. 903); the challenge must be set forth in the statement of questions presented (see Pa.R.A.P. 2116(b)); and, the appellant must include in the brief, immediately preceding argument in support of the challenge, a separate, concise statement of the reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b) (see Pa.R. A.P. 2119(f)). 522 A.2d at 18-19; see also 42 Pa.C.S.A. § 9721(b); 42 Pa.C.S.A. § 9781(c)(1), (2) & (3).

In the instant case, timely notice of appeal was filed and appellant’s challenge to the discretionary aspects of sentence was set forth in the statement of questions involved. (See Appellant’s Brief at 3). However, appellant’s brief does not contain the separate, concise statement of reasons for allowance of appeal required by Pa.R.A.P. 2119(f).

While this Court has on a few occasions found substantial (therefore sufficient) compliance with Pa.R.A.P. 2119(f) where the brief contains a concise statement of the reasons for allowance of appeal either in the Summary of Argument or at the beginning of the Argument section, such an exception is not warranted in this case. Cf. Commonwealth v. Darden, 366 Pa.Super. 597, 602-603, 531 A.2d 1144, 1146-1147 (1987) (Summary of Argument contained a sufficient statement of reasons for allowance of appeal in a one issue appeal); Commonwealth v. Muller, 364 Pa.Super. 346, 350 & n. 2, 528 A.2d 191, 193 & n. 2 (1987) (summary of reasons for allowance of appeal at beginning of Argument section, before argument, constituted a sufficient compliance). Unlike the situation in Darden or Muller, in the instant case this Court would have to glean through appellant’s entire Argument on this issue before we would be able to construct a brief summary of the reasons why appellant believes the sentence is excessive and that the guidelines have been misapplied. (Appellant’s Brief at 23-26). This is precisely the approach Tuladziecki, supra, condemned.

The majority decline to exercise this Court’s authority to direct counsel for appellant to file a separate, concise statement of the reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b) as required by Pa.R.A.P. 2119(f). See Commonwealth v. Zeitlen, 366 Pa.Super. 78, 530 A.2d 900 (1987); Commonwealth v. Grove, 363 Pa.Super. 328, 526 A.2d 369 (1987). Although I would direct compliance with Pa.R.A.P. 2119(f), in present absence of such compliance I would find that the brief contains a substantial uncorrected procedural defect which precludes this Court from determining whether a substantial question has been presented. See Commonwealth v. Zeitlen, supra, 366 Pa.Superior Ct. at 82, 530 A.2d at 902-03 (Kelly, J., concurring); Commonwealth v. Hawthorne, 364 Pa.Super. 125, 134-135, 527 A.2d 559, 564 (1987). Consequently, I would deny allowance of appeal as to appellant’s challenges to the discretionary aspects of sentence. But see Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc ).

I note, however, that I would direct compliance only with respect to appellant’s second challenge. As to the first challenge, I note that although this Court had previously opined that the Sentencing Commission lacked authority to include prior misdemeanors or juvenile adjudications in the prior record enhancement provisions of the sentencing guidelines (see Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987) (en banc); Commonwealth v. Washington, 357 Pa.Super. 548, 516 A.2d 397 (1986); Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986)), our Supreme Court has expressly rejected this contention. Commonwealth v. Samuels, supra (Pa.1987); cf. Commonwealth v. Washington, supra, 516 A.2d at 398-408 (Kelly, J., dissenting). Thus, I find this claim to be frivolous and would deny allowance of appeal as to this issue without remanding for compliance with Pa.R.A.P. 2119(f). I note that the emphasis in Commonwealth v. Tuladziecki, supra, is on the requirement of precise compliance with the procedural rules before granting allowance of appeal. The same precision would not appear to be necessary to a disposition denying allowance of appeal. Cf. Commonwealth v. Zeitlen, supra, 530 A.2d at 905 (Kelly, J., concurring).

      . In a related issue, appellant argues that he is entitled to a new trial because the court erred in permitting the prosecution to place into evidence the fact that the victim had called Women’s Services following the attack and had asked them to call the police. He further contends that the introduction of this evidence “opened the door” to the discovery of conversations between the victim and Women’s Services. Appellant does not argue that the introduction of the phone call constituted a “consent” to discovery under the Confidential Communications to Sexual Assault Counselors Statute, 42 Pa.C.S.A. § 5945.1(b). Rather, he claims that the phone call was proof of “prompt complaint,” and that he was deprived of the opportunity to challenge this evidence. However, the trial court instructed the jury not to consider the phone call in its deliberations, and the limited reference to Women’s Services has not been shown to have caused any specific prejudice to appellant.

      . Rape trauma syndrome is one kind of post-traumatic stress disorder. The essential feature of post-traumatic stress disorder is the development of' characteristic symptoms after a psychologically traumatic incident that is usually beyond the range of ordinary human experience. Those symptoms typically involve reexperiencing the traumatic incident; numbing of responsiveness to, or lessened involvement with, the external world; and a variety of autonomic, dysphoric, or cognitive symptoms. See A. Burgess & L. Holmstrom, Rape: Victim of Crisis (1974); Burgess & Holmstrom, Rape Trauma Syndrome, 131 Am.J. Psychiatry 981 (1974). See also In re: Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 38-43, 428 A.2d 126, 138-40 (1981); see also Massaro, Experts, Psychology, Credibility, and Rape: The Rape Trauma Syndrome Issue and Its Implications for Expert Psychological Testimony, 69 Minn.L.Rev. 395, 427-32 (1975) (reviewing development of theory); Raum, Rape Trauma Syndrome As Circumstantial Evidence of Rape, 11 J. Psychiatry & L. 203, 207 nn. 14, 15 (1983) (collecting medical literature on theory); Comment, Expert Testimony On Rape Trauma Syndrome: Admissibility And Effective Use in Criminal Rape Prosecution, 33 Am.U.L.Rev. 417, 419 nn. 2-4 (1984) (same). See Commonwealth v. Gallagher, 353 Pa.Super. 426, 433-434, 510 A.2d 735, 738 (1986). Its relevance to the issue of consent is that if the victim exhibits the symptomology of rape trauma syndrome, it is likely that she was in fact raped and that she did not consent. Gallagher, 353 Pa.Super. at 456-457, 510 A.2d at 751 (Cavanaugh, J., dissenting).

      . In Gallagher, the court determined that expert testimony concerning rape trauma syndrome was admissible to explain a complainant’s initial inability to identify her assailant.

      . Appellant also claims that a new trial should be granted because the victim’s hysterical outcries following the jury’s retirement affected their deliberations. The argument lacks merit since the jurors were polled following the verdict and none of them could determine what was said, even though some of them stated that they heard a commotion.

      . Sections 9781(b) and (c) provide:
      (b) Allowance of appeal. — The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.
      (c) Determination on appeal. — The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:
      (1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
      (2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
      (3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.
      In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.

      . Commonwealth v. Fluellen, 345 Pa.Super. 167, 171, 497 A.2d 1357, 1359 (1985) (emphasis in original), quoting Commonwealth v. Hutchinson, 343 Pa.Super. 596, 598, 495 A.2d 956, 958 (1985).

      . See Commonwealth v. Terry, 513 Pa. 381, 404, 521 A.2d 398, 409 (1987).

      . In Tuladziecki, supra, our Supreme Court held that this Court was to determine whether a substantial question was presented by reference to the Pa.R.A.P. 2119(f) statement and not by the appellant’s argument. The majority in Krum found that the failure to comply with Pa.R.A.P. 2119(f) is a procedural error which can be waived; the Krum majority, however, gave no indication as to how the mandate of 42 Pa.C.S.A. § 9781(b) and Tuladziecki, supra, was to be met in absence of at least substantial compliance with Pa.R.A.P. 2119(f). I remain of the opinion that, without at least substantial compliance with Pa.R.A.P. 2119(f), appellant will be unable to establish the existence of a substantial question and, consequently, allowance of appeal must be denied. 42 Pa.C.S.A. § 9781(b).


author: WIEAND, Judge: KELLY, Judge,

text:
    536 A.2d 1357
    Judy BAKER, Appellee, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 12, 1987.
    Filed Dec. 14, 1987.
    Reargument Denied Feb. 8, 1988.

      Stephen L. Dugas, Johnstown, for appellant.
    James F. O’Malley, Johnstown, for appellee.
   WIEAND, Judge:

In this action by Judy Baker to recover for a theft loss pursuant to the terms of a homeowner’s policy issued by Pennsylvania National Mutual Casualty Insurance Company, the jury returned a verdict in favor of Baker in the amount of $11,913.97. A motion for post-trial relief, requesting the entry of a judgment n.o.v. or the granting of a new trial, was denied by the trial court, and judgment was entered on the verdict. On appeal, the insurance company contends that it is entitled to judgment n.o.v. because Baker’s action was not commenced within one year of the loss as required by the terms of the policy. It also contends that the verdict was contrary to the weight of the evidence, which, according to appellant, depicted a false claim. Finally, it is argued, the trial court erred when it allowed evidence of the insurer’s assets, reserves and claims handling procedures.

The claim arose initially because of the alleged theft of personal property from the home of Judy Baker, in Johns-town, Cambria County, between May 21, 1982 and May 24, 1982. Baker filed a claim with Pennsylvania National Mutual under and pursuant to a homeowner’s policy which had been issued to her by the company. When six months passed without payment, Baker obtained counsel, who inquired of the insurer regarding the claim. He was advised that the investigation was continuing and that it would be necessary for Baker to submit to an oral examination under oath regarding the alleged loss. This examination took place on July 6, 1983. On February 15, 1984, the insurance company denied the claim. Baker commenced legal action on July 3, 1984. She subsequently filed an amended complaint which added separate counts seeking to recover compensatory damages for emotional distress and punitive damages because of the insurer’s alleged bad faith in handling her claim. A preliminary objection in the nature of a demurrer was filed and denied, an answer was filed, and a jury, on October 29, 1985, returned a verdict which allowed only the claim for the stolen personal property.

The insurance policy which Baker purchased from Pennsylvania National contained the following provision:

8. Suit against us. No action shall be brought unless there has been compliance with the policy provisions and the action is started within one (1) year after the occurrence causing loss or damage.

“The law is clear that such a clause ... is valid and will be sustained.” General State Authority v. Planet Insurance Co., 464 Pa. 162, 165, 346 A.2d 265, 267 (1975) (citing numerous cases) (footnote omitted). “Likewise, axiomatic is the principle that a contractual limitation on the right to recovery under the terms of the policy may be waived by the acts of the insurer.” Commonwealth v. Transamerica Insurance Co., 462 Pa. 268, 273, 341 A.2d 74, 76 (1975). See: General State Authority v. Planet Insurance Co., supra 464 Pa. at 165 n. 6, 346 A.2d at 267 n. 6; McMeekin v. Prudential Insurance Co., 348 Pa. 568, 572-573, 36 A.2d 430, 432 (1944); Arlotte v. National Liberty Insurance Co., 312 Pa. 442, 445, 167 A. 295, 296 (1933). Thus,

If in the course of the negotiations the company [gives the insured] reasonable grounds for believing that the time limit [will] be extended or that such provision [will] not be strictly enforced, it [can] not subsequently insist on its strict enforcement without giving [the insured] a reasonable time thereafter to bring [an] action. Sudnick v. Home Friendly Insurance Company, 149 Pa.Super. 145, 153, 27 A.2d 468 [(1942)]. ‘“If it (the company) act[s] and promise[s], after the action [is] legally barred, as if it [does] not intend to insist on the limitation, and put the party to trouble, expense, and anxiety in regard to his claim, they need not complain of a jury finding that they did waive it. Under such circumstances, juries will be very likely to do so; and sometimes, probably, on pretty slight evidence.’ There is a long line of cases which hold that the waiver need not be express. It may be inferred from the acts of the insurers evidencing a recognition of liability, or even from their denial of obligation exclusively for other reasons.” Bonnert v. Pennsylvania Insurance Company, 129 Pa. 558, page 563, 18 A. 552, 15 Am.St.Rep. 739 [(1889)]. “Prima facie, the insured is entitled to have his loss made good immediately upon its happening, and when that loss appears to be an honest one, we are not disposed to scan very strictly the evidence which tends to rebut a technical forfeiture of the right to payment.” Pennsylvania Fire Insurance Company v. Dougherty, 102 Pa. 568, 572.

McMeekin v. Prudential Insurance Co., supra 348 Pa. at 572-573, 36 A.2d at 432 (emphasis added). See: 19 P.L.E. Insurance § 421.

The issue of the timeliness of Baker’s action is controlled by the decision of the Supreme Court in Commonwealth v. Transamerica Insurance Co., supra. There, the insured had issued a bond to the Commonwealth undertaking to indemnify the Commonwealth against any loss, up to a maximum of $10,000.00, caused by the failure of designated Commonwealth employees to perform faithfully their duties and properly account for all monies and property received by them as a result of their positions. The bond contained a provision that any action under the bond had to be brought prior to the expiration of three years from the cancellation of the bond. The bond was cancelled on August 25, 1967. Prior thereto, an employee of the Commonwealth came under suspicion of embezzlement. The Commonwealth notified Transamerica of a potential claim on November 4,1968, and Transamerica thereafter requested the results of the Commonwealth’s on-going investigation. The Commonwealth promptly complied with the request. On August 28, 1969, after the employee had entered a plea of guilty to embezzlement, the Commonwealth submitted to Transamerica a proof of loss containing a claim for $48,094.11. Thereafter, the parties continued to cooperate with each other in providing information regarding the loss. After August 6,1970, but prior to August 25, when the three year period was to expire, Transamerica decided to deny the Commonwealth’s claim. However, its decision was not communicated to the Commonwealth until after the three year period had expired. The Commonwealth promptly filed suit thereafter. The trial court determined that the contractual time limit for commencing an action barred the Commonwealth’s action and, therefore, entered summary judgment for the insurer. On appeal, the Supreme Court reversed, holding that because Transamerica’s actions had given the Commonwealth reasonable grounds for believing that the time limit would not be strictly enforced, a waiver thereof had resulted. The Court explained:

The portrayal of a bona fide investigation by [Transamerica] during the course of which it failed to suggest any grounds upon which it might deny liability, and the withholding of the decision to reject the claim, particularly where there was ample grounds to believe that if the parties were in fact acting in good faith liability would be eventually acknowledged, supply a basis for finding that the company by its actions had lulled the insured into neglecting the institution of suit within the required time____ Although there was no expressed waiver of time limitation or a definitive acknowledgement of liability by the insured we are satisfied that this record presents a classic example where an insured could reasonably conclude from the course of the negotiations that if there was to be a denial of liability it would have been “exclusively for other reasons.”

Id. 462 Pa. at 277-278, 341 A.2d at 78-79, quoting McMeekin v. Prudential Insurance Co., supra.

In the instant case, Baker’s loss occurred no later than May 24, 1982. Upon discovering the theft, she immediately notified her insurance company of the loss. Pennsylvania National Mutual promptly had its adjuster, James Debiase, visit Baker’s residence to investigate the claim. Debiase examined the premises, took photographs, and supplied Baker with the necessary claim forms. The forms were completed and filed with the company. In August, 1982, Debiase again visited Baker’s home for the purpose of taking a statement from her. During this visit, Debiase informed Baker that a settlement check would be forthcoming. After hearing nothing further from the company for approximately four months, Baker contacted an attorney who wrote to Pennsylvania National inquiring about the status of Baker’s claim. The company responded by stating that it wished to take a sworn statement from Baker. After some initial confusion, the statement was given in July of 1983. By then the one year within which to file suit had expired. Approximately one month later, Baker’s attorney again wrote to Pennsylvania National inquiring about her claim. On October 31, 1983, Pennsylvania National responded by letter stating that more time was needed to evaluate the claim. On February 5, 1984, a letter denying the claim was sent to Baker. Suit was commenced on July 3, 1984.

This evidence was submitted to the jury to determine whether the insurer had waived the one year limitation. The jury found that the right to rely upon strict compliance had been waived and allowed recovery. We perceive no basis for interfering with the jury’s finding. The evidence showed that Debíase had conceded the company’s liability and had advised Baker that a settlement check would be forthcoming. Although the company subsequently failed to issue the check and insisted upon taking Baker’s oral statement under oath, at no time prior to February 15, 1984 did it indicate to Baker that it was retreating from its concession of liability. Rather, the negotiations proceeded on a friendly basis up to the time when the one year period expired; and during that time the only deviation from the admission of liability was the company’s request for a sworn statement which it represented as necessary to complete its file. Even after the limitation period expired, Pennsylvania National continued to negotiate with Baker. Under these circumstances, the jury could readily conclude that the company had given Baker reasonable grounds for believing that the limitation on bringing suit would not be strictly enforced and had been waived. The trial court, therefore, did not err by refusing appellant’s motion for judgment n.o.v.

Appellant argued at trial that Baker should be precluded from recovering under the policy because she had intentionally made false representations of material facts with regard to her claim. The issue was submitted to the jury which concluded that Baker had not made false statements sufficient to bar recovery. Appellant contends that the verdict was contrary to the weight of the evidence.

[T]he decision to either grant or deny a motion for new trial [on grounds that the verdict was against the weight of the evidence] is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion____ Our Supreme Court has held that a new trial should be granted only where the verdict is so contrary to the evidence as to shock one’s sense of justice. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 265 A.2d 516 (1970). A new trial should not be granted where the evidence is conflicting and the jury might have found for either party, nor where the trial judge would have reached a different conclusion on the same facts.

Hawthorne v. Dravo Corp., 352 Pa.Super. 359, 365, 508 A.2d 298, 301 (1986), quoting Myers v. Gold, 277 Pa.Super. 66, 69, 419 A.2d 663, 664 (1980). See: Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969); Brown v. McLean Trucking Co., 434 Pa. 427, 256 A.2d 606 (1969); Carroll v. Pittsburgh, 368 Pa. 436, 84 A.2d 505 (1951); Buck v. Scott Township, 325 Pa.Super. 148, 472 A.2d 691 (1984); Mattox v. City of Philadelphia, 308 Pa.Super. 111, 454 A.2d 46 (1982); Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973).

Appellant contends that Baker made false representations by (1) claiming that various items had been stolen from her home when in fact she had informed the police that they had been stolen from her mother’s home, which had also been burglarized; and (2) stating that she had never before made an insurance claim for a theft loss when, at trial, she conceded that she had made such a claim while living in Texas. A review of the record reveals that the inconsistencies were explained and the explanation, if believed, would excuse the inconsistencies.

Baker testified that shortly after discovering the theft, she gave the police two lists: one containing items which had been stolen from her home and the other containing items stolen from her mother’s house. Although some items appeared to be present on both lists, Baker explained that these were duplicate items which had been stolen from both homes. Moreover, Baker stated unequivocally, the only items which she had listed in her claim to Pennsylvania National were those which had been stolen from her own home. Despite Pennsylvania National’s arguments to the contrary, we find no evidence of record which would require the jury to reject Baker’s explanation.

Baker also testified that she had answered Pennsylvania National’s question concerning prior theft losses in the negative because she believed that the question referred only to claims for theft losses made under the policy which she had purchased from Pennsylvania National. Baker explained that the only other theft claim which she had made occurred many years before and concerned property in Texas which she had previously owned and which had been insured by a different insurer. Contrary to appellant’s contention, Baker’s testimony was not so contradictory as to be unworthy of belief. Rather, our reading of the record indicates that Baker’s testimony was consistent, and if believed by the jury, was sufficient to refute any contention that she had intentionally made false misrepresentations with regard to her claim under the policy. Moreover, the representation regarding other claims, even if false, was not material to the theft loss claim which Baker made to Pennsylvania National.

Appellant also contends that the trial court erred in its jury instructions regarding (1) the insurer’s waiver of the provision in the policy which limited the time period for commencing suit thereunder; and (2) the effect of any alleged intentional misrepresentations on Baker’s ability to recover under the policy. “ ‘[W]hen the propriety of the jury instruction of the trial court is at issue, those instructions must be viewed in toto to determine if any error has been committed. Unless the charge as a whole can be demonstrated to have caused prejudicial error, we will not reverse for isolated inaccuracies.’ ” Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 536, 521 A.2d 25, 32 (1987), quoting Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 A.2d 1314, 1316 (1984). We have reviewed the trial court’s instructions in the instant case and conclude that they were adequate.

We are constrained to agree, however, that serious error was committed when, under the guise of relevance to establish a claim for punitive damages, Baker offered and the trial court allowed evidence of the insurance company’s assets, reserves and claim procedures. The law is clear that punitive damages cannot be recovered merely for breach of contract. See: Standard Pipeline Coating Co., Inc. v. Solomon & Teslovich, Inc., 344 Pa.Super. 367, 496 A.2d 840 (1985); Rittenhouse Regency Affiliates v. Passen, 333 Pa.Super. 613, 482 A.2d 1042 (1984); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984); Daniel Adams Associates, Inc. v. Rimbach Publishing, Inc., 287 Pa.Super. 74, 429 A.2d 726 (1981); DeLuca v. Fidelity Bank, 282 Pa.Super. 365, 422 A.2d 1159 (1980). When the trial court refused to dismiss the insured’s claim for punitive damages pre-trial and thereafter allowed evidence at trial of the insurance company’s net worth, the amount of its reserves, and the procedures which it followed in settling claims, the trial court committed serious error.

The trial court concedes that there could be no recovery for punitive damages, but suggests that its error in allowing the claim to go to the jury was harmless because the jury rejected Baker’s claim for punitive damages. This analysis, which appellee pursues in this court, is unacceptable. Because the trial court erroneously refused summarily to disallow the claim for punitive damages, as it should have done, the jury was permitted to hear evidence that the appellant company had a net worth of more than ninety-two million dollars in 1982 and that its net income during the same year had exceeded fifteen million dollars.

This evidence, although relevant in a proper claim for punitive damages, is not relevant to and, indeed, is highly prejudicial and improper in a claim for compensatory damages. See: Feld v. Merriam, 506 Pa. 383, 396, 485 A.2d 742, 748 (1984); Trimble v. Merloe, 413 Pa. 408, 410, 197 A.2d 457, 458 (1964). The reason for the rule is readily apparent. Evidence of a defendant’s considerable wealth tends to prejudice the jury against the defendant who, it is presumed, can afford to compensate the plaintiff for his or her alleged losses. Thus, a jury will be inclined to award compensatory damages based not upon the evidence and the law, but upon the defendant’s ability to pay. Because of the prejudicial impact associated therewith, the improper receipt of this evidence requires that a compensatory damage award be set aside and a new trial awarded. See: Feld v. Merriam, supra. See also: Arye v. Dickstein, 337 Pa. 471, 474, 12 A.2d 19, 20 (1940) (even where evidence concerning defendant’s wealth is properly received in a valid action for punitive damages, its admission “should be most carefully safeguarded by the judge, so that injustice shall not be done to the defendant”); Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 385-386, 492 A.2d 1382, 1388 (1985) (same).

In the instant case, the trial court erred in permitting evidence of Pennsylvania National’s net worth to be presented to the jury. The court also failed after this evidence had been improperly received, to give any cautionary instructions telling the jury that it should not look to the insurance company’s wealth in fixing the amount of compensatory damages. Under these circumstances, the prejudicial effect of the evidence cannot be ignored. It may well have impacted on the jury’s decision to allow the claim and in fixing the amount of the alleged loss. See: Feld v. Merriam, supra 506 Pa. at 397, 485 A.2d at 748.

The trial court also was incorrect when it submitted to the jury the plaintiff-appellee’s claim for emotional distress allegedly caused by the insurer’s denial of her claim. The law in this Commonwealth does not recognize a claim for emotional distress because of an insurer’s erroneous denial of a claim for insurance benefits. In D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Co., 494 Pa. 501, 431 A.2d 966 (1981), plaintiff made a claim for property damage under a contract of insurance which he had purchased from the defendant insurance company. After the claim had been denied, plaintiff filed a complaint against the defendant seeking to recover the costs of repairing the damage to his property and also damages for emotional distress and punitive damages based upon defendant’s alleged bad faith conduct in denying plaintiff’s claim. Defendant’s preliminary objections to plaintiff’s claim for emotional distress and punitive damages were granted and plaintiff appealed. The Superior Court affirmed by an evenly divided court. The Supreme Court granted allocatur and reversed. The Court observed that the Legislature had enacted the Unfair Insurance Practices Act, P.L. 589, 40 P.S. § 1171.1 et seq., in an effort to curb bad faith conduct by insurance carriers and had empowered the Insurance Commissioner to enforce the provisions of the Act. The Court held:

There is no evidence to suggest, and we have no reason to believe, that the system of sanctions established under the Unfair Insurance Practices Act must be supplemented by a judicially created cause of action____ Surely it is for the Legislature to announce and implement the Commonwealth’s public policy governing the regulation of insurance carriers. In our view, it is equally for the Legislature to determine whether sanctions beyond those created under the Act are required to deter conduct which is less than scrupulous.
Our conclusion that the Unfair Insurance Practices Act serves adequately to deter bad faith conduct applies not only to appellant’s attempt to recover punitive damages but also to his attempt to recover damages for “emotional distress.” An award of punitive damages unquestionably is a deterrent device, see Restatement (Second) of Torts § 908 (1965); Restatement (Second) of Contracts § 369 (Tent.Draft No. 14, March 1, 1979), one which is unnecessary in view of the present legislatively-created regulatory scheme. And in the vast majority of cases an award of emotional distress damages would accomplish no more than is already accomplished by the Unfair Insurance Practices Act.

Id., 494 Pa. at 507-508, 431 A.2d at 970 (footnote omitted). See also: Rodgers v. Nationwide Mutual Insurance Co., 344 Pa.Super. 311, 496 A.2d 811 (1985).

Although the trial court erred in denying appellant’s pre-trial preliminary objections to the count requesting damages for emotional distress, the evidence in support of this alleged cause of action did not patently prejudice appellant’s defense to Baker’s underlying claim for a theft loss. On the present state of the record, therefore, and in view of the jury’s rejection of the claim for emotional distress, the trial court’s submission of the claim to the jury must be deemed harmless. Upon a retrial, however, the claim for emotional distress should not be submitted to the jury, and evidence in support thereof should not be allowed.

Reversed and remanded for a new trial. Jurisdiction is not retained.

KELLY, J., files a dissenting opinion.

KELLY, Judge,

dissenting:

I respectfully dissent. Though I am inclined to agree with much of the reasoning in the majority’s opinion, I am unable to agree with its conclusion that the admission at trial of evidence concerning the net worth of appellant insurance company prejudiced appellant and tainted the jury verdict which awarded appellee compensatory damages in the amount of $11,913.97.

I agree with the majority opinion that the trial court did not err by refusing appellant’s motion for judgment n.o.v., where reasonable grounds existed to believe that the one year limitation period set forth in the policy, within which appellee was required to bring suit, had been waived by appellant. I further assent to the determination that the issue of whether appellee had intentionally made false representations of material facts with regard to her claim was properly submitted to the jury. Likewise, I agree with the majority that no prejudice came to appellant insurance company regarding an alleged error in jury instructions, nor, in the trial court’s error in denying appellant’s pre-trial preliminary objections requesting damages for emotional distress. In addition, I agree with the majority that punitive damages will not be assessed for a mere breach of contractual duties. Standard Pipeline Coating Co., Inc. v. Solomon & Teslovich, Inc., 344 Pa.Super. 367, 496 A.2d 840 (1985); Daniel Adams Associates, Inc. v. Rimbach Publishing, Inc., 287 Pa.Super. 74, 429 A.2d 726 (1981). Moreover, I agree that, based on the facts of this case, it was correct to hold that a claim for punitive damages was improper, and that the admission of evidence of appellant’s net worth was, accordingly, error. However, in reversing and remanding for a new trial, the majority, citing Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984), concludes that the evidence of appellant’s net worth submitted- in this case, though proper evidence in a claim for punitive damages, was not only improper, but highly prejudicial in that it may have affected the jury’s deliberation on appellee’s claim for compensatory damages. As to this conclusion, I respectfully dissent.

In Feld, supra, evidence was presented at trial to show that defendant/appellant maintained a net worth of forty million dollars. In that case, a claim for compensatory damages was asserted based on an alleged breach of duty by a landlord of protection owed to tenants which resulted in injuries to the parties. The jury returned a compensatory damage award for appellees of three million dollars. The Supreme Court of this Commonwealth stated in Feld, supra, that, “[a] jury may not consider a defendant’s wealth in setting compensatory damages. It is improper, irrelevant, prejudicial, and clearly beyond the legally established boundaries.” (Citation omitted). 485 A.2d at 748.

Here, however, the injury alleged is tangible and the damages verifiable. The instant case deals not in compensation for an abstract injury as in Feld, but compensation for property lost in a theft for which a sum certain value has been determined. Appellee in this case was not awarded compensatory damages in the millions of dollars, but was awarded $11,913.97, precisely the amount determined to be the value of the property lost in the theft and the amount of the claim submitted to appellant.

I am unable to find, as did the majority, based on the compensatory damages awarded appellee, that the error in admitting evidence of appellant’s net worth resulted in prejudice to the appellant and a tainted verdict. Whatever error that occurred was harmless error. Therefore, I dissent.

      . The policy contained a provision which stated: “We do not provide coverage for any insured who has intentionally concealed or misrepresented any material fact or circumstance relating to this insurance.”

      . The amended complaint also alleged a cause of action that Baker had been defamed by statements which Pennsylvania National had made in its letter denying her claim and in its answer to her original complaint. The trial court also denied Pennsylvania National's preliminary objections to this cause of action. However, the cause of action was abandoned at trial when Baker failed to pursue it. Therefore, we express no opinion regarding the privileged nature of the averments of fact contained in appellant’s amended answer or in its letter denying appellee’s claim.

       This verdict was subsequently molded by the court to include interest in the amount of six percent (6%) per annum calculated from the date of loss.