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    563 A.2d 1182
    Charles F. KRAUSE; Stuart H. Speiser; Donald W. Madole; John A. Krause, Trustee for Joan A. Krause, Kent C. Krause, Paul E. Krause and Jennifer A. Krause; Eric R. Williams; Timothy H. Williams; John F. Andrews, Trustee for Steven N. Williams and Deborah R. Williams; Dorothy R. Williams; L. Stanton Williams; Richard W. Reed, Jr., Trustee for Christopher B. Reed, Lucinda M. Reed and Melissa M. Reed; Malcolm W. Reed, Jr.; Mary R. Hirt and John W. Hirt, Trustees for Marcia H. Reigeluth, Carolyn S. Hirt, Susan D. Hirt and Constance V. Hirt; Mary R. Hirt; Suzanne K. Reed; Garnet R. Reed; Nancy R. Atkinson; Dorothy V. Reed; Richard W. Reed, Jr.; Robert M. Reed; Phyllis R. Andrews and John F. Andrews, Trustees for John R. Andrews, Judith F. Andrews and Karen W. Andrews; John F. Andrews; Phyllis R. Andrews; Carolyn C. Reed, Individually and as Custodian for David M. Reed, Jr., Douglas Reed and Jennifer S. Reed; William M. Furey; Fanbank & Company, a Massachusetts State Bank; Elizabeth R. Furey; Richgarn Corp., a Nevada Corp.; Garnet Corp., a Nevada Corp.; MWR Corp., a Nevada Corp.; Co-Alco Corp., a Nevada Corp.; David M. Reed; and D.C.R. Enterprises, a Delaware Corp., Appellants, v. GREAT LAKES HOLDINGS, INC., and Calvert Coal Inc. v. PENN POCAHONTAS COAL CO., a Delaware Corporation.
    Superior Court of Pennsylvania.
    Argued April 26, 1989.
    Filed Aug. 1, 1989.

      William M. Wyeoff, Pittsburgh, for appellants.
    Roger L. Longtin, Johnstown, for Calvert Coal Inc., appellee.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

This case involves consolidated appeals from two orders of the Court of Common Pleas of Somerset County. On October 3, 1988, appellants’ motion to amend their complaint was denied. On the same date, the lower court granted appellees’ motion for summary judgment on Counts II, III, IV and V of the complaint. We affirm in part and reverse in part.

This action was commenced by appellants, former stockholders in a liquidated corporation, Environmental Power, Ltd. (EPL) on November 10, 1983. Appellants named Penn Pocahontas Coal Company (PPC) as defendant in the action. In their complaint, appellants alleged that PPC had defaulted on an installment note in which PPC had promised to pay a certain principal amount to agents of appellants. Appellants further alleged that PPC and three other corporations (Calvert Coal Company, Newcoal Newco, Inc., and G.L. Corporation) had entered into a written agreement with. Richard W. Reed and D.G. Sisterson & Company, as agents for the former stockholders of EPL, on February 8, 1980, which provided for the rescheduling of payments due from PPC under the installment note. Appellants complained that PPC had failed to make the rescheduled payments and therefore was in default under the terms of the 1980 agreement and demanded judgment on the note.

On May 15, 1984, appellants moved for summary judgment on the complaint. Prior to the lower court’s decision on that motion, a petition to intervene was filed by GL Corporation, a predecessor corporation to appellee Great Lakes Holdings, Inc. (GL). GL and Calvert Coal Company alleged that they were parties to the February 8, 1980 agreement, and that they had made advances to PPC which had not been repaid, alleging that according to the terms of the 1980 agreement, PPC’s indebtedness to GL took priority over PPC’s indebtedness to appellants on the installment note. Therefore, GL and Calvert requested permission to intervene.

On August 31, 1984, the lower court granted GL and Calvert’s petition to intervene and denied appellants’ motion for summary judgment. In denying the summary judgment motion, the lower court held that “[t]he pleadings and affidavits in this case present a genuine conflict of fact and law as to the proper interpretation of the February 8, 1980 agreement.” The lower court concluded that it could not grant summary judgment “[wjithout more evidence as to the true intent of the parties to that agreement____” On May 8, 1985, GL and Calvert, appellees herein, filed a complaint against appellants and PPC, in which they reiterated the allegations contained in the petition to intervene. Appellees requested that the lower court declare PPC’s debt on the advances made by them to PPC as having priority over PPC’s debt to appellants on the installment note.

Appellants then filed an amended complaint in September, 1985. The amended complaint was filed “to include claims against the intervening plaintiffs — ” Count I of the amended complaint essentially reiterated the allegations against PPC as set forth in the original complaint. Count II was directed against GL and alleged that Jay Pritzker, agent of GL, entered into an oral agreement with appellants on November 15, 1979, under which GL agreed to assume responsibility for payment of PPC’s obligations under the installment note in consideration for which appellants agreed to accept a suspension of payments. Appellants further alleged in Count II that although they had performed their obligations under the oral agreement, GL had failed to pay the outstanding debt on the note. In Count III of the amended complaint, appellants alleged that “the representations and promises made by GL Corporation in its oral agreement with [appellants]” were false, that GL knew them to be false at the time the representations were made, and that GL made such representations for the purpose of inducing appellants not to take immediate legal action against PPC. Further, appellants alleged that they relied on GL’s representations on February 8, 1980 when they entered into the written agreement rescheduling PPC’s payments on the note. Appellants also alleged in Count III that GL “shifted assets and diverted corporate opportunities from PPC.”

Counts IV and V of the amended complaint were brought against PPC, GL and Calvert Coal as “Debtors” under the February 8, 1980 agreement. In Count IV, appellants alleged that by executing the agreement, the “Debtors” were liable to appellants as sureties under 8 P.S. § 1. In Count V, the allegation was that the “Debtors” had made false representations in the 1980 agreement and at the time of its execution. Appellants also alleged that the “Debtors” had shifted assets and diverted corporate opportunities from PPC.

After a period of discovery, appellees (intervening plaintiffs), filed a motion for summary judgment as to Counts II, III, IV, and V of appellants’ amended complaint. Prior to the disposition of this motion, appellants moved to amend the complaint to permit the filing of a second amended complaint. Appellants stated that the basis for the motion to amend was that during the course of discovery, additional information had been obtained which “demonstrated the existence of additional causes of action.”

The proposed second amended complaint alleged a “[s]econd cause of action against defendant Great Lakes Holdings, Inc.” In the second cause of action against GL, appellants alleged that “GL has used its control and domination over PPC to defraud [appellants]____” Further, appellants alleged that PPC had been acquired “with the specific intent by Defendant GL’s principals to take advantage of PPC’s corporate opportunities____” Appellants also set forth in their proposed second amended complaint a third cause of action against Calvert Coal Company and GL “for equitable subordination.” Appellants alleged that certain loans to PPC by GL and Calvert “were made by entities in the nature of proprietors rather than creditors,” and that GL and Calvert had breached their fiduciary duty to PPC. Appellants requested relief in the form of disallowance of the loans made by GL and Calvert to PPC as contributions to capital, or, in the alternative, that the court exercise its equitable powers to subordinate such loans in favor of appellants.

The lower court granted appellees’ motion for summary judgment as to Counts II, III, IV and V of the amended complaint and denied appellant’s motion for leave to amend. Appellants have timely appealed the orders of the lower court.

We will first address the lower court’s grant of summary judgment in favor of appellees. A motion for summary judgment may be granted only if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P., Rule 1035(b), 42 Pa.C.S.A. Summary judgment may be entered only in those cases which are clear and free from doubt. Young v. Eastern Engineering and Elevator Company, Inc., 381 Pa.Super. 428, 554 A.2d 77 (1989).

In passing on a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party____ It is not the court’s function to decide issues of fact but solely to determine if there is an issue of fact to be tried____ Any doubt must be resolved against the moving party____ The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings____ The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted.

Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 515 A.2d 980, 981 (1986) (citations omitted) (emphasis in original).

Appellants first contend that the lower court erred in dismissing Count II of the amended complaint because there are genuine issues of material fact as to whether the parties entered into an enforceable oral agreement on November 15, 1979. It is established law in this Commonwealth that parties may bind themselves contractually prior to the execution of a written document through mutual manifestations of assent, even where a later formal document is contemplated. George W. Kistler, Inc. v. O’Brien, 464 Pa. 475, 347 A.2d 311 (1975). Where the parties have settled upon the essential terms of the contract, and the only remaining act to be done is the formalization of the agreement, the latter is not inconsistent with the existence of a present contract. Field v. Golden Triangle Broadcasting, Inc., 451 Pa. 410, 305 A.2d 689 (1973), cert. denied 414 U.S. 1158, 94 S.Ct. 916, 39 L.Ed.2d 110 (1974). If the parties agree on essential terms and intend them to be binding, a contract is formed even though the parties intend to adopt a formal document with additional terms at a later date. Johnston v. Johnston, 346 Pa.Super. 427, 499 A.2d 1074 (1985). However, where the parties contemplate that their agreement cannot be considered complete before it is reduced to writing, no contract exists until the execution of the writing. Essner v. Shoemaker, 393 Pa. 422, 143 A.2d 364 (1958). The intent of the parties is a question of fact to be determined by the factfinder. Johnston v. Johnston, supra 346 Pa.Super. at 431, 499 A.2d at 1076.

The lower court determined that the evidence submitted in connection with the appellees’ motion for summary judgment did not demonstrate the existence of an enforceable oral contract because the parties had not manifested an intent to enter into a present contract on November 15, 1979. In reaching this determination, the lower, court relied upon the deposition of Richard W. Reed, who represented appellants at the November 15, 1979 meeting, the affidavit of D.M. Madole, who also represented appellants at the meeting, and the deposition of Jay A. Pritzker, who attended the meeting on behalf of GL. The lower court also relied upon certain documentary evidence, including a “recap” of the November, 1979 meeting written by Richard Reed, and a letter dated November 26, 1979, from Allen Palles, an employee of the Marmon Group, a company associated with the Pritzker interests, to Richard Reed concerning his discussion with Jay Pritzker.

We have reviewed this evidence as well as other relevant portions of the record and find the evidence insufficient to sustain the lower court’s grant of summary judgment to Count II of appellant’s amended complaint. We have several reasons for this finding. First, the affidavit of D.M. Madole does not, in our view, “merely corroborate” testimony that the only agreement between the parties was the written agreement of February 8, 1980. The lower court’s conclusion concerning the Madole affidavit is not the only conclusion which can be drawn from a reading of that document. On the contrary, the affidavit can quite logically be read to infer that an oral agreement between the parties was entered into on November 15, 1979, which was followed by a written memorial of that agreement on February 8, 1980. As Mr. Madole stated in his affidavit, “[subsequent to November 15, 1979, attorneys for the Pritzker interests and for EPL drafted an agreement which comported with the agreement of November 15, 1979.”

Nor do we agree with the lower court’s conclusions regarding the “recap” of the November meeting by Richard Reed or the letter from Allen Palles to him on November 26, 1979. The documents are neutral and ambiguous; they do not conclusively support the inference drawn by the lower court that no oral contract was entered into in November 1979 by the principals present on that date.

The lower court also indicated its reliance upon the depositions of Richard W. Reed and Jay A. Pritzker. The testimony of these individuals is indeed crucial to a determination of whether the parties manifested an intention to enter into a present contract on November 15, 1979. In fact, it is the testimony of Richard Reed which the lower court relied upon primarily in support of its conclusion that the parties manifested an intention not to be bound in any way prior to the execution of a written document.

Depositions which are not filed and made a part of the record cannot be considered on a motion for summary judgment. Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140 n. 2, 476 A.2d 928, 930 n. 2 (1984). In the instant case, the complete depositions of Richard Reed and Jay Pritzker have not been filed and made a part of the record. What has been made part of the record are excerpts from the depositions of these individuals which were submitted as exhibits in connection with appellees’ motion for summary judgment. A reading of these excerpts reveals that testimony has been deleted, particularly in regard to the Reed deposition, which may have been useful in ascertaining the parties’ intent at the November 15, 1979 meeting. However, appellants did not provide the lower court with any additional testimony from these depositions. It is the non-moving party’s burden to file opposing affidavits and supplementary documents in response to a motion for summary judgment. Pa.R.C.P., No. 1035(b) and (d), 42 Pa.C.S.A. Appellants apparently chose not to supplement the excerpted deposition testimony of the principals involved. Therefore, we are bound on appellate review to the record which was before the lower court.

A review of the excerpted testimony and other evidence demonstrates that the record does not support the grant of summary judgment on Count II. Summary judgment can be entered only in cases which are clear and free from doubt. This is not such a case. There is evidence which disputes the lower court’s conclusion as to the parties’ intent on November 15, 1979. Although Richard Reed stated on examination by counsel for appellees that he did not have the authority to enter into a contract at the meeting with Jay Pritzker, the affidavit of D.M. Madole indicates that an agreement was entered into on that date.

On a motion for summary judgment, the evidence must be viewed in a light most favorable to the non-moving party. Washington Federal Savings and Loan Association v. Stein, supra. Reviewing the record in this light, we find some significant areas of doubt concerning the parties’ intent on November 15, 1979, and whether an agreement was in fact entered into on that date. The lower court’s resolution of these areas of doubt revolved into deciding issues of fact, which is impermissible on a motion for summary judgment. See Iman v. Hausman, 354 Pa.Super. 458, 512 A.2d 41 (1986) (on a motion for summary judgment, court merely determines whether there is a controverted issue of fact, not whether the evidence submitted is sufficient to prove the particular fact). The ambiguities in the evidence should properly have been resolved in favor of the non-moving party, here, appellants. Thus, we will vacate the lower court’s order granting summary judgment on Count II.

Appellants’ next contention is that the lower court erred in granting summary judgment as to Count III of the amended complaint. The lower court found that the cause of action for fraud stated in Count III was based on the alleged oral agreement of November 15, 1979. Since the lower court had found that agreement not to exist, it would not entertain the allegations which it found to be based on the alleged oral contract. A cause of action for fraud consists of proof of the following elements: (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker that the recipient will act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damages to the recipient as the proximate result. Neuman v. Corn Exchange National Bank & Trust, 356 Pa. 442, 51 A.2d 759 (1947). Fraud must be proven by evidence that is clear, precise and convincing. Snell v. State Examining Board, 490 Pa. 277, 416 A.2d 468 (1980). A promise to do something in the future, which promise is not kept, is not fraud. Neale v. American Motorists Fire Insurance Company, 185 Pa.Super. 60, 138 A.2d 290 (1958).

Appellants contend that the allegedly fraudulent act was the oral representation by Jay Pritzker at the November 15, 1979 meeting that GL would assume the obligation for PPC’s debt to appellants in return for a three year moratorium on payments and appellants’ forbearance from immediate legal action. The oral representation of Mr. Pritzker constitutes a promise to do something in the future. As such, it is not a proper basis for a cause of action for fraud. Nissenbaum v. Farley, 380 Pa. 257, 110 A.2d 230 (1955); Neale v. American Motorists Fire Insurance Company, supra; Blose v. Martens, 173 Pa.Super. 122, 95 A.2d 340 (1953). It is well-established that a cause of action for fraud must allege a misrepresentation of a past or present material fact. Nissenbaum v. Farley, supra; Laughlin v. McConnel, 201 Pa.Super. 180, 191 A.2d 921 (1963); Blose v. Martens, supra. Appellants’ argument that the basis of Count III is non-disclosure or concealment of material facts ignores the fact that the oral statement by Jay Pritzker on which appellants rely as the basis of their fraud claim is an oral promise, not [merely] a misrepresentation. As appellants themselves set forth in their brief, in their discussion of fraud as the basis of Count III, “[i]n this case, Plaintiffs are alleging that Jay Pritzker made an oral representation that Great Lakes would assume the obligation for the PPC debt, in return for a three-year moratorium on payments and Plaintiffs’ forbearance from imminent legal action.” Mr. Pritzker’s alleged oral statement was a promise to do something in exchange for something in return. His statement would not qualify as an act of fraud.

Appellants also ignore, in their attempt to distinguish the cases in which it is held that a promise does not constitute fraud, that Pritzker’s alleged statements herein were made in connection with a contract, either the oral one alleged in Count II or the written agreement of February 8, 1980. Thus, appellant’s attempt to distinguish cases in which fraud is alleged in connection with the attempt to avoid a written cqntract is unpersuasive. We conclude that the lower court did not err in granting summary judgment as to Count III of appellants’ complaint.

Appellants’ next contention that the lower court erred in granting summary judgment as to Count IV of the amended complaint. They argue that the written agreement of February 8, 1980 obligates appellees to pay the debt of PPC under a contract of suretyship as provided in 8 P.S. § 1. That statute defines agreements which constitute a contract of suretyship and provides:

Every written agreement hereafter made by one person to answer for the default of another shall subject such person to the liabilities of suretyship, and shall confer upon him the rights incident thereto, unless such agreement shall contain in substance the words: “This is not intended to be a contract of suretyship,” or unless each portion of such agreement intended to modify the rights and liabilities of suretyship shall contain in substance the words: “This portion of the agreement is not intended to impose the liability of suretyship.”

Id. Appellants argue that the fact that appellees, GL and Calvert, are referred to as “Debtors” along with PPC under the written agreement indicates that they intended to guarantee payment of the installment note owed by PPC under the terms of the written agreement.

The lower court rejected appellants’ argument on the basis that the written agreement does not explicitly state that appellees are obligated on the note. The lower court reasoned that the agreement had been “prepared by skilled lawyers and signed by sophisticated businessmen” who would have explicitly stated that appellees were obligated on the installment note if that was their actual intention. In construing a contract, the intention of the parties is paramount. Hutchinson v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385 (1986). “The intent of the parties is to be ascertained from the document itself when the terms are clear and unambiguous.” Id.

Where the language of the written contract is ambiguous, extrinsic or parol evidence may be considered to determine the intent of the parties. In re Herr’s Estate, 400 Pa. 90, 161 A.2d 32 (1960). While courts are responsible for deciding whether, as a matter of law, written contract terms are either clear or ambiguous; [sic] it is for the fact finder to resolve ambiguities and find the parties’ intent. Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A.2d 332 (1957); Castellucci v. Columbia Gas of Pennsylvania, Inc., 226 Pa.Super. 288, 310 A.2d 331 (1973).

Metzger v. Clifford Realty Corp., 327 Pa.Super. 377, 386, 476 A.2d 1, 5 (1984). A contract will be found to be ambiguous if it is reasonably susceptible of different constructions and is capable of being understood in more than one sense and is obscure in meaning through indefiniteness of expression or has a double meaning. Id. The written agreement in the instant case stated that the agreement was between the following parties:

By and Among PENN POCAHONTAS COAL CO., a Delaware corporation, (PPC), CALVERT COAL COMPANY, a Delaware corporation, (Calvert), NEWCOAL NEW-CO, INC., a Delaware corporation, (Newcoal), and GL CORPORATION, a Delaware corporation, (GL), at times hereafter referred to collectively as Debtor, and RICHARD W. REED and D.G. SISTERSON & COMPANY, agents for the former stockholders of Environmental Power, Ltd., a liquidated Delaware corporation (EPL), hereafter referred to as “Agents.” (emphasis added).

The parties then explained in the written agreement PPC’s indebtedness to EPL under the installment note, its payment of three of the annual principal installments, and its inability to pay the next installment due. The parties then stated:

WHEREAS, Debtor has requested that the Agents, on behalf of EPL stockholders, agree to a suspension of payments of principal and interest under the Note in reliance upon certain promises and undertakings to be performed by Debtor.

The parties then, in paragraph 2 of the agreement, made the following provision for “Deferral of Principal Payments”:

Notwithstanding any provision of the Note to the contrary and subject to the provisions of Paragraph 9 hereof, the unpaid principal balance of the Note after the payment of principal provided for in Paragraph 1 hereof shall be paid as follows:
On December 31, 1982 $ 375,000.00
On December 81, 1988 $1,775,000.00
On each December 81 commencing December 31, 1984 and ending December 31, 1987, four annual installments of $2,218,750.00

Paragraph 2 embodies the essential purpose of the agreement which is the repayment of the principal amount due on the installment note. However, the paragraph, due to the indefiniteness of its terms, fails to indicate which of the parties to the agreement is responsible for making the payments. Thus, an ambiguity is present in the agreement. The reference in Paragraph 2 to Paragraph 9 which refers to certain obligations of PPC under the agreement, does not resolve the ambiguity. In this regard, the lower court’s assessment of the makers of the agreement is instructive. The drafters of this agreement were lawyers and skilled businessman. The remainder of the agreement specifies which of the Debtor companies are required to fulfill certain obligations. This paragraph, however, which contains the most crucial aspect of the agreement, is left indefinite as to the party which is to assume the obligation. Because of this ambiguity, the parties’ intent is unclear.

The introductory paragraph quoted above also supports this interpretation. In that paragraph, it was indicated that the Debtor (referring to PPC, GL, and Calvert collectively) requested that EPL agree to a suspension of payments under the note in reliance upon “certain promises and undertakings to be performed by Debtor.” This statement would indicate that certain of the promises in the written agreement were to be performed by the group as a whole, and not just by individual companies in the Debtor group. The possibility that one of the promises to be fulfilled by the group as a whole is the promise set forth is paragraph 2 is supported by allegations in the Madole affidavit where it is indicated:

15. The February 8, 1980 agreement also made provision for advances to be made to PPC by affiliated companies during the moratorium period.
16. The aforesaid advances, described in Paragraphs 5, 7 & 8.2 of the February 8,1980 agreement were to be given “senior status,” and to be paid out of “cumulative available cash flow.”
17. This provision relating to the senior status of advances was independent of and unrelated to the obligation of the Debtor group to resume payments on the PPC Note scheduled for December SI, 1982. (emphasis added).

Certainly, these paragraphs from the Madole affidavit indicate the possibility that the Debtor group as a whole had assumed an obligation to repay PPC’s debt. This evidence indicates the existence of a disputed issue of material fact. We conclude that the lower court erred in granting summary judgment on Count IV of appellants’ amended complaint.

Appellants also contend that the lower court erred in granting summary judgment on Count V. The basis of Count V was that PPC, GL and Calvert made fraudulent misrepresentations in the written agreement of February 8, 1980. Specifically, appellants contend that the representation by GL that it would assume responsibility for the debt of PPC, was fraudulent.

As we have previously indicated, the written agreement is ambiguous as to the responsibility of GL for PPC’s installment note obligation. Therefore, the basic premise of Count V, that the Debtor group represented that it would be responsible for PPC’s obligation, is not established at this point. In addition, the principle that a breach of a promise to do something in the future does not constitute fraud is applicable here, as in Count III. See Neale v. American Motorists Fire Insurance Company, supra; Nissenbaum v. Farley, supra; Blose v. Martens, supra. The “representations” alleged to have been made by the Debtor group, even if established, would be in the nature of promises to do something in the future, and thus not actionable as fraudulent misrepresentations. Thus, the lower court did not err in granting summary judgment as to Count V.

We turn now to a consideration of appellant’s appeal from the order of the lower court denying their motion to amend their complaint to file a second amended complaint. Appellants, in their motion to amend the complaint set forth two additional counts against appellees. The first was a “second cause of action” against GL in which appellants described various transactions involving Pritzker-owned and controlled corporations and PPC. Appellants alleged that these transactions demonstrated that GL had dominated and controlled PPC to the extent that “PPC was rendered a mere instrumentality of GL,” that PPC was operated as a facade for GL, its dominant stockholder, that PPC’s inability to pay its debt was a result of the activities of GL in connection with PPC and GL’s misuse of PPC with the intent to defraud appellants. The lower court refused to grant permission to amend on the basis of these allegations, holding that the allegations stated a new cause of action which is barred by the two year statute of limitations for fraud. 42 Pa.C.S.A. § 5524(7).

Amendments to pleadings are in general liberally permitted. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 431 A.2d 237 (1981). However,

[a]n amendment introducing a new cause of action will not be permitted after the Statute of Limitations has run in favor of a defendant____ However, if the proposed amendment does not change the cause of action but merely amplifies that which has already been averred, it should be allowed even though the Statute of Limitations has already run.

Id., 494 Pa. at 243, 431 A.2d at 239, quoting Schaffer v. Larzelere, 410 Pa. 402, 407, 189 A.2d 267, 270 (1963).

Appellants contend on appeal that the allegations contained in the “Second cause of action against defendant Great Lakes Holdings, Inc.” set forth in their motion to amend do not constitute a new cause of action. In support of this proposition, appellants cite Village at Camelback v. Carr, 371 Pa.Super. 452, 538 A.2d 528 (1988), allocatur granted 519 Pa. 668, 548 A.2d 257 (1988). Appellants contend that the allegations set forth in their motion to amend constitute a claim of “piercing the corporate veil.” They argue that Camelback holds that a claim seeking to “pierce the corporate veil” does not constitute a new cause of action; therefore, the lower court erred in denying them permission to amend their complaint.

We disagree with appellant’s interpretation of Camelback. In that case, appellants, an incorporated association of property owners at a residential townhouse development, filed a twelve-count complaint against appellees, a group which included several corporations, one individual, and one proprietorship who were allegedly involved in the development, marketing and/or management of the development. The complaint contained numerous allegations of wrongdoing by the various parties, including improper operation of the association, improper design and construction of the development, failure to file tax returns for the development, and other allegations. Village at Camelback v. Carr, supra 371 Pa.Super. at 455, 538 A.2d at 530. The twelfth count of the complaint contained the following allegation: “This count seeks to impose individual liability on Carr [the one individual person named as defendant in the complaint] on a theory of piercing the corporate veil.”

In the introductory comments to its opinion, the panel in Camelback noted that “the last count [of the complaint] does not in fact plead a separate cause of action or theory of relief at all, but rather seeks generally to pierce the corporate veil of the various corporate defendants to assess liability against Carr individually for the allegedly wrongful acts of those corporate defendants pled in the preceding counts.” Village at Camelback v. Carr, supra, 371 Pa.Superior Ct. at 459, 538 A.2d at 535. The court then proceeded to analyze the facts of the case and applicable law and concluded that appellants had sufficiently pleaded the ultimate facts necessary to state a cause of action for piercing the corporate veil.

Appellants in the instant case have improperly construed the court’s introductory remarks in Camelback. Those remarks do not constitute a holding that no separate cause of action is stated when a claim for piercing the corporate veil is pled. The Camelback court was merely commenting on the state of the record in that particular case, which was that in count twelve of their complaint, the appellants had asserted a general claim of piercing the corporate veil which, for its specifics, relied on and referred back to the other counts set forth in the complaint. Thus, the court’s comment was entirely dependent on the particular facts present in Camelback, specifically the organization and structure of the Camelback plaintiffs’ complaint. The comment was most definitely not a general holding that when a claim is made under an alter ego theory, a separate cause of action is never stated.

Appellants also argue, in the alternative, that no separate cause of action was stated in the proposed second cause of action against GL because the allegations pled in the proposed second cause of action merely amplify the allegations in the amended complaint. Appellants contend that a claim of piercing the corporate veil is always a proper amplification of the cause of action originally pleaded, if justified by the facts of the particular case. We disagree with appellants’ characterization of the allegations in the proposed second amended complaint as an amplification of the allegations previously pled in their amended complaint.

The causes of action alleged in the amended complaint included 1) breach of an oral contract allegedly entered into between the parties on November 15, 1979; 2) fraudulent misrepresentations at the November 15, 1979 meeting; 3) breach of a contract of suretyship based on the written agreement of February 8, 1980; and 4) fraudulent misrepresentations set forth in the February 8, 1980 written agreement. The proposed second cause of action against GL describes a course of conduct and various transactions by GL and other Pritzker interests beginning in 1975, and concluding with the allegation that GL used its control and domination of PPC to defraud appellants.

We are unable to find that the allegations in the proposed second amended complaint are merely an amplification of the previously stated causes of action. As appellees have indicated, the allegations previously stated all relate to breaches of the alleged oral and written agreements and fraudulent misrepresentations made in connection with those alleged contracts. The allegations in the proposed second amended complaint, on the other hand, relate to the existence of a purported scheme and course of conduct designed to defraud appellants through GL’s alleged control and domination of PPC. Those allegations relate to distinct factual circumstances and state completely different theories of liability from those previously alleged. We conclude that the allegations in appellants’ proposed second cause of action against GL state a separate and distinct cause of action.

Having found that a separate cause of action was stated, we must now determine whether the proposed amendment was filed within the applicable statute of limitations. See Laursen v. General Hospital of Monroe County, supra. The lower court determined that the proposed second cause of action against GL stated a cause of action for fraud which was barred by the two year statute of limitations. 42 Pa.C.S.A. § 5524(7). In so holding, the lower court referred to the pleadings which had been filed in connection with an action in the United States District Court for the Western District of Pennsylvania on October 10, 1985, involving the same parties. In that action, appellants had alleged violations by appellees of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., as well as allegations of intentional interference with contractual relations. The lower court found that the same acts of fraud and alleged scheme to defraud appellants that appellants have set forth in their proposed second amended complaint were the basis of the action in federal court. The lower court then cited appellants’ sworn answers to interrogatories in that action which indicated that appellants became aware of the alleged fraudulent scheme in 1988. Since the motion to amend in the instant case was not filed until March 30, 1987, the lower court found section 5524(7) applicable and concluded that amendment should be prohibited because it was beyond the limitations period.

We agree with the lower court’s analysis. We have examined appellants’ federal court complaint and find, despite appellants’ claim to the contrary, that the allegations therein are substantially the same as those set forth in their proposed second amended complaint against GL. In addition, appellants’ answers to interrogatories and brief filed in connection with the federal court action contain appellants’ statements that they were aware of the “falsity of [appellees] representations” by the end of 1983. Since there are no significant differences in the allegations contained in the proposed amended complaint from those alleged in appellants’ federal court complaint, appellants are indeed, as the lower court opined, faced with their own sworn answers to interrogatories, which reveal their awareness of the allegations in 1983 and not, as they have contended on appeal, in 1986 or 1987 as a result of the discovery process in this action. Since it appears from these prior pleadings that appellants were aware of the cause of action stated in the proposed second amended complaint in 1983, their proposal in 1987 to amend their complaint to state this separate cause of action is beyond the statute of limitations. Thus, the lower court did not err in denying appellants’ motion to amend the complaint with regard to the proposed second cause of action against GL.

Appellants also alleged in their motion to amend a “third cause of action against Calvert Coal Company, Inc. and Great Lakes Holdings, Inc. for equitable subordination.” The lower court found that equitable subordination, a power granted to a federal bankruptcy court, is not a cognizable cause of action under Pennsylvania law. Appellants have failed to present in their brief on appeal any arguments raising the issue of equitable subordination or challenging the lower court’s holding on this issue. Since appellants have failed to develop this issue in their brief on appeal, we find it waived and will not consider the merits thereof. Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982).

In conclusion, we affirm the lower court’s order denying appellants’ motion to amend the complaint, and its order granting summary judgment as to Counts III and V of their amended complaint. We reverse the order of the lower court granting summary judgment as to Counts II and IV and remand the case to the lower court for further proceedings on these allegations.

Affirmed in part; reversed in part; remand to lower court for further proceedings consistent with this memorandum. Jurisdiction relinquished.

      . The petition to intervene was amended to substitute Great Lakes Holdings, Inc. as petitioner and to join as petitioner Calvert Coal Company.

      . The "diversion of corporate opportunities” theories alleged in Counts III and V of the complaint have not been raised on appeal.

      . The lower court’s order granting summary judgment is an appeal-able order. See Praisner v. Stockner, 313 Pa.Super. 332, 459 A.2d 1255 (1983) (summary judgment as to certain counts of a multi-count complaint was an appealable order where those counts contain separate causes of action and the judgments effectively precluded plaintiffs from further pursuing the merits of those causes of action).

      . Our holding in this regard establishes the appealability of the lower court’s order denying appellant’s permission to amend their complaint. See Barr v. General Accident Group Ins. Co., 360 Pa.Super. 334, 520 A.2d 485 (1987) (denial of leave to amend a complaint to assert recovery based on a different cause of action from that originally pleaded is an appealable order).

      . Section 5524(7) provides:
      The following actions and proceedings must be commenced within two years:
      (7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this subchapter.

        42 Pa.C.S.A. § 5524(7).
      Actions based upon fraud have also been held subject to the two-year limitation of actions under section 5524(3) which includes actions for “taking, detaining or injuring personal property, including actions for specific recovery thereof.” Id. § 5524(3); A.J. Cunningham Packing Corp. v. Congress Financial Corp., 792 F.2d 330 (3d Cir.1986).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    563 A.2d 1193
    COMMONWEALTH of Pennsylvania v. Raymond MARTORANO and Albert Daidone. Appeal of Barbara L. CHRISTIE, Assistant District Attorney, and Edward G. Rendell, District Attorney.
    Superior Court of Pennsylvania.
    Submitted April 10, 1989.
    Filed Aug. 17, 1989.

      Gaele M. Barthold, Deputy Dist. Atty., Philadelphia, for Christie, appellant (at 914 and 1471) and Rendell appellant (at 914).
    Charles W. Johns, Strafford, for Ribner, participating party.
    Before CIRILLO, President Judge, and OLSZEWSKI and WATKINS, JJ.
   OLSZEWSKI, Judge:

This is an appeal from two orders of contempt of court entered by the Court of Common Pleas of Philadelphia County during the joint trial of Raymond Martorano and Albert Daidone.

In 1984, appellant, Barbara Christie, an assistant district attorney, prosecuted a highly publicized case involving Raymond Martorano and Albert Daidone. The defendants had been charged with ordering the death of roofers’ union leader, John McCullough. The case, which lasted six months, was tried before the Honorable Paul Ribner. Ultimately, Martorano and Daidone were convicted of first-degree murder and conspiracy.

During the proceedings, Christie was twice held in contempt of court. The first contempt citation occurred on April 3, 1984, during argument on pre-trial motions. This citation was based upon Christie’s overall courtroom conduct and largely on her actions from the previous day. In imposing this citation, Judge Ribner stated the following:

I recessed court yesterday because I wanted to make sure that I had access to a complete transcript of what transpired on Friday afternoon and yesterday, April 2, 1984, before I would act in this matter.
I have reviewed those transcripts in detail, and they confirm what I believed I heard yesterday. Unfortunately, we had to recess the proceedings yesterday to take care of these matters.
There have been a number of instances throughout these proceedings wherein the conduct [of] the Assistant District Attorney reflected contempt for this Court. And it culminated in the outburst of yesterday.
Those remarks, in the opinion of this Court, were totally outrageous, totally false and were obviously made in connection with pending rulings regarding the witness who had been on the stand Friday afternoon and the answer to the Court’s order of March 27, 1984, directing the prosecutor to set forth the names of the alleged co-conspirators in this case.
The comments following the outburst of yesterday by the Assistant District Attorney were undignified and discourteous to the Court. They were refusals to abide by the Court’s proper admonition not to discuss the subject matter of the witness’ testimony while the witness was under cross-examination on Friday afternoon and a refusal to abide by the order of March 27th. And there were a number of other comments, which are contained in the record, concerning the bias of the Court.
I will also observe for the record that the Assistant District Attorney on a number of occasions, and especially yesterday, exhibited a manifestation of total hostility and disdain for this Court.
This kind of conduct led to a disruption of the proceedings and obstructed the proper administration of justice. This was official misconduct of an attorney, an officer of this court. This Court cannot function if held in disrepute, if degraded, demeaned by any counsel in the case, which happened in this case. There was also the risk of pressure being applied to the Court to enter rulings favorable to the Commonwealth by counsel’s unfair, totally unfair and false accusations of bias, favoritism and so on.
The actions of the Assistant District Attorney have prevented this Court from maintaining a dignified administration over the proceedings, which is required in any criminal proceeding. The Court cannot function if the Court is not able to maintain a dignified, impartial air, without any disruptive influences----
In this morning’s newspapers appear several articles which, again, indicate how there has been a total obstruction of justice in this case by the acts of the Commonwealth.
On page 14 of today’s Daily News ... here is an article containing comments which would make it appear to anyone reading this newspaper that this Court has been delaying these proceedings and that the Court has applied a double standard in favor of the defendants. Those are the words set forth in the article.
Those allegations are totally outrageous, totally false. These proceedings were lengthened by the insistence of the prosecutor on putting in numerous tape recordings, originals and duplicates, which this Court listened to, with courtesy, in an attempt to make proper rulings. There was also a period of a week or a week and a half when the prosecutor did not feel well, and the Court did not pressure her in any way into continuing with the case.
I think that the record will reveal that the case has moved along as expeditiously as possible.
This Court finds Ms. Christie in contempt of court and imposes a fine of five hundred dollars____ This action will not in any way prevent these proceedings or the trial from being conducted in a totally fair and impartial manner by this Court____

N.T. 4/3/84, 2-5.

Accordingly, Christie was found to be in contempt of court, for which she was ordered by pay a five-hundred-dollar fine. Counsel for Christie then requested Judge Ribner to stay his order pending appeal. Following the denial of this request, counsel filed an immediate appeal to our Court along with a petition for supersedeas. Said petition was granted pending disposition of the appeal.

Subsequently, on May 29, 1984, Christie was again found to be in contempt of court. This citation was directly prompted by her negative reaction to a ruling on the inadmissibility of certain evidence. Specifically, Christie openly challenged Judge Ribner’s ruling by stating, “I don’t believe this ...”. In Judge Ribner’s 206-page opinion, he held that this citation represented the culmination of Christie’s persistent and blatant disregard of his authority. Further, he stated that Christie openly and harmfully displayed contempt and hostility towards him, effectively and unnecessarily dragged out the trial, and repeatedly threatened the just nature of the trial by knowingly misstating facts and by repeatedly introducing prejudicial and inflammatory evidence. Judge Ribner stated that he was forced to contend with this behavior during a trial in which the jurors remained sequestered for six months. As a result of this isolation, many of the jurors became emotionally strained and eventually exhibited signs of unrest which included temper tantrums and escape attempts. Accordingly, Judge Ribner was faced with the task of expediting the trial at a reasonable pace without compromising its constitutional integrity. In effect, Judge Ribner held that Christie continuously undermined his laborious attempts to maintain a smooth and fair trial.

Pursuant to the issuance of this citation, counsel for Christie asked Judge Ribner to stay the order pending appeal. Judge Ribner refused, and Christie filed a second appeal and petition for supersedeas with our Court. Said petition was granted. In response, Judge Ribner petitioned the Pennsylvania Supreme Court to quash our Court’s directive. Due to Judge Ribner’s lack of standing, however, his petition was dismissed.

On December 29, 1988, Judge Ribner filed his opinion. Following, in accordance with this Court’s orders, Christie filed an appellate brief. On appeal, Christie contends that: (1) the evidence was insufficient to support her two summary convictions for direct criminal contempt; (2) the trial court erred in its application of subsection (1) of 42 Pa.C.S.A. § 4132 to the instant convictions; (3) due process was violated when the trial court failed to allow counsel to defend Christie; and (4) the trial judge erred in declining to recuse himself and to refer the contempt charges to another judge for trial.

Initially, Christie argues that the evidence was insufficient to sustain the convictions. With regard to the first contempt citation, Christie contends that her objections, which ultimately led to her citation, were made pursuant to her duties and rights as an advocate and, as such, were not contemptuous. Further, Christie argues that her objections were not made with the intent to obstruct the proceedings and did not cause any delay in the trial. In an effort to justify any behavior which would support her convictions, Christie has prefaced and laced her arguments with allegations of favoritism by the trial judge towards the defense. Christie also argues that she, as an attorney, could not be convicted under subsection (1) of the statute.

The power to impose summary punishment for contempt is controlled by 42 Pa.C.S. § 4131. That statute provides:

The power of the several courts of this Commonwealth to ... inflict summary punishments for contempt of court shall be restricted to the following cases:
(1) The official misconduct of the officers of such courts respectively.
(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.

Initially, we will address the applicability of subsection (1) to the conduct of attorneys at trial. Although there is conflicting case law, recent Pennsylvania cases have mandated that subsection (1) is inapplicable to the conduct of attorneys at trial. Matter of Creamer, 365 Pa.Super. 170, 529 A.2d 27 (1987); Matter of Campolongo, 495 Pa. 627, 435 A.2d 581 (1981). In furtherance, these recent cases have also stated that the proper avenue for addressing the conduct of attorneys at trial is subsection (3). Id.

When applied to the instant case, it is clear that the trial court erred in proceeding under subsection (1) of the statute due to its inapplicability to attorneys. Accordingly, this Court will address Christie’s arguments as they apply to subsection (3) of the statute.

Criminal contempt is a necessary sanction utilized by the courts to protect the dignity and structure of the court and to protect the interests of the general public. Campolongo, supra. This power, while inherent in all courts, is limited by the mandates of Section 4131 of the Judicial Code. Id.

To support a conviction for contempt pursuant to 42 Pa.C.S. § 4131(3), there must be proof of the following elements beyond a reasonable doubt: (1) misconduct, (2) in the presence of the court, (3) committed with intent to obstruct the proceedings, (4) which obstructs the administration of justice. Matter of Creamer, supra. In utilizing the above elements, this Court has sought to balance the rights of an attorney to an uninhibited judicial forum which preserves the right to zealous representation, with the right of a trial judge to authoritatively maintain order and integrity within his or her courtroom. Commonwealth v. Garrison, 478 Pa. 356, 386 A.2d 971 (1978).

It is well-established that for conduct to constitute an obstruction of the administration of justice, it must significantly disrupt the proceedings. Commonwealth v. Rubright, 489 Pa. 356, 414 A.2d 106 (1980). Conduct which interrupts and delays the proceedings may constitute conduct which obstructs the administration of justice. Commonwealth v. Falkenhan, 306 Pa.Super. 330, 452 A.2d 750 (1982). Remarks that are solely injudicious, disrespectful, or insulting do not warrant the imposition of a summary conviction for contempt of court. Matter of Campolongo, supra. While it has clearly been held that the mere showing of noncompliance with a court order or misconduct is insufficient to show contempt, such an act done with wrongful intent may constitute contempt. Weingrad v. Lippy, 300 Pa.Super. 76, 445 A.2d 1306 (1982).

When reviewing the propriety of a contempt conviction, this Court places great reliance upon the discretion of the trial judge. Commonwealth v. Hawkins, 322 Pa.Super. 199, 469 A.2d 252 (1983). As such, this Court is confined to a determination of whether the facts support the trial court’s decision. Commonwealth v. Jackson, 367 Pa.Super. 6, 532 A.2d 28 (1987).

Instantly, the first contempt citation was based upon Christie’s remarks on Friday, March 30, 1984, and Monday, April 2, 1984. On March 30, the court recessed while the defense was in the middle of cross-examining a witness on his qualifications. At that time, the following exchange took place:

MR. BROWN: I haven’t finished, Judge, if that’s what— on Monday morning I’ll be very—
THE COURT: All right. We’d better start promptly at nine-thirty on Monday morning.
MR. BROWN: I’ll order from Mr. Muller — I already owe him some money — just the last fifteen minutes or so of my examination.
THE COURT: All right. I was going to suggest we take a look at that and see what we have.
MR. BROWN: May we ask that there be no consultation with the witness, who is under cross-examination? ...
MISS CHRISTIE: I haven’t had redirect examination of the witness. If I am to be permitted to redirect the witness as to his qualifications, in view of counsel’s questions — your Honor allowed those questions over the Commonwealth’s objection — questions which, it is the Commonwealth’s recall, referred to statistics and attitudinal research. And the Commonwealth certainly would ask leave to have redirect examination of this witness.
THE COURT: The witness is under cross-examination.
MISS CHRISTIE: No, he is not, sir. I haven’t even been able to ask him one question relative to anything other than his qualifications.
MR. BROWN: Your Honor, if I can continue for an hour on Monday, we may save a lot of time, an awful lot of time. But he is on cross-examination, sir, in this area.
THE COURT: The witness is under cross-examination. Are you saying that you won’t follow a direction to the witness not to discuss with counsel, at this phase of his testimony, while he is under cross-examination?
MISS CHRISTIE: I may wish to prepare and discuss with the witness his testimony on Monday — if we ever get to his testimony on Monday.
In my opinion, to suffer under a restriction because I cannot speak to the witness, when I have not even had a chance to yet direct examine this witness—
THE COURT: We are not talking about the direct examination with respect to the substance of his testimony. We are talking about his qualifications. He is now under cross-examination with respect to his qualifications. And I don’t think it would be proper for you to discuss the present cross-examination of the witness while he is still under cross-examination, any more than it would be for you to walk up to him while he is on the stand.
MISS CHRISTIE: Then we are applying a double standard. Because that’s exactly what was going on during the entire time that Dr. Kadane was on the stand, your Honor. I don’t quite understand the standard being applied to the Commonwealth and not to the defense.
MR. BROWN: I have not been talking to him. I deliberately did not. He wasn’t even here.
THE COURT: My understanding of the law is that if a witness is under cross-examination the attorney who offered that witness cannot walk up to him and discuss his testimony or otherwise confer with him while he is under cross-examination. And the witness should consider that he is still under cross-examination while he is off the stand and should not consult with counsel. And any direction to the witness to that effect is a proper admonition.
MISS CHRISTIE: Then I move to strike Dr. Kadane’s testimony. He was on cross-examination on Wednesday, your Honor, when we recessed, at recess, during the recess, and as well this morning. And there was consultation between counsel and the witness, Kadane, as to the substantive aspects of his testimony — let alone before the witness, in this instance, has even been direct examined as to the substantive merits of his testimony.
THE COURT: We are talking about the cross-examination of the witness as to his qualifications. I am directing the witness not to discuss his qualifications with his attorney until cross-examination is finished. Are you telling me you won’t follow that admonition? If you are, I’ll bar the witness’ testimony right now.
MISS CHRISTIE: I’m telling the Court—
THE COURT: Answer me yes or no. I’m not going to play games with you. My direction to the witness—
MISS CHRISTIE: The only thing the Commonwealth—
THE COURT: All right. The witness’ testimony is barred. If I can’t get a word in edgewise, that’s the end of it. We’ll proceed with anything else you have Monday morning.
MISS CHRISTIE: I would ask your Honor’s reconsideration of that ruling.
THE COURT: Not while you are talking. If I can’t get a word in edgewise, that’s it.
MISS CHRISTIE: I am not speaking. I would ask your Honor’s reconsideration.
THE COURT: Recess until Monday morning.

N.T. 3/30/84, 226-230.

On the following Monday, another verbal exchange took place between Christie and the court. This exchange was triggered by Christie’s response to the court’s directive to provide the defense with a list of alleged co-conspirators. Christie’s list included the names of 70 people. Thereafter, the following verbal interchange took place:

THE COURT: And you should be able to decide right now whom you are going to call and for what purpose. If not, if your preparation is that fuzzy—
MS. CHRISTIE: My preparation in this case isn’t fuzzy at all. There’s something in this courtroom that’s fuzzy, but it certainly isn’t my preparation in this case. I have been attempting to put this case on for two months to a forum that appears to see the right side of the courtroom and not the left side of the courtroom.
Now, my preparation is fine in this case, Your Honor. And if I am ever permitted to proceed with the case, ever permitted to be heard from, ever permitted to cross-examine a witness without being accused of being dilatory or having some purpose in mind for lengthening the cross-examination of the witness, ever permitted to offer a witness without having the testimony of that witness barred twice amidst a hasty retreat from the bench, then maybe I can present my case to this Court, however contemptuous that may sound to Your Honor.
THE COURT: Let’s go through a few of these items. You said something in the case is fuzzy and it’s not your preparation. What are you referring to?
MS. CHRISTIE: I rest on the record of this nine-week travesty here that passes for a pretrial motion.

N.T. 4/2/84, 18-31.

Subsequently, Christie accused the court of applying a “double standard” and cited certain instances from the record to support her accusation, including the court’s actions on the previous Friday. At that time, largely due to its desire to review the foregoing statements, the court recessed. The following day, the court reconvened and held that Christie’s actions on the previous day warranted a citation for criminal contempt of court. In his opinion, Judge Ribner states that this determination was largely based upon Christie’s use of the word, “travesty,” and on her constant interruptions.

In resolving whether Christie’s actions warranted a contempt conviction, it is helpful to review prior case law. Therein, the following behavior was held to constitute criminal contempt: (1) an attorney’s failure to appear as directed at a hearing, United States v. Lespier, 558 F.2d 624 (1st Cir.1977); (2) an attorney’s attempt to pressure court into a favorable ruling by accusing the court of being a tool of the government, United States v. Schiffer, 351 F.2d 91 (6th Cir.1965); (3) fighting with deputy sheriffs in the courtroom after they stopped an unlawful attempt by criminal defendants to leave, Commonwealth v. Patterson, 452 Pa. 457, 308 A.2d 90 (1973); (4) constantly interrupting the Commonwealth’s closing argument and refusing to behave in an orderly manner, Commonwealth v. Snyder, 443 Pa. 433, 275 A.2d 312 (1971); and (5) interrupting the proceedings and calling the judge a “hatchet man for the State,” “a dirty S.O.B.,” and a “dirty tyrannical old dog,” Mayberry Appeal, 434 Pa. 478, 255 A.2d 131 (1969), vacated on other grounds, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971).

In contrast, the following was held not to constitute contemptuous behavior: (1) attorney’s attempt to place on the record what he considered to be inappropriate remarks by the trial judge, Commonwealth v. Restifo, 339 Pa.Super. 225, 488 A.2d 633 (1985); (2) attorney’s repeated attempts to address issues which the court had foreclosed, Matter of Creamer, supra.; (3) defense attorney’s objection to court’s direction that defendant stand to be identified by witness, and subsequent inquiry as to whether his client “[was] to be flagellated in front of the jury,” Commonwealth v. Garrison, supra.; and (4) attorney’s continued assertions that his line of questioning on cross-examination should be allowed, despite objections to the same which were previously sustained, Commonwealth v. Collier, 353 Pa.Super. 543, 510 A.2d 796 (1986).

Instantly, Christie’s actions on Friday, March 30, coupled with her actions on the following Monday, warranted a citation for criminal contempt. While said actions are seemingly less reprehensible than the above-cited cases which upheld the existence of contemptuous behavior, they will not be ignored by this Court. The record clearly shows that Judge Ribner acted with admirable restraint in handling Christie’s outwardly abusive behavior. Despite her hostile confrontations, he gave her the necessary leeway to prosecute her case. Only when her behavior clearly threatened and interfered with his ability to effectively preside over the case did he choose to issue the contempt citation. In doing so, he took ample time to review the record and to make this determination. Christie’s behavior constituted an intentional and flagrant challenge to Judge Ribner’s authority which was undoubtedly designed to intimidate the Judge into indulging her desires.

Unequivocally, Christie’s overall conduct at the trial was exhausting. She challenged everything and pushed the limits of attorney advocacy. We can only envision the hardship of attempting to maintain an orderly and dignified trial when continually battling with such a stubborn and defiant prosecutor. She continually halted the proceedings and stripped the court of its dignity and control.

When viewed in accordance with the statutory mandates of 42 Pa.C.S. § 4131(3), the Commonwealth has proven beyond a reasonable doubt that Christie committed a misconduct in the presence of the court, and that this conduct was intended to obstruct the proceedings. Further, we find that said conduct did obstruct the proceedings in that it “prevented [the trial court] from maintaining a dignified administration over the proceedings” and resulted in an unnecessary delay. For this Court to hold otherwise would be to effectively strip a trial judge of his or her ability to assert authority where necessary and to preserve the integrity and dignity associated with a court of law.

The ability to issue a criminal contempt citation empowers a trial judge with the ability to maintain command over his or her courtroom. Effectively, the criminal contempt sanction gives credence to a judge’s status as commander in chief over his or her courtroom. If we continually carve away at this power, the sanctity and balance of the courtroom may be in jeopardy. Instead, it will become an open forum for theatrics. Accordingly, we confidently agree with the determination of the trial court and hold that the facts clearly support its decision to issue the first criminal contempt citation.

The second contempt citation was the result of Christie’s verbal response to a ruling made by Judge Ribner. Directly following the ruling, Christie complained, “I don’t believe this ... ”. Herein, although indignant and disrespectful, this comment does not exhibit contemptuous characteristics. Unlike the behavior which prompted the issuance of the first contempt citation, a review of the record indicates that the actions in question did not not overtly interfere with the court’s ability to proceed with the trial, nor did it result in the obstruction of justice. Accordingly, we cannot sustain the trial court’s determination as to the second contempt citation.

Next, Christie alleges that she was denied due process as she was not given sufficient notice of the charges and, therefore, was unable to defend herself or to present mitigating factors to justify her behavior. Due to our disposition of the second contempt citation, our focus will be on Christie’s argument as it relates to the first contempt citation.

In imposing summary punishment, a court is permitted to “eliminate the traditional steps involved in an adjudication”. Falkenhan, supra, (quoting Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 394, 69 L.Ed. 767, 773 (1925)); Commonwealth v. Stevenson, 482 Pa. 76, 393 A.2d 386 (1978) (plurality opinion). Accordingly, formal hearings, argument and findings are unnecessary where the administration of justice is threatened so as to require such summary action. Falkenhan, supra.

Instantly, a review of the record demonstrates that Christie’s actions warranted the imposition of summary punishment. She continually tampered with Judge Ribner’s authority and overtly threatened his ability to effectively preside over the proceedings. As such, Judge Ribner was justified in summarily imposing the citation in lieu of complying the conventional procedural mandates.

Christie also contends that Judge Ribner erred in failing to recuse himself. It is well-established that recusal is required in contempt proceedings where the record demonstrates a “running, bitter controversy” between the contemnor and the trial court. Falkenhan, supra; Commonwealth v. Reid, 494 Pa. 201, 431 A.2d 218 (1981). Where, however, no such “bitter” controversy exists, recusal is unnecessary. Falkenhan, supra.

Instantly, while the record does reveal the existence of a “running” controversy between Christie and the trial court, there is no indication that said controversy was “bitter”. In contrast to Christie’s contentions, the trial court responded to her behavior with a patient, learned, and detached hand. As such, the trial court did not err in failing to recuse itself.

Accordingly, the convictions of Christie of direct criminal contempt are affirmed in part and reversed in part. Order of April 3, 1984 affirmed and order of May 29, 1984 reversed.

      . Edward G. Rendell, former District Attorney of Philadelphia County, has also appealed from the trial court’s order of April 3, 1984. Since he was not a party to the proceeding in the trial court, however, and has failed to demonstrate that he had a direct, immediate and substantial interest in the matter, he is not an aggrieved party and, as such, his portion of the appeal is hereby quashed. See, In re Reorganization of Penn Cambria School District, 40 Pa.Commw. 322, 397 A.2d 465 (1979); Walker v. Walker, 362 Pa.Super. 75, 523 A.2d 782 (1987).

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 4131 (1982).

      . Seemingly, the trial court has attempted to qualify Christie’s actions throughout the trial as a basis for her contempt convictions. Although we find it appropriate to review the entire record for a determination as to the propriety of the contempt convictions, we also find it appropriate to base the thrust of our determination on the incidents which directly contributed to the issuance of each contempt citation. Commonwealth v. Garrison, supra, (this Court acknowledged that attorney’s behavior was offensive throughout the trial, but decision to reverse contempt conviction was solely based upon attorney’s remark which triggered the issuance of the contempt citation).

        Further, the trial court has directed our attention to newspaper articles which reiterated certain occurrences during the trial. Since our review is confined to the record, Commonwealth v. Jackson, 367 Pa.Super. 6, 532 A.2d 28 (1987), however, it would be inappropriate to consider these articles in making our determinations.

      . Due to our disposition of this issue, we need not reach the balance of the appellant’s contentions as they relate to the second contempt citation.


author: HOFFMAN, Judge:

text:
    563 A.2d 1201
    Rosella GRAY v. H.C. DUKE & SONS, INC., International Dairy Queen, Inc., Dairy Queen, Inc., and American Dairy Queen, Inc. and Mast Development Company Appeal of H.C. DUKE & SONS, INC.
    Superior Court of Pennsylvania.
    Argued April 11, 1989.
    Filed Aug. 17, 1989.

      Byron L. Milner, Philadelphia, for Duke & Sons, appellant (at 2945) and appellee (at 2946).
    John F. Dougherty, Jr., Philadelphia, for Dairy Queen, appellant (at 2946) and appellee (at 2945).
    Philip A. Ryan, Philadelphia, for Mast Development, appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

These consolidated appeals are from the judgment entered below in an action for contribution. At appeal No. 2945 Phi 88, H.C. Duke & Sons, Inc. (Duke) contends that the trial court erred in denying its motion for judgment n.o.v. and a new trial on the grounds that the court (1) incorrectly submitted to the jury the question of apportionment of compensatory and punitive damages; (2) allowed a defendant’s expert to testify as to the cause of the accident; and (3) refused to give a binding instruction that defendant Mast Development Company was negligent. At appeal No. 2946 Phi 88, Dairy Queen, Inc., International Dairy Queen, Inc., and American Dairy Queen, Inc., (collectively referred to herein as “Dairy Queen”) also challenge the court’s denial of their motion for judgment n.o.v. and a new trial on the issue of liability. For the reasons set forth below, we affirm.

The instant appeals arise from a contribution action that was instituted following the settlement of an underlying tort action filed by Rosella Gray. Rosella Gray was employed by a Dairy Queen franchise store located in King of Prussia. On October 8, 1981, Rosella Gray was operating a twin freezer ice cream machine, model number DR424 (DR424), when her right arm became entangled in the rotating auger shaft. As a result of the accident, Rosella Gray suffered severe and grave injuries requiring numerous extensive operations and continuous treatment to minimize her physical and psychological pain. Rosella Gray commenced an action against Duke, the manufacturer of the DR424, and Dairy Queen, the supplier. In the complaint, Rosella Gray asserted claims for negligence, products liability, and punitive damages against Duke but filed only a claim for negligence against Dairy Queen. Thereafter, Duke and Dairy Queen joined Mast Development Company (Mast), the original designer of the DR424, as an additional defendant.

Before the case proceeded to trial, Duke alone offered to settle with Rosella Gray for the sum of two million seven-hundred fifty thousand dollars ($2,750,000.00). The settlement offer was accepted and Rosella Gray signed a general release extinguishing her claims against all defendants. Duke subsequently commenced the instant action for contribution against Dairy Queen and Mast. At the conclusion of the trial, the jury returned a verdict finding in favor of Duke to the extent that Duke and Dairy Queen each were fifty percent (50%) negligent for the cause of Rosella Gray’s injuries. In apportioning the settlement, the jury determined that six-hundred-eighty five thousand dollars ($685,000.00) represented compensatory damages and that the remainder of the settlement was attributable to punitive damages which could only be assessed against Duke. Additionally, the jury found in favor of Mast and against Duke on the ground that it was not causally liable for the injuries sustained by Rosella Gray. The court then molded the verdict to reflect the apportioning of liability and awarded Duke the sum of three-hundred-forty-two thousand five-hundred dollars ($342,500.00). Timely post-trial motions seeking judgment n.o.v. and a new trial were filed by Duke and Dairy Queen and later denied by the court. Following the entry of judgment, these appeals ensued.

DUKE’S APPEAL: DOCKET NO. 2945 PHL 88

A.

Appellant Duke contends that the trial court erred in denying its motion for a new trial on the ground that the apportionment of punitive damages was excessive and unfounded. Duke first argues that there was insufficient evidence relating to the issue of apportionment at trial to submit the question to the jury. According to Duke, the only evidence offered during trial relating to the distribution of compensatory and punitive damages was the uncontradicted testimony of its expert witness, the Honorable Paul J. Cody. Secondly, Duke argues that the court erred in submitting to the jury the responsibility of apportioning the settlement into compensatory and punitive damages between the joint tortfeasors without first providing the jury with specific guidelines to be followed in apportioning the damages. Without specific instructions, Duke claims that the only proper question for the jury was whether the settlement was reasonable. We disagree with these contentions.

Initially, we note that in reviewing an order denying a motion for a new trial, our court assesses “whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case.” Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 453, 539 A.2d 880, 881 (1988).

Duke’s first argument is that there was insufficient evidence introduced at trial to merit submitting the issue of punitive damages to the jury. Pennsylvania has adopted Section 908 of the Restatement (Second) of Torts and its provisions governing punitive damages. Hoffman v. Memorial Osteopathic Hosp., 342 Pa.Super. 375, 383, 492 A.2d 1382, 1386-87 (1985) (citing Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358, 358 (1963); Medvecz v. Choi, 569 F.2d 1221 (3rd. Cir.1977)). Section 908 provides:

(1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages the trier of fact can properly consider the character of the defendant’s act, the nature and the extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

Restatement (Second) of Torts § 908. See also DiSalle v. P.G. Pub. Co., 875 Pa.Super. 510, 544 A.2d 1345 (1988). It is within the province of the jury, as factfinder, to determine whether punitive damages should be awarded, and if so, the amount that should be awarded. See id., 875 Pa.Superior Ct. at 567, 544 A.2d at 1373. An award of punitive damages will be reduced on appeal only if we determine that the award is excessive under the facts of the individual case. Id.

At the trial, Duke called the Honorable Paul J. Cody as an expert witness. The purpose of Judge Cody’s testimony was to explain to the jury the mechanics of assessing an award of damages in negligence and product liability actions. During direct examination, Judge Cody testified that after reviewing the doctors’ reports and medical expenses, he estimated that had Rosella Gray’s case been tried before a jury, the compensatory damage value would total approximately two million five hundred thousand dollars ($2,500,000.00). See N.T. Vol. III March 16, 1988 at 52-54. On the issue of punitive damages, Judge Cody testified on cross-examination as follows:

Q [Mr. Ryan, Counsel for Mast]: Just a few follow-up questions. From your review of Mr. Bernstein’s Pretrial Memorandum, did you feel that there is more than adequate evidence to submit the plaintiff’s claim for punitive damages to a jury in this case?
A: Yes, I did.
Q: And that the punitive damage element or the claim for punitive damages was only going to be asserted against H.C. Duke & Sons; isn’t that correct?
A: That is correct.
Q: And can you tell me what basis was for the punitive damage claim?
A: Yes. I forgot whether the fellow, the chief engineer at Duke—
Q: Raymond Damm?
A: That’s right. That was his name. And he had recommended — he, in effect, told [Duke] in ordinary words, look, this is a dangerous product and we ought to put a guard on it. And [Duke was] phasing this machine out at the time and coming in with a new machine, and [Duke] decided they just wouldn’t do it. [Duke] didn’t abide by his — whatever you wanted to call, his recommendation.

See id. at 99-101. Judge Cody then testified that according to the evidence he reviewed, it was clear that Duke’s chief engineer warned the company that the DR424 was unsafe two years in advance of Rosella Gray’s accident. See id. Defense counsel continued to pursue this line of questioning by asking Judge Cody:

Q: And was it your conclusion that this evidence would inflame or enrage a jury in Philadelphia that there had been reckless disregard for the safety of individuals on the part of H.C. Duke?

See id. at 101. Before Judge Cody could respond, Duke’s Counsel objected on the basis that it had already been established that the evidence merited submission of the punitive damage issue to the jury. See id. The court overruled counsel’s objection and Judge Cody proceeded to his conclusion that based on the the chief engineer’s deposition stating that Duke was warned about the hazardous condition of the DR424 and refused to take precautionary measures, a jury was more than likely to award punitive damages. See id. at 101.

Furthermore, later in the proceedings, Mast’s counsel read into evidence the deposition of Mr. Raymond Damm, chief engineer for Duke. See id. Vol. V, March 18, 1988 at 5-47. In his deposition, Mr. Damm admitted that in 1979, he considered placing a safety guard around the auger but that management declined to incorporate that safety measure into the construction of the DR424 or notify their customers as to the perceived dangers. See id. at 37-40. In light of the testimony of Judge Cody and the admission of Duke’s chief engineer, we conclude that there was ample evidence to support an award of punitive damages against Duke. Accordingly, we find no error on the part of the trial court in submitting this issue to the jury. DiSalle v. P. G. Pub. Co., 375 Pa.Super. 510, 567, 544 A.2d 1345, 1373 (1988).

Duke also claims that the court erred in its instruction to the jury on the issue of apportionment of compensatory and punitive damages. Duke contends that the court should have given more specific guidelines that would have provided the jury with a set method for awarding punitive damages and that this error warrants a new trial. We disagree. In reviewing a claim premised on an erroneous jury instruction, we must look to the entire charge in light of the evidence presented. Sweitzer v. Dempster Systems, 372 Pa.Super. at 453, 539 A.2d at 881. A new trial will be granted only where we conclude that the jury instruction was erroneous and might have prejudiced the appellant’s case. Id.

Here, our review of the record reveals that during the trial, the court repeatedly cautioned the jury that if it was found that part of the settlement represented punitive damages, only Duke could be found liable on that charge because such a claim was raised only against Duke in the underlying action. See N.T. Vol. III, March 16, 1988 at 100, 102-103; id. Vol. VI, March 21, 1988 at 27-29. In its charge, the court carefully articulated the legal principles involved in assessing punitive damages and stressed that, “[p]unitive damages must be based on conduct which is malicious, wanton, reckless, willful or oppressive.” See id. Vol. VI, March 21, 1988 at 28-29. The court also informed the jury that the determination of the distribution of liability must be in proportion to the comparative faults of the parties. See id. In addition, with regard to Duke’s claim that the court failed to provide the jury with specific guidelines on setting punitive damages, we find that the court adequately set forth the then prevailing standard when it stated, “[i]t is clear that punitive damages is [sic] supposed to bear a reasonable relationship as to compensatory damages. That’s the standard, albeit vague, that juries must apply when they are considering whether to charge someone with punitive damages....” See id. at 29 (emphasis added). See also DiSalle v. P.G. Pub. Co., 375 Pa.Super. at 565, 544 A.2d at 1373-74 (rule that punitive damages must bear reasonable relationship to compensatory damage award acts as restriction on imposition of punitive damages). In summary, after evaluating the jury instruction in its entirety, we are satisfied that the court charged the jury in a clear and impartial manner that sufficiently detailed the elements of compensatory and punitive damages and their relationship to each other. See Sweitzer v. Dempster Systems, 372 Pa.Super. at 453, 539 A.2d at 881. Accordingly, because we perceive no error in the court’s instruction, we find this claim to be baseless. See id.

B.

Duke next contends that the court erred in allowing Dr. Burton Paul to testify about the cause of Rosella Gray’s accident when Mast’s counsel did not first qualify him as an expert able “to testify as an accident reconstruction witness”. See Brief for Appellant Duke at 14. The gravamen of Duke’s argument is that Dr. Paul should not have been allowed to express his view that absent Duke’s subsequent modification of Mast’s original design of the DR424, Rosella Gray’s accident would not have occurred. Specifically, Duke protests Dr. Paul’s reference to a protruding screw that he said caused Rosella Gray’s arm to become entangled in the machine.

Generally, the decision to admit or exclude evidence is within the exclusive province of the trial court and, absent an abuse of discretion, will not be disturbed on appeal. Egelkamp v. Egelkamp, 362 Pa.Super. 269, 275, 524 A.2d 501, 504 (1987). In determining whether a witness qualifies as an expert, we must examine whether:

[the] witness has any reasonable pretension to specialized knowledge on the subject under investigation____ Such a person need not possess all the knowledge in his [or her] special field of activity in order to qualify.
The question of qualification of an expert witness is one for the discretion of the trial court.... A trial court will be reversed only for a clear case of error.

Tyus v. Resta, 328 Pa.Super. 11, 26, 476 A.2d 427, 435 (1984).

Here, the record reveals that Dr. Paul was a professor of mechanical engineering at the University of Pennsylvania. See N.T. Vol. IV, March 17, 1988 at 146. Dr. Paul graduated from Princeton University with a Bachelor of Science degree and received a Master of Science in engineering mechanics from Stanford. See id. at 147. While working for a research and development company, he earned his PhD degree in applied mechanics from the Polytechnic Institute of'New York. See id. at 149. Over the course of his career he was associated with Bell Laboratories and Ingersoll-Rand and had worked on the mechanics and design of an extensive variety of equipment ranging from compressors to plastic producing machinery. See id. at 150-52. Dr. Paul published a book and over seventy articles concerning the dynamics of machinery. See id. at 154. Based on his extensive background and involvement with machinery, the trial court allowed Dr. Paul to be qualified as an expert witness in the areas of mechanical engineering and machine and design safety. See id. at 156-57.

During direct examination, Dr. Paul stated that he had reviewed the designs of the DR424 in its original form and the subsequent modifications performed by Duke. See id. at 159. Dr. Paul also visited the accident site and inspected the DR424 responsible for the accident. See id. His conclusion was that the DR424 produced by Duke was less safe than the prototype designed by Mast. See id. at 181-82. At one point in the proceedings, Mast’s counsel inquired whether Dr. Paul had an opinion as to what modification implemented by Duke caused Rosella Gray’s arm to become entangled in the DR424. Dr. Paul responded that a projecting screw had been added to the shaft. See id. at 182. Duke’s counsel objected to the mention of the screw on the ground that no foundation had been laid to establish that such a modification existed. See id. Although Mast’s counsel argued that this information was consistent with previously introduced evidence, the court sustained the objection. See id. at 183.

In light of our scope of review, we are satisfied that the lower court did not abuse its discretion in finding that Dr. Paul’s expertise enabled him to review the innerworkings of machinery and determine what could contribute to a machine’s malfunctioning. Dr. Paul was well qualified to testify about the mechanics and safety of the DR424 and its relationship to Rosella Gray’s accident. See Tyus v. Resta, 328 Pa.Super. 11, 26, 476 A.2d 427, 435 (1984). Thus, Duke’s claim that Dr. Paul was unqualified to testify as an accident reconstruction expert is unfounded. Furthermore, Duke’s claim with regard to Dr. Paul's specific reference to a screw on the shaft of the DR424 being instrumental in causing the accident is unsupported by the record. The court sustained Duke’s objection to this testimony. Thus, this part of Duke’s argument also must fail. Accordingly, we conclude that Duke’s request for a new trial on this ground is without merit.

C.

Duke’s final contention is that the court erred in refusing to give a binding instruction directing the jury to return a verdict in favor of Duke on the issue of Mast’s liability for negligence. Specifically, Duke submits that the testimony of Lewis Shuh, the original designer of the DR424 and an employee of Mast, required a finding of negligence on the part of Mast. This claim is waived. “[U]nless a specific exception has been taken to an alleged error in the trial court’s instructions, the alleged error will be deemed waived and will not be considered by the reviewing court.” Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 537, 521 A.2d 25, 32 (1987), appeal granted, 517 Pa. 594, 535 A.2d 81 (1987), appeal dismissed, 518 Pa. 61, 540 A.2d 268 (1988), cert. denied, — U.S. —, 109 S.Ct. 78, 102 L.Ed.2d 54 (1988). Here, although Duke submitted points for charge, it failed to take specific exception to the court’s refusal to give a binding charge regarding Mast’s negligence. See N.T. Vol. V, March 21, 1988 at 32. Accordingly, Duke has failed to preserve this claim for our review and its motion for judgment n.o.v. on this ground was properly denied by the court below. See id.

DAIRY QUEEN’S APPEAL: DOCKET NO. 2946

Dairy Queen contends that the lower court erred in refusing to grant its motion for judgment n.o.v. or a new trial. As we have noted above, an order denying a motion for a new trial will be reversed only if we find that the trial court “clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case.” Sweitzer v. Dempster Systems, 372 Pa.Super. at 453, 539 A.2d at 881. A judgment notwithstanding the verdict should be entered “ ‘only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper; any doubts should be resolved in favor of the verdict winner.’ ” Curran v. Philadelphia Newspapers, Inc., 376 Pa.Super. 508, 516, 546 A.2d 639, 643 (1988) (quoting Geyer v. Steinbronn, 351 Pa.Super. 536, 549, 506 A.2d 901, 908 (1986)). On appeal from the denial of a motion for judgment n.o.v., “ ‘the sole dúty of the appellate court is to decide whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner ... the benefit of every favorable inference reasonably to be drawn from the evidence.’ ” Id. We will not reverse the denial of a motion for judgment n.o.v. absent an abuse of discretion or an error of law which controlled the outcome of the case. Berman v. Radnor Rolls, Inc., 374 Pa.Super. 118, 126, 542 A.2d 525, 529 (1988).

Dairy Queen contends that its motion should have been granted because there were no grounds upon which the jury could have found that it was liable for Rosella Gray’s injuries. Specifically, Dairy Queen argues that the trial court erred in finding that there was “ample evidence upon which the jury could have found that [Dairy Queen] was a ‘supplier’ within the meaning of Restatement (Second) of Torts § 388.” Trial Court Opinion at 9. We disagree. Section 388 provides in relevant part:

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Id. The Comment to § 388 of the Restatement then defines a “supplier” as follows:

c. Persons included as “suppliers. ” The rules stated in this Section and throughout this Topic apply to determine the liability of any person who for any purpose or in any manner gives possession of a chattel for another’s use, or who permits another to use or occupy it while it is in his own possession or control, without disclosing his knowledge that the chattel is dangerous for the use for which it is supplied or for which it is permitted to be used. These rules, therefore, apply to sellers, lessors, donors, or lenders, irrespective of whether the chattel is made by them or by a third person.

Id., Comment C. The trial court instructed the jury in accordance with § 388.

After carefully reviewing the record, we are satisfied that sufficient evidence was presented for the jury to find that Dairy Queen was a “supplier” pursuant to § 388. The trial evidence showed that Dairy Queen had significant ties with the design and manufacture of the DR424, and promoted its sale and distribution. The President of Duke testified that Dairy Queen contacted his company to commission the manufacture of a twin freezer ice cream dispensing machine. See N.T. Vol. Ill, March 16, 1988 at 70-71. Duke in turn contacted Mast to design such a machine. See id. Mast then designed the DR424, and was paid directly by Dairy Queen for its work. See id. Duke manufactured the DR424s exclusively for Dairy Queen and sold them only to Dairy Queen and their licensees. See id. at 75, 94. Dairy Queen continued to have significant contacts with Duke while the DR424 was being manufactured, and periodically requested modifications in the design of the machine. See id. at 80-90. Moreover, we note that, in the Operating Agreement entered into by Dairy Queen and its licensees, it was stipulated that each franchise must purchase and utilize approved equipment. See N.T. Vol. Ill, March 16, 1988 at 15, 21, and Vol. IV, March 17, 1988 at 130-31. See also Exhibit D-9. The DR424 was an approved ice cream machine. We agree with the trial court that, based on this evidence,

[i]t could reasonably have been inferred by the jury that [Dairy Queen] was merely supplying the DR424 through Duke. Thus, the conclusion that [Dairy Queen’s] negligence was independent and not derivative was supported by the evidence.
Although [the] modifications [requested by Dairy Queen] were not the legal cause of Rosella Gray’s harm, they established that [Dairy Queen] was exercising control over Duke in the manufacture of the DR424.

Trial Court Opinion at 9. Because the record supports the trial court’s determination that sufficient evidence was presented for the jury to find that Dairy Queen was liable as a “supplier” under § 388 of the Restatement, we conclude that the court did not err in denying Dairy Queen’s motion for judgment n.o.v. or a new trial.

For the foregoing reasons, we affirm the judgment below.

Judgment affirmed.

      . Duke and Dairy Queen also joined the Angelica Uniform Group as an additional defendant. See Record at Part I Exhibit C, Stipulation, and Entry of Appearance of Additional Defendant. Angelica Uniform Group, however, was later dismissed from the suit by agreement of the parties.

      . We note that, in DeFazio v. Labe, 518 Pa. 390, 543 A.2d 540 (1988), our Supreme Court recently considered whether a verdict winner has standing to request a judgment n.o.v. In DeFazio, this Court had ruled that by its nature a judgment n.o.v. is a request upon the court to direct the verdict in favor of the losing party and thus is unavailable to the verdict winner. See 352 Pa.Super. 120, 126-27, 507 A.2d 410, 414 (1986). Our Supreme Court, however, was equally divided on the question. Chief Justice Nix, writing in support of affirmance of this Court’s decision, reasoned that plaintiffs, as the prevailing party, should not be allowed to utilize a judgment n.o.v. to reapportion the liability assessed against the joint tortfeasors for the purpose of having the entire verdict satisfied by the non-settling tortfeasor. See DeFazio, 518 Pa. at 392-94, 543 A.2d at 541-42. In his opinion in support of reversal, however, Justice Papadakos stated:
      [cjlearly, there will be few cases in which a verdict winner complains that his victory was erroneous as a matter of law. However, sometimes, as in the instant case, his legal position may be protected by just such a claim. It is imperative that some procedure exist so that such claims may be heard. Pa.R.C.P. 227.1 recognizes that need by authorizing 'any party’ to file Motions for Post-Trial Relief.

        Id., 518 Pa. at 403, 543 A.2d at 547. Because the court was equally divided on this issue, the decision of the Superior Court was affirmed. See id., 518 Pa. at 392, 543 A.2d at 541.
      The instant case is distinguishable from DeFazio. In DeFazio, the plaintiffs, verdict winners in a negligence action, attempted to reduce the liability the jury had attributed to the settling tortfeasor in an effort to make the non-settling defendant responsible for the largest segment of the damage award. See id., 518 Pa. at 395, 543 A.2d at 543 (OPINION IN SUPPORT OF REVERSAL BY PAPADAKOS, J.). As Chief Justice Nix noted, the plaintiffs wanted the greater proportion of liability assessed against the non-settling defendant solely because the settling defendant had insufficient funds to satisfy the verdict. See id., 518 Pa. at 393-94, 543 A.2d at 542 (OPINION IN SUPPORT OF AFFIRMANCE BY NIX, C.J.). Thus, in effect, the plaintiffs were attempting to raise a claim that was more logically the subject of dispute between the defendants.

      In the case at bar, Duke is not the plaintiff in the underlying action but instead is the plaintiff in the subsequent contribution action. The sole issue in the contribution action was whether, and to what extent, Dairy Queen and Mast were liable to Duke for contribution. In addition, because the jury found that Duke and Dairy Queen were equally liable, it is unclear whether Duke can be considered to have prevailed against Dairy Queen. Moreover, with respect to its claim against Mast, Duke clearly was the verdict loser, and thus it properly sought to have the verdict directed in its favor as to Mast. Because Duke does not qualify as a true verdict winner, we conclude that the trial court did not err in entertaining Duke's motion for judgment n.o.v.

      . The record discloses the following information relating to Judge Cody's qualifications as an expert witness. Judge Paul J. Cody was a judge of the Court of Common Pleas in Philadelphia from 1971 to 1975 and was exclusively assigned to civil matters. See N.T. Vol. III March 16, 1988 at 27-31. For ten years immediately following his tenure on the bench, Judge Cody held the position of Civil Actions Commissioner, where his principal duty was to dispose of civil cases through settlement. See id. At the time of trial, Judge Cody was an independent contractor for the Judicate, a national private court system. See id.

      . This portion of the instruction is relevant because the jury was bound to assess the damages at no less and no more than the $2,750,000.00 settlement given to Rosella Gray.

      . We are aware that our Supreme Court has recently abolished the requirement that punitive damages must bear a reasonable relationship to compensatory damages. See Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 103, 555 A.2d 800, 803 (1989). It is clear, however, that the Kirkbride decision does not render the court's jury instruction erroneous.

        Kirkbride was decided almost one year after the jury trial in the instant case. Thus, the trial court's instruction that punitive damages must be reasonably related to compensatory damages was correct under the law at that time. See DiSalle v. P.G. Pub. Co., 375 Pa.Super. at 565, 544 A.2d at 1373-74. Moreover, we note that a charge requiring a reasonable relationship between compensatory damages and punitive damages was more beneficial to Duke than a charge consistent with Kirkbride.