author: OLSZEWSKI, Judge:

text:
    574 A.2d 1051
    COMMONWEALTH of Pennsylvania, Appellant, v. Ernest EVANS, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Thomas SLAUGHTER, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1990.
    Filed March 19, 1990.
    Reargument Denied May 30, 1990.

      Helen T. Kane, Asst. Dist. Atty., Philadelphia, for Com.
    Helen Marino, Philadelphia, for appellee (at 873 & 875).
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This case involves appeals, taken by the Commonwealth, from trial court orders quashing the return of transcript. These orders had the effect of dismissing, before trial, charges of criminal trespass based on the court’s finding that the Commonwealth had failed to establish a prima facie case. We begin by noting that the orders appealed from are properly before this court. These cases do not involve the dismissal of complaints by an issuing authority at or before the preliminary hearing stage. Such orders are interlocutory; the Commonwealth’s sole redress is to refile the complaint before the applicable statute of limitations expires. Commonwealth v. Revtai, 516 Pa. 53, 74, 532 A.2d 1, 11 (1987); Commonwealth v. Allem, 367 Pa.Super. 173, 179, 532 A.2d 845, 849 (1987). These appeals follow the grant by the trial court, following preliminary hearings, of writs of habeas corpus. Such orders are final and appeal-able. Commonwealth v. Hetherington, 460 Pa. 17, 22, 331 A.2d 205, 209 (1975).

The Commonwealth has the burden of proving at a preliminary hearing that a crime has been committed and that the accused is probably the one who has committed it. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983). To sustain that burden:

the Commonwealth must produce evidence,
such as to present “sufficient probable cause to believe that the person charged has committed the offense stated”; in other words, it should make out a prima facie case of guilt. It should be such that if presented at the trial in court, and accepted as true, the judge would be warranted in allowing the case to go to the jury.

Id., 502 Pa. at 363, 466 A.2d at 996 (citations omitted) (emphasis in original). In our review of the trial court's dismissal of criminal trespass charges, we therefore accept as true the evidence presented by the Commonwealth.

The facts of No. 873 Philadelphia 1989, as summarized by the trial court, are as follows:

On or about November 25, 1988, at approximately 10:15 A.M., a security guard of the Atlantic Richfield Company observed the defendant and another male in the tank farm area of the Atlantic Refinery, in South Philadelphia (34th Street and Maiden Lane, near the Schuylkill Expressway). The area where defendant was observed was surrounded by a six-foot chain-link fence in which a large hole was discovered. The defendant and the other male were observed at the outside of a tank (550 tank) and then chased by the guard and police to an area near another tank (635 tank). When they were first observed, the male with defendant appeared to be removing aluminum sheeting from the side of the 550 tank. While no one actually observed the aluminum sheeting being removed, apparently some of the sheets had been removed. The male with defendant was observed with “cutters” in his hand. When defendant was ultimately apprehended, he was hiding inside the empty 635 tank.

Trial court opinion, at 2-3 (record citations omitted).

The facts of No. 875 Philadelphia 1989, as summarized by the trial court, are as follows:

On September 26, 1988, at approximately 4:30 A.M., SEPTA Police Officer James Krajewski, Badge No. 100, received information concerning suspicious activity at SEPTA’S bus storage yard at 4300 Wissahickon Avenue, Philadelphia, Pa., known as the Midvale Yard. This storage yard is approximately two square blocks and is completely surrounded by a fence. At that time, there were approximately fifty buses stored in the yard. The main entrance to the yard was secured by a locked gate. Officer Krajewski and another officer entered the main gate and heard glass breaking in the vicinity of the buses. The defendant was observed in the process of removing a window frame from one of the buses. The defendant was apprehended, and an inspection of the yard revealed that sixty window frames were removed from several buses. The frames were found together, in stacks of five frames, twelve per stack.

Trial court opinion, at 2 (record citations omitted).

Both defendants were charged, inter alia, with criminal trespass. Following preliminary hearings, attorneys for both appellees filed motions to quash the return of transcript alleging that the evidence produced was insufficient to establish a prima facie case of criminal trespass. Both motions were granted by the Court of Common Pleas of Philadelphia County, DeFino, J., on February 22, 1989. Following denials of Commonwealth motions for reconsideration, the Commonwealth timely appealed.

The Commonwealth presents one issue in these appeals: Where defendants were arrested within fenced enclosures on business premises used to store valuable equipment and materials which defendants were in the process of removing, did the trial court err in quashing the charges of criminal trespass based on its finding that the areas which defendants had forcibly entered did not fall within the statutory definition of occupied structures and thus that defendants’ conduct did not constitute the offense of criminal trespass?

Appellant’s brief, at 3. Phrased more simply, the question before us is whether the legislature, in enacting 18 Pa.C. S.A. § 3503, intended that the unauthorized breaking into or entry of an outdoor area, enclosed by a locked chain-link fence and used by a business for storage, to be punishable as criminal trespass.

In Commonwealth v. Cannon, 297 Pa.Super. 106, 443 A.2d 322 (1982), this Court was asked whether the fenced and locked backyard of a house was an “occupied structure” sufficient to support a conviction of criminal trespass. The Court vacated the conviction, stating “[a] yard is not a ‘structure,’ and the evidence is that the Jaffe yard was neither a ‘place adapted for overnight accommodation of persons’ nor a place for ‘carrying on business.’ ” Id., 297 Pa. Superior Ct. at 114-115, 443 A.2d at 326.

As we are bound by the decision of Cannon that a fenced, locked residential backyard is not a “structure,” we proceed assuming that the fenced, locked enclosures in the instant cases are also not “structures.” If, however, the evidence shows that the fenced enclosures in the instant cases are “places adapted for carrying on business,” then the enclosures are “occupied structures” under 18 Pa.C.S.A. § 3501, and convictions of criminal trespass could be sustained, consistent with Cannon.

The words of 18 Pa.C.S.A. § 3501 do not guide us in interpreting the meaning of the phrase “place adapted ... for carrying on business therein.” We will therefore construe this term according to its common and approved usage. 1 Pa.C.S.A. § 1903(a); Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982). While penal statutes are to be strictly construed in favor of the defendant, we need not apply the narrowest meaning of the statute’s words. Commonwealth v. Wooten, 519 Pa. 45, 545 A.2d 876 (1988); Commonwealth v. Walker, 386 Pa.Super. 100, 562 A.2d 373 (1989); cf. Commonwealth v. Mayer, 240 Pa.Super. 181, 362 A.2d 407 (1976) (finished but uninhabited house trailer stored on a lot with other trailers was a “building or occupied structure” sufficient to sustain a burglary conviction); Commonwealth v. McCoy, 209 Pa.Super. 399, 228 A.2d 43 (1967) (telephone booth was a “building” sufficient to sustain conviction under former burglary statute, 18 P.S. § 4901).

The trial court strictly interprets “place adapted ... for carrying on business therein” to mean “that the legislation intended to prohibit entry or breaking into of commercial buildings and structures and vehicles, where business is actually transacted.” Trial court opinion, at 4 (No. 873 Philadelphia 1989); trial court opinion, at 6 (No. 875 Philadelphia 1989). Only by assuming that business is carried on where “transactions” take place, and nowhere else, can the trial court justify its conclusion that the fenced, locked storage areas in the instant cases are not places adapted for carrying on business. Under this narrowest of interpretations, a person is guilty of criminal trespass if he breaks into a fenced area where goods are sold, but not if he breaks into an identical fenced area where goods are stored.

By defining “occupied structure” to include “places adapted for carrying on business,” the legislature extended to businesses, which are not always confined to structures made up of walls and a roof, the same protection from intrusion it afforded to dwellings, which traditionally are within buildings. We reject the trial court’s narrow interpretation of 18 Pa.C.S.A. § 3501’s definition of “occupied structure.” Surely the storage of buses and petroleum products furthers the business purposes of SEPTA and ARCO. Wé conclude that the fenced enclosures which appellees are accused of breaking into are “places adapted for carrying on business therein,” and are therefore “occupied structures” under 18 Pa. C.S.A. § 3501.

In construing statutes, we presume that the legislature did not intend an absurd result. 1 Pa.C.S.A. § 1922(1); Commonwealth v. Coleman, 289 Pa.Super. 221, 433 A.2d 36 (1981). Applying this maxim of construction, the trial court states that it would be absurd to make appellees’ entry on fenced business property punishable as criminal trespass while the entry on a fenced backyard in Cannon was not a criminal trespass, because it “would ... afford to business property, which is frequently unattended and unoccupied, more protection than has been given to private residences where the occupants are usually present.” Trial court opinion, at 6-7 (No. 873 Philadelphia 1989); trial court opinion, at 6 (No. 875 Philadelphia 1989). The actual result of our holding is to afford fenced, locked business property, where equipment and material may be stored, more protection than private residences’ backyards which are not adapted for overnight accommodation of persons. We do not consider such a result to be absurd.

The trial court attempts to support its holding by invoking another maxim of statutory construction: that the particular controls the general. 1 Pa.C.S.A. § 1933. The logical extension of this is the policy that prosecutions are not permitted under general provisions of a penal code when special penal provisions apply. Commonwealth v. Warner, 309 Pa.Super. 386, 455 A.2d 663 (1982) (Warner 1), rev’d, 504 Pa. 600, 476 A.2d 341 (1984); Commonwealth v. Vukovich, 301 Pa.Super. 111, 447 A.2d 267 (1982). The trial court implies, and appellee argues, that because the crime of defiant trespass specifically refers to fenced areas, all intrusions into fenced areas are punishable only as defiant trespass. We cannot agree.

Defiant trespass is committed when a person enters or remains in a place where he is not privileged to remain after notice of trespass is given. See Commonwealth v. Downing, 511 Pa. 28, 511 A.2d 792 (1986); Commonwealth v. Conyers, 238 Pa.Super. 386, 357 A.2d 569 (1976). The statute includes fencing as one means of providing notice to trespassers that they are not welcome. This hardly means that all intrusions into fenced areas are punishable only as defiant trespass. We note that the crime of criminal trespass includes the element of entry by subterfuge, by surreptitiously remaining, or by breaking in, while the crime of defiant trespass is based on merely entering or remaining. Compare 18 Pa.C.S.A. § 3503(a) and 18 Pa.C.S.A. § 3503(b). We fail to see why defiant trespass should be considered a “special” penal provision in this situation, where appellees are accused of breaking into, rather than merely entering or remaining in, the fenced enclosures.

We note further that the policy against applying general penal provisions when special penal provisions are also applicable is normally invoked in contexts involving more widely disparate statutes than the criminal trespass and defiant trespass subsections of 18 Pa.C.S.A. § 3503. The policy has been used, for example, to prohibit prosecution under general penal statutes where the crime alleged is prohibited by both (1) specific forgery provisions of the Pharmacy Act and general forgery provisions of the Crimes Code, (2) specific forgery and unlawful voting provisions of the Election Code and general perjury and unsworn falsification provisions of the Crimes Code, (3) specific false statement provisions of the Unemployment Compensation Law and general false pretense provisions of the Penal Code, and (4) specific false pretense provisions of the Nonprofit Medical and Dental Service Corporation Act of 1939 and general false pretense provisions of the Penal Code. See Warner 1, supra, 309 Pa.Super. at 392, 455 A.2d at 666, and cases cited therein.

In Commonwealth v. Warner, 504 Pa. 600, 476 A.2d 341 (1984) (Warner 2), reversing Warner 1, our Supreme Court held that prosecutions under general provisions are forbidden only when the conflict between the general provision and a specific provision is irreconcilable. There is no such conflict here. Further, the Court held that if the general provision has elements outside the special provision, the Commonwealth can prosecute under either provision or both provisions. Thus, even if we consider defiant trespass to be a “special provision” and criminal trespass to be a “general provision,” because the criminal trespass subsection of 18 Pa.C.S.A. § 3503(a) has the element of entry by subterfuge, by surreptitious remaining or by breaking, which is absent from 18 Pa.C.S.A. § 3503(b), the Commonwealth may prosecute under either or both provisions.

Because the ARCO facility where petroleum products were stored in No. 873 Philadelphia 1989 and the SEPTA facility where buses were kept in No. 875 Philadelphia 1989 were “occupied structures” under 18 Pa.C.S.A. § 3501, we hold that the trial court erred in quashing criminal trespass charges.

Orders reversed and remanded for the reinstatement of criminal trespass charges. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 3503(a).

      . A defendant may test the sufficiency of the evidence presented at a preliminary hearing by filing a Petition for Writ of Habeas Corpus. In Philadelphia such petitions are called Motions to Quash the Return of Transcript of the Preliminary Hearing. See Commonwealth v. Hetherington, 460 Pa. 17, 22, 331 A.2d 205, 209 (1975); Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978).

      . The Commonwealth presented evidence that the arresting officer found a four-foot-wide, three-foot-high hole in the fence surrounding the bus storage yard. Transcript of November 14, 1988, preliminary hearing, at 8.

      . The trial court opinions filed in both cases are identical, with the exception of the recitation of facts and limited references to those facts.

      . The crime of criminal trespass is defined in 18 Pa.CS.A. § 3503(a), which states:
      (a) Buildings and occupied structures.—
      (1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:
      (1) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or
      (ii) breaks into any building or occupied structure of separately secured or occupied portion thereof.
      (2) An offense under paragraph (l)(i) is a felony of the third degree, and an offense under paragraph (l)(ii) is a felony of the second degree.
      (3) As used in this subsection: “Breaks into.” To gain entry by force, breaking, intimidation, unauthorized opening of locks, or through an opening not designed for human access. 18 Pa.C.S.A. § 3503. The term "occupied structure” is defined in 18 Pa.C.S.A. § 3501 as: “Any structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present” (emphasis added).

      . The crime of defiant trespass is defined in 18 Pa.C.S.A. § 3503(b), which states:
      (b) Defiant trespasser.—
      (1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
      (1) actual communication to the actor; or
      (ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
      (iii) fencing or other enclosure manifestly designed to exclude intruders.
      (2) An offense under this subsection constitutes a misdemeanor of the third degree if the offender defies an order to leave personally communicated to him by the owner of the premises or other authorized person. Otherwise it is a summary offense.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    574 A.2d 1056
    Joseph V. SOMERS and Elizabeth A. Somers v. Stephen I. GROSS and Gross & Wittenberg, Appellant, v. Edward FACKENTHAL and Rainer & Company.
    Superior Court of Pennsylvania.
    Argued Nov. 28, 1989.
    Filed March 28, 1990.
    Reargument Denied June 8, 1990.

      Andrew Fylypovych, Philadelphia, for appellant.
    Jeffrey B. Albert, Philadelphia, for Fackenthal, appellee.
    Before CAVANAUGH, BECK and BROSKY, JJ.
   BECK, Judge:

The issue presented is whether, in a professional negligence action against accountants, the accountant defendants may join the plaintiffs’ attorney as an additional defendant on the theory that the attorney is solely liable to the plaintiffs on the cause of action alleged. We hold that the attorney may be joined.

On January 16, 1986, Joseph V. and Elizabeth A. Somers (“plaintiffs’) filed a professional negligence action against defendants-appellants, Stephen I. Gross, a certified public accountant, and Gross & Wittenberg, his accounting firm (hereinafter collectively referred to as “the accountant defendants”). The gravamen of the complaint was that the accountant defendants had given improper tax advice to plaintiffs and negligently miscalculated certain 1984 estimated income tax liabilities of plaintiffs to the Internal Revenue Service in 1984.

Shortly thereafter, the accountant defendants filed a joinder complaint in which they sought to join the plaintiffs’ attorney, Edward Fackenthal, as an additional defendant. The joinder complaint alleged that the plaintiffs had in fact relied on the advice of their attorney, not of the accountant defendants, in regard to their 1984 taxes. Therefore, any loss plaintiffs had incurred as a result of their 1984 tax filings was the result of the attorney’s professional negligence. The joinder complaint alleged that the attorney was solely liable to plaintiffs on the cause of action they had pled in their original complaint. It did not allege that the attorney was liable over to the accountant defendants, nor did it allege that the attorney was jointly or severally liable with the accountant defendants.

Discovery proceeded until, on June 28, 1988, the attorney defendant filed a motion for summary judgment. The motion alleged that the material facts were not in dispute and that the attorney had no liability for the harm suffered by plaintiffs. In the brief in support of the motion, the attorney defendant argued, inter alia, that his joinder was improper under Pennsylvania Rule of Civil Procedure 2252(a). After hearing, the trial court granted the attorney defendant’s motion on the ground that his joinder was impermissible. In doing so, the trial court relied on two cases in which panels of this court had refused to allow the joinder of the plaintiff’s attorney as an additional defendant. See Austin J. Richards, Inc. v. McClafferty, 371 Pa.Super. 269, 538 A.2d 11, allo. denied, 549 A.2d 131, 136 (1988); Mentzer & Rhey, Inc. v. Ferrari, 367 Pa.Super. 123, 532 A.2d 484 (1987), allo. denied, 542 A.2d 1369-70 (1988).

On appeal, the accountant defendants argue that the express language of Rule 2252(a) permits joinder of the attorney defendant in this case. They emphasize that the joinder complaint alleged only that the attorney defendant was solely liable to plaintiffs for professional negligence, which is the selfsame cause of action pleaded by plaintiffs against the accountant defendants. Further, the accountant defendants argue that the cases relied upon by the trial court are factually distinguishable.

In contrast, the attorney defendant argues that joinder is not permissible because Pennsylvania law does not recognize a cause of action for professional negligence by a non-client third party against an attorney. Further, the attorney defendant argues that both the cases relied upon by the trial court and sound policy reasons forbid joinder of a plaintiff’s attorney in a situation like the instant one. Finally, the attorney defendant urges that the cause of action pleaded by the plaintiffs is distinct from that asserted in the joinder complaint and, thus, that the joinder is not within the parameters of permissible joinder set forth in Rule 2252(a).

Pennsylvania Rule of Civil Procedure 2252(a) provides: In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.

Pa.R.C.P. 2252(a).

This rule is to be “broadly construed to effectuate its purpose of avoiding multiple lawsuits by settling in one action all claims arising out of the transaction or occurrence on which the plaintiff’s cause of action is based.” Garrett Electronics Corp. v. Kampel Enterprises, Inc., 382 Pa.Super. 352, 555 A.2d 216, 217 (1989).

Given the clear language of the rule, and the principle of broad construction which we are required to apply, wé find that the joinder sought by the accountant defendants in the instant case is unmistakably permitted by the rule. The rule permits joinder of any person “who may be alone liable ... on the cause of action declared upon by the plaintiff ...”. This is precisely the type of joinder sought by the accountant defendants when they sought to join the attorney defendant on the single theory that he alone was liable to the plaintiffs for professional negligence which resulted in the asserted harm to plaintiffs consisting of various tax penalties and other associated fees. Since the allegations of the joinder complaint do not include any allegation that the attorney defendant is liable to the accountant defendants, but only that he is liable to plaintiffs, whether Pennsylvania law permits third party professional negligence suits against attorneys is irrelevant. The accountant defendants are not alleging that the plaintiffs’ attorney is liable to the accountant defendants.

Moreover, there is no tenable argument that the cause of action pleaded by plaintiffs is in any material way different 'from the cause of action pleaded by the accountant defendants in their joinder complaint. The requirement of Rule 2252(a) that joinder on the ground that the joined party is • solely liable to the plaintiff “on the cause of action declared upon by the plaintiff,” has been broadly construed to mean “... the harm of which the plaintiff complains.” Garrett, 382 Pa.Super. 352, 555 A.2d at 217. Thus, for example, in Incollingo v. Ewing, 444 Pa. 263, 299, 282 A.2d 206 (1971), where plaintiff’s decedent sued a pharmacist for supplying a drug which led to decedent’s death, the Supreme Court allowed the defendant to join the manufacturer of the drug and two doctors who had prescribed the drug based on the allegation that they were liable to plaintiff on the cause of action plaintiff alleged. The Court stated that the phrase “cause of action”, as used in Rule 2252, cannot be taken too literally. Rather, the Court required only that the “additional defendant’s liability [be] related to the original claim which plaintiff asserts against the original defendant ...” Id., 444 Pa. at 290, 282 A.2d at 220.

In the case sub judice, the plaintiffs’ cause of action, i.e. the harm of which plaintiffs complain, consists of professional negligence in the form of allegedly improper tax advice and related services regarding plaintiffs’ 1984 taxes, resulting in tax penalties and fees. This is precisely what the joinder complaint alleges against the attorney defendant. There was one course of events leading to plaintiffs’ alleged harm. Evidence of that course of events will necessarily include both evidence of the accountants’ involvement and the attorney’s involvement in the handling of plaintiffs’ 1984 taxes and evidence as to which of these professionals plaintiffs relied upon in deciding how to estimate those taxes. Just as in Incollingo v. Ewing, where the central common question raised by the plaintiff’s complaint and the joinder complaint was who was responsible for the decedent’s ingesting a drug which caused her death, here the central common question is who is responsible for giving the plaintiffs improper tax advice on which they relied and which caused their liability for penalties and fees.

Cases relied upon by the trial court and the attorney defendant on appeal do not compel a different result. First, as to the proper interpretation of the phrase “cause of action” as used in Rule 2252(a), the attorney defendant refers us to Garrett, supra. Although Garrett did not involve an attempt to join plaintiff’s attorney, the attorney defendant contends that its analysis of the meaning of “cause of action” as this phrase is used in Rule 2252(a) is equally applicable herein.

In Garrett, a lessee commenced an action against its lessors to recover for property damage and business losses sustained when the roof collapsed on the leased property. With the lessee’s approval, the lessor joined as additional defendants both the lessee’s property insurer and the lessee’s insurance broker. The insurer objected to joinder and the trial court dismissed the joiner complaint as not complying with Rule 2252(a). Id. 382 Pa.Super. at 352, 555 A.2d at 216.

This court affirmed on the ground that the joinder complaint did not satisfy the requirement of Rule 2252(a) that, where the joinder is premised on the claim that the person sought to be joined is jointly or solely liable to plaintiff, then the joinder complaint must allege that the joined party is liable on the same cause of action as was pled by the plaintiff. The court reasoned as follows:

In the instant case, the defendant lessors, by joining Hartford [the insurer] as an additional defendant, sought to have the plaintiff-lessee litigate a separate cause of action against its insurance company. The plaintiff-lessee’s action against its lessors had been based upon alleged negligence in the maintenance of the demised premises. The defendant-lessors sought to force the plaintiff to litigate in the same action the insurance coverage issue. This issue depends on the terms of the insurance policy written by the additional defendant insurer. The maintenance of the premises by the landlord and the coverage purchased by the lessee from its insurance company are distinct transactions. The evidence which will establish the lessor’s duty to their tenant is separate and distinct from the evidence which will determine the type of coverage provided to the lessee by its insurer. In such a situation joinder is inappropriate.

Id., 382. Pa. Superior Ct. at 354, 555 A.2d at 217.

We find no analogy between Garrett and the instant case. Clearly in Garrett the gravamen of the plaintiff’s action against the lessor and of the joinder complaint against the insurer and the insurance broker were different. The plaintiff’s action alleged negligence, whereas the joinder complaint alleged breach of contract; the plaintiff’s action alleged failure to maintain the property, whereas the joinder complaint alleged failure to indemnify under the policy; the plaintiff’s action alleged harm in the form of having to repair the property and sustaining business losses, whereas the joinder complaint alleged harm in the form of not being covered for those sums under the policy. As the Garrett court noted, the transactions involved and the evidence pertinent thereto were entirely different in time and nature.

In contrast, in the instant case the plaintiffs’ complaint alleges negligence, and so does the joinder complaint; the plaintiffs’ action alleges improper tax advice as to plaintiffs’ 1984 taxes, and so does the joinder complaint; the plaintiffs’ complaint alleges harm in the form of penalties and fees incurred because of the improper tax filings made by plaintiff in reliance on professional tax advice, and so does the joinder complaint. The transactions involved and the evidence pertinent thereto are the same in time and nature.

Equally unpersuasive is the reference both by the trial court and by the attorney defendant to Austin J. Richards, Inc. v. McClafferty, 371 Pa.Super. 269, 538 A.2d 11, allo. denied, 549 A.2d 131, 136 (1988). Austin arose from a dispute over a transfer of title to real estate. Summarily stated, the facts were that while the owner of the property was negotiating with Austin J. Richards, Inc. for the sale of the property to it, the owner received a better offer from another buyer, Infil Corporation, and accepted it. Richards then sued the owner, alleging that she had already agreed, through her attorneys, to sell to Richards and had breached her resulting contract with Richards. The trial court entered summary judgment for the owner, which a panel of this court affirmed. Id. 371 Pa.Super. at 272-274, 538 A.2d at 13-4.

The joinder issue in Austin arose in connection with a related dispute between the owner and Richards. After the owner accepted Infils’ offer, Richards filed a lis pendens on the property. Thus, Infils was unable to obtain title insurance and the closing on the sale of the property to Infils was delayed. The owner then sued Richards’ sole shareholder, Mr. Nernberg, for damages resulting from this delay, alleging slander of title and interference with contractual relations. The defendant sought to join the owner’s attorneys, alleging that they had improperly advised the owner not to settle the dispute over title to the property and that is what caused her harm.

The Austin court refused to permit the joinder, finding it to be outside the bounds of Rule 2252(a). The court reasoned first that there could be no joinder on the ground that the attorneys were directly liable to Nernberg because Nernberg was not the attorneys’ client. The court also refused to allow joinder of the type involved in the instant case, i.e. on the ground that the attorneys were solely liable to the owner, their client, on the cause of action alleged by the owner against Nernberg because the joinder complaint did not allege the same cause of action as was alleged by the owner. The court stated:

... [Rule 2252(a) ] does not permit the joinder of plaintiff’s attorneys on the grounds that their malpractice in recommending rejection of an offer of settlement has contributed to the plaintiff’s loss. This is an entirely separate cause of action and cannot be made the basis for joining the attorneys as additional defendants. Counsel’s malpractice, even if it existed, would not render them jointly liable with defendant on the cause of action alleged by the plaintiff, and plaintiff, apparently satisfied with the services rendered by her attorneys, has not made any claim against her attorneys. To permit the defendant to join the attorneys as additional defendants on the grounds that their advice regarding settlement contributed to plaintiff’s loss would have unfortunate consequences. The rule does not permit it and neither do we.

Id., 371 Pa. Superior Ct. at 276-278, 538 A.2d at 15 (emphasis added).

We recognize, as the trial court herein suggested, that the foregoing language might well be interpreted to establish that the joinder of a plaintiff’s attorney under Rule 2252(a) will never be countenanced. However, we do not view Austin as intending to establish such a generally applicable principle and, even if we did, we would regard such language as dicta which is clearly inconsistent with the language of the rule itself. In fact, the most pertinent aspect of Austin for our purposes is the last statement of the quoted material above, wherein the court found that the rule did not permit joinder in Austin because the joinder complaint alleged liability of the attorney on a cause of action different from that pleaded by the plaintiff against Nernberg. We agree with this conclusion because in Austin, the plaintiff sued Nernberg for interference with contract and slander of title, whereas the joinder complaint alleged professional negligence by the attorneys. As in Garrett, these allegations relate to different harms to be proven with different evidence as to different occurrences happening at different times. In contrast, in the instant case, the rule does permit joinder because, as we have amply demonstrated above, the cause of action alleged in the original complaint and in the joinder complaint is the same.

Given this conclusion, we cannot disallow the joinder based on the policy considerations allegedly counselling against such joinder which are urged by the attorney defendant. These policy considerations relate to the alleged chilling effect such joinder would have on attorneys in rendering advice to their clients respecting the advisability of suing non-attorney professionals for negligence as to any transaction in which it might be asserted that the attorney herself was involved. The argument is that if the attorney knows that she may be joined by the original defendant in the negligence suit, she will not advise her client to institute suit at all. This is perhaps the “unfortunate consequence” to which the Austin court referred when it disallowed joinder of plaintiffs attorney in the case before it. Austin, supra. Although we are compelled to comment that we find the possibility of such a chilling effect rather attenuated, even if we found this to be a real concern, we could not disallow joinder in this case in reliance on it. The rule permits this joinder and we are not free to disregard the express language of the rule.

The order of the trial court is reversed. The case is remanded to the trial court for further proceedings not inconsistent with this opinion. Jurisdiction relinquished.

      . The accountant defendants also sought to join as an additional defendant another accounting firm retained by plaintiffs at some time after their employment of the accountant defendants had ended. Neither the liability of that accounting firm nor the propriety of its joinder is at issue in this appeal.

      . The accountant defendants also argue that the attorney defendant waived the right to object to the joinder complaint by failing to raise this issue in preliminary objections to the joinder complaint or in new matter. However, we cannot consider this argument because the accountant defendants themselves failed to preserve this issue on appeal by failing to include a reference to it in their Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement of Matters Complained of on Appeal, Pa.R.A.P.1925(a), and by failing to include it in the Statement of Questions section of their appellate brief. Pa.R.A.P. 2116(a). We note, however, that the proper challenge to joinder is by way of preliminary objection to the joinder complaint. Pa.R.C.P. 1017(b).

      . Both the trial court and the attorney defendant also rely on Mentzer & Rhey, Inc. v. Ferrari, 367 Pa.Super. 123, 532 A.2d 484 (1987), allo.

        denied, 542 A.2d 1369-70 (1988). However, as the trial court itself noted, Mentzer is factually distinguishable from the case at bar. In Mentzer, the plaintiff bought property from the original defendant and later discovered a defect on the property which the original defendant had allegedly fraudulently concealed. The original defendant attempted to join the plaintiff's attorney as an additional defendant on the theory that the attorney, having done the title search and not having discovered the defect, was either jointly or solely liable to plaintiff. The Mentzer court refused to permit the joinder on several theories. First, it noted that the attorney could not be liable to the original defendant who was not its client. Second, it noted that the attorney could only be held secondarily liable to plaintiff, for having failed to discover the defect caused by the original defendant, and that Rule 2252(a) did not allow joinder of additional defendants who were only secondarily liable.
      This case is clearly inapposite to the instant case. There is here no allegation of liability by the attorney defendant directly to the accountant defendants, nor is there any question of liability over by way of indemnification between primarily and secondarily liable defendants.

      . Appellee, the attorney defendant, also argues on appeal that even if his joinder is appropriate, the facts relating to the substantive question of liability are not in dispute and that he is entitled to summary judgment as a matter of law. We note that the trial court appeared to disagree with this statement when it noted, in the opening portion of its opinion, that "[t]he parties do not agree as to the cause of the injury.” However, the trial court did not actually dispose of this ground for summary judgment, having granted summary judgment for the attorney defendant on the alternative ground of improper joinder.
      We do not address the question of whether there are any material facts in dispute and whether the attorney defendant is entitled to judgment as a matter of law. Resolution of this issue requires a thorough review of the materials submitted in support of and in opposition to the motion for summary judgment, which is a task better left to the trial court.


author: BROSKY, Judge. WIEAND, Judge,

text:
      574 A.2d 1061
    Edward FLAXMAN and John Savarese, Appellants, v. Dan BURNETT, Ottaway Newspapers, Inc., William Agriss, Wayne Mazur, John Neff and Marc R. Wolfe.
    Superior Court of Pennsylvania.
    Submitted Dec. 14, 1989.
    Filed May 2, 1990.

      Cletus P. Lyman, Philadelphia, for appellants.
    Katherine L. Hatton, Philadelphia, for Burnett and Ottaway Newspapers, appellees.
    Edmund G. Flynn, Stroudsburg, for Agriss, Mazur and Neff, appellees.
    Jeffrey B. Albert, Philadelphia, for Wolfe, appellee.
    Before BROSKY, WIEAND and JOHNSON, JJ.
   BROSKY, Judge.

This is an appeal from an order which granted appellees’ preliminary objections and transferred venue in this action from Philadelphia County to Monroe County.

Appellants, Edward Flaxman and John Savarese, present the following issues for review: (1) whether Monroe County Transit Authority (MCTA) is a local agency; (2) whether the cause of action arose in Philadelphia County; and (3) whether the trial court erred in transferring the action to Monroe County in view of the convenience of the witnesses and parties and allegations of impartiality with respect to the judges, arbitrators and jurors. For the reasons set forth below we affirm the order of the trial court.

This defamation case arises out of appellants’ prior employment relationship with MCTA. Appellants were terminated from their positions at MCTA in November 1985. In response, appellants filed suit in the United States District Court for the Middle District of Pennsylvania and in Monroe County.

The Pocono Record, the local newspaper in Monroe County, published articles regarding appellants’ termination and the ensuing litigation, one of which is the subject of this action. The allegedly defamatory column was published on August 7, 1986, and concerned MCTA’s decision to initiate legal proceedings to recoup monies owed by Flaxman and Savarese to MCTA. As a result of this particular news report, appellants brought suit in Philadelphia court against appellees who are as follows: the publisher Ottaway Newspapers, Inc., Dan Burnett, the reporter who wrote the story, Marc Wolfe, the solicitor for MCTA, and William Agriss, Wayne Mazur and John Neff, all of whom serve on the board of MCTA. MCTA, itself, is not a party to the instant action.

With the exception of John Neff, who resides in Carbon County, and appellants, who are residents of Florida, all parties are located in Monroe County. As a result, appellees filed preliminary objections alleging that venue in Philadelphia County was improper, or in the alternative, that the action should be transferred to Monroe County pursuant to the doctrine of forum non conveniens.

In its opinion granting appellees’ request to transfer the action to Monroe County, the trial court concluded that venue was improper in Philadelphia County for the following reasons: (1) appellees were not amenable to suit in Philadelphia County; (2) neither the cause of action nor the transactions giving rise to the cause of action occurred in Philadelphia County; (3) with the exception of Ottaway and Burnett, appellees are employees of MCTA, a Commonwealth agency, and as such, they may only be sued where suit could be brought against MCTA; and (4) Ottaway does not regularly conduct business in Philadelphia County. Because the trial court properly transferred this action to Monroe County, we affirm.

Before addressing the merits of the issues raised, we must ascertain whether we have jurisdiction to resolve this matter. Although an order granting a change of venue is interlocutory, this court has previously held that an “order transferring ... [venue] is appealable as of right pursuant to Pa.R.A.P. 311(c).” Vogel v. National Railroad Passenger Corporation, 370 Pa.Super. 315, 318 n. 3, 536 A.2d 422, 424 n. 3 (1988). Therefore, this action is properly before us.

Pa.R.C.P. 1006(c) is applicable to actions in which multiple defendants are involved, and provides:

An action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of Subdivisions (a) or (b).

Consequently, if MCTA is a Commonwealth party, then venue is only proper in those counties in which actions against a Commonwealth party may be brought. 42 Pa.C. S.A. § 8501 defines the term “Commonwealth party” as “[a] Commonwealth agency and any employee thereof but only with respect to an act within the scope of his office or employment.” The question we must determine, therefore, is whether MCTA is a Commonwealth agency or a local agency, as asserted by appellants.

The trial court relied on Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986) in support of its conclusion that MCTA is a Commonwealth agency. However, the trial court’s reliance on Feingold is misplaced. In Feingold, the Pennsylvania Supreme Court relied on the specific language in the Pennsylvania Urban Mass Transportation Law, 55 Pa.S.A. § 600.303 in concluding that SEPTA was a Commonwealth agency. The Urban Mass Transportation Law only applies to metropolitan areas, see 55 Pa.S.A. § 600.303, which are defined as “all of the territory within the boundaries of any county of the first class and all other counties located in whole or in part within twenty miles of such first class county.” 55 Pa.S.A. § 600.302. Monroe County is a county of the sixth class, see 16 Pa.S.A. § 210, and therefore, the Urban Mass Transportation law is inapplicable to MCTA.

We agree with appellants that MCTA is a local agency. In order to arrive at this conclusion, it is necessary to compare the definitions of the terms Local agency and Commonwealth agency. 42 Pa.C.S.A. § 8501 defines a “Local Agency” as “[a] government unit other than the Commonwealth government.” However, under 42 Pa.C.S.A. § 102, a “Commonwealth agency” is defined as “[a]ny executive or independent agency.” The term “Executive agency” includes “[tjhe Governor and the departments, boards, commissions, authorities and other officers and agencies of the Commonwealth government,” whereas the term “Independent agency” covers “[bjoards, commissions, authorities and other agencies and officers of the Commonwealth government which are not subject to the policy supervision and control of the Governor.... ” Id. Finally, “Commonwealth government” is defined as “[t]he government of the Commonwealth, including the General Assembly and its officers and agencies, the Governor, and the departments, boards, commissions, authorities and officers and agencies of the Commonwealth, but the term does not include any political subdivision, municipal or other local authority, or any officer or agency of any such political subdivision or local authority. [Emphasis added.]” Id.

This court recently analyzed these definitions in Northampton County Community College v. Dow Chemical, 389 Pa.Super. 11, 566 A.2d 591 (1989), in which we held that a community college was not a Commonwealth party. In reaching this conclusion, we determined that “[t]he legislature’s classification of Commonwealth parties is unambiguous.” Id. 389 Pa.Super. at 22, 566 A.2d at 596. Therefore in view of the clear definitions provided by the legislature we are constrained to conclude that MCTA fits- squarely within the description of a local agency. Having ascertained that MCTA is a local agency, we must next determine whether venue is proper in Philadelphia County.

Because appellees all possess a different status, different venue provisions must be applied. As discussed above, we found MCTA to be a local agency. Thus, venue is governed by Title 42, Chapter 85, Subchapter C of the Pennsylvania Consolidated Statutes. The preamble to Sub-chapter C directs that “[a]ctions ... for claims against a local agency may be brought in and only in a county in which the local agency is located or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose.”

Appellee Ottaway, however, is a corporation and under Pa.R.C.P. 2179(a), actions against such entities may only be brought in: (1) the county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; (3) the county where the cause of actions arose; or (4) a county where a transaction or occurrence took place out of which the cause of action arose.

Finally, if it is assumed that appellees Burnett, Agriss, Mazur, Neff and Wolfe are sued in their capacity as individuals, then venue is proper under Pa.R.C.P. 1006(a) “only in a county in which [the individual] may be served or in which the cause of action arose or were a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.”

Upon review of these various venue provisions, it is evident that regardless of appellees’ status, all of the venue rules would permit appellees to be sued in the county where the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose. Therefore, if it can be shown that the cause of action arose in Philadelphia County, or a transaction or occurrence took place in Philadelphia County, then Philadelphia County would certainly be a county in which venue is proper. As a result, we must determine where a cause of action arises with respect to a defamation action.

An essentia] element of a defamation action is publication. See 42 Pa.C.S.A. § 8343(a)(2). The Restatement (Second) of Torts § 577(1) defines publication as “its communication intentionally or by negligent act to one other than the person defamed.” Thus, publication occurs whenever a defamatory statement is communicated to another person.

In this case, the allegedly defamatory statements made by the board members and solicitor of MCTA were “published” within the meaning of the Restatement definition in Monroe County, because that is the place where the statements were communicated to the news reporter. In addition, a re-publication of the defamatory statements occurred in Monroe County when these statements were written in the article and circulated to the subscribers in Monroe County. See Restatement (Second) of Torts § 578 and comments b and d thereto. However if the defamatory article was circulated in other counties, then a re-publication would also occur in such counties.

As stated in 42 Pa.C.S.A. § 8343(a), the plaintiff has the burden of proving that a publication occurred. Because appellees have disputed that a publication occurred in Philadelphia, we must review appellants’ complaint in order to determine whether the element of publication has been sufficiently established. In this case, the complaint fails to aver that the Pocono Record was published in Philadelphia County. Paragraph 4 of the Complaint provides that “the Pocono Record, a newspaper of general circulation published in Stroudsburg, ha[s] a general circulation throughout Monroe County and other counties in Eastern Pennsylvania.” Paragraph 14 further adds that “[t]he article was widely circulated throughout Monroe County, and other counties in Eastern Pennsylvania.” It is significant to note that neither of these paragraphs state that the defamatory article was published in Philadelphia County; rather, both paragraphs specifically aver that the newspaper was circulated in Monroe County. Based on the plain language appearing in the complaint, we conclude that appellants have only established that a publication occurred in Monroe County.

Assuming for the sake of argument that venue is proper in Philadelphia County, we believe that the trial court could have also transferred the action to Monroe County pursuant to the doctrine of forum non conveniens. While it is true that the trial court did not transfer the case on this basis, it is well settled that “[a]s an appellate court, we are free to affirm an order of the lower court if it is correct for any reason, regardless of the grounds relied upon by the court below.” Klebach v. Mellon Bank, N.A., 388 Pa.Super. 203, 211, 565 A.2d 448, 451 (1989). Accordingly, we may affirm the transfer of the case to Monroe County, if we find that litigation in Monroe County would be more convenient for the parties and witnesses.

In reviewing a change of venue made for the convenience of the witnesses and parties, this court has found the following factors to be relevant:

(1) the plaintiffs choice of forum should be given significant weight;
(2) the interests of the parties should be considered, including relative ease of access to sources of proof, availability of compulsory process for the attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses ... enforceability of a judgment, and any other problem which affects the ease, celerity or expense of the litigation; and
(3) public interest; litigation should not be piled up in congested centers rather than being handled at its origin [and] jury duty should not be imposed on the people of a community which has no relation to the litigation.

Brown v. Delaware Valley Transplant Program, 371 Pa.Super. 583, 586-587, 538 A.2d 889, 891 (1988).

After consideration of these factors, we conclude that Monroe County is a more convenient forum for the witnesses and parties. First, both appellants now reside in Florida, whereas all of the appellees reside in Monroe County. Thus, while they may be required to travel from Philadelphia to Monroe County, this is not a severe hardship when considering the total distance which appellants must travel in order to reach Pennsylvania. More importantly, all of the potential witnesses and evidence in this case is located in Monroe County. Philadelphia County also has a more congested docket than Monroe County, and therefore, the case will not proceed to judgment as quickly, if a jury trial is necessary. In addition, the people of Philadelphia County, except for the alleged nine subscribers of the Pocono Record who reside in Philadelphia County, have no interest in this litigation, and therefore, they should not be burdened with this case. Finally, because appellants lived and worked in Monroe County, the defamatory article would have had more impact in Monroe County, where appellants would be more easily recognized in the community, as opposed to Philadelphia County, where appellants would be less well-known. Consequently, after balancing the appellants’ choice of forum against the difficulties and expenses imposed on the appellees by forcing them to litigate in Philadelphia County we conclude that Monroe County is a more convenient forum for all of the parties and witnesses.

With regard to the final issue raised on appeal, Pa.R.C.P. 1006(d)(2) directs that “[w]here upon petition and hearing thereon, the court finds that a fair and impartial trial cannot be held in the county for reasons stated of record, the court may order that the action be transferred.” Appellants have filed a petition pursuant to Rule 1006(d)(2) with the trial court. However, the court did not address the issues raised in the petition and stated that these matters would be more appropriate for the Monroe County Court to address. We agree. Moreover, we are unable to determine whether appellants will indeed be deprived of a fair and impartial trial as there is no evidence which presently exists in the record to support the averments in appellants' petition. Even if we were to agree with appellants that neutral arbitrators would be difficult to find, this factor alone does not deprive appellants of the opportunity to have a fair and impartial trial, as appellants may request that a judge or jury from another county be assigned to hear the case. Accordingly, we affirm the decision of the trial court transferring this from Philadelphia County to Monroe County.

Order affirmed.

WIEAND, J., files á concurring statement.

WIEAND, Judge,

concurring.

I would hold that the trial court properly transferred venue to Monroe County for the convenience of the parties and witnesses. Therefore, I concur in the decision to affirm the order of the trial court.

      . Although the action before the United States District Court has been resolved, the action in Monroe County is still pending. However, these separate actions are irrelevant to the disposition of the issues before us and will not be discussed.

      . More specifically, the article stated that Flaxman and Savarese embezzled funds from MCTA.

      . See Appellants’ Brief at p. 21.

      . With regard to the issue of jurisdiction, we note that pursuant to 42 Pa.C.S.A. § 762(a)(l)(i) and (7), the Commonwealth Court has exclusive appellate jurisdiction of appeals involving tort claims against either a Commonwealth or local agency. However, as none of the parties in this action have raised an objection to the assumption of appellate jurisdiction by this court as required by Pa.R.A.P. 741(a), we will exercise our discretion and decline to transfer the matter to the Commonwealth Court. See Pa.R.A.P. 752(a) and Turner v. Commonwealth, PennDOT, 352 Pa.Super. 154, 155 n. 1, 507 A.2d 428, 429 n. 1 (1983).

      . We note that the issue of whether the action could have been transferred to Monroe County under the doctrine of forum non conveniens is properly before this court because appellees specifically requested such relief in their preliminary objections in the event that the trial court deemed venue in Philadelphia County to be proper. Cf. Penox Technologies, Inc. v. Foster Medical Corp., 376 Pa.Super. 450, 546 A.2d 114 (1988).. Moreover, appellants raised this issue on appeal as they contend that it would be more convenient to litigate in Philadelphia County.


author: KELLY, Judge:

text:
    574 A.2d 1068
    William KERNS and Denise Kerns, Appellant, v. METHODIST HOSPITAL and California Plant Protection, Inc., Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 23, 1989.
    Filed May 2, 1990.

      Theodore C. Forrence, Jr., Philadelphia, for appellant.
    Melvin R. Shuster, Philadelphia, for Methodist Hosp., appellee.
    William C. McGovern, Philadelphia, for Cal. Plant Protection, appellee.
    Before CIRILLO, President Judge, and KELLY and CERCONE, JJ.
   KELLY, Judge:

In this case we are called upon to determine whether a hospital and a security firm may be held liable for injuries to a pizza deliveryman suffered in an armed robbery by unknown assailants on hospital property guarded by a private security firm, based upon a theory of a negligent undertaking to provide adequate security. We affirm the order granting summary judgment in favor of the hospital and the security firm.

We are also asked to determine whether the trial court abused its discretion in proceeding to the merits of the summary judgment motion when an order extending the time for discovery had been signed the day before the motion for summary judgment was filed, and specific discovery requests were pending at the time the summary judgment motion was considered and decided. We find no abuse of discretion.

I. Standard of Review

In this case we are called upon to determine the propriety of an order granting summary judgment. The standard for granting summary judgment is well settled:

A motion for summary judgment may properly 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 a judgment as a matter of law. In passing on a motion for summary judgment, the court must examine the record in ■ the light most favorable to the non-moving party. [However], it is clear that to survive a motion for summary judgment, the non-moving party may not rely merely upon the allegations of the contested pleadings, but must set forth specific facts by way of affidavit, or in some other way as provided by the rule, demonstrating that a genuine issue exists.

Salerno v. Philadelphia Newspapers, 377 Pa.Super. 83, 88, 546 A.2d 1168, 1170-71 (1988) (collecting cases, citations omitted); see also Pa.R.C.P. 1035.

II. Facts and Procedural History

On March 18, 1985, appellants, William and Denise Kerns (the Kerns), filed a civil complaint against appellees Methodist Hospital (the Hospital) and California Plant Security (the Security Firm). The complaint contained three counts; it claimed that the Hospital’s and the Security Firm’s negligence in failing to adequately warn or protect William Kerns caused William Kerns to suffer a violent criminal assault by unknown third parties and injuries incident thereto, Denise Kerns suffered a loss of consortium as the result of William Kerns’ injuries, and the negligence involved was so egregious as to warrant imposition of punitive damages. The factual allegations underlying the complaint may be summarized as follows.

On April 2, 1984, Mr. Kerns was employed by Giovanni’s Pizza to deliver pizzas throughout South Philadelphia, including the area where the Hospital is located. Sometime prior to 7:00 p.m. his employer gave him a single pizza to deliver at the nurses’ residence on the grounds of the Hospital. The drive to the Hospital took four or five minutes.

On four or five prior occasions, Mr. Kerns had delivered pizzas to the nurses’ residence. The residence is located in a private area on the Hospital grounds, and there is a gate across the access road to the nurses’ residence to keep out unauthorized vehicles. On each of the prior occasions, Mr. Kerns would drive to the gate and sound his horn. A security guard would come to the gate, Mr. Kerns would state his purpose, and the gate would then be raised to permit him to drive up to the entrance of the nurses’ residence and deliver his pizzas.

On April 2, 1984, no guard came to the gate when Mr. Kerns sounded his horn. Because Mr. Kerns saw no guard and decided he could not wait, he backed his car onto the street, and parked on a nearby side street. It was dusk by then. Mr. Kerns walked around the gate and to the nurses’ residence in about a minute or a minute and a half. He was inside the nurses’ residence about 30 seconds, where he delivered the pizza, was paid, and left.

Mr. Kerns had counted the money and put it in his pocket before leaving the nurses’ residence. Mr. Kerns explained, “from making deliveries, you don’t count your money on the outside or anything.” (R.R. at 149a). About 25 feet from the building, Mr. Kerns was assaulted by two unknown assailants. One poked a gun in his ribs, the other stood in front of him and demanded his valuables. Mr. Kerns delivered his wallet, and was then kicked in the groin and punched as he went down to the ground. The entire assault took only “30 seconds” though “it felt like an eternity.” (R.R. at 141a-151a).

Between March 18, 1985, and November 14, 1988, pleadings and counterpleadings were filed and discovery was conducted. On November 14, 1988, an order was signed extending the discovery period until February 28, 1989. The next day, however, the Hospital and the Security Firm filed for summary judgment. On December 5, 1988, the Kerns filed a subpoena on the Philadelphia Police Department for police documents pertaining to criminal assaults in the area of the Hospital for a three year period prior to April 2, 1984. On December 8, 1988, the Kerns sent a letter to the Hospital’s counsel requesting production of the security log, from which excerpts had been provided previously, and all similar logs for prior years. On December 22, 1988, the Kerns filed their answer in opposition to the motion for summary judgment. On January 3, 1989, the trial court granted summary judgment to the Hospital and the Security Firm. This timely appeal follows.

On appeal, the Kerns contend that the trial court abused its discretion in proceeding on the motion for summary judgment despite the prior entry of an order extending the discovery period, in light of actually outstanding discovery requests at the time summary judgment was granted. The Kerns also contend that there was sufficient evidence of a voluntary assumption of a duty by the Hospital and the Security Firm to withstand summary judgment. We find no merit in either contention.

III. 1035(e) Continuance/Outstanding Discovery

The Kerns contend that the trial court erred in proceeding to rule on the motion for summary judgment because an order extending the period for discovery had previously been entered, and two proper discovery requests remained outstanding at the time summary judgment was granted. We find no merit in the contention.

The Hospital and the Security Firm respond initially that we need not reach this issue, as the Kerns failed to file the affidavits of necessity for further discovery required to trigger consideration of a continuance pursuant to Pa.R. C.P. 1035(d) and Pa.R.C.P. 1035(e):

(d) Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the signer is competent to testify to the matters stated therein. Verified or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
(e) Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

(Emphasis added).

In this case, the Kerns responded to the motion for summary judgment by filing an answer and memorandum of law in opposition to the motion for summary judgment which asserted, among other things, that summary judgment was premature in light of outstanding discovery requests directed toward material issues of fact. Attached to the memorandum as “exhibits” were copies of the signed discovery requests. Counsel also signed a “verification” indicating that the contents of the answer and memorandum were true and correct to the best of his knowledge, information, and belief, and that the verification was being made subject to the penalties of 18 Pa.C.S.A. § 4904.

Exhibits attached to a memorandum of law filed in opposition to summary judgment are not “affidavits” made on personal knowledge (as opposed to information and belief) as required by Pa.R.C.P. 1035(d) and Pa.R.C.P. 1035(e). See Zepp v. Nationwide Ins., 290 Pa.Super. 28, 32, 434 A.2d 112, 114 n. 3 (1981); Irrera v. SEPTA, 231 Pa.Super. 508, 331 A.2d 705 (1974). The critical distinction is that a verification based on “information and belief,” does not meet the requirement of an affidavit based on “personal knowledge.” See Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). The Kerns thus failed to file a proper affidavit in opposition to summary judgment.

The failure to comply with Pa.R.C.P. 1035(d) and Pa.R. C.P. 1035(e) may result in a determination that any claimed prematurity of summary judgment was waived. In Curran v. Philadelphia Newspapers, 497 Pa. 163, 439 A.2d 652 (1981), our Supreme Court held that where affidavits submitted under Pa.R.C.P. 1035(d) addressed solely the merits of the summary judgment claim, a subsequent claim that a continuance to complete further discovery should have been granted must be deemed to have been waived. 439 A.2d at 658; Ruditsky v. Orben, 121 Pa.Cmwlth. 215, 550 A.2d 836 (1988) (same, citing Curran). Here, however, the defect is one of form, rather than content.

In Thomas v. Duquesne Light, 347 Pa.Super. 492, 500 A.2d 1163 (1985), this Court held that when the party opposing summary judgment expressly declined a trial court request that the party file the required counter affidavits and outstanding discovery requests could not have produced information in support of the party’s opposition to summary judgment, the existence of outstanding discovery requests did not preclude summary judgment. 400 A.2d at 1167. Here, the trial court mentioned neither the defect in form, nor the outstanding discovery requests, when granting summary judgment, or in its opinion filed pursuant to Pa.R.A.P. 1925(a).

We do not construe the prior case law to mandate a finding of procedural default with regard to the failure to file a proper affidavit of opposition. Zepp v. Nationwide Ins., supra, was decided on other grounds and merely noted the defect in form to prevent repetition of the error on remand. 434 A.2d at 114 n. 3. In Irrera v. SEPTA, supra, this Court expressly declined to rest on the procedural ground, and instead went on to determine that summary judgment was proper even if the improper “exhibits” were considered. 331 A.2d at 707-08. Likewise, despite the absence of a proper affidavit of opposition in Thomas v. Duquesne Light, supra, this Court nonetheless went on to consider whether the outstanding discovery requests could have led to evidence which might enable the party to withstand summary judgment. 500 A.2d at 1166-67.

Here, the fact and relevance of the outstanding discovery requests are uncontested. Both the Hospital and the Security Firm conceded in their briefs to this Court that the Kerns, in fact, had made the discovery requests as had been indicated in the Kérns’ memorandum of opposition filed in the trial court. (See Hospital’s Brief at 3-4; Security Firm’s Brief at 4). Cf. Phaff v. Gerner, supra, 303 A.2d at 829 (affidavits are not required for undisputed facts). Consequently, we find that defect challenged to be one of form, rather than substance. Had the defect been noted in the trial court, it could have been corrected with ease by the substitution of an “affidavit” on personal knowledge for counsel’s insufficient “verification” on information and belief.

It is true that some federal courts have strictly construed the federal equivalents of Pa.R.C.P. 1035(d) and 1035(e), and have denied review on the merits in circumstances arguably similar to those presented here. See e.g. Falcone v. Columbia Pictures, 805 F.2d 115, 117 & n. 2 (3rd Cir.1986). Other federal courts, however, have held that pleadings and outstanding discovery requests may provide sufficient specificity as to the discovery sought and need for such discovery to constitute sufficient compliance with the affidavit requirement to warrant a continuance to complete discovery. See e.g. Hotel & Restaurant Emp. Union v. Attorney General, 804 F.2d 1256, 1269 (D.C.Cir. 1986).

We embrace the latter position. In doing so, we note that we in no way restrict the trial court’s discretion to direct strict compliance with the rules. Rather, we merely hold that when the defect is not substantive, and the trial court does not elect to direct strict compliance, then substantial compliance may be deemed sufficient compliance. See Pa. R.C.P. 126.

Our decision to review on the merits the Kerns’ contention that summary judgment was premature will be of little solace to the Kerns. On the merits, we find no abuse of discretion in the trial court’s decision to deny a continuance to complete further discovery.

The parties have relied exclusively upon federal cases in support of their arguments on the merits of this contention. We shall consider relevant Pennsylvania case law first, and then address briefly the federal authorities cited.

It is well-settled that Pa.R.C.P. 1035(e) controls claims that summary judgment was improvidently granted prior to the completion of necessary discovery. See Curran v. Philadelphia Newspapers, supra; Ruditsky v. Orben, supra. It is equally well-settled that the standard of review for an appellate court reviewing a decision to grant or deny a continuance to complete further discovery under Pa.R. C.P. 1035(e) is whether the trial court abused its discretion. See Wertz v. Kephart, 374 Pa.Super. 274, 279, 542 A.2d 1019, 1022 (1988); District Council 33 v. Philadelphia, 354 Pa.Super. 176, 185, 511 A.2d 818, 823 (1986) reversed on other grounds, 517 Pa. 401, 537 A.2d 1367 (1988); Lombardo v. DeMarco, 350 Pa.Super. 490, 495, 504 A.2d 1256, 1258-59 (1985).

The Kerns complain that they were not given an adequate opportunity for discovery. The applicable rules provide no timetable for discovery; rather, the parties are permitted to engage in the various types of discovery simultaneously, subject to the supervision of the trial court. In supervising discovery, the trial court has broad discretion to take such action as it deems appropriate to insure prompt and adequate discovery. See Wertz v. Kephart, supra; Cavanaugh v. Allegheny Ludlum Steel, 364 Pa.Super. 437, 528 A.2d 236 (1987); District Council 33 v. Philadelphia, supra; Lombardo v. DeMarco, supra; Granthum v. Textile Machine Works, 230 Pa.Super. 199, 326 A.2d 449 (1974).

It may be an abuse of discretion to deny a continuance to complete further discovery when the party opposing summary judgment has been denied an adequate opportunity to conduct reasonable discovery. In Granthum v. Textile Machine Works, supra, this Court held that the trial court erred in failing to apply Pa.R.C.P. 1035(e) and in granting summary judgment when the moving party had failed to disclose necessary documents and records. We concluded by noting that the opposing party was entitled to an opportunity to conduct appropriate discovery. 326 A.2d at 451-52. Similarly, in Cavanaugh v. Allegheny Ludlum Steel, supra, this Court held that the trial court had abused its discretion in scheduling a class certification hearing, sua sponte, less than five months after the filing of a complicated class action suit, despite the fact that the plaintiff was still pursuing timely discovery on the very issue to be decided in the certification hearing. 528 A.2d at 240.

On the other hand, appellate courts of this Commonwealth have found no abuse of discretion in denying a continuance to pursue further discovery pursuant to Pa.R. C.P. 1035(e) when a reasonable period for discovery had expired, and the opposing party failed to demonstrate the materiality of the outstanding discovery or the opposing party failed to demonstrate that it had proceeded in a timely manner with respect to the discovery sought. In Thomas v. Duquesne Light Co., supra, this Court found no abuse of discretion in denying a continuance because the outstanding discovery requests could not have provided material evidence sufficient to withstand summary judgment had the continuance sought been granted. In Wertz v. Kephart, supra, this Court held that the trial court had abused its discretion in permitting an eleventh-hour deposition of a material witness whose identity and whereabouts had been known for more than four years. 542 A.2d at 1022. In Lombardo v. DeMarco, supra, this Court rejected a claim that an inadequate discovery period had been permitted. We noted that counsel had failed to commence discovery until after the pleadings were closed, the three and one half months available for discovery after pleadings were closed was more than sufficient given the uncomplicated nature of the case, and the efficacy of the further discovery requested was wholly speculative. 504 A.2d at 1258-59.

The parties cited various federal cases construing Fed.R. Civ.P. 56(f) which is the federal equivalent of Pa.R.C.P. 1035(e). The Kerns cited cases in which the trial court was held to have abused its discretion in denying a continuance to complete discovery directed toward material issues which had been pursued in a timely manner. See Garrett v. San Francisco, 818 F.2d 1515 (9th Cir.1987); Hotel & Restaurant Employees Union v. Attorney General, 804 F.2d 1256 (D.C.Cir.1986); Visa International Service Association v. Bankcard Holders of America, 784 F.2d 1472 (9th Cir. 1986); Glen Eden Hospital v. Blue Cross & Blue Shield, 740 F.2d 423 (6th Cir.1984); Ward v. United States, 471 F.2d 667 (3rd Cir.1973). The Hospital and the Security Firm, on the other hand, cited cases in which the trial court was found not to have abused its discretion because a reasonable time for discovery had expired and the discovery sought was deemed too speculative or the discovery had not been pursued in a timely manner. See Koplove v. Ford Motor Corp., 795 F.2d 15 (3rd Cir.1986); Mid-South Grizzlies v. N.F.L., 720 F.2d 772 (3rd Cir.1983); see also Landmark Development v. Chambers Corp., 752 F.2d 369 (9th Cir.1985); Pfeil v. Rodgers, 757 F.2d 850 (7th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1985).

Review of the federal cases cited indicates that they are in harmony with the Pennsylvania case law and merely present different aspects of a relatively uniform approach to such motions, rather than divergent viewpoints as the parties’ briefs suggest. From the foregoing authorities we glean the following general rules. Parties must be given a reasonable period of time to pursue proper discovery, and if a summary judgment motion is filed prematurely, the trial court must grant a continuance if the opposing party specifies proper discovery to be sought in a timely manner. On the other hand, if an adequate time for discovery has already expired when a continuance is sought, the party opposing summary judgment must establish both materiality and due diligence with regard to the further discovery sought. Applying these rules in the instant case, we find no abuse of discretion in the trial court’s denial of a continuance to complete further discovery.

Here, the summary judgment motion was filed November 15, 1988, 3 years, 7 months, and 27 days since the initial complaint was filed on March 18, 1985. Both discovery requests outstanding at the time summary judgment was granted were initiated after the summary judgment motion had been filed.

On December 5, 1988, the Kerns sent a subpoena to the Philadelphia Police Department requesting any records indicating the occurrence of criminal assaults in the area of the Hospital between April 2, 1981 and April 2, 1984. While this request was directed toward the discovery of evidence which might be material to the Kerns’ claims, if the evidence sought was available and favorable, the discovery request was unquestionably speculative. Moreover, there is absolutely no indication why this request could not have been made during the preceding 3 years, 8 months, and 17 days since the complaint was filed on March 18, 1985.

On December 8, 1988, the Kerns sent a letter to counsel for the Hospital requesting production of all the Hospital’s security log books for time periods prior to April 2, 1984. While this request was also directed toward the discovery of evidence which might be material to the Kerns’ claims if the logs existed and contained favorable evidence, this discovery request was likewise unquestionably speculative. Moreover, the Hospital formally disclosed the existence of security logs in answers to interrogatories dated July 2, 1985, which were filed in the trial court on August 7, 1985. The record discloses further that the Kerns’ counsel had a copy of an excerpt of the report of the underlying incident from the security log on December 11, 1985 during the deposition of Gloria Rivers. (R.R. at 153a, 168a). Indeed, the letter requesting this discovery, dated December 8, 1988, stated that the excerpt containing the report of the underlying incident had been provided two years earlier (by then it actually had been at least 2 years and 362 days since the excerpt from the security log had been provided). Again, the Kerns provide no explanation for why the discovery sought could not have been completed in the 3 years, 4 months, and 1 day since formal notice of the existence of security logs had been formally filed in the trial court in the answers to interrogatories.

The Kerns argue that the discovery was required to resolve doubts left by Ms. Gloria Rivers allegedly equivocal deposition testimony concerning the Hospital’s and the Security Firm’s notice of prior criminal activity. Upon careful review of the deposition testimony, we find it to be ^equivocal. While Ms. Rivers did state that counsel’s broad inquiry as to the occurrence of prior criminal incidents was “pretty hard to answer,” she responded unequivocally to follow-up questions by explaining that while no assault or property crimes had occurred previously, the Hospital did have a problem with neighbors committing non-violent trespass offenses by attempting to use private areas of the Hospital grounds as a short cut through the neighborhood. (R.R. at 222a-226a). Rather than suggesting a need for further discovery on the subject, Ms. Rivers’ unequivocal testimony underscores the speculative nature of both of the Kerns’ eleventh-hour, broad-net, fishing-expedition-style discovery requests.

Moreover, Ms. Rivers’ deposition was taken on December 11, 1985. (R.R. at 153a). The Kerns again have failed to indicate why any discovery required as the result of Ms. Rivers’ deposition could not have been completed in the 2 years, 11 months, and 24 days which preceded their eleventh-hour discovery request on December 5, 1988, or the 2 years, 11 months, and 27 days which preceded their second eleventh-hour discovery request on December 8, 1988.

Applying the standard previously set forth, we find no abuse of discretion in the trial court’s implicit decision not to grant a continuance to complete further discovery under Pa.R.C.P. 1035(e), and to proceed instead to decide the merits of the summary judgment motion. An ample period for discovery had already passed, and the Kerns failed to establish either materiality or due diligence with respect to the discovery sought. Hence, we find no merit in the Kerns’ first contention on appeal.

IV. Alleged Negligent Undertaking to Provide Security

Appellant contends that the Hospital and the Security Firm voluntarily assumed a duty to protect or warn Mr. Kerns by instituting a program of security on the Hospital grounds. Appellant argues that the expert opinion it attached to its memorandum in opposition to summary judgment as an exhibit, raised a question as to a material fact concerning the Hospital’s and the Security Firm’s alleged negligence concerning their voluntary undertaking to provide security which precluded summary judgment. We cannot agree.

The general thrust of the expert opinion upon which the Kerns relied is accurately reflected in the summary of that report, which stated:

Summary
When establishing a security system, the key is security in depth, which is the utilization of many protective measures, including security personnel and physical security systems, working together to provide comprehensive security protection. Such a system is vital in the protection of a hospital located in an urban area.
This comprehensive system begins with providing and documenting training for security personnel at all levels, so that effective policies may be established and that such policies can be followed correctly. Effective staffing levels must be utilized to insure that high risk areas, such as parking lots, have adequate coverage. It is also vital that sufficient staffing be provided to insure that all required post duties, such as the monitoring of closed circuit television cameras and radios and the logging of communications can be properly accomplished.
The use of physical security measures, such as sodium vapor lights, secure fencing and access control points, closed circuit television systems, and the posting of signs indicating that protective measures are in place, are key elements in a comprehensive security program and should be utilized.
It is my opinion that a hospital not utilizing all of these protective measures is not providing adequate security for the employees, patients, and visitors of the institution.

(R.R. at 117a-118a; see generally R.R. at 112a-118a). Essentially, this expert was of the opinion that a different program of security than that actually in place ought to have been utilized by the Hospital and the Security Firm, and that the one actually utilized was inadequate.

Because the Kerns failed to establish notice to the Hospital or the Security Firm of a particular threat of violence to its tenants or their invitees from the criminal acts of third parties, we are not called upon to determine whether, or to what extent, the Hospital or the Security Firm had a duty to act to prevent such harm or warn Mr. Kerns of such harm. Cf. Moran v. Valley Forge Drive-In Theater, 431 Pa. 432, 246 A.2d 875 (1968); Murphy v. Penn Fruit, 274 Pa.Super. 427, 418 A.2d 480 (1980).

The Kerns sought to establish that the Hospital and the Security Firm failed to exercise reasonable care with regard to their voluntary undertaking to provide a program of security on the Hospital grounds. The Kerns, however, misapprehend the nature of the burden imposed incident to such an undertaking.

In Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1985), our Supreme Court explained:

A landlord may, as indicated, incur a duty voluntarily or by specific agreement if to attract or keep tenants he provides a program of security. A program of security is not the usual and normal precautions that a reasonable home owner would employ to protect his property. It is, as in the case before us, an extra precaution, such as personnel specifically charged to patrol and protect the premises. Personnel charged with such protection may be expected to perform their duties with the usual reasonable care required under standard tort law for ordinary negligence. When a landlord by agreement or voluntarily offers a program to protect the premises, he must perform the task in a reasonable manner and where a harm follows a reasonable expectation of that harm, he is liable. The duty is one of reasonable care under the circumstances. It is not the duty of an insurer and a landlord is not liable unless his failure is the proximate cause of the harm.

485 A.2d at 747. (Emphasis added).

The Hospital was a landlord, and through its agent (the Security Firm) it unquestionably offered a program of security to the tenants of its nurses’ residence and their invitees, including Mr. Kerns. Feld v. Merriam, supra. As such, the Hospital and the Security Firm had a duty to exercise reasonable care with respect to that program of security. Id.

The Kerns argue that the program of security actually implemented was unreasonably inadequate. This mistakes the type of reasonable care required with respect to the program of security.

In Feld v. Merriam, supra, our Supreme Court further stated:

A tenant may rely upon a program of protection only within the reasonable expectations of the program. He cannot expect that a landlord will defeat all the designs of felony. He can expect, however, that the program will be reasonably pursued and not fail due to its negligent exercise. If a landlord offers protection during certain periods of the day or night a tenant can only expect reasonable protection during the periods offered. If, however, during the periods offered, the protection fails by a lack of reasonable care, and that lack is the proximate cause of the injury, the landlord can be held liable. A tenant may not expect more than is offered. If, for instance, one guard is offered, he cannot expect the same quality and type of protection that two guards would have provided, nor may he expect the benefits that a different program might have provided. He can only expect the benefits reasonably expected of the program as offered and that that program will be conducted with reasonable care.

485 A.2d at 747. (Emphasis added). The expert’s report, which was directed solely to the perceived inadequacy of the program of security offered, is thus inapposite. It addresses a question wholly irrelevant under the standard set forth in Feld.

The mere fact that neither the roving guard, nor the guard assigned to watch the alternating closed circuit monitors noticed the 30 second assault in progress, or noticed the assailants in time to prevent the assault, in no way established any negligence on their part with regard to the limited program of security actually offered. Nor was negligence established by the fact that the guard did not come immediately to raise the gate for Mr. Kerns when Mr. Kerns honked his horn. Neither fact demonstrates negligence within the limited parameters of the security program actually in place. Indeed, the expert opinion supplied by the Kerns strongly indicated that the perceived inadequacy of the program, rather than any negligence by the guards was the “cause” of the guards’ failure to prevent the assault. The parties appear to agree that the program of security actually implemented simply was not designed to prevent such sudden assaults.

In sum, there is no evidence in this record to establish a question of material fact as to any alleged negligence by the Security Firm with regard to the program of security actually offered. Moreover, there is also no evidence in this record demonstrating that any such negligence proximately caused the injury Mr. Kerns suffered. Cf. Glick v. Olde Town Lancaster, 369 Pa.Super. 419, 535 A.2d 621 (1987) (examining proximate cause and the liability of a property owner for criminal acts of third parties); cf. Castillo v. Sears, Roebuck & Co., 663 S.W.2d 60 (Tx.App.1983) (neither negligence nor proximate cause was shown with regard to security guards’ failure to prevent a criminal assault in mall parking lot); Cornpropst v. Sloan, 528 S.W.2d 188 (Tn. 1975) (same).

Consequently, we find no error or abuse of discretion in the trial court’s decision to grant summary judgment to the Hospital and the Security Firm. There were no unresolved factual issues framed, which if resolved in the Kerns favor would establish liability on the part of the Hospital or the Security Firm for Mr. Kerns’ injuries; hence, summary judgment for the Hospital and the Security Firm was proper on Mr. Kerns’ claim. Liability to Mrs. Kerns for loss of consortium was dependent on the validity of her husband’s claim, and was likewise properly subject to summary judgment. The third claim, for punitive damages, was not only derivative, it was wholly frivolous, and was likewise properly subject to summary judgment.

Conclusion

Based upon the foregoing, the order granting summary judgment in favor of the Hospital and the Security Firm is Affirmed.

      . In Lombardo, the opposing party had also failed to specifically request a continuance. While this distinguishes Lombardo from the instant case, it does not diminish the relevance of the other factors noted by this Court in affirming the trial court.

      . The Kerns’ reliance upon the discovery order of November 14, 1988, is misplaced. By its own terms the order stated, "no discovery other than the above shall be allowed.” "Above,” however, no discovery was specified in the blanks provided. (R.R. at 111a). Hence, the order was essentially illusory. More importantly, orders extending the period permitted for discovery are interlocutory and subject to reconsideration. Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987); Markey v. Marino, 361 Pa.Super. 92, 521 A.2d 942 (1987). When a summary judgment motion is filed prior to the expiration of a time period through which the trial court has authorized discovery to continue, reconsideration of an interlocutory order permitting further discovery is implicit in the decision whether to permit further discovery under Pa.R.C.P. 1035(e) or to proceed on the merits of the summary judgment motion. In exceptional circumstances, the existence of such an order might tip the balance in a due diligence inquiry. No such exceptional circumstances exist here. Rather, the balance is heavily weighted against further untimely discovery, and the illusory order provides no weight to alter that balance.

      . Again, we note that the "exhibit” was not a proper "affidavit." Pa.R.C.P. 76; Pa.R.C.P. 1035(d); Pa.R.C.P. 1035(e). Nonetheless, as in Irrera, we address the merits as if the exhibit had been presented in a proper affidavit.

      . We note that there are significant public policy questions relating to the wisdom of privatizing police functions, the proper allocation of the costs of violent crime, the impact of uncertain and/or expensive security requirements on urban business districts and urban economies, as well as practical questions relating to the adequacy of alternative security regimes which all must be considered in determining the extent to which "reasonableness” on the part of merchants in response to the threat of third party criminal conduct may require merchants to secure or even militarize business properties open to the public in high crime areas. See Leichter v. Eastern Realty Co., 358 Pa.Super. 189, 198, 516 A.2d 1247, 1252 n. 2 (1986) (Kelly, J. concurring); cf. Williams v. Cunningham Drug Stores, 418 N.W.2d 381 (1988); Castillo v. Sears Roebuck & Co., 663 S.W.2d 60 (Tx.App.1983); Berdeaux v. City Nat’l Bank, 424 So.2d 594 (Ala. 1982); Foster v. Winston-Salem Jt. Venture, 50 N.C.App. 516, 274 S.E.2d 265 (1981); Cook v. Safeway, 354 A.2d 507 (D.C.App.1976); Cornpropst v. Sloan, 528 S.W.2d 188 (Tn.1975).
      We also note that it is far from clear that the duty recognized in Moran and Murphy may be imposed upon a non-profit hospital with regard to criminal assault by third party upon an invitee of a tenant of a nursing residence which was located on a portion of the Hospital grounds not open to the public. In Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984), our Supreme Court explained:
      Tenants in a huge apartment complex, or a tenant on the second floor of a house converted to . an apartment, do not live where the world is invited to come. Absent agreement, the landlord cannot be expected to protect them against the wiles of felony any more than the society can always protect them upon the common streets and highways leading to their residence or indeed in their home itself. An apartment building is not a place of public resort where one who profits from the very public it invites must bear what losses that public may create. It is of its nature private and only for those specifically invited. The criminal can be expected anywhere, any time, and has been a risk of life for a long time. He can be expected in the village, monastery and the castle keep.
      485 A.2d at 745-46. (Emphasis added). What was said of the apartment building in Feld, could be said as well as of the Hospital’s nurses’ residence here.