there are three issues which we have on appeal the st is whether or not the trial court erred in granting partial summary judgment and dismissing the negligence claims  which negligence counter claims which have been been brought by fantasyland stables and whether the court erred because there was a genuine issue of material fact which should have precluded the court from granting summary judgment the negligence claims involved injury to the horses which were being boarded by fantasy lane stables at penrith farms near harrisburg the horses were there for a number of years and while they were there a number of horses were injured and a number of horses died while in the care of had rage and hence the negligence claims were brought during the course of discovery in the matter it came to light that there was in fact a release that had been entered into by fantasy land stable by its president robert hutt this release was between fantasy land and a nonparty to this action a veterinarian it's a general release the very it is a general release correct in your argument is that it's sort of fraudulent we obtained or fraud i drafting i mean this is a one page release that turned into a three page release but any responsible lawyer would would read every word of a three page release in quickly appreciate that the three page releases different than the one party take a look at the three page releases immediately recognized assuming they understand english that it's different than the one really mr hite did get it back and give it a review but bear in mind your that said that the release had been revised to include language necessary for such a document in the commonwealth of pennsylvania all right so you read the three pages and if there's anything confusing it it then you ask  lawyer to look at it mr hutt in reading the cover letter took it to mean that the changes that had been made to the release were merely technical changes so why why would any reasonable juror agree with that why would any reasonable juror think that a one page release turning into a three page release would be merely technical change i think there's a good reason for that i mean the cover letter indicated that in so many words the only technical changes had been made to the release and if you look at the release in the w was expanded when it was sent back to mr hyatt it was basically boilerplate it was two to three pages of boilerplate language and so that was consistent with what was in the cover letter that said o technical changes were made reviewing that cover letter and then looking at the release that the release seems to be consistent with that what was added in the additional language that had been added it was legal east which t like mr hyde he reviewed it he gave a quick review relying on the cover letter indicating that it was just technical language that had been added he believed have to be true and we think a reasonable juror could look at that look at the the boilerplate language in the revised release look at the cover letter which said technical language had been added and a reasonable juror could believe well in that position i think i would do the same thing and would i as a layman really go through and read it word for word all rely on the cover letter which told me that it was only a technical language that had been added seaton from the pennsylvania supreme court seems to go directly contrary to your argument just s i'm not familiar with the the lack of what language to seat on versus east windsor the court said that an appellate who signed a release he did not read cannot absent fraud or relation of trust and confidence between the parties avoid the effect of the release upon the upon the ground that at the time he signed it he did not read it or know its contents but relied on what another said about it but the key language there your honor was in the absence of fraud but wouldn't fraud be  here's a release i have i haven't changed it i've signed it now you countersign it or even saying maybe nothing but when the lawyers says i made some changes wouldn't be enough to put anyone on notice if that's all the cover letter had said i made some changes but again specifically what the cover letter said was i showed it to my lawyer the lawyer added some language that he said were necessary to make the document the release comply with pennsylvania law when you get a letter from your adversary's lawyers saying i made changes no matter how you characterize them that should be enough to or maybe in invite you to forward that letter to your employer or at least treat yourself  n this was a layman it had been represented to him the technical language had been added he looked at it and when he saw was consistent with what he had been told that the technical language sign the letter without taking it to his attorney he relied reasonably we believe on representations made by dr adelson that only technical language had been added well yeah but and you said you did know what it was you're stuck but at release otherwise you're going to do away with just about every litigation that goes forward where there are releases side you've got to show something very significant tied to my check fraud and you don't have at the chase there i think we do your honor again going back if you look at did you argue fraud was it in the issue on it was in the jury instructions that actually this was on of material fact santer intention by the deccan to induce action justifiable reliance by the party to fraud upon the misrepresentation and damage to the party defrauded as a proximate result we believe that all of those elements which are still we believe will standard you just you just fixed say the case explaining the legal standard i'm asking you what's what's the best case that you have with facts that are somewhat akin to the that right well not really on i think it's b i think it's fairly clear that if you look at the criteria put forth in the hunt case that all five of those criteria are present here the judge of the truck or are other facts in the record that are sufficient to raise a genuine issue of fact the supplemental declaration that was submitted by mr hutt in opposition to the summary judgment motion stated that he had never in his life prepared an agreement that that although he looked the truck were judged rely heavily on the fact that he'd worked for c n a insurance as a national claims manager for about twelve years and she said based upon that he was sophisticated and he knew what he was doing we had however i submitted mr heights a supplemental declaration in which he said that although he had worked for an insurance company he had never him soaker appearing agreement he always rely on outside counsel when you got those releases back from outside counsel he did not review them to get every lie on them that he had no expertise whatsoever in drafting releases and that in fact he had been out of the insurance business for more than thirty four years all of those facts raised in his supplemental declaration were sufficient to raise a genuine issue of fact on the important issue to the court which was did he justifiably rely we good morning your honor and please the court my name is mark bradshaw and i'm a lawyer from the stevens and lee firm in harrisburg we were the verdict one or below i want to touch only briefly on issues that mr einhorn was discussing with you before i get to the punitive damages reduction which i think is at the heart of the case with regard to the release what judge cain did was to review mr huts deposition testimony wherein mr hutt spent at least a dozen pages if not more bragging about the level of his experience in the insurance industry bragging about the number of lawyers that he had supervised thousands the number of cases he had resolved hundreds bragging that he had only resolved the largest cases in the company and when i asked him if he always prepared to release when he resolved the case he said of course and i said humor me why would you do that and he said well because once you sign a release once the other party signs a release you don't want to hear about the claim and then i showed him the release that he had signed now judge kane found and this is it's almost like a law school exam although frankly it might even be more like a sit com this individual claiming that he did not have to read a release when he had spent twelve years in the insurance industry resulting large dollar claims utilizing releases for this individual to come into court and say but i didn't read it and there's no good reason that i should have read it and i was mislead by misled by the veterinarian's cover letter which clearly called out that my warrior has made changes to the release which took it again from one page to three at the compensatory damages issue because one of the curious things about this case is i read the record below you asked for the boarding fees that were unpaid i think it was about sixty five thousand dollars and the jury gave you not only that but it gave you another forty five thousand dollars that you hadn't asked for well they awarded the board fees you're exactly right and they awarded more than the invoices that had been tendered to mr hutton fantasyland revealed what happened was the parties got into a dust up in september of two thousand and fourteen this is the infamous phone call that led to the flurry of e mails that will discuss in a minute what happened was the two parties passably ships in the night on that phone call mr jester was saying you are in serious arrears and i need you to bring your account crime mr hart was saying you got to be kidding me you want to talk about the ants the board bill you killed my horse and went downhill from there so it's a city of what was more than he says was it more than you asked for well there was not a specific prayer for a specific amount voice as which were in range between nine in the eleven thousand dollars per month realized that the universe only went through the end of july there is absolutely no question that the horses didn't move until christmas eve two thousand and fourteen and they looked at that and said well the four or five unbilled months there at roughly ten thousand dollars per month so you take the sixty five thousand seven hundred dollars change that the invoices as of the end of july represented and you add the because the jury if they don't like it sounds like an extended waded into judge pores question by saying no we didn't ask for it that's fair but i agree but you're saying the record supports it none the less well you let me let me recast that it's not just me that's saying that judge kane said that the jury awarded it and judge kane looked at in the face of this particular allegation it was a contract claim right yes and she said the evidence more than supports what the jury did and under standard of review that was a discretionary call for her in response to a request for a new trial she said no new trial i can follow what happened here and it's reasonable and that's what it was about the evidence was before the jury as to the extended care exactly yeah there was no dispute and there were loads there was there any objection to it not all right but if that verdict hadn't been one one hundred and ten thousand if it had been one hundred and fifty thousand you'd have a problem right because you're relying pretty heavily as i understand it mr bradshaw on the on the can coordinates between the monthly boarding fee and the number of months be on the invoice period that the horses remain to your clients that is the evidence that was before the jury and that is what the district court found sufficient to uphold the verdict that the jury had to let it someday should did you ask for the entire about including that which had not been built up to that point not specifically in the closing argument what i did was to say that we had been stiffed for the board bills and we were asking that the board bills be awarded i did not specifically use for example a demonstrative exhibit and say now bear in mind this only goes through the end of july and there were another four months so candidly was there any discussion of the additional four months there was not but the evidence was before the jury that yes that th absolutely and there was absolutely no question that the horses remain in their horses they have to be fed that was the whole point of our breach of contract claim was that we hadn't been paid for food and care for the war says was there any objection to anyone  sorry that the additional time should not have been before the jury no right what about punitive but your honor forgive me i recognize that this is indelicate i just realized i didn't ask for a bottle i i would like to let's not let's go there whether it's jury's punitive damages award is unconstitutionally excessive is a question of law over which this court has done over of you so i want to start the contract award was one hundred and ten thousand dollars so that's what the parties started arguing about and if you view the punitive award eighty nine thousand nine hundred and ninety nine dollars in the light of the contract award one hundred and ten the crux of the argument there the word that appears nowhere in the district court's opinion is nominal nowhere in the opinion had all and in fact to the contrary what the district court said which was inaccurate and damages compensatory damages and if not you if posted said you find defamation they said yes then it said if you find damages enter the amount here and if you do not award if you find the point of star not entitled to any compensatory damages you must award plaintiffs one dollar in nominal damages and what they put on the line was one dollar it was nominal that was what was invited in the closing argument what we frankly said was we are not even attempting to make a specific request for compensatory damages as to the defamation mr jester said this destroyed my farm and that's of page five sixty in the record but what he did not attempt to say in the year before i earned this in the year after i earned that my adult is all correlated to the defamation but they never explicitly internally contradictory that in some i don't i don't think so well they gave your kind of dollars in compensatory and a dollar in nominal don't you just you just read that under compensatory they put one dollar well in the line underneath that it says if you do not award compensatory damages you must  and board of the horse correctly so that you have a situation where there was her read his conduct here defamation which resulted in no damage he walked he was unable to prove that he lost any business these bad mouth but he definitely try and therefore there is a one dollar one dollar nominal damage and then from there we go to we go to defamation percent and unlike b m w versus core unlike a state farm versus campbell it cetera we're not talking about big businesses we're talking about basically a verbal fistfight between two small businessmen this was not some aim warfare as some to directional corporate conduct that had bad outcomes to various different people this was targeted it was directed and it was an attempt to destroy someone's business that kate what's the case law say about the range of peanut of damages that are allowable in nominal damage cases thank you that's exactly the thrust of our presentation this court as far as we can find has not answered that question about other w versus gore or campbell is inappropriate and is unhelpful and if you read the district court's opinion there is absolutely no question that what is the range of allowable wealth and then you go back i think to the ordinary case law which that the trial court dealt with in some detail at page seven of its post trial opinion eight hundred and thirty and what it says is that this court will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice large verdicts are not necessarily excessive verdicts the reduction of a jury award is appropriately appropriate only when the award  plainly excessive an exorbitant as a result of partiality prejudice mistake or corruption she made a finding that there was partiality prejudice mistake or corruption this is a large verdict that does not make it an excessive all the others i could see would have looked at this have said you can't use a ratio one of those circumstances it just doesn't apply there not there's a there's a sharp economy in your view between compensatory damages and punitive is that that relate to the compensation award on the one hand and nominal damages and the punitive damages that are attendant to the nominal board absolutely separate mode of analysis absolutely and what the district court differently and so what the central pennsylvania jury did here was to look at what had happened and to say in in light of mr hobbs willingness to engage in this kind of defamation to slide out from under one hundred and ten thousand dollars board bil that he didn't want to pay if we're going to make him pay it twice one hundred and ten dollars plus ninety round number two hundred thousand dollars that's what they did it's obvious that that's what they did well you know you always have like it's not a criminal case and a injured and b of the damage to your client was strictly economic it was it physical damage that was done to your client as such and therefore  all into the exxon valdez case which was unfortunately not cited in our brief but i do have a citation here that one of the factors bearing on reprehensible and he is the economic motivation of the defendant and that was overlooked here the fact that mr hunt was attempting to get out of paying a board bill and that makes it reprehensible what the case law what exxon says which is a united states supreme court case is that if someone is acting to further their own economic interests that makes it particularly reprehensible but what what the case law says is that if you're going to remit the case for constitutional reasons you still have to to slot the award at the highest possible level there's no discussion of that here there's no discussion of there's no show your work what she says is ninety thousand to one is totally outrageous i'll go with five thousand five hundred there's no explanation for where that came from and  damages or to send a message and to be a penalty and to deter five thousand five hundred dollars under these circumstances doesn't come close it's a slap on the wrist i'm sure mr hunt was celebrating when that post context of this case an eighty nine thousand dollars unit as a ward should not have even attracted anyone's attention and i think that it probably wouldn't of if we hadn't gone down the gore rabbit hole and said it's ninety thousand dollars to one dollar now but let's tease that on a minute what if the sense of outrage of the community as to just how bad somebodies behavior is because then you'd be beyond five to one even as opposed to the contract award and i understand the twenty i saw i did i thought you were telling us that the analysis is is irrelevant in the context of a nominal damages or perhaps my position but i think that if you get into a one million dollars or thereabouts you're still going to as the case law says raise the judicial eyebrow my point here is though it's a field test it's apparently to the district court it was yeah but i understand you to be arguing that was  well what i'm saying is that the jury was entitle to make that call on before the district court ruling to nullify the jury's verdict there has to be right he sound constitutional basis to do it and her basis was unsound because she was using a ratio test that is not applicable because they were nominal bam all right but back to judge porter's question why would a one million dollars be a problem why why would the ratio analysis spring up and be properly applied to his hypothetical but yet be inapplicable to your ninety thousand dollars one cent the consistency sam point you're right my only point is that i think a one million dollars would get everyone's attention and say wait  really for a couple nasty e mails a one million dollars but in this concert would you say you have a problem it's it's not you have a legal problem it's you're going to have a tougher time defending the legitimacy of not an optical problem aka right but but here if you look at the dispute the way it was presented to the jury what was trying to get away from paying his board billboard bill was one hundred and ten thousand years they rounded the verdict consequently driving a punitive award that was slightly less than  contract award and i do understand the distinction between some suit and tort and the fact that that was contract in this is defamation and so on but if you look at the way the jurors were looking at it on that are they allowed to look at it look a hundred tatter to get two hundred thousand or three you know like a one million dollars in but where do you draw the line at that point i think you're into the analysis that the court set forth in the earlier part of his decision talking about the contract li which is is it grossly excessive does it shock the judicial consciousness of the product of pride and prejudice and so on she never made any of those findings here she just said it's too much and i think it's for the jury to determine what the appropriate award is unless there is a constitutional infirmity the jury award should stand and in this case it should be reinstated the only constitutional infirmity that was called that was a ratio that is inapplicable under the laws of every other circuit decision that has ever come down this before we get to the fugitive damages just a couple of comments on some of the other issues in response to a mr for each other in terms of mr hunt's experience and background as an insurance person  mr bradshaw pointed out that his deposition mr hutt bragged this brag that bragged about how much experience he had bragged about how many lawyers that he had supervised the keyword there is brag at his deposition there is no doubt that while mr hyde presented answer questions about his c v he was also in gauging in some puffery and i think perhaps trying to impress mr bradshaw with his background but the point of fact is if you look at his and his background and if you look at his declarations both declarations in opposition to the summary judgment motion mr hunt makes clear that in fact his legal expertise notwithstanding his insurance employment was very limited and that there is an issue of fact as to whether or not his behavior was reasonable with regard to the  the jury's award of the additional months above the sixty five thousand dollars and board bills the record is clear that there was never any evidence presented to the jury that more than sixty five thousand dollars those really only bills that were ever sent those were the only demands for payment prior to litigation that were ever made the horses were kept there an extra four months in volunt of the overdue board bills penrith would not allow the horses to be removed so they were there in voluntarily all about was before the jury and jury was unmoved by the fact that he horses were held their parent lea the jury blame your client for that hence the award but the bottom line is that the jury acted on pure conjecture and fart and the get it you win on that if the evidence in the record needs to support the award you lose on it so what cases you have for the former proposition whether there's the we have one case  like the case we have here the evidence was before the jury and it was not objected to it was completely objected to and the evidence was before the court the jury would hear the the evidence was before the jury only to the extent that there was no correctly mr greer has gore campbell been applied to a nominal damages award well it had it but it has been applied in cases of compensatory damages were they only a would three dollars in compensatory damages but this is a nominal ward isn't it is not well argument would be that the why is it good the gore camp analysis if it's correct in a case when the when there is three dollars in compensatory damages it's also correct in a case where there's one dollar in nominal damages there's no reason why the analysis should not be the same counsel of mr bracha this also incorrect in saying that judge kane did no analysis he just was she didn't like it she didn't think the result was proper and she reduced it that's not exactly true she said the gore camp analysis applies here and she also went through the analysis very carefully that's because she said it was compensatory if if it were in fact  a awarding gore campbell would have that's correct but i think it also applies here in the case of one dollar a nominal damages and there's no reason why the rationale would be the same so it wouldn't be this is what your argument ecessarily campbell said that few awards exceed a single digit ratio but gore said a higher ratio may be appropriate in cases of very low or no economic damage so became gore and campbell carved out an exception for wind damages compensatory damages are extremely low or nonexistent and i think this case is exactly that that we the nominal damages here are equivalent to three dollars in compensatory damages and gore said that in certain cases when they are very low or nonexistent the ratio may be claim and i didn't find it if it's not in there could you supplement the record so we can see exactly what you asked for on your counter claims but damages you asked for  be more than happy to supplement the record i want to be clear on what it is that you're asking for us started counterclaims right on the no i was the plaintiff ok so yes i think i'm confused because this was a breach of contract case in state court i just want to see your complaint then so that we could see the damages the new and rather if you give me a moment i'm reasonably sure it's in the record  as a result of the nonpayment of the contemplated services one or more of the defendants is in breach of the agreement of one and more of the plainest has been damaged where four plaintiffs demand judgment in their favor and against defendants in an amount to be proven at trial but which exceeds applicable