text:
    585 A.2d 493
    William and Leontine BLASY, Appellants, v. CHESTER COUNTY MUTUAL INSURANCE CO.
    Superior Court of Pennsylvania.
    Argued Nov. 28, 1990.
    Filed Dec. 21, 1990.
    Reargument Denied Feb. 8, 1991.

      Roger J. Harrington, Philadelphia, for appellants.
    James H. Heller, Philadelphia, for appellee.
    Before OLSZEWSKI, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from a May 21, 1990 Order granting summary judgment for appellee Chester County Mutual Insurance Company (Chester Mutual). The pertinent facts are that on August 1, 1986, William and Leontine Blasy (Blasys) obtained an insurance policy from Chester Mutual, providing homeowners insurance protection for the period between August 1, 1986 through August 1, 1987. The policy provided that the insured “must pay Chester Mutual prior to the end of the current policy period or else the policy will expire.” It is uncontested Chester Mutual was at all times willing to renew the policy upon the condition precedent the Blasys pay the renewal premium on or before August 1, 1987. On or about July 16, 1987, Chester mailed the Blasys a declaration of renewal for the policy. The Blasys did not pay the premium on or before the August 1st due date and have never paid a renewal premium to Chester Mutual. On or about September 4,1987, Chester mailed the Blasys a notice informing them that the policy would terminate on October 6, 1987 due to non-payment of premiums.

In 1985, the Blasys purchased auto insurance underwritten by Fireman’s Fund through Calter McKenna Insurance Agency, a registered agent of Fireman’s Fund. In 1986, Calter McKenna informed the Blasys that they would continue the Fireman’s Fund automobile coverage on the condition that the Blasys also purchase their homeowners insurance from Fireman’s Fund. Mr. Blasy testified as follows:

Q. And were you using [Calter McKenna] for your automobile insurance at that time?
A. Yes.
Q. How long had you been using [Calter McKenna] for insurance?
A. I’m guessing, approximately 1985.
Q. When did [Calter McKenna] tell you that in order to continue writing automobile insurance, that you had to switch your homeowners to them, also?
A. When I took out the car insurance, [Calter McKenna] said when my homeowners [with Chester County Mutual Insurance Company] expires I would have to renew it with [Fireman’s Fund].
Q. Do you know the date or time of year that we’re talking about?
A. Probably—must have been in ’86 then. I’m not sure. Q. When did [Calter McKenna] tell you that you had to renew—you had to start your [Fireman’s Fund] homeowners insurance program with them in order to renew your automobile insurance, in relationship to when your automobile insurance expired?
A. They told me when the homeowners insurance expires, just pick it up from there.
Q. And that was during the year you had your automobile insurance with them?
A. Yes.

(N.T., 10/20/89, pp. 14-15.) The Blasys purchased Fireman’s Fund Homeowners insurance coverage. This coverage commenced August 6, 1987.

The Blasys instant complaint against Chester Mutual alleges that their home sustained water damage on August 3, 1987. They further aver that even though they did not pay Chester to renew the insurance, they were covered until October 6, 1987, pursuant to the July 16, 1987 renewal policy mailed out by Chester.

A motion for summary judgment is governed by Pa.R. C.P. Rule 1035 which, in pertinent part, provides:

The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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.

“The function of the summary judgment proceedings is to avoid a useless trial but is not, and cannot, be used to provide for trial by affidavits or trial by depositions.” Goodrich-Amram. 2d § 1035.1, p. 423. “That trial by testimonial affidavit is prohibited ‘cannot be emphasized too strongly’.” Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 183, 439 A.2d 652, 662 (1981), citing Goodrich-Amram 2d § 1035(d): 1 at p. 455. In considering a motion for summary judgment, the trial court must examine the whole record, including the pleadings, any depositions, any answers to interrogatories, admissions of record, if any, and any affidavits filed by the parties. From this thorough examination the lower court will determine the question of whether there is a genuine issue as to any material fact. On this critical question, the party who brought the motion has the burden of proving that no genuine issue of fact exists. All doubts as to the existence of a genuine issue of a material fact are to be resolved against the granting of summary judgment. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Goodrich-Amram, supra., § 1035(b): 3, p. 432.

See Penn Center House Inc. v. Hoffman, 520 Pa. 171, 175, 553 A.2d 900, 902 (1989).

An insurer bears the burden of proving an effective cancellation prior to the loss. Coppola v. Insurance Placement Facility of Pennsylvania, 386 Pa.Super. 413, 563 A.2d 134 (1989), alloc. denied 525 Pa. 582, 575 A.2d 113 (1990). A cancellation by an insured is effective on the date the insured intends to cancel and not on the date that the insurance company receives notice of cancellation; as long as the insured manifested intent is clear and precise. Coppola, supra. Thus mere non-payment does not equate to an intent to cancel.

In Federal Kemper Ins. Co. v. Com. Ins. Dept., 509 Pa. 1, 500 A.2d 796 (1985), an appeal was taken to our Supreme Court from the Commonwealth Court. The case concerned the statutory construction and the interpretation of the insurance statute, 40 P.S. § 1008.6(2). Although the case is not controlling, we find it instructive as to the question of what constitutes an effective cancellation under Pennsylvania law. An insurer is required to show the insured has knowledge that a premium was due but still refuses to pay it. We find, after a studied review of the record, that the Blasys’ actions, as well as inaction, as a matter of law, manifested a clear and precise intent to cancel their policy of insurance with Chester Mutual on August 1, 1987.

Appellants failed to pay the Chester Mutual insurance premium. Yet this is not a case of an insured’s mere non-payment of his premium. Mr. Blasy testified as to his intent not to renew coverage with Chester Mutual but, rather, to replace his Chester Mutual homeowners coverage with Fireman’s Fund coverage. The Blasys’ inaction in nonrenewal of the Chester Mutual policy combined with the purchase of the Fireman’s Fund policy, as well as the testimony evidencing the deliberate intention to obtain new coverage to supplant the old, are overt acts demonstrating the Blasys’ clear intent not to renew their Chester Mutual policy. Thus no material issue of fact is raised and the Blasys’ cause of action fails as a matter of law.

Additionally, we find the Blasys’ reliance on Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753 (1963), misplaced. The Paul decision does not concern, as here, a deliberate cancellation of a policy by an insured. 40 P.S. § 1171.5(a)(9) Unfair methods of competition or deceptive acts or practices defined, requires that insurers notify an insured prior to termination for non-payment. The purpose behind this legislation is to essentially protect an innocent insured who forgets to pay his premium by continuing the protection of coverage and allowing the insured to pay. The statute does not, however, force an insurer to extend coverage past the policy period to those who knowingly and intentionally choose not to pay their premiums.

Therefore, we reject appellants’ contention they were covered under the renewal policy during the period of August 1 through October 6, 1987. As we have thoroughly discussed in the preceding analysis, the Blasys demonstrated by their overt acts their clear intent to cancel the Chester insurance as of August 1, 1987 and replace their homeowners coverage with Fireman’s Fund upon expiration.

As the trial court has so succinctly stated:

What the plaintiffs fail to acknowledge is that the purpose of the notice requirement on the insurance policy, and the purpose of Act 40 P.S. 1171.5, is to insure that policy owners do not unknowingly find themselves without coverage.
The public policy concern is the reason that insurance companys [sic] must follow so many procedures before cancelling an insured’s coverage and the reason that the
insured must make a clear, unequivocal overt act before the revocation becomes effective. The important consideration in this scenario is that the insured was aware of the fact that he no longer had coverage. If such an awareness exists, then there is no need for the insurance company to confirm the insured’s knowledge.
That the plaintiffs were aware that their policy was no longer in effect was evidenced by the fact that they did not pay their premium on time; have not payed [sic] their premium to this date; and in fact purchased insurance from another company. Such a deliberate refusal to pay a renewal premium can constitute an overt act sufficient to cancel an insurance policy.
$ jjc * * sjc #
The purpose behind 49 P.S. 1171.5 for homeowners insurance, and 40 P.S. 1008.6 for automobile insurance, is that the insured be informed when his policy is no longer viable. Since it is the insured’s knowledge and not the insurer’s notification that we are concerned with, the overt act requirement should be interpreted to mean an action in which the insured makes a conscious decision to discontinue his or her insurance coverage.
The Blasys’ decsion [sic] not to pay the premium was a conscious and calculated move on their part. They should not now be heard to contend that the insurance company’s denial of coverage came as a shock to them____ By purchasing another policy from a different company, and refusing to pay the renewal premium on the old policy, the Blasys evinced an unequivocal intent to cancel.

(Slip Op., Lowe, J., 6/27/90, pp. 3-5.) We find the Coppola, supra, decision controlling, and the rationale advanced by the trial court dispositive.

Order affirmed.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    585 A.2d 496
    Joseph A. BUSHLESS and Ruth Anne Bushless, his wife, Appellants, v. GAF CORPORATION, in its own Right and as Successor-in-interest to the Ruberoid Company, et al. v. HEDMAN MINES, LIMITED McClain Firebrick Company. Ralph BARBER, an Individual, Appellant, v. GAF CORPORATION, in its own Right and as Successor-in-interest to the Ruberoid Company, et al. Lloyd E. KELLY and Judith L. Kelly, his wife, v. GAF CORPORATION, in its own Right and as Successor-in-interest to the Ruberoid Company, et al. v. HEDMAN MINES, LIMITED McClain Firebrick Company. Robert R. EDMOND, an Individual, Appellant, v. GAF CORPORATION, in its own Right and as Successor-in-interest to the Ruberoid Company, et al. v. HEDMAN MINES, LIMITED McClain Firebrick Company.
    Superior Court of Pennsylvania.
    Argued June 21, 1990.
    Filed Aug. 14, 1990.

      Theodore Goldberg, Pittsburgh, for appellants (at 1425, 1426, 1427 and 1428).

      James S. Ehrman, Pittsburgh, for John Crane-Houdaille, appellee (at 1425, 1426, 1427 and 1428).
    Thomas R. Wright, Pittsburgh, for GAF Corp., appellee (at 1425, 1426, 1427 and 1428).
    Fredric E. Orlansky, Pittsburgh, for Owens-Corning, appellee (at 1426 and 1428).
    Before CIRILLO, President Judge, and OLSZEWSKI and TAMILIA, JJ.
   CIRILLO, President Judge:

These appeals are from four orders of the Court of Common Pleas of Beaver County. The orders, dated May 10,1989, granted summary judgment in favor of defendants GAF Corporation, et al. (“Defendants”), and against plaintiffs Joseph A. Bushless, and his wife, Ruth Anne Bushless; Ralph S. Barber; Lloyd E. Kelly and his wife, Judith L. Kelly; and Robert Edmond (“Plaintiffs”). Pursuant to Pennsylvania Rule of Appellate Procedure 513, we have consolidated these cases on appeal. We affirm.

Plaintiffs, between the years 1956 and 1987, were employed in varying capacities by Babcock & Wilcox (“B & W”). Plaintiffs alleged in their complaints that while employed by B & W, they used, and worked in proximity to, various asbestos-containing products. In 1987, Plaintiffs were diagnosed as suffering from asbestosis as a result of inhaling asbestos dust and fibers from these products.

Plaintiffs instituted asbestos products liability suits against several defendants, including manufacturers, distributors, and miners of asbestos and asbestos-containing products. During discovery, questions were posed to the Plaintiffs concerning their personal knowledge of the asbestos-containing products to which they were exposed. Plaintiffs indicated, in deposition testimony and answers to interrogatories, that they could not personally remember the names of the manufacturers or suppliers. Thereafter, several Defendants filed motions for summary judgment. In support of their motions for summary judgment, Defendants relied primarily upon Plaintiffs’ inability to identify the manufacturers or suppliers of the asbestos-containing products to which they were exposed.

Plaintiffs responded to the motions for summary judgment, and included the following attachments in their responses: (1) Plaintiffs’ own affidavits indicating the years employed by B & W and the departments in which they worked, and the affidavits of co-workers; (2) Plaintiffs’ answers to standard short-set interrogatories, which provided a list of co-workers who could allegedly identify asbestos-containing products; and (3) Defendants’ answers to interrogatories, which contained the names of their asbestos-containing products. At this point, the procedural history in each case differs slightly. With respect to plaintiff Barber’s case, all Defendants, except Owens-Corning Fiberglas Corporation (“OCF”) and John Crane, Inc. (“Crane”), filed a reply to Barber’s response. Attached to the reply was selected deposition testimony which Defendants claimed proved that the co-worker affidavit provided by Barber was a “sham.” With respect to plaintiff Kelly’s case, all Defendants except Crane filed a reply to Kelly’s response. Attached to each reply was selected deposition testimony which Defendants claimed proved that one coworker’s affidavit provided by Kelly was a “sham.” In plaintiff Bushless’ case and plaintiff Edmond’s case, no replies to the responses were filed.

On May 10, 1989, the Honorable Thomas C. Mannix issued four orders. With respect to plaintiff Barber and plaintiff Edmond, summary judgment was granted in favor of the following defendants: GAF; Armstrong World Industries, Inc., (“Armstrong”); Keene Corporation (“Keene”); Pittsburgh Corning Corporation (“Pittsburgh Corning”); H.K. Porter, Inc. (“Porter”); The Gage Company (“Gage”); Owens-Corning Fiberglas Corporation (“OCF”); Crane; Owens-Illinois, Inc. (“Owens-Illinois”); A.P. Green Refractories Company (“Green”); and Quigley Company, Inc. (“Quigley”). With respect to plaintiff Bush-less, summary judgment was entered in favor of defendants Keene, Armstrong, Pittsburgh Corning, Crane, Porter, Green, Quigley and Gage. In plaintiff Kelly’s case, summary judgment was granted in favor of defendants Keene, Armstrong, Pittsburgh Corning, Crane, Porter, Green, Quigley, Owens-Illinois, and Gage. These appeals followed. The following issues are presented for our review:

1. Did the trial court err in granting appellees’ motions for summary judgment, when appellees supported their motions solely with the failure by appellant to identify appellees’ products in his deposition, and therefore, as a matter of law, failed to properly support their motions in accordance with Pa.R.C.P. 1035?
2. Did the trial court err in granting appellees’ motion for summary judgment, when the affidavits of appellant and his co-worker, appellant’s answers to interrogatories, and appellees’ answers to interrogatories, established on their face that a genuine issue of material fact exists as to whether appellant was exposed to appellees’ products?
3. Did the trial court err in failing to vacate the prior entry of summary judgment in appellees’ favor, when the affidavits of appellant and his co-worker, appellant’s answers to interrogatories, and appellees’ answers to interrogatories, read in the context of the scientific and medical evidence submitted by appellant upon requesting reconsideration, established that a genuine issue of material fact exists as to whether appellant was exposed to appellees’ products?

When reviewing an order granting summary judgment, our function is to determine whether triable issues of fact exist. Bobb v. Kraybill, 354 Pa.Super. 361, 511 A.2d 1379 (1986). 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 judgment as a matter of law.

Pa.R.C.P. 1035(b). This court has stated that

[a] motion for summary judgment should only be entered in cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). The court must accept as true all well pleaded facts in the plaintiff’s pleadings, and give the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Just v. Sons of Italy Hall, 240 Pa.Super. 416, 368 A.2d 308 (1976).

Roland v. Kravco, Inc., 355 Pa.Super. 493, 499, 513 A.2d 1029, 1033 (1986); see also Pa.R.C.P. 1035; Lucera v. Johns-Manville Corp., 354 Pa.Super. 520, 512 A.2d 661 (1986). A trial court’s grant of a motion for summary judgment will be overturned only if there has been a clear abuse of discretion or an error of law. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988).

Once a motion for summary judgment is made and supported, see Pa.R.C.P. 1035(a), the non-moving party may not rest upon mere allegations or denials in his or her pleadings. Pa.R.C.P. 1035(d). Rule 1035(d) requires that “by affidavits or as otherwise provided in this rule, [the non-moving party] must set forth specific facts showing that there is a genuine issue for trial.’’ Pa.R.C.P. 1035(d). Thus, once the summary judgment motion is supported, “the burden is upon the non-movant to disclose evidence that is the basis for his or her argument resisting summary judgment.” Samarin v. GAF Corporation, 391 Pa.Super. 340, 347, 571 A.2d 398, 402 (1989), citing Roland, 355 Pa.Super. at 501, 513 A.2d at 1034. In order to uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law. Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983).

In order for liability to attach in a products liability suit, a plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). In an asbestos-related products liability suit, the plaintiff must show more than the mere presence of asbestos-containing products in his workplace. Eckenrod v. GAF Corporation, 375 Pa.Super. 187, 192, 544 A.2d 50, 52 (1988). Additionally, in order to defeat a motion for summary judgment a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product. Id.; Samarin, supra; see also Annotation, Products Liability: Necessity and Sufficiency of Identification of Defendant as Manufacturer or Seller of Product Alleged to Have Caused Injury, 51 A.L.R.3d 1344 (1973). Two recent decisions of this court have established that generalized product identification is insufficient to withstand summary judgment: Eckenrod, supra, and Samarin, supra.

In Eckenrod, plaintiff filed suit against various defendant manufacturers, alleging that her husband’s death was caused by exposure, during his employment with Babcock & Wilcox (“B & W”), to various asbestos products manufactured by the defendants. Defendants filed motions for summary judgment based on plaintiff’s lack of product identification. The trial court granted defendants’ motions, and plaintiff appealed. This court affirmed. Judge Olszewski, writing for the majority, reviewed the evidence presented by plaintiff in her response to defendants’ motions for summary judgment:

Eckenrod contends that her decedent used asbestos gloves supplied by A-Best for twenty years, asbestos cloth supplied by A-Best for fifteen years, and asbestos cloth supplied by Porter for eight years while employed by B & W in the furnace area of the Wallace Run Facility. In support of her assertion, [Eckenrod] claims that traveling requisition forms place both companies as a supplier of the products to B & W. In order to place her husband in the vicinity of the asbestos products and to detail his work activities, [Eckenrod] relied on affidavits of three co-workers. The affiants indicated that they had worked with the decedent “upon occasion” at the Wallace Run Facility[.]

375 Pa.Super. at 191, 544 A.2d at 52. This court determined that Eckenrod’s evidence was insufficient to withstand the grant of summary judgment. Despite the affiants’ statements that the decedent was exposed to asbestos, there was no statement that the decedent

worked exclusively or continuously at the Wallace Run furnace during his period of employment. Further, each [affiant] indicated “exposure” to asbestos products but did not elaborate on the nature or length of the exposure or the brand of products available. Additionally, ... none clarified the proximity of the products to the workers or that the [defendants] were the manufacturers/suppliers of the products being used. In fact, the only testimony as to the identification of any of the products came from the depositions of distributors of the asbestos products and one main plant storeroom employee at B & W. Each of these depositions indicates that various [defendants] sold asbestos products to B & W, but do not establish where the specific product was used or that Mr. Eckenrod came into contact with an identifiable product.

375 Pa.Super. at 191-92, 544 A.2d at 52-53. See Berkebile, supra. The court, acknowledging that the facts indicated the decedent was exposed to asbestos, concluded that summary judgment was proper where there was no evidence “as to the regularity or nature of decedent’s contact with asbestos.” Eckenrod, 375 Pa.Super. at 192, 544 A.2d at 53. Moreover, “the mere fact that [defendant’s] asbestos products came into the facility does not show that the decedent ever breathed these specific asbestos products or that he worked where these asbestos products were delivered.” Id., citing Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985) and Anastasi v. Pacor, Inc., No. 6251 (C.P. Phila Co., March 8, 1983) aff'd, 349 Pa.Super. 610, 503 A.2d 44 (1985).

Likewise, in Samarin, the defendant manufacturers filed motions for summary judgment, claiming that the plaintiffs could not establish that they or their decedents were exposed to the particular products of the defendants. The plaintiffs’ responses to the summary judgment motions merely listed co-workers’ names and the names of asbestos manufacturers and suppliers that each person could apparently identify as having supplied asbestos-containing products to the workplace. In addition, plaintiffs’ answers to interrogatories listed names of persons who would testify that the plaintiffs or their decedents were exposed to certain asbestos products manufactured by defendants. Defendants' argued in their summary judgment motions that the plaintiffs had failed to establish the necessary connection between their products and any alleged injury. The trial court granted summary judgment in favor of defendants, and plaintiffs appealed. We affirmed. Judge Beck, writing for the majority, stated:

These responses to the interrogatories do not include any information on the relationship of any of the persons listed to appellants or their decedents or the relationship of the listed asbestos containing products to appellants or their decedents. Under Roland v. Kravco, Inc., supra, it is appellants’ burden to be more specific and to reveal the relevant facts that these witnesses would testify to. From these facts, the trier of fact should be able to deduce that the listed person had some knowledge of the appellant’s work-place and some knowledge that appellants were exposed to appellees’ products which contained some asbestos. It is not appellees’ burden to depose each potential witness for the purpose of showing that they are not able to establish a relationship between appellants or their decedents and appellees’ products. Not having established this relationship themselves, appellants leave themselves exposed to summary judgment in favor of appellees.

391 Pa.Super. at 348, 571 A.2d at 403; see also Pa.R.C.P. 1035.

Having reviewed the relevant law, we will apply the principles of Eckenrod and Samarin to each of the four cases on appeal. Because each of the three issues raised by the appellants concerns the propriety of the grant of summary judgment, we will address the claims simultaneously.

As we stated above, in order to defeat a motion for summary judgment, a plaintiff must present evidence to show: (1) that the plaintiff was at a particular job site; (2) that the plaintiff was exposed to asbestos-containing products at that site; and (3) that a defendant’s asbestos-containing product was at that particular job site at or about the same time as the plaintiff. Eckenrod, 375 Pa.Super. at 191, 544 A.2d at 52. “Summary judgment is proper when the plaintiff has failed to establish that the defendants’ products were the cause of plaintiff’s injury.” Id.

Kelly

In response to the motions for summary judgment filed by Defendants, Kelly provided a list of co-workers who could allegedly identify asbestos-containing products in the vicinity where he worked; this list had been attached to Kelly’s answers to Defendants’ interrogatories. Kelly also offered his own affidavit, as well as the affidavit of alleged co-worker Krukenberg.

In his affidavit, Kelly stated that he worked in the Hot Finish Department of the Main Tube Plant at B & W from 1959 to 1964. He also stated that he worked ten to twenty feet below pipefitters approximately twice a month, and that these pipefitters would use asbestos-containing material in the process of making repairs. Kelly stated that he knew the pipe covering contained asbestos based on his “experience as a tradesman for well over twenty years, because that pipecovering could withstand the high temperatures of the steamlines and the waterlines” and because “all tradesmen referred to the pipecovering as asbestos containing pipecovering.” Kelly does not mention Krukenberg in his affidavit. Krukenberg, in his affidavit, stated that he worked in the Hot Finish Department at the Main Tube Plant from 1959 until 1964, and that he “installed and removed asbestos containing pipecovering from the steam-lines and waterlines.” Krukenberg does not mention that he knew Kelly or worked near Kelly. In response to the motion for summary judgment filed by defendant Crane, Kelly provided a list of co-workers who worked with him and who could allegedly identify asbestos-containing products. He also provided the affidavit of co-worker Fred Funkhouser. Funkhouser stated that he worked in the Wallace Run Plant and knew Kelly. He stated that he worked as a pipefitter from 1962 to 1986, and that from 1967 to 1982 he installed and removed asbestos packing at a distance of five to ten feet from Kelly. He stated that the packing was manufactured by Crane, and that he knew the packing contained asbestos because of his “twenty-four years experience as a pipefitter and the ability of the ... Crane packing to withstand the extremely high temperatures of the pumps and valves.

Barber

In response to Defendants’ motions for summary judgment, Barber also referred to the list of names which he had included in his answers to interrogatories. The list included the names of eighty-nine individuals who purportedly had information concerning asbestos-containing products at B & W. Barber also included in his response his own affidavit, as well as that of Krukenberg. In his affidavit, Barber stated that he worked as a millwright/welder in the Cold Draw Department at the Main Plant of B & W from 1964 to 1980, and that he worked near Krukenberg on occasion. Barber stated that Krukenberg, a pipefitter, installed and removed asbestos-containing pipe-covering from steamlines and waterlines. He stated that this process created dust which he was forced to inhale at a distance of ten to twenty feet. Barber further stated that he was exposed to asbestos as a result of other work performed by Krukenberg and other pipefitters, including cloth cutting and applying packing material to pumps and valves. Barber stated that he knew the material used by the pipefitters contained asbestos due to his “experience as a tradesman for over 16 years and because the job applications called for asbestos pipecovering,” and because of the ability of the material to withstand heat.

Krukenberg, in his affidavit, stated that he worked with Barber from 1964 until 1980, often in the same immediate area, or side by side, for approximately six to eight weeks each year. He also stated that Barber was exposed to asbestos-containing pipecovering manufactured by several Defendants, including Owens-Corning, Pittsburgh Corning, GAF, and Armstrong. Krukenberg based his knowledge that the pipecovering contained asbestos on his “experience as a tradesman for 23 years and because the job applications called for asbestos pipecovering.”

Edmond

In his response to Defendants’ motions for summary judgment, Edmond included a list of co-workers who could allegedly identify asbestos-containing products manufactured by certain Defendants. Edmond also included his own affidavit as well as that of Krukenberg. Edmond stated in his affidavit that he worked at the South Mill in the Main Plant of B & W from 1963 to 1982, that he worked with Krukenberg on a daily basis for a three week period, approximately four times each year, and that Krukenberg installed and removed pipecovering which contained asbestos. Edmond stated that he knew the pipecovering contained asbestos “because of his experience as a tradesman for over 25 years and because the packing and gasket materials could withstand high temperatures.”

Krukenberg, in his affidavit, stated that from 1963 until 1982 he worked approximately fifteen to thirty feet from Edmond for three week periods approximately three to four times each year. Krukenberg stated that he installed and removed pipecovering, that he cut and installed asbestos packing material and gaskets, that the pipecovering and packing material contained asbestos, and that as a result Edmond was exposed to asbestos. He based his knowledge that the pipecovering contained asbestos on “his experience as a tradesman for over 23 years and because it said “asbestos rope packing” and/or “asbestos pump packing” directly on the boxes of packing.” Krukenberg identified specific manufacturers, including OCF, Pittsburgh Corning, GAF, Armstrong, Crane, Gage, and Porter.

Bushless

In his response to the summary judgment motions filed by Defendants, Bushless included a list of co-workers who could allegedly identify asbestos-containing products, his own affidavit, and the affidavit of Krukenberg and Funkhouser. In his affidavit, Bushless stated that he was employed at B & W in the Choppily Plant from 1965 until 1968, and in the Wallace Run Plant (Bar Mill Department, Bar Conditioning Department, and Bloom Conditioning Department) from 1968 to 1975 or 1976. He stated that while at the Wallace Run Plant he worked ten to twenty feet from pipefitters who used asbestos-containing pipecovering, gaskets, packing and cloth. He identified GAF as the manufacturer of the asbestos-containing pipecovering.

Funkhouser stated in his affidavit that he installed and removed asbestos gaskets while maintaining various pumps and valves in the Wallace Run Plant, and that he worked approximately five to twenty feet from Bushless from 1970 to 1975. Funkhouser identified Crane as the manufacturer of asbestos packing, and stated that he knew the packing contained asbestos “because of his twenty-four years experience as a pipefitter and the ability of the John Crane packing to withstand the extremely high temperatures of the pumps and valves.”

Krukenberg stated in his affidavit that he worked in the Wallace Run Plant (Bar Mill Department and Bloom Conditioning Department) every two weeks for a period of one day to two weeks, and that while there he installed and removed asbestos-containing pipecovering. He identified Defendants Armstrong and Pittsburgh Corning as manufacturers of the asbestos-containing pipecovering, citing his experience as a tradesman for over twenty years as the source of his knowledge that the pipecovering contained asbestos, and his statement that the job application called for asbestos pipecovering. Krukenberg did not state that he knew Bushless, nor did he indicate that he worked near him.

In these cases, as in all asbestos cases, the burden of proof is on the non-moving party to establish that the plaintiff was exposed to the asbestos-containing product of a particular manufacturer. Paparelli v. GAF Corp., 379 Pa.Super. 62, 549 A.2d 597 (1988). It is the duty of the non-moving party to establish those facts on the record which would show that there exists a genuine issue of material fact. Roland v. Kravco, Inc., 355 Pa.Super. at 501, 513 A.2d at 1034.

We note initially that Plaintiffs’ statements and the statements of Krukenberg and Funkhouser pertaining to their knowledge that the pipecovering contained asbestos, are insufficient to show that there exists a genuine issue of fact. See Samarin, 391 Pa.Super. at 361, 571 A.2d at 409 (summary judgment in favor of manufacturers was proper where the “only evidence offered ... to establish that the products at issue contained asbestos [were] affidavits stating that the products were resistant to high temperatures and/or other tradesmen stated they were asbestos ... ”). In addition, merely listing the names of various co-workers who could allegedly identify the asbestos-containing products in his workplace is insufficient to establish the existence of a genuine issue of fact. Id. After a careful review of the record, we are unable to find that the trial court committed a clear abuse of discretion or an error of law in its conclusion that no genuine issue of fact existed. Although the evidence indicates that Plaintiffs may have had some exposure to asbestos, the pleadings, depositions, interrogatories and affidavits of record do not provide a sufficient nexus to link any particular Defendant’s product to the Plaintiffs’work vicinity. Eckenrod, supra; Samarin, supra.

The mere fact that [defendants’] asbestos products came into the facility does not show that the [plaintiff] ever breathed these specific products or that he worked where these asbestos products were delivered____ Absent testimony of record that identifies [defendants’] products as being present in the [vicinity in which plaintiff worked], there is not even a reasonable inference that [plaintiff] was exposed to [defendants’] asbestos products.

Eckenrod, 375 Pa.Super. at 192-93, 544 A.2d at 53.

With respect to Krukenberg’s statement in his affidavit that he recalled the name of defendant Porter on the tag of a spool of asbestos cloth, we note that his prior sworn deposition testimony indicates otherwise. In his deposition testimony of May 31, 1988, Krnkenberg was unable to identify any manufacturer or supplier of the cloth. In addition, in his deposition testimony of January 7, 1983, Krukenberg was also unable to identify any manufacturer or supplier of the cloth, and specifically stated that he did not see any tags on the rolls of asbestos cloth. Moreover, there is no evidence indicating that Barber or Edmond ever worked in the vicinity of the asbestos cloth. Eckenrod, supra.

In response to Defendants’ interrogatory # 22, which requested information obtained from others about Plaintiffs’ exposure to asbestos dust and asbestos product, Plaintiffs provided a list of co-workers who could allegedly identify particular products and manufacturers, with a statement that “Plaintiff placed a check by the names of co-workers he recalls working with or around during his career at Babock & Wilcox.” As was the case in Samarin,

[t]he lists were structured to provide a person’s name, address, the years worked at B & W, in some cases the jobs performed for B & W, and a list of names of asbestos manufacturers and suppliers that each person could apparently identify as having supplied asbestos containing products to B & W. These responses to the interrogatories do not include any information on the relationship of any of the persons listed to [plaintiffs] ... or the relationship of the listed asbestos containing products to [plaintiffs].

Samarin, 391 Pa.Super. at 348, 571 A.2d at 403. This response was rejected in Samarin, and thus must be rejected here. Having failed to establish “the relationship between [plaintiff] and [defendants’] products, ... [plaintiffs have left] themselves exposed to summary judgment in favor of [defendants].” Samarin, 391 Pa.Super. at 348, 571 A.2d at 403.

Orders affirmed.

      . Pennsylvania Rule of Appellate Procedure 513 provides in part: Where there is more than one appeal from the same order, or where the same question is involved in two or more appeals in different cases, the appellate court may, in its discretion, order them to be argued together in all particulars as if but a single appeal.
      Pa.R.A.P. 513.

      . Asbestosis, the earliest known and most common asbestos-related disease, is a latent disease that manifests itself 10 to 40 years after exposure to significant quantities of asbestos. Inhalation of asbestos fibers initiates a scarring process that destroys air sacs in healthy lung tissue. The result is a decrease in pulmonary function and lung volume. Other diseases associated with the inhalation of asbestos fibers are mesothelioma and lung cancer. L. Selikoff & D. Lee,
        Asbestos and Disease 143-56, 241-44, 262-66, 307-21 (1978); see also Note, Asbestos Litigation, 36 Vand.L.Rev. 573, 579 (1983).

      . Recently, in Taylor v. The Celotex Corporation, 393 Pa.Super. 566, 574 A.2d 1084 (1990), this court was presented with an appeal from an order denying defendants’ motion for judgment n.o.v. on the ground that plaintiff failed to prove that his injuries had been specifically caused by products manufactured by the defendants. In order to establish his exposure to asbestos products manufactured by the defendants, Taylor relied on the testimony of three of his co-workers. The trial court stated:
      [T]hrough the various [co-worker] witnesses, the evidence presented shows that the various defendant companies’ products were on the several ships that the plaintiff worked on. [sic]. We note that the various witnesses, one or the other, not only placed the material outside or off the ship but on the ship. This testimony related to all five defendants. Accordingly, a sufficient nexus between William Taylor’s exposure to asbestos, and the products of the five remaining defendants!,] Eagle-Picher, Keene, Celotex, Owens-Illinois and Pittsburgh Corning Corporation!,] has been established.
      393 Pa.Super. at 580, 574 A.2d at 1091. On appeal, this court agreed that under New Jersey law the testimony of Taylor’s co-workers established that Taylor had been on specific ships and submarines at times when the defendants’ products were present and that Taylor had worked in close proximity to such products. Id., 393 Pa.Superior Ct. at 580-81, 574 A.2d at 1092. The Taylor court held that "plaintiff established a sufficient use of [defendants’] products to enable a jury to find that he had been exposed to asbestos products which had been manufactured by [defendants,]” and concluded that the evidence "was sufficient to meet plaintiffs burden of causation.” Id., 393 Pa.Superior Ct. at 580-81, 574 A.2d at 1091-92.

      . Because Plaintiffs have failed to establish that they were exposed to asbestos-containing products manufactured by Defendants, we do not reach the issue of whether Plaintiffs’ scientific and medical evidence submitted in their motions for reconsideration satisfied the proximity requirement enunciated in Eckenrod.


author: HOFFMAN, Judge:

text:
    585 A.2d 504
    Walter and Margaret BANKER, Individually and as Parents and Natural Guardians on Behalf of Sharon Banker, a Minor, Appellants, v. VALLEY FORGE INSURANCE COMPANY, Wagner Agency, Inc. and Bernard Rafferty.
    Superior Court of Pennsylvania.
    Argued Jan. 17, 1990.
    Filed Jan. 22, 1991.

      Richard C. Angino, Harrisburg, for appellants.
    Karen S. Cooney, Harrisburg, for Bernard Rafferty, appellee.
    Before ROWLEY, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the order below granting motions for summary judgment filed by appellees Bernard Rafferty and the Wagner Agency, Inc. Appellants Walter and Margaret Banker contend that the trial court erred in concluding that their cause of action was barred by this Court’s prior decision in Banker v. Valley Forge Ins. Co., 363 Pa.Super. 456, 526 A.2d 434 (1987), alloc. denied 518 Pa. 623, 541 A.2d 1135 (1988) (hereinafter Banker I). For the reasons set forth below, we agree and, accordingly, we reverse the order below and remand for proceedings consistent with this Opinion.

The facts giving rise to the litigation below were summarized in Banker I, as follows:

In January, 1981, Valley Forge Insurance Company (Valley Forge) renewed an automobile insurance policy which had been issued to Walter Banker in accordance with Pennsylvania’s No-fault Motor Vehicle Insurance Act. In September, 1981, Banker’s wife, Margaret Banker, contacted Bernard Rafferty, an agent employed by the Wagner Agency, Inc., and asked if it were true that the premiums of the policy could be reduced by making the family’s private medical insurance the primary source of coverage in the event that a family member were to sustain injuries in an automobile accident. Rafferty responded affirmatively. Therefore, on September 29, 1981, Banker signed an application for an endorsement to his automobile policy which would provide that his personal injury protection was to be excess over any other hospital or medical expense coverage. The endorsement was issued and caused a subsequent reduction in the premiums paid by Banker. The endorsement was made a part of the policy and was listed, in bold-faced lettering, in the Schedule of Endorsements in the policy which the Bankers received from Valley Forge.
On February 23, 1983, Sharon Banker, the insured’s minor daughter, was rendered a quadriplegic by injuries received in an accident involving a motor vehicle in which she had been riding as a passenger. The Bankers incurred substantial medical expenses and gave notice to Rafferty and the Wagner Agency, which in turn, notified Valley Forge. Because of the excess coverage endorsement, however, the Bankers were instructed to submit their medical bills to their private health care insurer and were told that Valley Forge would pay only those bills for which the primary health care carrier denied coverage.
The Bankers commenced an action against Valley Forge and also against Rafferty and the Wagner Agency in which they sought to invalidate the excess insurance endorsement and compel payment of the medical bills incurred on behalf of their daughter. They alleged in an amended complaint that Valley Forge had failed to inform them that except for the endorsement they could have recovered from both insurers or retained the private health insurance maximum benefits for non-accident related bills. Valley Forge filed preliminary objections in the nature of a demurrer to the complaint. It argued that the endorsement which the insured had requested more than two years before the accident was clear and unambiguous and that under the circumstances it had no duty to offer an explanation of the endorsement to its insured. The trial court agreed and sustained the preliminary objections.

363 Pa.Super. at 458-60, 526 A.2d at 435 (footnotes omitted). In its order dismissing Valley Forge, the trial court also dismissed present appellees Rafferty and the Wagner Agency, even though they had filed neither answers to the complaint nor preliminary objections.

On appeal, the Banker I Court affirmed the dismissal with respect to Valley Forge, holding that the decision was controlled by the contract principles outlined in Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983). Specifically, the panel reasoned that:

where, as here, the policy provision is clear and unambiguous, neither the insurer nor its agents have a duty to explain all of the hypothetical consequences which may result from an excess coverage endorsement which the insured has specifically requested. The trial court correctly held that the amended complaint failed to state a cause of action against Valley Forge.

363 Pa.Super. at 464, 526 A.2d at 438. The panel remanded the case with respect to appellees Rafferty and the Wagner Agency, however, because the question of the sufficiency of the complaint as to them was not before the trial court. The panel was careful to emphasize that the decision regarding Valley Forge in no way affected the Bankers’ separate cause of action against Rafferty and the Wagner Agency:

The trial court also dismissed appellants’ amended complaint against the insurance brokers who had obtained for appellants the policy of insurance and the excess insurance endorsement thereto. This was error. Rafferty and the Wagner Agency, although having been served with the amended complaint, did not file preliminary objections thereto or answer the complaint on the merits. They requested and received an extension of time within which to file a pleading, but they had not filed the same when Valley Forge’s preliminary objections were decided. With respect to Rafferty and the Wagner Agency, therefore, there was nothing before the trial court which required decision. For the court to dismiss the complaint against them sua sponte was improper. It may be, of course, that appellants will ultimately be unable to plead or prove a legally cognizable cause of action against the brokers, but that is a matter separate from the cause of action alleged against Valley Forge and must await further proceedings.

Id., 363 Pa.Superior Ct. at 465, 526 A.2d at 438 (emphasis supplied).

On remand, Rafferty and the Wagner Agency filed answers to the amended complaint. Thereafter, on April 11, 1988, depositions were taken of Margaret Banker, Walter Banker, and Bernard Rafferty, and those depositions were filed with the trial court. Both Rafferty and the Wagner Agency then filed motions for summary judgment, and the Bankers filed responses thereto. On June 26, 1989, the court below filed a Memorandum Order granting the motions for summary judgment, and this timely appeal followed.

Our standard of review of the granting of a motion for summary judgment is well-settled:

A motion for summary judgment may properly be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Hedlund Mfg. Co. v. Weiser, 517 Pa. 522, 539 A.2d 357 (1988); see also Gabovitz v. State Auto Ins. Ass’n, 362 Pa.Super. 17, 523 A.2d 403 (1987); Pa.R.Civ.P. 1035(b). Summary judgment may be entered only in cases that are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983). Additionally, the record must be examined in the light most favorable to the non-moving party, accepting as true all well-pleaded facts in its pleadings and giving that party the benefit of all reasonable inferences drawn therefrom. Hower v. Whitmak Assoc., 371 Pa.Super. 443, 445, 538 A.2d 524, 525 (1988); Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987). Moreover in summary judgment proceedings, the court’s function is not to determine the facts, but only to determine if a material issue of fact exists. French v. United Parcel Service, 377 Pa.Super. 366, 372, 547 A.2d 411, 414 (1988). Thus an order granting a motion for summary judgment will not be reversed unless the court below has committed an error of law or clearly abused its discretion. Ackler v. Raymark Indus. Inc., 380 Pa.Super. 183, 185, 551 A.2d 291, 292 (1988); Jones v. Keystone Ins. Co., 364 Pa.Super. 318, 321, 528 A.2d 177, 179 (1987); Miller v. Federal Kemper Ins. Co., 352 Pa.Super. 581, 585-86, 508 A.2d 1222, 1225 (1987).

Kaller’s Inc. v. Spencer Roofing, 388 Pa.Super. 361, 364, 565 A.2d 794, 795-96 (1989).

The court below was of the opinion that disposition of the motions for summary judgment was controlled by Banker I. The court held that, “the claims against all defendants are really indivisible and as such the duties owed by Agent Rafferty and Agency Wagner Insurance are inseparable from those owed by the insurer Valley Forge Insurance Company.” See Memorandum Order, June 26, 1989, at 1. Although the court did not specify the basis for this conclusion, appellees submit that the court’s reasoning was correct under either the law of the case doctrine or res judicata. We cannot agree.

The “law of the case” doctrine applies,
only if, inter alia, the parties on the two appeals are the same. ‘It is hornbook law that issues decided by an appellate court on a prior appeal between the same parties become the law of the case and will not be reconsidered on a second appeal.’ Commonwealth v. Tick, Inc., 431 Pa. 420, 427, 246 A.2d 424, 427 (1968) (citations omitted) (emphasis supplied). See also Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 394, 100 A.2d 595, 598 (1953) (‘[t]he doctrine of “the law of the case” is that, when an appellate court has considered and decided a question submitted to it upon appeal, it will not, upon a subsequent appeal on another phase of the same case, reverse its previous ruling even though convinced that it was erroneous____’) (citation omitted) (emphasis supplied); Daniels v. State Farm Mut. Auto Ins. Co., 305 Pa.Superior Ct. 352, 356, 451 A.2d 684, 686 (1982) (same); Albright v. Wella Corp., 240 Pa.Superior Ct. 563, 567, 359 A.2d 460, 463 (1976) (same). Accord 21 C.J.S. Courts § 195a, at 330 (1940) (‘ “Law of the case” ... means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case____’) (emphasis supplied).

Muhammad v. Strassburger, 374 Pa.Super. 613, 618-19, 543 A.2d 1138, 1140 (1988), alloc. granted 520 Pa. 618, 554 A.2d 510 (1989).

Here, appellees were party defendants in the underlying action in Banker I. However, the appeal in Banker I did not resolve any issue involving Rafferty or the Wagner Agency. As noted above, at the time Valley Forge filed preliminary objections in the trial court, appellees still had not filed answers to the Bankers’ amended complaint. For this reason, Banker I explicitly refused to rule on the sufficiency of the Bankers’ complaint against Rafferty and the Wagner Agency, and remanded the case as to them. Thus, although we rendered a decision on the merits in Banker I, the issue decided was not between the Bankers and present appellees, but between the Bankers and Valley Forge. Because the issue decided in Banker I was not between the same parties who are on this appeal, the law of the case doctrine does not bar appellants’ action against Rafferty and the Wagner Agency.

For res judicata to bar an action, four criteria must be met:

1. identity in the thing sued upon;
2. identity in the cause of action;
3. identity of persons and parties to the action; and
4. identity of the capacity of the parties suing or being sued.

See Gutman v. Giordano, 384 Pa.Super. 78, 80, 557 A.2d 782, 783 (1989) (quoting In re Jones & Laughlin Steel Corp., 328 Pa.Super. 442, 477 A.2d 527 (1984)). Here, as we have noted, the decision in Banker I was between the Bankers and Valley Forge, and did not resolve any dispute between the Bankers and appellees. Thus, there is not an identity in the persons and parties to the action, and, accordingly, res judicata does not bar appellants’ action against Rafferty and the Wagner agency.

We should also note that the collateral estoppel doctrine does not bar the action against Rafferty and the Wagner Agency.

The doctrine of collateral estoppel operates to preclude a question of law or an issue of fact which has once been litigated in a court of competent jurisdiction from being relitigated in a subsequent proceeding. There is no requirement that there be an identity of parties in the two actions in order to invoke the bar. Collateral estoppel may be used as either a sword or a shield by a stranger to the prior action if the party against whom the doctrine is invoked was a party or in privity with a party to the prior action. Collateral estoppel applies if five elements are present: 1) the issue decided in the prior case is identical to the one presented in the later case; 2) there was a final judgment on the merits; 3) the party against whom the plea is asserted was a party or in privity with a party to the prior case; 4) the party against whom the doctrine is asserted or his privy has had a full and fair opportunity to litigate the issue in the prior proceeding; and 5) the determination in the prior case was essential to the judgment therein. Schubach v. Silver, 461 Pa. 366, 377, 336 A.2d 328, 333-34 (1975); Matson v. Housing Authority of Pittsburgh, 326 Pa.Super. 109, 112-13, 473 A.2d 632, 634 (1984); Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 236, 464 A.2d 1313, 1318 (1983); Restatement (Second) of Judgments § 27.

Mellon Bank v. Rafsky, 369 Pa.Super. 585, 592, 535 A.2d 1090, 1093 (1987); see also Phillip v. Clark, 385 Pa.Super. 229, 235, 560 A.2d 777, 780 (1989). Here, there is no question that the latter four elements of the collateral estoppel doctrine are present. After careful review of the record, however, we cannot conclude that the issue presented below was the same issue as that decided in Banker I, and thus the collateral estoppel doctrine does not bar appellants’ action.

In Banker I, appellants’ complaint alleged that even though the excess insurance endorsement that they requested contained clear and unambiguous language, Valley Forge had a duty to explain the collateral consequences of the endorsement to them. The Banker I Court disagreed, noting that “[w]hen the insured requested that an excess coverage endorsement be added to his policy, he neither requested the insurer’s advice on the advisability of the requested change nor indicated that he was unaware of the collateral consequences of the change.” 363 Pa.Super. at 463, 526 A.2d at 437. The Court therefore found that Valley Forge did not have a duty to explain the “hypothetical consequences” of the excess coverage endorsement. See id., 363 Pa.Superior Ct. at 464, 526 A.2d at 438. The decision in Banker I turned upon a straightforward application of the contract principles enunciated in Standard Venetian Blind Co. v. American Empire Insurance Co. to the amended complaint that had been filed. In this regard, the Banker I Court was careful to note that there was no need to allow appellants to amend their complaint, because “[a]ppellants did not disclose to the trial court and have not enlightened us with alternative facts which would support a cause of action against Valley Forge.” 363 Pa.Super. at 465, 526 A.2d at 438.

This case is similar to Banker I in that appellants are seeking to invalidate the same clear and unambiguous excess insurance endorsement. However, unlike Banker I, appellants, on remand, presented deposition testimony that did enlighten the trial court with alternative facts that would support their cause of action against Rafferty and the Wagner Agency. In her deposition, Margaret Banker stated that she had relied on Bernard Rafferty to handle her automobile insurance since the early 1970s. See Deposition of Margaret Banker, April 11, 1988 at 7. She further stated that in the fall of 1981, she contacted Rafferty, who then worked out of the Wagner Agency’s office, to inquire about reducing her automobile insurance premiums. She contacted Rafferty because she had read an article in the paper that led her to believe that an insured who had medical coverage through both an automobile insurance policy and a medical insurance policy could not recover under both policies. See id. at 12-13. She articulated this understanding to Rafferty in a telephone conversation, and stated that she thought it was “silly” to pay for both coverages when she could only collect from one. See id. at 12-13, 19-20, 47-48. She further stated that Rafferty did not correct her misunderstanding of the scope of her coverage, but instead simply sent her the endorsement to sign, which made her no-fault coverage excess to her medical insurance, thereby reducing her premiums. See id. at 20.

Rafferty’s deposition testimony corroborated Mrs. Banker’s description of the phone conversation in certain respects. Rafferty stated that he informed Mrs. Banker that she could reduce her premiums by making her private health care insurance primary and her no-fault insurance excess. See Deposition of Bernard J. Rafferty, April 11, 1988 at 12. However, Rafferty also stated that he specifically informed Mrs. Banker of her ability to “double dip”— i.e., to collect from both her private health care insurance and her no-fault insurance—if she retained her present coverage. See id. This deposition testimony specifically contradicted Mrs. Banker’s deposition, as she had stated that Rafferty never spoke of the ramifications of the insurance change, and never mentioned her ability to “double dip.” See Deposition of Margaret Banker, April 11, 1988 at 48.

Construing this deposition testimony in the light most favorable to the Bankers, as we must, it is clear that Mrs. Banker’s testimony was sufficient to raise a question of material fact concerning whether appellees, her insurance brokers, failed to correct her misinformation about the nature of her coverage, and failed to inform her of the actual consequences of her decision to change her coverage. The allegation that appellees had failed in this regard, in turn, was sufficient to support a cause of action based upon appellees’ breach of a duty of good faith and fair dealing to their insureds, which would include a duty of full and complete disclosure. This duty has long been recognized in this Commonwealth:

We have long recognized that: “the utmost fair dealing should characterize the transactions between an insuranee company and the insured.” Fedas v. Insurance Company of the State of Pennsylvania, 300 Pa. 555, 151 A. 285 (1930)____ The duty of an insurance company to deal with the insured fairly and in good faith includes the duty of full and complete disclosure as to all of the benefits and every coverage that is provided by the applicable policy or policies ... This is especially true where the insurer undertakes to advise and counsel the insured in the insured’s claims for benefits.

Dercoli v. Pennsylvania Nat’l Mut. Ins. Co., 520 Pa. 471, 477, 554 A.2d 906, 909 (1989).

As we have noted above, summary judgment may be entered only in cases that are clear and free from doubt. See Kaller’s Inc. v. Spencer Roofing, supra. In this case, unlike Banker I, appellants are not simply alleging that appellees should have explained the “hypothetical consequences” of the change in their coverage. Instead, Mrs. Banker’s deposition indicates that she specifically conveyed to Rafferty her mistaken understanding of the effect of the change, and he made no effort to correct that misinformation. In light of this testimony, it cannot be said, as in Banker I, that appellants failed to indicate that they were “unaware of the collateral consequences of the change.” Thus, the record herein clearly is sufficient to support an action based upon a breach of the duty of good faith and fair dealing. Because this issue was not litigated in Banker I, appellants are not collaterally estopped from presenting this claim below. Moreover, because a review of the depositions indicate that there is a disputed fact concerning whether appellees breached this duty, the case may proceed to trial.

We should note that we recognize that the Bankers did not seek to amend their complaint to conform more specifically to the evidence contained in the depositions. The fact that the complaint is not as precise as it could be does not affect our disposition. Rule 1033 of the Pennsylvania Rules of Civil Procedure contains specific authorization for an amendment to conform a pleading to the evidence. See also Rivera v. Philadelphia Theological Seminary, 326 Pa.Super. 509, 526, 474 A.2d 605, 614 (1984), aff'd as modified 510 Pa. 1, 507 A.2d 1 (1986). Moreover, as we noted in Rivera, these amendments must be liberally allowed:

Although such an amendment requires leave of court, it is now well settled that the right to amend must be liberally granted at any stage of the proceedings unless there is resulting prejudice to an adverse party. Connor v. Allegheny General Hospital, 501 Pa. 306, 311, 461 A.2d 600, 602 (1983); Schaffer v. Larzelere, 410 Pa. 402, 406-07, 189 A.2d 267, 270 (1963).... Thus, it has been held that general averments in the pleadings can be amended to make them specific in order to prevent a case from turning on purely technical objections. Keller v. R.C. Keller Motor Co., 386 Pa. 56, 124 A.2d 105 (1956).

326 Pa.Super. at 527, 474 A.2d at 614 (citations omitted). Indeed, the Banker I panel recognized this rule:

If it is evident that a pleading can be cured by amendment, a court may not enter a final judgment, but must give the pleader an opportunity to file an amended complaint. Stevens v. Doylestown Building & Loan Assoc., 321 Pa. 173, 183 A. 922 (1936). This is a positive duty of the court and not a matter of discretion. Framlau Corp. v. Delaware County, 223 Pa.Super. 272, 299 A.2d 335 (1972).

363 Pa.Super. at 465, 526 A.2d at 438 (quoting Mace v. Senior Adult Activities Center, 282 Pa.Super. 566, 569, 423 A.2d 390, 391 (1980)). Accordingly, on remand, the trial court should allow appellants to amend the complaint to conform more specifically to the evidence adduced, and the case may proceed to trial.

For the foregoing reasons, we reverse the order below granting summary judgment, and remand the case for trial. Jurisdiction is relinquished.

ROWLEY, J., concurs in the result.

      . Neither appellee has argued that collateral estoppel bars the action below. However, because it is settled that this court is free to affirm a correct decision of the trial court on any ground, see Penn Piping Inc. v. Insurance Co. of N. Am., 382 Pa.Super. 19, 554 A.2d 925 (1989), alloc. granted 523 Pa. 632, 564 A.2d 1261 (1989), and because the court below did not articulate the theory upon which it based its conclusion that the action was barred, a discussion of collateral estoppel is appropriate.

      . Justice Larsen’s lead opinion in Dercoli was joined only by Justice Stout. Justice Papadakos filed a separate concurring opinion, which was joined by Justice McDermott, in which he stated that he “generally agreed with the reasoning set forth in the majority opinion.” See 520 Pa. at 481, 554 A.2d at 911 (Papadakos, J., concurring). Chief Justice Nix noted his dissent, and Justice Flaherty, joined by Justice Zappala, filed a dissenting opinion.

      . For example, although the complaint alleges that appellees breached a “confidential fiduciary relationship”, it does not specifically allege a breach of a duty of good faith and fair dealing. Similarly, although the complaint details at some length Rafferty’s failure to explain the alternative forms of coverage and the effect of the change in coverage, it does not aver that Margaret Banker expressed her misunderstanding of the effect of the change to Rafferty.


author: JOHNSON, Judge.

text:
    585 A.2d 511
    John C. YOUNGMAN, Jr., Appellant, v. CNA INSURANCE COMPANY, American Casualty Company of Reading, Pennsylvania.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1990.
    Filed Jan. 22, 1991.
    Petition for Allowance of Appeal Denied June 24, 1991.

      John C. Youngman, Jr., Williamsport, pro se.
    Walter A. Tilley, III, York, for appellees.
    Before CIRILLO, President Judge, and JOHNSON and BROSKY, JJ.
   JOHNSON, Judge.

John C. Youngman appeals from an Order of the Court of Common Pleas which denies his Motion for Partial Summary Judgment and grants CNA Insurance Company’s and American Casualty Company of Reading, Pennsylvania’s (collectively hereinafter referred to as “Insurers”) Motion for Judgment on the Pleadings. We are asked to examine the duty of an insurer to defend an appeal brought by a member of a school board, insured in his official capacity, from a judgment rendered against the school board collectively. As we determine that no judgment had been rendered against the school board member individually, either in a personal or in an official capacity, that, where the board voted eight to one not to appeal, the subsequent appeal by an individual member was outside the scope of that member’s duties, and that the policy involved covered only acts done within the scope of the members’ duties as school board members, we affirm the Order of the trial court granting judgment on the pleadings in favor of the insurers.

In 1982, during Youngman’s tenure as a member of the Williamsport Area School District Board of Education, the Board voted to deny the use of school facilities during the school day to a group of students (“Petros”) because of the religious nature of their organization. The students filed suit in the United States District Court for the Middle District of Pennsylvania against the school district, the nine members of the Board, the superintendent of the District, and the principal of the high school.

The students’ claim was grounded in the First Amendment of the United States Constitution, specifically, the Free Exercise Clause, and the Freedom of Speech Clause. The district court granted summary judgment against the students on the free exercise claim, but in their favor on the freedom of speech claim. Bender v. Williamsport Area School District, 563 F.Supp. 697 (1983).

On May 31, 1983, the Board voted eight to one against appealing the district court ruling, Youngman casting the lone dissenting vote. In doing so, the Board elected to comply with the district court order and allow the Petros to meet on the same basis as other student clubs.

Despite the Board’s vote not to appeal, in June of 1983, Youngman filed an appeal to the Third Circuit Court of Appeals, which reversed the district court and held that to allow the students to meet in the manner proposed violated the First Amendment establishment clause. 741 F.2d 538 (3rd Cir.1984).

After Youngman had petitioned for appeal, but before the Third Circuit rendered its opinion, the Bender plaintiffs filed a Bill of Costs with the district court for counsel fees and costs incurred in litigation at the district court level. The petition was premised on the theory that the students were the prevailing parties under 42 U.S.C. § 1988; and thus they were entitled to costs and attorneys’ fees. The district court deferred ruling on the students’ petition pending disposition of Youngman’s appeal. Bender v. Williamsport Area School District, No. 82-0692 (M.D.Pa. Dec. 14, 1983).

After Youngman’s successful appeal, the students petitioned for a Writ of Certiorari from the United States Supreme Court, which was granted. Declining to address the merits of the case, the Court held instead that Young-man had lacked standing to prosecute the appeal and that the Third Circuit, therefore, lacked jurisdiction. The judgment of the Court of Appeals was vacated, and the case was remanded with instructions to dismiss for want of jurisdiction.

Youngman thereafter brought suit in the Pennsylvania Court of Common Pleas of Lycoming County against Insurers for recovery of the legal expenses incurred in appealing to the Third Circuit Court. After pleadings were filed, Insurers filed a Motion for Judgment on the Pleadings. In response, Youngman filed a Motion for Partial Summary Judgment, asking the trial court to enter an order finding the following:

(a) [The Board of Education Liability policy in issue was] in effect at the time of the filing of the Bender action and at all times thereafter for the purposes of this suit;
(b) [Youngman] was an assured under this policy;
(c) [Youngman] suffered a loss during the litigation of the Bender action as a result of incurring legal fees, expenses, and costs and such loss was a covered loss under the policy; [and]
(d) the Defendant CNA and/or American Casualty breached their contractual agreement with the [school district] and [Youngman] ... by not paying legal fees, expenses and costs for ... Youngman during and after the underlying litigation and that [Insurers] are thereby responsible for all reasonable legal fees, expenses and costs incurred by Youngman in his defense and appeal of the Bender action.

Motion for Partial Summary Judgment, December 8, 1989, at 8-9. The trial court issued an order which denied Young-man’s Motion for Partial Summary Judgment and granted Insurers’ Motion for Judgment on the Pleadings. It is from this Order that Youngman appeals.

Initially, Youngman appeals the denial of his Motion for Partial Summary Judgment. While “an appeal may be taken as of right from any final order of a[ ] ... lower court,” Pa.R.A.P. 341(a), an order denying summary judgment is not a final order, but, rather, interlocutory in nature and unappealable. Carraghan v. Obrecht, 122 Pa.Cmwlth. 562, 552 A.2d 359 (1989). Therefore, except to the extent that the arguments raised on this issue are argued as to other issues, we will not review them here.

Next, Youngman contends that the trial court erred by ruling in favor of Insurers’ Motion for Judgment on the Pleadings. In reviewing an Order of the Trial Court awarding judgment on the pleadings, our standard of review is as follows:

[W]e must accept as true all well-pleaded statements of fact of the party against whom the motion is granted and and consider against him only those facts that he specifically admits. West Penn Administration Inc. v. Pittsburgh National Bank, 289 Pa.Super. 460, 467, 433 A.2d 896, 900 (1981) (citations omitted); Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981); ... The parties cannot be deemed to admit either conclusions of law or unjustified inferences. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); West Penn, 289 Pa.Super. at 467, 433 A.2d at 900.

Jones v. Travelers Insurance Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986).

We begin our analysis by examining an insurance company’s duty to defend. The purchase of insurance includes, not just the insurer’s duty to indemnify for successful claims within the policy’s coverage, but also the defense of such claims. Zeitz v. Zurich General Accident & Liability Insurance Co., 165 Pa.Super. 295, 67 A.2d 742 (1949); D’Auria v. Zurich Insurance Co., 352 Pa.Super. 231, 507 A.2d 857 (1986). The duty to defend is separate and greater than the duty to indemnify. Erie Insurance Exchange v. Transamerica Ins. Co., 516 Pa. 574, 533 A.2d 1363 (1987). This duty exists even where the claims made against an assured are groundless, false, and fraudulent. Zeitz, 165 Pa.Super. at 301-02, 67 A.2d at 746, D’Auria, 352 Pa.Super. at 234, 507 A.2d at 859. In Pennsylvania, the duty to defend an action brought against the assured is generally determined by comparing the facts alleged in the complaint against the coverage provided by the policy; the duty to defend arises where, if the facts as alleged are proven, coverage would exist under the terms of the policy. D’Auria, 352 Pa.Super. 235, 507 A.2d at 859.

Youngman contends, and the insurers concede, that the Bender plaintiffs’ complaint sought, in addition to an injunction allowing them to meet on the school premises, reimbursement of attorneys’ fees in accordance with 42 U.S.C. § 1988. The parties also agree that these fees were sought against the Board and each of the defendants “officially and individually.” The issue, then, is whether Insurers were liable for the legal expenses incurred in Young-man’s appeal of the trial court decision.

Youngman argues initially that he might have been personally liable for the Bender plaintiffs’ attorneys’ fees since the Bender plaintiffs prevailed, and that, therefore, the expense of appealing this action is covered by the policy. We disagree.

Initially, we hold, as did the trial court, that where the insured appeals, the rendered judgment, and not the allegations of the complaint, govern the insurer’s duty regarding the appeal regardless of the allegations in the complaint. No case cited by Youngman, nor any that we have found, can be relied upon for a contrary result. Indeed, it offends reason to suggest that an insurer could be liable for the expenses of an appeal where no loss covered by the policy was in issue on appeal. The issue becomes, then, whether Youngman’s appeal concerned a loss covered by the policy.

We look first to the policy to determine the scope of coverage. The Board of Education Liability [BEL] policy issued by Insurers contained an insuring clause which stated, in pertinent part:

The Insurer ... agrees as follows:
(a) With the Assureds that if, during the policy period any claim or claims are made against them, individually or collectively, for a Wrongful Act occurring during the policy period, the Insurer will pay on behalf of, in accordance with the terms of this policy, the Assureds, or any of them, ... for all loss which the said Assureds or any of them shall become legally obligated to pay.

Policy of Insurance, Section 1(a) (emphasis added). The term, “Wrongful Acts,” for which the policy provides coverage, is defined in the policy as:

any actual or alleged errors or misstatement or misleading statement or act or omission or neglect or breach of duty by the Assureds in the discharge of their duties, individually or collectively, or any matter claimed against them solely by reason of their being or having been Assureds during this policy period.

Policy of Insurance, Section III(c) (emphasis added).

The trial .court held that the language of this policy “was never intended to cover actions pursued outside the scope of a board member’s official conduct.” Opinion of March 22, 1990, at 21. In analyzing this point, we note that much of the difficulty in this case centers on the meaning of the term “individual” in the policy, the complaint, and the case law. Out of context, the term “individual” fails to discriminate between one’s official and personal capacity.

A party to a suit may be held liable for their actions in various capacities: collectively, as was the Board in this case; individually/officially; or individually/personally. Addressing the distinction between the latter two, the United States Supreme Court has stated:

Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. See e.g., Scheuer v. Rhodes, 416 U.S. 232, 237-238, 40 L.Ed.2d 90, 94 S.Ct. 1683 [1686-1687], ... (1974). Official-capacity suits, in contrast, “generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 56 L.Ed.2d 611, 98 S.Ct. 2018 (1978). As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. Brandon [v. Holt, 469 U.S. 464, 471-472, 105 S.Ct. 873, 878, 83 L.Ed.2d 878, 885 (1985) ]. It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.

Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114, 121 (1985). Although Youngman goes to great lengths to establish that the underlying Bender suit potentially imposed personal liability on him, such was not the case. In analyzing whether Youngman had standing to appeal, the United States Supreme Court stated:

The first paragraph of the complaint alleged that the action was brought against the defendants “in their individual and official capacities.” ... There is, however, nothing else in the complaint, or in the record on which the District Court’s judgment was based to support the suggestion that relief was sought against any School Board member in his or her individual capacity. Certainly the District Court’s judgment granted no such relief____ [T]he course of proceedings ... make it abundantly clear that the action against [Mr. Youngman] was “in his official capacity and only in that capacity.”

Bender v. Williamsport Area School District, 475 U.S. 534, 543, 106 S.Ct. 1326, 1332, 89 L.Ed.2d 501, 512 (1986) (emphasis added). “Individual” capacity, in that context, clearly meant “personal capacity.” The Supreme Court held that, although Youngman was sued in his official capacity, he had no interest, and therefore, no standing, to appeal in his personal capacity. “Acts performed by the same person in two different capacities ‘are generally treated as the transactions of two different legal personages.’ F. James & G. Hazard, Civil Procedures § 11.6, p. 594 (3d ed. 1985).” Bender, 475 U.S. at 543, n. 6, 106 S.Ct. at 1332, n. 6, 89 L.Ed.2d at 501 n. 6. We further note that the language in a complaint seeking relief against one in his “official and individual capacity” does not necessitate a conclusion that relief was sought against the defendant “individually and personally.” We conclude, as did the Supreme Court, that, although the Bender plaintiffs sought to impose liability on the Board collectively and in the members’ individual, official capacities, they had not brought an action against the members of the Board personally. Youngman, therefore, could not have been held liable in his personal capacity. Furthermore, even had he been personally liable, as “[t]he policy was never intended to cover actions pursued outside the scope of a board member’s official conduct,” our rationale would lead us to conclude that Mr. Youngman’s expenses still would not be covered under this policy since they were personally incurred.

Even had Youngman been empowered to appeal in his individual, official capacity, the Bender plaintiffs did not “prevail” against any of the individual defendants, even officially; instead, they prevailed exclusively against the Board, thus relieving any of the individual defendants of liability, even in an official capacity.

The Supreme Court, in holding that Youngman had no standing to appeal, observed that no relief was granted against any defendant in his individual capacity. Bender, supra., 475 U.S. at 543, 106 S.Ct. at 1332, 89 L.Ed.2d at 511. It therefore follows that no liability for attorneys’ fees could have been found against Youngman, because “liability on the merits and responsibility for fees go hand in hand. Where a defendant has not been prevailed against, either because of legal immunity or on the merits, § 1988 does not authorize a fee award against that defendant.” Kentucky v. Graham, 473 U.S. at 165, 105 S.Ct. at 3104, 87 L.Ed.2d at 121. Therefore, Youngman was not entitled to coverage for his individual appeal, even had the appeal been in his official capacity.

Youngman next argues that the Bill of Costs submitted to the district court named him individually, among others, as liable for the Bender plaintiffs’ attorneys’ fees. This observation, however, does not strengthen his position. The Bill of Costs was not filed until after Youngman appealed; therefore, it cannot, after the fact, create a duty upon the insurer to defend where a duty did not otherwise exist. We do not address the duty of the insurer to defend Youngman in that action to collect attorneys’ fees. It suffices to state that there was no duty on the part of the insurers to defend a claim that did not exist at the time it was appealed.

Youngman further contends that his belief in the insurers’ duty to defend, even if erroneous, was reasonable. He points to the fact that much of the case law upon which the trial court relied, including the Supreme Court resolution of the Bender case, was unavailable to him at the time of his appeal. Youngman’s appeal was filed on June 10, 1983, nineteen months before Brandon v. Holt, supra., and two years before Kentucky v. Graham, supra. Youngman argues that whether he would be liable for the Bender plaintiffs’ counsel fees was unclear, given the terms of the policy, the circumstances of this case and the state of the law at the time that he brought his appeal.

We are not persuaded that the novelty of a legal argument regarding coverage creates coverage or a duty to defend where they do not otherwise exist. Assuming that, at the time of Youngman’s appeal, no cases existed which delineated the distinctions between official and personal capacity liability, and the obligations of insurers under circumstances such as are here involved, this alone would not create a duty on the part of an insurer to defend. That duty exists only where the circumstances are within the terms of the policy. Here, as stated, such coverage does not exist. In any event, we believe that sufficient case law did exist at the time of Youngman’s appeal to make clear that Youngman was not subject to personal liability in the district court case. See Monell v. New York Department of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978) (“[Ojfficial capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent____”); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (Award of attorneys’ fees against Board of Corrections is appropriate in action against its representatives in their official capacity.)

Youngman next argues that the trial court erred in granting judgment on the pleadings by considering matters outside the proper scope of consideration for such a motion. Youngman fails, however, to specify what matters he presumes the trial court improperly factored into its opinion. In any event, having carefully reviewed the pleadings and the well-considered opinion of the trial court, we conclude, as a matter of law, that Insurers were entitled to judgment on the pleadings.

Finally, Youngman asserts that the trial court erred in its findings of fact and conclusions of law. In this argument, Youngman restates the erroneous positions taken above; namely, that a claim continued to exist for which the Insurers were required to defend.

We are not presented with an issue of the Insurers’ duty in an action for attorneys’ fees brought against Youngman in his official or personal capacity, for this had not happened when Youngman brought his federal appeal. Nor are we asked to consider the Insurers’ duties to defend at the district court. The issue here involves the obligation of an insurer to “defend” an appeal by an individual member of a board where judgment has been rendered against the board collectively and that board decides collectively not to appeal. In these circumstances, we hold that insurers are not obligated to provide for the individual’s legal expenses incurred in an appeal.

For the foregoing reasons, we affirm the Order of the trial court granting Insurers’ Motion for Judgment on the Pleadings.

Order Affirmed.


author: BROSKY, Judge.

text:
    585 A.2d 517
    COMMONWEALTH of Pennsylvania v. Renee WELCH a/k/a Allyson Renee Welch, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1990.
    Filed Jan. 23, 1991.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Comm., appellee.
    Before OLSZEWSKI, KELLY and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from a judgment of sentence imposed upon appellant after she was convicted on drug charges. Appellant raises eight issues for our consideration including an argument that it was error to allow testimony regarding the appellant’s refusal to allow a search of her room without a warrant. Because we find this issue meritorious we vacate the judgment of sentence and remand for a new trial.

Briefly stated, the facts as they were related at trial and not seriously disputed are: in response to a radio message that an individual named Renee Welch was selling drugs from a certain address, the police went to the described address and knocked on the door. At that time the police spoke with appellant’s mother and stepfather about the nature of the visit. Upon learning that the police suspected their daughter of selling drugs they inquired where the information came from. The police checked with the station and were told that there had been a call from appellant’s brother, who also lived at the same address, implicating appellant. Upon hearing this appellant’s stepfather called appellant’s brother down from upstairs and confronted him with this information. At first the brother denied making the call but he then admitted it and went on to describe facts implicating appellant in drug selling activity. Appellant was then called downstairs and also confronted with the allegations which she denied. At that point, it was suggested by someone that if the allegations were false then she ought to allow the police to inspect her room. Appellant refused indicating that she would not allow a warrantless search of her bedroom.

Additional discussions took place during which appellant’s nephew came down the steps from the floor containing appellant’s bedroom. Appellant’s brother then chased the nephew down the steps and yelled “stop him, he’s got the drugs” at which time several balloons later found to contain narcotics fell from the nephew’s shirt. In response to finding these balloons the nephew was instructed by appellant’s mother to take the police upstairs and show them where he got them from. Eventually a search warrant was obtained at which time additional evidence was seized. At trial, one of the officers began testifying to the events as they transpired. As the officer began testifying to appellant’s comments regarding searching her room, an objection was lodged and a sidebar discussion ensued. After hearing arguments of both counsel the officer was allowed to continue testifying at which time the appellant’s refusal to allow a search absent a warrant was related.

Appellant argues that it was error to allow testimony regarding her refusal of a search of her bedroom in the absence of a warrant. Counsel made such an argument and in addition to arguing that it was improper to have her refusal used against her, counsel also indicated that the prejudice would greatly outweigh any probative value. We are inclined to agree that it was error to allow such questioning.

It is asserted by appellant’s counsel that research of this issue has revealed no cases where the specific issue before us has been decided. Because we believe this issue is analogous in significant respects to the invocation of one’s right to silence, we rely upon the cases discussing this issue.

In Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972), our Supreme Court held that it was reversible error to admit evidence of an accused’s request for counsel and silence at arrest. At the time Haideman was decided it was the more prominent view that such evidence was an impermissible impairment upon one’s Fifth Amendment right against self incrimination. For instance, in Fowle v. United States, 410 F.2d 48 (9th Cir.1969), the Ninth Circuit Court of Appeals stated,

We simply cannot adopt an interpretation of the Fifth Amendment under which one exercising his right to remain silent upon and immediately after his arrest—a right which the Supreme Court has so earnestly sought to guarantee and preserve—is severely prejudiced by his recourse to that cherished right. It would be anomalous indeed if honorable law enforcement officers were required to elaborate upon the traditional fifth amendment warning and advise arrested persons, in effect: If you say anything it may be used against you. You have the constitutional right to remain silent, but if you exercise it, that fact may be used against you.

The Seventh Circuit Court of Appeals made similar observations stating, “[t]he testimony elicited here could well have led the jury to infer guilt from defendant’s refusal to make the statement. We think exercise of a constitutional privilege should not incur this penalty.” United States v. Kroslack, 426 F.2d 1129, 1130-31 (7th Cir.1970). Although in the present case we are dealing with an assertion of a different constitutional right, the freedom from warrantless searches, we feel the same reasoning must apply to the assertion of that right.

As we read the various comments made by the courts regarding the assertion of one’s Fifth Amendment right, the overriding tone is that it is philosophically repugnant to the extension of constitutional rights that assertion of that right be somehow used against the individual asserting it. Although the cases have discussed the Fifth Amendment right we see no reason to treat one’s assertion of a Fourth Amendment right any differently. It would seem just as illogical to extend protections against unreasonable searches and seizures, including the obtaining of a warrant prior to implementing a search, and to also recognize an individual’s right to refuse a warrantless search, yet allow testimony regarding such an assertion of that right at trial in a manner suggesting that it is indicative of one’s guilt. To allow such testimony essentially puts the individual in the same kind of no win situation that would exist if the above outlined decisions were to the contrary. With respect to the Fifth Amendment, one would be forced to choose between speaking after arrest at the expense of possibly incriminating himself, or refusing to speak and having this fact brought up at trial, thereby inferentially incriminating himself. With respect to a search, one would have to choose between allowing a search of one’s possessions, or having the refusal be construed as evidence that one was hiding something. To the extent an assertion of such a right will often be construed by the lay juror as an indication of a guilty conscience, allowing testimony of the assertion of the right will essentially vitiate any benefit conferred by the extension of the right in the first instance, thus, rendering the right illusory.

The Commonwealth argues that the cases regarding the Fifth Amendment right of silence should not be applied analogously to the present case as the Fourth Amendment right is not an absolute one, but only a qualified one. The argument continues asserting that one has an absolute privilege of silence but not an absolute right not to be searched. We find this argument unavailing. Although one may not have an absolute right not to be searched the guarantee of the Fourth Amendment is no less absolute. It protects one from unreasonable searches and seizure. This protection is just as absolute as the right to remain silent, although it may require more case-by-case definition or exposition. However, even the Fifth Amendment has required much development by caselaw and has several nuances. For instance, the amendment itself does not indicate one can invoke the right at the time of arrest and at any point thereafter, rather, this premise has been developed through caselaw. Similarly, the per se unreasonableness of warrantless searches, absent certain policy exceptions, has been firmly ensconced in our constitutional case-law history.

Although certain occasions may develop where a warrant-less search is allowable, the general proposition that a warrant is necessary still prevails and, we think, is as absolute as the right to remain silent. In any event, we think this argument is very misguided. The point of significance is that one should not be penalized for asserting a constitutional right. It is the assertion of a right that we must focus on. We believe that the assertion of a right cannot be used to infer the presence of a guilty conscience. Thus, the actual entitlement to the right could be thought of as irrelevant to the point we are discussing. We would think that the same reasoning would apply even if the individual asserting the right had a mistaken belief that they were protected by a constitutional provision or were extended a right or protection when, in fact, they were not. The integrity of a constitutional protection simply cannot be preserved if the invocation or assertion of the right can be used as evidence suggesting guilt.

Regardless of whether such testimony is inconsistent with the constitutional protection we would find an abuse of discretion in allowing the evidence in any event. It is hornbook law that evidence will be considered inadmissible if its prejudicial effect outweighs its probative value. We do not think that a refusal to allow police to search one’s bedroom without first producing a warrant is probative of the fact the items the police suspect are present are actually present. There are many personal reasons that an individual would not wish to have the police searching through their room. Indeed, if the police suddenly appeared at someone’s door and indicated they wanted to

search their bedroom, we would think that the average citizen would protest. In fact, anyone with a sense of privacy would likely object. Thus, one cannot necessarily assume the refusal is based upon the fact that one is attempting to prevent the discovery of incriminating evidence. However, apparently all involved in the present case agree that a jury is likely to infer this fact from the refusal. Indeed, the Commonwealth seems to argue that this is inferable from the refusal. The district attorney states in the brief presented to this court “the inference that appellant was hiding something was the superseding basis for relevancy grounds to show appellant’s scienter.” Commonwealth’s brief, at page 66. As the Fifth Circuit Court of Appeals argued, “[w]e would be naive if we failed to recognize that most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt.” Walker v. United States, 404 F.2d 900, 903 (5th Cir.1968). We believe the same effect would follow from one’s refusal to allow a search of one’s residence or possessions. Thus, the trial court should have prevented this line of questioning when a timely objection was made.

For the above reasons we believe it was reversible error to allow the testimony regarding appellant’s refusal to consent to a search in the absence of a warrant. Therefore, we vacate the judgment of sentence and remand for a new trial.

Judgment of sentence vacated, remanded for a new trial. Jurisdiction is relinquished.

KELLY, J., concurs in the result.