author:
TAMILIA, Judge:
      DEL SOLE, Judge,

text:
    599 A.2d 685
    Louise ROSELLI and Basil Roselli, Appellants, v. GENERAL ELECTRIC COMPANY.
    Superior Court of Pennsylvania.
    Argued Aug. 28, 1991.
    Filed Nov. 25, 1991.

      Maria C. Palladino, Abington, for appellants.
    Keith D. Heinold, Philadelphia, for appellee.
    Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

This is an appeal from a January 14, 1991 Order granting appellee, General Electric’s, motion for summary judgment.

In June, 1988, appellants, Louise and Basil Roselli, filed suit for personal injuries sustained by Mrs. Roselli on June 19, 1986, when the glass carafe of her General Electric coffee maker, allegedly purchased in 1985 and allegedly used approximately five times, shattered in her hand, thereby spraying boiling coffee onto her leg and abdomen causing severe burns. On May 3, 1989, appellants produced the coffee maker for appellee’s inspection, but failed to produce the glass fragments from the glass carafe, which were lost by appellants and their former attorney. Appellees’ expert’s examination of the machine indicated it had been manufactured in 1981, four years before appellants said it was purchased, and the base was scorched and scarred, indicating frequent use of the machine. On June 26, 1989, an arbitration panel awarded appellants a combined $25,000. Following an appeal by General Electric, the trial court granted General Electric summary judgment, reasoning the source of the glass carafe, which was not manufactured by appellee and was unavailable for inspection, could not be determined. As appellants did not allege this defect occurred in all General Electric coffee makers of the same type, the court stated examination of the broken fragments of the carafe was necessary to determine the validity of appellants’ claim as well as the product manufacturer of the carafe.

Appellants now argue the inadvertent destruction of evidence is not a sufficient basis for a grant of summary judgment because there exist disputed issues of material fact. They also contend the malfunction theory of products liability permits them to prove a product defect with circumstantial evidence and with evidence eliminating abnormal use or reasonable secondary causes.

As an appellate court, we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 557 A.2d 1064 (1989). The trial court must accept as true all well-pleaded facts in the non-moving party’s pleadings and must give him or her the benefit of all reasonable inferences to be drawn therefrom. Lower Lake Dock Co. v. Messinger Bearing Corp., 395 Pa.Super. 456, 577 A.2d 631 (1990). Summary judgment should not be entered unless the case is clear and free from doubt. A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories) admissions of record and affidavits on file support the lower court’s conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id.; Pa.R.C.P. 1035. We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Lower Lake Dock Co., supra.

Appellants contend there existed a dispute between the parties as to a material fact and, therefore, the trial court erred in granting summary judgment. Specifically, appellants allege the dispute centers around the amount of use of the coffee maker prior to the accident. Appellants alleged in pleadings and testimony they used the machine approximately five times, while appellee’s expert filed an affidavit stating his inspection of the remains of the coffee maker demonstrated use well in excess of five times. There is nothing in the record to indicate the carafe and heating base came into use at different times.

We agree with appellants that trial by testimonial affidavit is prohibited. In Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 183, 439 A.2d 652, 662 (1981), the Supreme Court stated “Testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury.” (Quoting 2 Goodrich-Amram 2d § 1035(d)). The trial court, however, in granting appellants’ motion for summary judgment, did not rely on the conflicting testimony as to amount of use of the machine. Therefore, we can infer the court did not deem the dispute concerning length of use of the coffee maker to be material. The court based its decision on the fact that “in losing the defective product [appellants] have deprived the defense of the most direct means of countering their allegations of a defect via expert testing and analysis.” (Slip Op., Lehrer, J., 3/25/91, p. 3.) Another basis for the decision was that in losing the defective product, appellants deprived appellee the opportunity of determining the identity of the manufacturer of the glass carafe for indemnity purposes.

We agree with the public policy rationale set forth in the case relied upon by the trial court, Martin and Greenspan v. Volkswagan of America, No. 88-8261, 1989 WL 81296 (E.D. 5 Pa. July 13, 1989). In Martin and Greenspan, the plaintiff was injured in an automobile accident allegedly as a result of a defective accelerator. After the accident, the co-plaintiff and the owner of the car sold the car, thus making the accelerator unavailable for defendant’s inspection. The court entered summary judgment for the defendant manufacturer and held:

The defendant has been deprived of the opportunity to have an expert examine the car and to testify, if appropriate, that a defect did not cause the Audi to malfunction. Therefore, the plaintiffs should not be permitted to proceed without producing the vehicle.
To permit claims of defective products where a purchaser of the product has simply thrown it away after an accident, would both encourage false claims and make legitimate defense of valid claims more difficult. It would put a plaintiff (or plaintiff’s attorney) in the position of deciding whether the availability of the item would help or hurt his or her case. Where producing the product for defense inspection would weaken rather than strengthen a case, we unfortunately are obliged to conclude that some plaintiffs and attorneys would be unable to resist the temptation to have the product disappear.

Id. at p. 3 (citation omitted). Whether appellants used the coffee maker five times or fifty times is irrelevant to the undisputed fact, relied upon by the trial court, that important evidence was lost or destroyed which precluded General Electric from examining the product, a necessary step in preparation of its defense.

Appéllants next rely upon a malfunction theory of products liability and argue circumstantial evidence of a product defect is a question for the trier of fact and thus the trial court erred in granting summary judgment in favor of the appellee. Appellant cites Troy v. Kampgrounds of America, Inc., 399 Pa.Super. 41, 581 A.2d 665 (1990), in support of its malfunction theory of products liability. Although the standard or test for applying the malfunction theory is correctly stated, we find Troy does not aid appellants because the facts are distinguishable. In Troy, a clothes dryer or propane gas water heater in a laundry room of a campground exploded, causing a fire, which burned the plaintiffs and destroyed the building. State police fire marshalls, investigators for the campground and investigators for the supplier of the propane examined the damaged appliances. The supplier’s expert testified the explosion was caused by a defective gas pilot light safety valve of the hot water heater. The building site was thereafter leveled and the remains of the appliances were destroyed by a neutral party. Thus, neither the plaintiffs nor the defendants had an opportunity to examine the appliances. The court held summary judgment could not be granted in favor of the defendants because the experts’ testimony regarding the defects had to be weighed by the jury. Id. In this case, however, neither the parties nor any experts ever had the opportunity to examine the glass carafe because the appellants lost the product before examination could occur. Troy is analogous to criminal cases when tests had been conducted on evidence which was lost or destroyed before trial, but still may be admitted at trial, permitting the case to go to a jury.

To be successful in a 402A products liability suit, plaintiffs must prove the product was defective and the defect in the product caused plaintiffs’ injuries. Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 568 A.2d 1272 (1990). Further, they must prove the defect in the product existed at the time the product left the defendant’s control. Toth v. Economy Forms Corp., 391 Pa.Super. 383, 571 A.2d 420 (1990). Plaintiffs may use circumstantial evidence to establish a defective product. One form of circumstantial evidence is the occurrence of a product malfunction along with evidence eliminating abnormal use or reasonable secondary causes for the malfunction. Troy, supra. Under the malfunction theory, the plaintiffs have the burden of negating reasonable secondary causes for the accident which are fairly raised by the evidence. Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 565 A.2d 751 (1989). Defendants do not have to prove the existence of secondary causes for the accident or, in this case, abnormal use of the coffee maker. Their burden is only to identify other possible non-defect oriented explanations. In Lonon v. The Pep Boys, Manny, Moe & Jack, 371 Pa.Super. 291, 299, 538 A.2d 22, 26 (1988), the court stated:

[W]here an explanation consistent with the existence of a defect is as probable as an explanation inconsistent with the existence of a defect, the plaintiff cannot be held to have met his burden. A jury may not be permitted to speculate.
[I]t is the duty of the trial court to determine whether or not this requirement has been met in the first instance before the issue can be submitted to the jury.

Id. (citations omitted).

Reviewing the evidence in the light most favorable to appellants, we find appellants failed to prove the malfunction occurred in the absence of abnormal use or reasonable secondary causes. Because they cannot account for the product for several years (testimony revealed appellants were not even sure when the coffee maker was purchased), combined with appellee’s expert’s testimony following inspection of the coffee maker that it was scorched, charred and used frequently, appellants failed to eliminate the realistic possibility the glass carafe broke because of its use and handling prior to the date of the incident. Appellees’ evidence raises an explanation of the breakage which is as probable as appellants’ explanation of a defect. Therefore, under the Lonon and Troy standards, appellants failed to satisfy their burden of proving the coffee maker was defective via the malfunction theory of products liability, and we cannot say the trial court committed an error of law or clearly abused its discretion.

In light of the foregoing discussion, we affirm the trial court’s grant of summary judgment.

Order affirmed.

DEL SOLE, J., dissents.

DEL SOLE, Judge,

dissenting:

I dissent from the Majority’s determination that an award of Summary Judgment was appropriate in this case because I find that there exists certain factual disputes which should cause Appellants’ case to be presented to a jury.

The decision to affirm the award of Summary Judgment is based upon the fact that the key piece of evidence in this case was inadvertently destroyed. This is not, nor should it be the law in this Commonwealth. Many times products are destroyed before suit is filed, yet this is not sufficient reason to bar plaintiffs from pursuing their rights. Plaintiffs continue to have the burden of proof in such matters, which burden acts as protection to defendants.

In a case such as this where the product no longer exists and cannot be examined by either party, the plaintiff may recover under the “malfunction” theory of product liability, which concerns circumstantial evidence of a product malfunction. This theory “permits a plaintiff to prove defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable secondary causes for the malfunction.” Troy v. Kampgrounds of America, Inc., 399 Pa.Super. 41, 581 A.2d 665 (1990). It was appropriate for Appellants to seek recovery under this theory, as did the plaintiffs in Troy where the evidence was also destroyed and neither investigators for the plaintiffs or the defendants had an opportunity to examine the evidence before its destruction. Further, as in Troy, it was not the trial court’s function, nor this court’s function, to assess or weigh the testimony to be offered by either party in the action. The Majority does, however, despite its pronouncement otherwise, engage in such an assessment.

The Majority states that the trial court “did not rely on the conflicting testimony as to amount of use of the machine” in granting the motion for summary judgment. Majority Opinion at 227. It also remarks that the issue of “whether appellants used the coffee maker five times or fifty times is irrelevant to the undisputed fact, relied upon by the trial court, that important evidence was lost or destroyed ...” Majority Opinion at 228. Yet, on page 230 of the Majority Opinion it is stated: “Because they cannot account for the product for several years ... combined with appellee’s expert’s testimony following inspection of the coffee maker that it was scorched, charred and used frequently, appellants failed to eliminate the realistic possibility the glass carafe broke because of its use and handling prior to the date of the incident.” This proof is proof that Appellants have the burden of establishing at trial, not at this stage of the proceedings. The fact that there is a material factual dispute as to the amount of use of the product demonstrates that Summary Judgment should not have been entered in this case.

As stated in Troy, “on a motion for summary judgment, the trial court’s task is to determine whether there are controverted issues of fact, not whether the evidence is sufficient to prove the particular facts.” Id., 399 Pa.Superi- or Ct. at 49, 581 A.2d at 669. Because it appears clear to me that there are controverted issues of fact in this case, I must dissent from the decision to affirm the entry of Summary Judgment in favor of the defendant.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    599 A.2d 690
    John E. KOENIG and Ellen I. Koenig, His Wife, Appellants, v. PROGRESSIVE INSURANCE COMPANY and Walter G. Foltz, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1991.
    Decided Nov. 26, 1991.

      James R. Schadel, Pittsburgh, for .appellants.
    Jeffrey A. Ramaley, Pittsburgh, for Progressive Ins. Co., appellee. .
    Before CAVANAUGH, BECK and KELLY, JJ.
   CAVANAUGH, Judge:

Two issues are presented before us on appeal, one of contract interpretation and one of statutory interpretation. The first issue we must address is whether under an automobile insurance policy providing “per person” coverage for bodily injury as well as a higher “per accident” liability limit, an insurer that has exhausted its “per person” liability to a person sustaining bodily injury in an automobile accident is obligated to make additional payments within the “per accident” limit for loss of consortium by the victim’s spouse. The second issue we must address, assuming we find that no such obligation exists, is whether such an insurance contract would be inconsistent with the Motor Vehicle Financial Responsibility Act, 75 Pa.C.S.A. § 1702 et seq. We find .that the insurance policy treats loss of consortium as arising out of the car accident victim’s claim, and hence total damages are subject to the lower “per person” limitation. We also find that such an insurance contract does not violate the Motor Vehicle Financial Responsibility Act. We affirm.

The facts are as follows: on March 25, 1989, co-appellant John Koenig was seriously injured in an automobile collision when the vehicle he was operating was struck by a vehicle operated by co-appellee Walter Foltz. The automobile Mr. Foltz drove is insured by co-appellee Progressive Insurance Company under a policy issued to his wife, Tina Foltz, covering the car being operated at the time of the accident. It is admitted for the purpose of this appeal that Mr. Foltz was insured under the policy and was negligent in the operation of automobile giving rise to the accident. John Koenig sued both Mr. Foltz and Progressive Insurance Company for his injuries. John Koenig’s spouse, co-appellant Ellen Koenig, sued both Foltz and Progressive for loss of consortium, including the loss of services and affection.

The Progressive insurance policy purchased for the Foltz automobile contains coverage limits of $15,000 “per person” and $30,000 “per occurrence.” Progressive has offered $15,000 to the Koenigs in full and complete settlement of their claim. The Koenigs refused, asserting that they are eligible for the full $30,000. The case is on appeal from the trial court’s order granting Progressive’s Motion for Judgment on the Pleadings. The court agreed with Progressive that Ms. Koenig’s consortium claim was subject to the “per person” limit in its policy. It held that Progressive was not obligated to pay Ms. Koenig any damages in addition to those it may be obligated to pay her husband.

Appellants first claim that the trial court, in interpreting the insurance contract, disregarded the development of the loss of consortium claim. In Pennsylvania, the loss of consortium has developed from being merely a derivative claim to being a separate and independent injury suffered by the spouse of an injured party for which separate recovery may be had. Appellants assert there is “inherent ambiguity” in the insurance policy. Accordingly, since “[w]here a provision of a[n insurance] policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement,” Standard Venetian Blind Company v. American Empire Insurance Company, 503 Pa. 300, 305, 469 A.2d 563, 566 (1983), appellants call on us to interpret the policy in light of the development of the consortium tort.

The principles governing the interpretation of insurance contracts in Pennsylvania are well settled. The goal of interpreting an insurance contract is to ascertain the intent of the parties as manifested by the language of the written instrument. See Standard Venetian Blind, id., 503 Pa. at 305, 469 A.2d at 566; Mohn v. American Casualty Co. of Reading, 458 Pa. 576, 586, 326 A.2d 346, 351 (1974). The reasonable expectations of the insured are the focal point in reading the contract language. See Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 594, 388 A.2d 1346, 1353 (1978); Winters v. Erie Insurance Group, 367 Pa.Super. 253, 257-58, 532 A.2d 885, 887 (1987). Where the language of the contract is clear and unambiguous, a court is required to give effect to that language. See Standard Venetian Blind, id. 503 Pa. at 305, 469 A.2d at 566; Pennsylvania Manufacturers’ Ass’n. Insurance Co. v. Aetna Casualty & Surety Co., 426 Pa. 453, 457, 233 A.2d 548, 551 (1967). “[The] clear meaning of language cannot be ignored by the judiciary.” Winters, id. 367 Pa.Super. at 257-258, 532 A.2d at 887 (citing Guardian Life Insurance Co. v. Zerance, 505 Pa. 345, 353, 479 A.2d 949, 953 (1984)). Where the language of a contract is ambiguous, the insured receives the benefit of the doubt, and the language at issue is interpreted in his favor. See D’Allessandro v. Durham Life Insurance Co., 503 Pa. 33, 37, 467 A.2d 1303, 1307 (1983); Winters, id. 367 Pa.Super. at 257-258, 532 A.2d at 887; Standard Venetian Blind, id. 503 Pa. at 305, 469 A.2d at 566. Language in an insurance policy should be given its ordinary meaning, unless it is clear that some other meaning was intended by the parties. Winters, id. 367 Pa.Super. at 257-258, 532 A.2d at 887. Sparler v. Fireman’s Insurance Co., 360 Pa.Super. 597, 607 n. 1, 521 A.2d 433, 438 n. 1 (1987). “The policy, like every other contract, must be read in its entirety and the intent gathered from a consideration of the entire instrument.” Smith v. Cassida, 403 Pa. 404, 408, 169 A.2d 539, 541 (1961); see also Newman v. Massachusetts Bonding & Ins. Co., 361 Pa. 587, 591, 65 A.2d 417, 419 (1949).

Progressive’s insurance policy states in pertinent part:

LIMITS OF LIABILITY
The limits of liability shown in the Declarations apply subject to the following:
(1) The bodily injury liability limit for “each person” is the maximum we will pay as damages for bodily injury, including damages for care and loss of services, to one person in one occurrence.
(2) Subject to the bodily injury liability limit for “each person,” the bodily injury liability limit for “each occurrence” is the maximum we will pay as damages for bodily injury, including damages for care and loss of services, to two or more persons in one occurrence.
(3) The property damage liability limit for “each occurrence” is the maximum we will pay for all damages to property, including loss of its use, in one occurrence. We will pay no more than these máximums regardless of the number of vehicles described in the Declarations, insured persons, claims, claimants or policies, or vehicles involved in the occurrence. Any amount payable under this coverage to or for an injured person will be reduced by any payment made to that person under the Uninsured Motorists Coverage in this policy. (Emphasis in original policy).

We have examined the language of the contract in its entirety, and after giving each word its ordinary meaning, we find appellants’ contractual arguments without merit. The language of the policy makes unambiguously clear that liability is limited to damages flowing from an individual’s bodily injury. As made clear by the description of the liability coverage at the beginning of the policy, the policy pays out only when the insured becomes legally liable for automobile-related bodily injury or property damage. As Part I, Coverage section A states:

We will pay for damages for which an insured person is legally liable because of bodily injury or property damage resulting from the ownership, maintenance or use, including loading and unloading, of a car or utility trailer. (Emphasis in boldface is policy’s, emphasis underlined is court’s).

The Limits of Liability section (text recounted in full supra) likewise divides when the policy will pay out into when the insured incurs bodily injury damages (see subsection 1 & 2) and property damages (see subsection 3). The policy’s “bodily injury liability limit” is the maximum the policy will pay for “bodily injury” “to one person in one occurrence.” Although this section provides that “damages for care and loss of services” are covered, such damages are also subject to the “maximum that we will pay” for each person. The words of the policy therefore make unequivocally clear that all liability sustained from each individual’s bodily injury in an automobile accident is subject to a ceiling. The proper ceiling in this case is the $15,000 per person limit and not the $30,000 per occurrence limit. Since we find the insurance policy unambiguous, we cannot, even if so inclined, interpret the policy in light of the development of the tort of loss of consortium.

Pennsylvania courts have consistently interpreted almost exactly the same contractual language in other policies in this fashion. The language in the insurance policy appears to have tracked the language in precedent which favors the insurance company’s position. In Smith v. Cassida, 403 Pa. 404, 169 A.2d 539 (1961), our Supreme Court was presented with a case that involved a claim by the husband of an injured spouse to receive medical care costs and damages for loss of services from Defendant’s insurance company. The injured wife had previously received $10,000 in full settlement of her judgment, and the policy had a per person limit of $10,000 and a per occurrence limit of $20,-000. The company offered the husband a settlement ($500) for his injuries and damage to the automobile, but refused to offer him anything based on his consortium claim.

The policy in that case contained the following language: 4. Limits of Liability

Coverage C(2): The limit of bodily injury liability stated in the declarations as applicable to ‘each person’ is the limit of the Company’s liability for all damages sustained by one person in any one occurrence. The limit of such liability stated in the declarations as applicable to ‘each occurrence’ is, subject to the above provisions respecting each person, the total limit of the Company’s liability for all damages sustained by two or more persons in any one occurrence. Such limits of liability for all damages include damages for care and loss of services arising out of bodily injury, sickness or disease, including death at any time resulting therefrom.

Id., 403 Pa. at 406-407, 169 A.2d at 540. (emphasis added by the Smith Court).

The Court held that:

To us, the pertinent language of the policy is clear that the liability limit intended for bodily injury to one person covered all damages flowing from that one individual’s injuries, including the cost of care and the loss resulting from the disability. The recoverable damages, direct and consequential, are essentially due to the bodily injury of one person. They may not be broken up in order to increase the liability limit provided for. The limit of liability applies to the person injured and not to the person suffering loss. Any other construction would completely annihilate the language of the policy ...

Smith, id,., 403 Pa. at 407-408, 169 A.2d at 540-541. The Court additionally noted that the Declarations accompanying the policy expressly provided that the limit of liability for “bodily injury” for “each person” is $10,000. Id., 403 Pa. at 408, 169 A.2d at 540-541. Furthermore, in the body of the policy, it was also stated that “the limit of bodily injury liability stated in the declarations as applicable to each person is the limit of the company’s liability for all damages sustained by one person.” Id., 403 Pa. at 407-408, 169 A.2d at 540-541.

In the recent case of Vickodil v. Pennsylvania Ins. Guar. Ass’n, 356 Pa.Super. 325, 514 A.2d 635 (1986) (alloc. denied in 514 Pa. 639, 523 A.2d 346), our court again interpreted wording similar to the wording before us to find a spouse’s loss of consortium claim was not covered in a defendant’s insurance policy. In Vickodil, one spouse was seriously injured in an automobile accident, and the other spouse sued for loss of consortium. Both spouses won substantial jury verdicts, which were reduced to judgment. One of defendant’s insurers was insolvent, and the Pennsylvania Insurance Guarantee Association stepped into the shoes of the insolvent insurer pursuant to 40 P.S. § 1701.-101 et seq. The Association refused to pay the consortium claim, arguing that under the insolvent insurer’s policy, there only existed the obligation to pay for damages arising out of bodily injury. The policy language involved in the case is as follows:

Bodily Injury Liability Coverage: The limit of bodily injury liability stated in the declarations as applicable to “each person” is the limit of the company’s liability for all damages, including damages for care and loss of services, because of bodily injury sustained by one person as the result of any one occurrence; but subject to the above provision respecting “each person,” the total liability of the company for all damages, including damages for care and loss of services, because of bodily injury sustained by two or more persons as the result of any one occurrence shall not exceed the limit of bodily injury liability stated in the declarations as applicable to “each occurrence.” (Emphasis added). Vickodil, id. 356 Pa.Super. at 329, 514 A.2d at 637.

Relying almost exclusively on the rationale expressed in Smith, supra, the Court found that the contract did not give appellant a consortium action.

Appellants vainly try to distinguish Smith and Vickodil. The appellants distinguish Smith as a thirty-year old case that has not kept up with recent court rulings “which reflect an updated interpretation of the nature of the loss of consortium claim.” (Brief for Appellants at 13) Regardless of the recent expansive notion of the tort of loss of consortium, the issue before us is one that sounds in contract, not in tort. Consequently, the fact that the Smith court found similar insurance policy wording to be unambiguous is important.

The appellants distinguish Vickodil as only giving Smith cursory treatment and not addressing the issue they raise before this court, e.g., that the loss of consortium is a separate and distinct injury for which recovery may be had. (Brief for Appellants at 13). Moreover, they assert that the holding in Vickodil was based on the application of the statute creating the Pennsylvania Insurance Guarantee Association. (Brief for Appellants at 14).

However, a perfunctory reading of Vickodil indicates it relied to a large extent on the reasoning in Smith. See Vickodil, id. 356 Pa.Super. at 330-331, 514 A.2d at 637. Moreover, the Vickodil court did address the argument that loss of consortium is a separate and distinct injury. The Court found it was a separate and distinct injury in the sense that it was a tort, for which a right of recovery is “unassailable under Pennsylvania law.” Id. 356 Pa.Super. at 330, 514 A.2d at 637. However, the court also held, as we do today, that it did not follow from the existence of a tort that liability arose under an insurance contract. Finally, the Association relied on the insolvent insurer’s policy to negate their obligation to pay for the loss of consortium, not a statutory basis.

Appellants also argue that the insurance policy is “inconsistent and repugnant” to the Motor Vehicle Financial Responsibility Act, 75 Pa.C.S.A. § 1702 et seq.. Appellants note that the Act requires insurance policies provide evidence of financial responsibility in the amount of $15,000 because of injury to one person in any one accident, in the amount of $30,000 because of injury to two or more persons in one accident. See 75 Pa.C.S.A. §§ 1702, 1774 and 1791. Appellants argue that the Act requires insurance policies to have $15,000 for each person injured resulting from an accident, subject to a $30,000 aggregate limit. Since Pennsylvania’s common law establishes that a spouse has an independent claim for loss of consortium, the policy violates the Act.

We find this argument to be without merit. Section 1702 of the Act provides the following definitions:

‘Financial Responsibility.’ The ability to respond to damages for liability on account of accidents arising out of the maintenance or use of a motor vehicle in the amount of $15,000 because of injury to one person in any one accident, in the amount of $30,000 because of injury to two or more persons in any one accident and in the amount of $5,000 because of damage to property of others in any one accident.
♦ * * * * *
‘Injury.’ Accidentally sustained bodily harm to an individual and that individual’s illness, disease or death resulting therefrom.

(emphasis added). Section 1774 provides the following:

Payments sufficient to satisfy judgment (a) General Rule. — For the purpose of this chapter only, judgments shall be deemed satisfied upon the occurrence of one of the following:
(1) When $15,000 has been credited upon any judgment or judgments rendered in excess of that amount because of injury to one person as the result of any one accident.
(2) When $30,000 has been credited upon any judgment or judgments rendered in excess of that amount because of injury to two or more persons as the result of any one accident.
(3) When $5,000 has been credited upon any judgment or judgments rendered in excess of that amount because of damage to property of others as the result of any one accident. (Emphasis added).

The language of the ‘Financial Responsibility’ definition indicates that the $15,000 and $30,000 limits are for damages emanating from injury to a person(s) injured in an accident. Moreover, “injury” is defined as “bodily harm to an individual” and “that individual’s” resulting illness, disease or death. The language of § 1774, taken together with the definition of “injury,” simply highlights that the damages must be sustained as the result of bodily injury in the accident. We conclude that the Act mandates that a policy provide the above mínimums for damages arising from the bodily harm of those involved in an automobile accident.

To interpret the Act as appellants would have us do is not only against the clear import of the statutory language, but would have the undeniable effect of forcing insurance companies to raise their automobile insurance rates. Insurance companies under the appellants’ suggested regime would be potentially liable for $15,000 worth of additional coverage when an accident victim is married. This would run contrary to the legislature’s concern about rising automobile insurance rates. To interpret the Act thus would have a decidedly detrimental effect on the affordability of insurance coverage.

We affirm.

      . It is pertinent to note that the meaning of each boldfaced word is explained in the policy’s definition section. Appellants have left out in their quotation of this section the emphasis placed on certain words by boldface. (Brief of Appellants at 16-17).

      . Webster’s Third New International Dictionary (1976) 194 defines “because of' as a preposition meaning "by reason of' or "account of.”

      . Consistent with the Coverage and other sections of the policy, “bodily injury" and “property damage” appear in boldface throughout this section.

      . “Bodily injury" is defined in the policy as "bodily injury to or sickness, disease or death of a person.” The definition emphasizes that the policy only covers damages resulting from the liability arising from a person’s injury in an accident.
      This case differs significantly from precedent in other states where the insurance policy included in the definition of “bodily injury” "loss of services." See Giardino v. Fierke, 160 Ill.App.3d 648, 112 Ill.Dec. 559, 513 N.E.2d 1168 (2d Dist.1987); Allstate Ins. Co. v. Handegard, 70 Or.App. 262, 688 P.2d 1387 (1984). Where a policy defines "bodily injury” to include “loss of services,” the argument is stronger that there exists an ambiguity as to whether the policy considers loss of consortium a separate injury for which the policy will pay.

      . This does not indicate that Ms. Koenig can not recover for the tort of loss of consortium. See Restatement (Second) of Torts, § 693 (1976). Rather, the question before us is simply how much insurance coverage was contracted for to cover the automobile which hit Mr. Koenig. Although the insurance policy limit has been reached, appellants can still pursue the loss of consortium claim against the tortfeasor.

      . Appellants devote a large part of their brief to an analysis of the development of the tort of loss of consortium from a derivative claim to a claim that is separate and distinct from the injured party’s damages. Like the court in Vickodil, infra, we acknowledge that under recent developments in Pennsylvania’s common law, loss of consortium is a separate and distinct tort from the injured spouse’s claim. However, the appellants’ emphasis on this development in tort law is like trying to fit a round peg in a square hole. This is a contract issue not a tort issue. When interpreting a contract, our first duty is to ascertain if the contract is unambiguous. Only if we found the contract ambiguous, would we be able to consider the recent development of the consortium tort. Moreover, even if we found the contract was unclear, we would interpret the contract in light of the canons of contract construction, attempting to ascertain the reasonable intent of the parties and interpreting any ambiguity in the insured’s favor. It is not clear that this development in tort law would assist us in such a determination.

      . A majority of courts that have addressed this issue have held that a loss of consortium is not bodily injury for purposes of recovering in excess of the “per person” limit of the insurance policy. See, e.g., Weekley v. State Farm Ins. Co., 537 So.2d 477 (Ala.1989); Campbell v. Farmers Insurance Co. of Arizona, 155 Ariz. 102, 745 P.2d 160 (App.1987); Westfield Ins. Co. v. DeSimone, 201 Cal.App.3d 598, 247 Cal.Rptr. 291 (4th Dist.1988); Gillchrest v. Brown, 532 A.2d 692 (Me.1987); Bain v. Gleason, 223 Mont. 442, 726 P.2d 1153 (1986); Tomlinson v. Skolnik, 44 Ohio St.3d 11, 540 N.E.2d 716 (1989); McGovern v. Williams, 741 S.W.2d 373 (Texas 1987); Whitney v. Nationwide Mutual Insurance Co., 151 Vt. 510, 562 A.2d 467 (1989); Landsinger v. American Mutual Insurance Co., 142 Wis.2d 138, 417 N.W.2d 899 (App.1987).

      . 40 P.S. § 1701.101 et seq. establishes the Pennsylvania Insurance Guarantee Association, which is obligated to pay out the claims of an insolvent insurer in certain situations.

      . Appellee submits that its insurance policy has been adopted to reflect the minimum amount of coverage allowable under the Motor Vehicle Financial Responsibility Act. Although there does seem to be a parallel between the language used in the policy and the Act, the record is devoid of information upon which we could base this conclusion and therefore the resolution of the contractual issue was based on an interpretation of the policy's language.

      . See, e.g., 75 Pa.C.S.A. § 2001 et seq.


author: TAMILIA, Judge:

text:
    599 A.2d 974
    COMMONWEALTH of Pennsylvania v. Carlton ODRICK, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 28, 1991.
    Filed Oct. 16, 1991.
    Reargument Denied Dec. 11, 1991.

      Regina M. Boutcher, Philadelphia, for appellant.
    Frances Gerson, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

This is an appeal from the November 26, 1990 judgment of sentence of life imprisonment for murder in the first degree and a consecutive four (4) to twenty (20) year term of imprisonment for murder in the third degree.

Early in the morning of December 26, 1989, appellant, Carlton Odrick, confessed to his friend, Robert Hundley, that he had just killed his sister, Lucille Odrick, and her friend, Dolores Jefferson, inside their apartment at 1515 Hemberger Way in Philadelphia, and asked Hundley to call the police. Officer Hughes arrived around 6:30 a.m. In response to the officer’s question, “Can you tell me what happened?”, appellant confessed, “I think I killed my sister and my sister’s girlfriend” and “I think I stabbed them.” Around 6:40 a.m., the police handcuffed appellant and proceeded to take him to homicide headquarters. During the ride, but not in response to any questioning by the officers, appellant repeatedly stated, “I killed both of them,” “I stabbed them,” and “I didn’t mean to do it.” The officers did ask appellant questions relating to his identification. At headquarters, appellant reiterated the confessions in a few short statements to police. Since there had been a murder committed the previous night in the same building at 1515 Hemberger Way, the detectives were initially confused as to which murder appellant was confessing. Around 7:30 a.m., the detectives brought appellant to an interrogation room. Without being asked any questions, appellant again stated he stabbed his sister and her girlfriend in apartment 504 at 1515 Hemberger Way. At 8:33 a.m., detectives finally remedied the confusion and confirmed the two women had been stabbed to death inside their apartment. At 9:00 a.m., police gave appellant his Miranda warnings and commenced a formal interrogation. From approximately 9:00 a.m. until 1:30 p.m. appellant gave a nine-page signed statement.

On June 11-14 and June 21, 1990, a motion to suppress certain statements of appellant was litigated and subsequently denied. Upon motion by the Commonwealth, all relevant testimony contained in the motion to suppress was incorporated at the nonjury trial. On November 26, 1990, the trial court sentenced appellant and denied his post-trial motions.

Appellant contends the trial court erred in denying his motion to suppress certain oral statements in that they were not voluntary and were not preceded by adequate Miranda warnings. Appellant also argues his nine-page written statement should have been suppressed because it was not obtained within six hours of his arrest as required by Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987).

Our standard of review on appeal from suppression rulings is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are in error. Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1987); Commonwealth v. Fromal, 392 Pa.Super. 100, 572 A.2d 711 (1990).

Our careful review of the facts leads us to conclude the trial court’s factual findings are supported by the record. We agree the trial court was correct in not suppressing statements given by appellant when police arrived on the scene. When the initial statements were made to the officer, appellant was not in custody and thus, no Miranda warnings were required. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1974). The statements made by appellant after he was handcuffed were not a result of custodial interrogation but instead were “blurt outs” and thus were admissible despite the fact Miranda warnings were not given. Commonwealth v. DuVal, 453 Pa. 205, 307 A.2d 229 (1973). Finally, the questions asked of appellant while he was being transported concerned general identification information and did not require Miranda warnings. Kloch, supra.

Next, appellant argues his formal statement should have been suppressed under the six hour rule of Duncan, supra. The issue presents a case of first impression in Pennsylvania. We agree with the trial court that although appellant’s statement violates Duncan on its face, since it was not concluded until 50 minutes after the six hour time limit had expired, the unique circumstances of this case allow us to conclude the statement properly was not suppressed.

In Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), there was an eight hour delay between appellant’s arrest and his first admission and a thirteen hour delay between the arrest and arraignment. Our Supreme Court held when an accused is not arraigned within six hours of arrest, any declaration obtained after arrest but before arraignment is not admissible at trial. In Duncan, supra, although appellant was not arraigned until eight hours after his arrest, his incriminatory statements were made shortly after arrest. The court modified Davenport and ruled “statements not obtained through illegality within the six hour period are not in violation of the rights of the accused and are admissible” even where arraignment is not within six hours of arrest. Duncan, supra, 514 Pa. at 408, 525 A.2d at 1183. The court stated the following:

This Court never intended that the rule of Davenport be rigidly applied in all situations without regard to the purpose of the rule and the evils sought to be avoided by its application. “At no time did we wish to cut off freely volunteered confessions of guilt, nor did we wish to impede legitimate law enforcement efforts. The primary purpose sought to be obtained [through Davenport ] was to discourage the obtaining of incriminatory information through coercive means,” and it was felt that the mere passage of time while under arrest could have a coercive effect upon a defendant.
In establishing the six hour rule of Davenport, we did not abandon the requirement that the incriminating evidence sought to be suppressed by reasonably related to the unnecessary delay, as evidenced by the exigent circumstances exception to the rule.
The rule must accommodate conflicting interests and we must make every effort to protect the rights of the accused on one hand, and avoid the mechanical application of the rule in a manner that works to exclude probative, reliable evidence despite the absence of police abuse.

Id., 514 Pa. at 406, 407, 525 A.2d at 1182, 1183 (citations omitted).

Appellant herein was taken into custody around 6:40 a.m., and his voluntary statement was not concluded until 1:30 p.m., or 50 minutes after the six hour time limit. Thus, on its face, appellant’s four hour statement arguably violates the six hour rule. The delay in this case, however, was not a result of police coercion and had no impact on appellant’s volunteered statement, which began well before the six hour time period had elapsed. The initial confusion of the police relating to the two different homicides occurring at approximately the same time and at the same location provided a reasonable basis for the initial delay in processing the case. Shortly after clarifying the situation, police gave appellant his Miranda warnings and proceeded to obtain the formal statement at issue.

The facts in this case are clearly distinguishable from those in Duncan. Here, appellant began his formal statement well before the six hours had elapsed and in fact it ran only about 50 minutes over the six hour limit. Additionally, there was virtually no delay between the arrest and appellant’s initial confession, which was repeated several times without any hint of coercion or encouragement. If we were to suppress all volunteered statements which happened to run past the six hour limit despite the absence of police abuse, we would be violating the parameters of the Duncan-Davenport rule. Therefore, we hold, absent facts pointing to an unnecessary delay due to police misconduct, voluntary statements given by a defendant and initiated within six hours after arrest may not be suppressed just because the process of obtaining the statement runs over six hours. It is unnecessary and mechanistic to apply Duncan-Davenport in such a fashion. The coercion and duress which tend to wear down the will of a defendant is a factor related to the extended time of the interrogation and must be attributed to the custody itself. Here, the statement was voluntary and the length of interrogation and taking the statement were directly attributed to the necessity of identifying the relationship between the victims and the appellant and in corroborating details of the crime between officers on the scene and those obtaining the statement at the station. Since the incriminating statement was fully documented early in the interrogation and the information obtained in the 50 minutes beyond the six hours was mere elaboration, it may not be suppressed. See Commonwealth v. Hill, 267 Pa.Super. 264, 406 A.2d 796 (1979) (statement given 14 or 15 hours after arrest, merely elaborative of earlier statements given approximately four hours after arrest, is not suppressible). Duncan is not violated merely because a statement, voluntarily given, was signed after six hours, when all essential matters were documented before the time elapsed.

Appellant next argues the evidence was insufficient to support the verdict of first degree murder because there was insufficient evidence to show he had the specific intent to kill. Appellant correctly asserts use of a deadly weapon on a vital part of decedent’s body does not necessarily establish specific intent to kill. Commonwealth v. Austin, 394 Pa.Super. 146, 575 A.2d 141 (1990). In Austin, though, the evidence supported the position that Austin’s focus was on swinging the knife and not on stabbing the victim. The court applied the following analysis:

The proper focus for determining the mental component of the crime is how appellant intended to use the knife or what caused the knife to come into contact with a vital area of a human body. A specific intent to kill and malice are properly implied when a deadly weapon is directed to a vital part of the body. In other words, what did Austin intend to do with the knife: was it his intention to put the knife into the victim or was it his intention to do something else.

Id., 394 Pa.Superior Ct. at 153, 575 A.2d at 144 (citations omitted).

In this case, the Commonwealth did establish appellant had the specific intent to kill. His statement made to the homicide unit that he used a butcher’s knife to make sure Dolores Jefferson was dead, after repeated stabbings had failed to kill her, makes it absolutely clear it was appellant’s intention to kill. The more than 40 stab and incise wounds, at least four of which were potentially fatal, and his statement he went back to stab her some more (after the first knife broke off in her body) because he “wanted to make sure she would die,” confirmed specific intent to kill her and was more than adequately supplied by the physical evidence.

Finally, appellant contends at the time of the murders he was suffering from “diminished capacity” due to intoxication from drugs and, therefore, was not able to formulate the specific intent to kill. The defense of intoxication can reduce the level of homicide from first degree to a lesser grade. Commonwealth v. Rumsey, 309 Pa.Super. 137, 454 A.2d 1121 (1983). The burden of proof in establishing the “diminished capacity” defense lies with the defendant. Commonwealth v. Terry, 513 Pa. 381, 521 A.2d 398 (1987); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). Diminished capacity is an extremely limited defense. Evidence is not relevant unless “it speaks to mental disorders affecting cognitive functions [of deliberation and premeditation] necessary to formulate specific intent.” Commonwealth v. Zettlemoyer, 500 Pa. 16, 28, 454 A.2d 937, 943 (1982), quoting Commonwealth v. Weinstein, 499 Pa. 106, 114, 451 A.2d 1344, 1347 (1982).

Appellant failed to satisfy his burden of producing evidence indicative of the lack of premeditative or deliberative capacity because he failed to demonstrate he was intoxicated at the time of the murders. Merely because an officer on the scene testified appellant may have been under the influence of drugs does not prove diminished capacity. The fact appellant asked his friend to call police immediately following the murders and then provided police with a concise statement as to his actions establishes his cognitive functions were intact. Appellant’s expert witness was unable to say that at the time of the killings appellant’s cognitive functions were so impaired by drugs that he could not form a specific intent to kill. The trial judge chose to believe the Commonwealth’s expert who testified, to a reasonable degree of medical certainty, appellant was able to form a specific intent to kill. This opinion is clearly supported by appellant’s many purposeful actions throughout the incident and his recollection of those activities. Therefore, the trial court was correct in rejecting appellant’s intoxication defense.

In light of the foregoing discussion, we affirm the trial court’s judgment of sentence.

Judgment of sentence affirmed.


author: MONTEMURO, Judge.

text:
    599 A.2d 978
    SPANG & COMPANY v. USX CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1991.
    Filed Oct. 15, 1991.
    Reargument Denied Dec. 24, 1991.

      Richard F. Lerach, Pittsburgh, for appellant.
    William T. Marsh, Butler, for appellee.

      Before OLSZEWSKI, MONTEMURO and HOFFMAN, JJ.
   MONTEMURO, Judge.

This is an appeal from an order entering judgment against appellant USX (formerly United States Steel Corp.) in the amount of $2,805,854, together with prejudgment interest at the rate of 6% to be calculated from February 28, 1982, the date of appellant’s termination of a contract between the parties.

The contract in question provided for appellee to process the slag produced as a by-product of appellant’s steelmaking facility in Lorain, Ohio for resale by appellant. The agreement had been entered into in June of 1960, and continued with modifications and extensions until 1982, when appellant unilaterally terminated the agreement. During the life of the contract, appellant was to recompense appellee for slag prepared and ready for delivery by appellant to customers, but at termination payment was due for stockpiled material. After appellant declined to compensate appellee for the unsold slag in inventory, suit was commenced in the Court of Common Pleas of Butler County. After a two week non-jury trial in 1984, the court initially entered an order finding in favor of appellant and against appellee, a result which was reversed after motions for post-trial relief were filed and briefed, and the court had heard oral argument. The revised disposition denied appellant’s post-trial motions, and granted appellee a new trial on the issue of damages alone, as the court found itself unable, on the evidence educed at trial, to determine how much slag remained in appellant’s possession, and thus unable to compute damages. Appellant successfully appealed to this court; however, on appellee’s petition for allowance of appeal the Supreme Court of Pennsylvania affirmed the trial court, remanding for further proceedings.

Upon remand, after a second two week trial limited to the damages issue, the trial court entered an order awarding damages to appellee in the amount heretofore noted plus prejudgment interest from June of 1982. This appeal followed.

Appellant has ostensibly presented us with five multipartite issues. However, these claims may more conveniently be grouped into four, as two issues concern specific evidentiary matters. We will, therefore, address appellant’s assertion seriatim, although not necessarily in the order presented.

Appellant argues that appellee’s claims are barred by the six year statute of limitations applicable to contract actions, 42 Pa.C.S.A. § 5527, as the course of dealing between the parties was governed by a series of discrete agreements with varied provisions rather than a continuous contractual arrangement modified over time. However, we first note that appellant’s description of its relationship with appellee is contradicted by that of our Supreme Court, which recounted the parties history as follows:

USS and Spang (through Ferroslag) entered into a contract in June, 1960, which through extensions and with various modifications, lasted until termination on February 28, 1982.

Spang and Co. v. U.S. Steel Corp., 519 Pa. at 17, 545 A.2d at 862.

As appellee correctly points out, a decision by an appellate court on a prior appeal becomes res judicata, the law of the case, and therefore unamenable to further review. Roskwitalski v. Reiss, 338 Pa.Super. 85, 487 A.2d 864 (1985) alloc. dn., 514 Pa. 619, 521 A.2d 933. Moreover, even were the supreme court’s description not definitive, for the reasons that follow, appellant has waived any challenge to its liability under the contract.

After the 1984 trial, appellant filed post-trial motions containing issues of liability, including the statute of limitations, which were duly addressed by the trial court in its Opinion and Order of April 16, 1985. However, on appeal to this court, no liability issues were presented, only various arguments, repeated now, asserting that the trial court erred in granting a new trial on the issue of damages. As the supreme court pointed out in its hearing of this case, “an appeal may be taken from any order in a civil trial awarding a new trial. Pa.R.A.P. Rule 311(a)(5).” Id., 519 Pa. at 24 n. 1, 545 A.2d at 865 n. 1.

Normally, where a challenge is posed to the grant of a new trial on post-verdict motions, the pertinent inquiry is whether the trial court has abused its discretion. Id.; Nehrebecki v. Mull, 412 Pa. 438, 194 A.2d 890 (1963). The exception to this rule is that where a single reason is given by the trial court to justify its award of a new trial, the legal merit of that reason is the focus of the analysis, rather than the discretion of the court, see, Penneys v. Segal, 410 Pa. 308, 311-12, 189 A.2d 185, 187 (1963). However, this rule places no restriction on a litigant’s ability to challenge another aspect of the case unrelated to the award of a new trial. Here, in addition to granting a new trial on the issue of damages, the court also decided the liability question adversely to appellant. This determination was reviewable, since a favorable decision as to responsibility would have obviated the necessity for a new trial. Compare, Kunz v. City of Titusville, 373 Pa. 528, 97 A.2d 42 (1953). However, as appellant failed to pursue relief via these issues on prior appeal, the opportunity was lost. They are not now properly before us.

There are two major points around which several of appellant’s remaining issues are framed. The first of. these concerns the occurrences at retrial, and centers on the argument that the trial court erred as a matter of law in permitting appellee to take additional discovery, and to offer additional evidence in support of the damage claim. This leniency was, it is contended, contrary to the finding of our Supreme Court that sufficient evidence existed in the record of the first trial for calculations of loss to be made, although appellant also insists that the evidence presented both at trial and at retrial was inadequate to prove any damages. In this same regard, appellant also argues, somewhat quixotically, that the only new evidence was in the form of certain reports recording the amount of appellee’s daily production of slag, which evidence appellant also complains was ignored by the trial court. Finally, appellant requests that the verdict be reformed on the basis of these reports.

Addressing these arguments singly, we first note that with regard to appellant’s claim that the trial court committed an error of law in permitting additional discovery and evidence at retrial, again the issue is res judicata. In its Opinion, our Supreme Court found “no abuse of discretion or error of law in the [trial] court’s grant of a new trial limited to damages.” Spang, supra, 519 Pa. at 29, 545 A.2d at 868. The decision thus sanctioned, and quoted by the Court concluded that

“Justice can best be served if the trial continues on the sole issue of damages,” so that “the parties [can] develop and present evidence that is available as to the amount of slag that Spang processed and left on the property, ready for sale and delivery to customers of U.S.S. The cost of loading and weighing the slag would also be established.”

Id.

Even had the propriety of the trial court’s action not already received the supreme court’s imprimatur, as a practical matter the course taken was a necessary sequel to the determination that remand should occur. If indeed, as appellant at one point suggests, there were found in the record enough evidence to enable the trial court to determine damages, no return to the trial level for further proceedings would have been necessary or desirable, as an order for the trial court to perform its calculations on the available data could easily have sufficed. However, no such order issued; instead a new trial was approved, with the specific notation that “The trial court’s grant of a new trial ... gave both parties the opportunity to present additional evidence to permit a more accurate calculation of the exact amount of processed slag in inventory on February 28, 1982.” Id. A clearer blueprint for the trial court’s actions cannot be found, making appellant’s claim unpersuasive at best.

The same may be said of appellant’s insistence that no claim for damages had at any point been made out at all. This issue too is res judicata despite the amazement appellant has expressed at the result.

The breaching party, USS, which refused to make any payments for processed slag in inventory, should not be allowed to hang the loss on the injured party, Spang, which clearly demonstrated substantial damages for which USS was responsible, even though those damages were not computed with mathematical precision.

Id.

Appellant’s remaining correlative claim concerns the daily operating reports produced by appellee, which, it is argued, were ignored by the trial court, and which should form the basis for a revised judgment. These business documents, which recorded all processing operations carried on at the East Fill, were kept only for the period January 1, 1972, to the termination date in February of 1982. They therefore do not reflect the amount of slag processed during the total contract period, which began in 1960. Moreover, in addition to the time element, the reports are misleading in that, as the trial court points out, they report only what was processed. No unsold product in inventory, which includes the slag utilized by appellant for its own internal construction purposes, is carried on appellee’s books as an asset, as it was the property of appellant. Damages based solely on the reports would therefore have been totally in error, contrary to appellant’s assertion. They were, also contrary to appellant’s assertion, utilized by the trial court in computing its total. (T.C.O. at 12).

This claim regarding documents reflects the concern of appellant’s second set of issues which questions specific evidentiary findings by the trial court as to the physical slag stock, that is, what portions of it are or are not shown by the (documentary) evidence to be compensable under the terms of the contract, and the total weight of the material. This issue has several components, as items of evidence and credibility of witnesses are both challenged. It is argued that certain accumulations of slag are not compensable under the original 1960 contract, as they were used by appellant for its own internal purposes, namely a buffer zone between appellant’s mill and the nearby town, and the base for a roadway within the works area. It is also argued that the testimony of certain witnesses should not have been believed as it was inaccurate in its own right, or inaccurate because it was based upon faulty assumptions.

All of these allegations revolve around appellant’s general predicate that the trial court’s verdict was based on insufficient, suspect or compromised evidence.

Our appellate role is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 567, 440 A.2d 609, 611 (1982; Metz Contracting, Inc. v. Boxer Heights, Inc., 261 Pa.Super. 177, 180, 395 A.2d 1373, 1375 (1978). The findings of the trial court in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record. Eddystone Fire Co. No. 1 v. Continental Insurance Co., 284 Pa.Super. 260, 263, 425 A.2d 803, 804 (1981). When an appellate court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected. Brenna v. Nationwide Insurance Co., supra 294 Pa.Super. at 567-68, 440 A.2d at 611; Courts v. Campbell, 245 Pa.Super. 326, 331, 369 A.2d 425, 428 (1976).

Mancini v. Morrow, 312 Pa.Super. 192, 196-7, 458 A.2d 580, 582 (1983).

After recognizing that “While neither Spang nor USX kept an accurate, complete inventory record of the processed slag at the East Fill the parties knew from the daily and monthly operating reports the approximate amount of slag that had been processed,” (T.C.O. at 7), the trial court’s computation of damages utilized as a starting point the total amount of processed slag recorded by appellee as having been produced and delivered to appellant during the contract period, that is 7,731,468 tons of material. Of this, appellant was found to have accepted and sold to third parties 75.7% or 5,849,378 tons. The remainder, 1,882,090 was reduced by 365,500 tons which had been processed twice according to the testimony of appellee’s witnesses. The final figure was supported by testimony of experts employed by appellee who performed volumetric studies of the physical accumulations of slag present on appellant’s property, using aerial photography, topographic maps and personal observation. It included all of the material stockpiled in heaps in the East Fill, as well as the material used for the buffer zone, roadways, and dikes appellant required in its operations. The court’s reasoning was that all of the material used in these constructions was a asset of appellant’s, and as such compensable at termination.

As to the price and weight of the material, the trial court adopted the price fixed by the parties, $2,219 per ton, prior to termination. The weight selected, 148 lb. per cubic foot, was derived from appellant’s own contemporaneous sales literature, although the contract had assigned 160 lb. per cubic foot as the weight of the slag. The court chose the lighter weight, even though with time the material becomes compacted (rodded) and heavier. Appellant was therefore afforded advantages in the calculations which it now refuses to acknowledge.

Finally, the court concluded that the cost of weighing and loading the slag, which under the terms of the original contract is to be deducted from the tonnage price, was $.19 per ton. Appellant argues that this is unprovable, and that no record evidence exists of such a cost. However, as appellee points out, there are both exhibits and testimony in the record establishing this amount as the cost actually quoted to appellant by appellee and another contractor immediately prior to termination. We find that in this too, especially as it is uncontradicted, the trial court’s discretion was properly exercised.

All of the conclusions drawn by the trial court find adequate support in the record, despite appellant’s complaints. Moreover, we find no reason to disagree with any of the court’s findings, since, most tellingly, appellant’s witnesses were used only to attack the conclusions drawn by appellee’s experts. No independent calculation of the amount of slag left by appellee on its premises at termination was offered by appellant at any time. As our Supreme Court has stated, albeit in another context:

The failure to produce evidence which would properly be part of the case and which is within the control of a party whose interest it would naturally serve, militates strongly against such party and raises in the absence of explanation an inference of fact that it would be unfavorable to him. Peters v. Shear, 351 Pa. 521, 41 A.2d 556 (1945); Hall v. Vanderpool, 156 Pa. 152, 26 A. 1069 (1893).

Piwoz v. Iannacone, 406 Pa. 588, 596, 178 A.2d 707 (1962).

Credibility was here, as always, a matter for the factfinder, who is free to believe any portion or none of the evidence presented, Aletto v. Aletto, 371 Pa.Super. 230, 537 A.2d 1383 (1988).

Appellant’s final contention is that, for several reasons, the trial court erred in awarding prejudgment interest, and that any such award should be limited to simple rather than compound interest. First, it is argued that for interest to be imposed as damages, the sum due and owing must have been liquidated. This assertion rests on the previously made assumptions that neither the volume of slag for which payment is due, nor the costs of weighing and loading are ascertainable. As noted above, we find these assumptions unfounded. Moreover, our Supreme Court has held that

For over a century it has been the law of this Commonwealth that the right to interest upon money owing upon contract is a legal right. West Republic Mining Co. v. Jones and Laughlins, 108 Pa 55 (1889). That right to interest begins at the time payment is withheld after it has been the duty of the debtor to make such payment.

Fernandez v. Levin, 519 Pa. 375, 379, 548 A.2d 1191, 1193 (1988).

This court in Thomas H. Ross, Inc. v. Seigfreid, 405 Pa.Super. 558, 592 A.2d 1353 (1991), where the same contention, lack of liquidated damages, was advanced, has most recently held that “in contract cases, prejudgment interest is awardable as of right,” Id., 405 Pa.Superior Ct. at 569, 592 A.2d at 1359. No exception has been carved out where damages must be determined at trial. This same proposition has been enunciated before, notably in Frank B. Bozzo, Inc. v. Electric Weld Division of the Fort Pitt Division of Spang Industries, Inc., 345 Pa.Super. 423, 498 A.2d 895 (1985), where we held that

The justification for an award of prejudgment interest is that because the defendant knew or at least could have learned the amount of his debt, he should have tendered that amount to the plaintiff. Since he did not, and by failing to do so caused the delay of litigation, he has deprived the plaintiff of the use of that amount from the date of the breach to the date of the satisfaction of the judgment.

Id., 498 Pa.Superior Ct. at 430, 498 A.2d at 898.

This holding thus summarily dispenses with the corollary claim made by appellant that prejudgment interest was improper because, not being based on liquidated damages, it was discretionary with the trial court, and that discretion was abused because the fault for nonpayment lay with appellee, whose exorbitant demands appellant righteously rejected.

Finally, appellant argues that any award of prejudgment interest should have been simple interest only, not compound. We are constrained to agree. Contract cases in general, where damages are known or, as here, ascertainable through mathematical calculations, are limited to a 6% rate of simple interest. See, Fernandez, supra; Penneys v. Pennsylvania R.R. Co., 408 Pa. 276, 183 A.2d 544 (1962). The statute governing the definition of “legal rate of interest,” where that term is used in any statute or document, 41 P.S. § 202, specifies only the rate set, that is 6%, not the method of accumulation. Although as appellee points out, there have been cases in which compound interest was awarded, see, e.g., Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980), they provide us with no standard justifying a deviation from the general rule in this case.

There is one final reason for our decision: had the contract under which the parties operated not have been terminated, appellee would have received no compensation at all for the large amounts of slag stockpiled in appellant’s construction projects, that is, the dikes, roadways, and buffer zone. Under such circumstances, there is no reason to warrant abrogating the normal practice.

Judgment affirmed in part and vacated in part.

      . The contract was, more precisely, initiated between appellant and Ferroslag, a wholly owned subsidiary of appellee, and its predecessor in interest.

      . Processing involved removing all metallic residue, and crushing the slag into various specified sizes, after which appellee was to load and weigh the processed product for sale to appellant’s customers. Pursuant to the agreement, appellee erected a processing plant at the Lorain Works, in an area known as the East Fill, the dump site for slag, and dismantled the structure upon termination.

      . Spang & Co. v. United States Steel Corp., 358 Pa.Super. 543/518 A.2d 273 (1986).

      . Ibid, 519 Pa. 14, 545 A.2d 861 (1988).

      . The limitations question was addressed at some length; the remaining liability issues were dismissed on the basis that appellant had admitted, in a letter of December 13, 1981, the existence of a stockpile of at least 480,000 tons of slag.

      . These documents were not presented at the 1984 trial as they were thought to have been lost. Instead, monthly summaries derived from them, and also kept in the usual course of business, were used as a replacement.

      . The necessity for this buffer was removed in 1971, when appellant changed its manufacturing method from the open hearth to the basic oxygen process, the latter of which apparently produces less dust and noise than the former.

      . It was the absence of information concerning the double processing which contributed materially to the trial court’s original inability to calculate damages.

      . The actual numbers arrived at by the experts were greater than, although consistent with those testified to by appellee’s chief executive officer.


author: WIEAND, Judge:

text:
    599 A.2d 984
    Richard Lewis GRAHAM and Paulette Graham, H/W, Appellants, v. MACHINERY DISTRIBUTION, INC. t/a and d/b/a Mitsubishi and Nippon Yusoki Co., Ltd. t/a and d/b/a Mitsubishi and Omni Lift, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued June 18, 1991.
    Filed Oct. 28, 1991.
    Reargument Denied Dec. 31, 1991.

      Ned Hark, Philadelphia, for appellants.
    Edward J. McGinn, Jr., Philadelphia, for appellees.
    Before ROWLEY, President Judge, and CAVANAUGH and WIEAND, JJ.
   WIEAND, Judge:

In this action by Richard and Paulette Graham against Nippon Yusoki, Inc., Ltd. (Nippon) to recover damages for injuries sustained in an accident involving a forklift manufactured by Nippon, the trial court held that it lacked in personam jurisdiction over Nippon, a Japanese corporation. More specifically, the trial court held that plaintiffs had failed to show that Nippon had sufficient contact with Pennsylvania to permit the courts of Pennsylvania to exercise jurisdiction over it consistently with due process. From the dismissal of their complaint on jurisdictional grounds, the plaintiffs appealed. After careful review, we affirm.

The forklift which allegedly caused injury to Richard Graham had been manufactured in Japan by Nippon, a Japanese manufacturer having offices in Kyoto, Japan. The forklift had been sold by Nippon to Mitsubishi Corporation in Japan. Mitsubishi, in turn, had shipped the machinery to Machinery Distribution, Inc. (MDI), a corporation located in Houston, Texas. MDI was engaged in distributing equipment throughout the United States, including Pennsylvania.

When a defendant raises an issue of in personam jurisdiction, the plaintiff has the burden of showing that jurisdiction is proper. Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 190, 479 A.2d 500, 503 (1984); Crompton v. Park Ward Motors, Inc., 299 Pa.Super. 40, 42, 445 A.2d 137, 138 (1982). The power of Pennsylvania courts to exercise jurisdiction over a non-resident defendant is dependent upon two requirements. First, jurisdiction must be authorized by statute; and, second, the exercise of jurisdiction must comport with constitutional principles of due process. Kenneth H. Oakes, Ltd. v. Josephson, 390 Pa.Super. 103, 105, 568 A.2d 215, 216 (1989). The Pennsylvania Long-Arm Statute, 42 Pa.C.S. § 5322(b), authorizes courts to exercise jurisdiction over non-resident defendants “to the fullest extent allowed under the Constitution of the United States.” The inquiry in this case, therefore, is whether holding Nippon amenable to suit in Pennsylvania would violate principles of due process. See: Koenig v. International Brotherhood of Boilermakers, 284 Pa.Super. 558, 567, 426 A.2d 635, 639-640 (1980). See also: Temtex Products, Inc. v. Kramer, supra, 330 Pa.Super. at 194, 479 A.2d at 505-506.

Due process requires that a defendant have “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945). These minimum contacts must have a basis in “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298 (1958).

Plaintiff-appellants argue that by placing forklifts into “the stream of commerce for sale throughout the world,” Nippon purposefully directed its activities toward Pennsylvania. Jurisdiction, they contend, is appropriate because Nippon participated in a distributive chain which, foreseeably, might result in sales to Pennsylvania buyers. Appellants rely upon a decision by the Superior Court in Hewitt v. Eichelman’s Subaru, Inc., 341 Pa.Super. 589, 492 A.2d 23 (1985). Hewitt, however, does not support the exercise of jurisdiction over Nippon in the instant case. In Hewitt, an action had been filed against Fuji, the Japanese manufacturer of Subaru automobiles. These automobiles had been sold to Subaru of America (SOA), which was Fuji’s exclusive importer of Subaru automobiles in the United States. SOA was a New Jersey corporation licensed to do business in Pennsylvania. Fuji owned more than 49% of the stock of SOA and maintained a liaison office at SOA’s principal office in New Jersey. SOA sold Subaru vehicles to franchised distributors who distributed the cars to franchised dealers who, in turn, sold the cars to the public. In Pennsylvania, fifty-three (53) dealers generated a substantial number of sales of Subaru automobiles. The Court held that Fuji was amenable to suit in Pennsylvania because it had placed its automobiles into the stream of commerce in a manner such that it could expect sales to be made in Pennsylvania. The close relationship between the Japanese manufacturer and American importer made it “unlikely that Fuji [was] unaware of the extent of SOA’s distribution network.” Id., 341 Pa.Superior Ct. at 595, 492 A.2d at 26. Therefore, the court concluded, Fuji had “purposefully availed itself of the privilege of conducting activity in Pennsylvania.” Id.

In the instant case, the plaintiff-appellants failed to establish facts sufficiently similar to those which caused the Hewitt court to hold that Fuji was amenable to suit in Pennsylvania. Nippon did not have an office in Pennsylvania and was not licensed to do business here. It was not shown that Nippon owned MDI stock, that MDI was licensed to do business in Pennsylvania, or that either Nippon or MDI had established an extensive dealership in Pennsylvania. It also was not shown that MDI was Nippon’s exclusive American importer. Indeed, it was not even shown how the forklift which injured the husband-plaintiff found its way into Pennsylvania. The record, in short, was entirely inadequate to show that Nippon had made any conscious effort to serve the Pennsylvania market.

The Supreme Court of the United States has made it clear that foreseeability alone is not a sufficient benchmark for personal jurisdiction under the due process clause. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), the Court explained:

If foreseeability were the criterion, a local California tire retailer could be forced to defend in Pennsylvania when a blowout occurs there, a Wisconsin seller of a defective automobile jack could be haled before a distant court for damage caused in New Jersey, or a Florida soft-drink concessionaire could be summoned to Alaska to account for injuries happening there. Every seller of chattels would in effect appoint the chattel his agent for service of process. His amenability to suit would travel with the chattel____
[T]he foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there, (citations omitted).

Id. at 296-297, 100 S.Ct. at 566-567, 62 L.Ed.2d at 500-501.

The stream of commerce theory was more recently considered by the Supreme Court in Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality opinion). There, the plaintiff had been injured in a motorcycle accident and filed a product liability action in which he contended that the tire, tube and sealant had been defective. The complaint named Cheng Shin Rubber Industrial Co., Ltd. (“Cheng Shin”), the Taiwanese manufacturer of the tire tube, as a defendant. A third-party complaint was subsequently filed against Asahi, the Japanese manufacturer of the tube’s valve assembly. Following settlement of the motorcycle driver’s claims, the only unresolved action was the indemnity claim between Cheng Shin and Asahi. The record showed that Asahi had manufactured the tire valve assemblies in Japan and sold the valves to Cheng Shin for use as components in the finished tire tubes. This sale had taken place in Taiwan. Cheng Shin had purchased valve assemblies from other suppliers and sold finished tubes throughout the world. Asahi’s sales to Cheng Shin accounted for 1.24% of its income in 1981 and 0.44% in 1982. Cheng Shin produced an affidavit from one of its managers which asserted that Asahi had been aware that its valve assemblies would be sold throughout the United States and California. An Asahi manager, however, filed an affidavit denying any awareness that its sale of tire valves to Cheng Shin would subject it to litigation in California.

The Court rejected Cheng Shin’s argument that Asahi was subject to suit in California because it had placed the valve assemblies into the stream of commerce. Justice O’Connor, writing the lead opinion, determined that Asahi had lacked the minimum contacts necessary to support jurisdiction because Asahi had not purposefully directed activity towards California. She wrote:

The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed towards the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. But a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed towards the forum State.
Asahi does not do business in California. It has no office, agents, employees, or property in California. It does not advertise or otherwise solicit business in California. It did not create, control, or employ the distribution system that brought its valves to California. There is no evidence that Asahi designed its product in anticipation of sales in California.

Asahi Metal Industry Co., Ltd. v. Superior Court of California, supra, 480 U.S. at 112, 107 S.Ct. at 1032, 94 L.Ed.2d at 104-105 (emphasis added) (citations omitted).

So in the instant case, there is no evidence that Nippon designed its forklift in anticipation of sales in Pennsylvania. Similarly, there is no evidence that Nippon advertised its product in Pennsylvania, established channels for providing regular advice to customers in Pennsylvania or marketed the product through a Pennsylvania distributor who was acting as an agent for Nippon. The evidence does not show that Nippon has any agents or employees in Pennsylvania or that it solicits business in Pennsylvania. Under these circumstances, the courts of this Commonwealth cannot exercise in personam jurisdiction over Nippon merely because it was foreseeable that its forklift might find its way into Pennsylvania.

Jurisdiction is proper only “where the contacts [with a state] proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum state.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528, 542 (1985) (emphasis in original). See: McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223, 226 (1957). Where third parties with a relationship to a non-resident defendant engage in unilateral activity in the forum state, the requirement that the defendant have minimum contacts with the forum is not satisfied. Skinner v. Flymo, 351 Pa.Super. 234, 242, 505 A.2d 616, 620 (1986), citing Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 475, 105 S.Ct. at 2183, 85 L.Ed.2d at 542; Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416-17, 104 S.Ct. 1868, 1873, 80 L.Ed.2d 404, 412 (1984).

Insofar as can be determined from the record in the instant case, Nippon’s only activity was to manufacture and sell a forklift to Mitsubishi. The manufacture of the equipment and its sale by Nippon took place in Japan. Nippon did not select a distributor in the United States or control Mitsubishi’s selection of such distributor. We conclude, therefore, that Mitsubishi’s unilateral act of shipping the forklift to MDI in the United States, where it was sold and ultimately found its way into Pennsylvania, is insufficient to support in personam jurisdiction over Nippon in Pennsylvania.

For these reasons, we hold that the trial court did not err when it dismissed appellants’ complaint against Nippon for lack of in personam jurisdiction. Nippon did not purposefully direct any activity toward Pennsylvania that would subject it to jurisdiction in the courts of this Commonwealth.

Order affirmed.

      . We find no merit in plaintiffs' contention that because Nippon Yusoki, Inc., Ltd. had an "export ratio of 19% in 1986", sufficient minimum contacts exist with Pennsylvania to justify in personam jurisdiction. This statistic proves nothing unless supported by documentation indicating the percentage of forklift exports which were sent to the United States and, ultimately, Pennsylvania. Similarly, the fact that the forklift’s owner’s manual was published in English is not persuasive, as the market for these machines is worldwide and English is not only spoken in the United States.


author: DEL SOLE, Judge:

text:
    599 A.2d 988
    COMMONWEALTH of Pennsylvania v. Ernest P. DANIELS, III, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 18, 1991.
    Filed Nov. 8, 1991.
    Reargument Denied Jan. 6, 1992.

      James R. Wilson, Asst. Public Defender, Pittsburgh, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com.
    Before McEWEN, DEL SOLE and FORD ELLIOTT, JJ.
   DEL SOLE, Judge:

Appellant, Ernest P. Daniels, III, has taken this appeal from the judgment of sentence to a term of imprisonment of from five years to ten years imposed after he was found guilty, following a non-jury trial, of violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-102 et seq., specifically, possession of cocaine with the intent to deliver. The trial court denied the post-verdict motions of Appellant and this appeal followed.

On appeal, Mr. Daniels raises one issue for review, whether the trial court erred in failing to suppress the cocaine found in his possession after his hand luggage was searched by Allegheny County Police Officers in Greater Pittsburgh International Airport Terminal.

A suppression hearing was held prior to trial, and the trial court denied the motion to suppress, on the grounds that: (1) that the officers did not conduct a “Terry stop”, but their questioning of Appellant was merely a citizen encounter, and (2) Appellant’s consent to the search of his carry-on bag was freely and voluntarily given.

The record reveals that Appellant was approached by two police officers in the main concourse of the airline terminal. The officers had received information from an airline employee that Mr. Daniels had purchased a round-trip ticket to New York’s LaGuardia Airport with cash, and that he had made reservations on flights which indicated that Appellant would be in New York for approximately four hours. The officers were using a drug courier profile based on such factors as cash paid tickets of short duration to a known narcotics distribution center such as New York, and casual dress rather than business attire, as grounds for monitoring the movements of Appellant in the terminal.

After Appellant deplaned, he walked at a brisk pace looking from side to side. As he approached the exit he was stopped by the officers who identified themselves and asked to see some identification. At this point the officers ascertained that Appellant was not travelling under an alias, and that his identification was all in order. Following this encounter, the trial court found that Appellant gave consent to a search of his hand luggage. We, however, hold that this finding of voluntary consent to search is not supported by the evidence.

It is clear from the record that when first asked, Appellant refused to consent to a search. Then after this refusal, the. officers asked if he was embarrassed to be searched in public, and he agreed he was. He was then escorted to the interdiction office. (N.T. February 2, 1990, at 15, 35). The officers’ conduct indicated that the only choice Appellant had was either to be searched in public or searched in private to avoid public embarrassment. There-, fore, we cannot justify a finding that Appellant voluntarily consented to a search in the drug interdiction office.

Because we conclude that Appellant did not voluntarily consent to accompany the police officers into the drug interdiction office, we hold that Appellant was illegally detained in the interdiction office at the time he signed a consent-to-search form allowing the officers to open and search his shoulder bag. Consequently, the cocaine found in the Appellant’s shoulder bag was inadmissible even though he consented to the search once he was in the interdiction room, because it was the product of an illegal detention, and not the result of an independent act of free will. See, Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983), citing, Dunaway v. New York, 442 U.S. 200, 218-219, 99 S.Ct. 2248, 2260-2261, 60 L.Ed.2d 824 (1979).

The facts in Royer, supra, are in several ways remarkably similar to those of our case. In Royer the Appellant was questioned by detectives in an airline concourse because he fit the drug courier profile. Upon request, but without oral consent, Appellant produced his airline ticket and driver’s license, which carried his correct name. He was asked to accompany the detectives to a small room for questioning, but his license and ticket were retained by the police, and his baggage was retrieved from checked luggage. While in this small room he consented to the search of his luggage. The Supreme Court held:

What had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room, where the police, unsatisfied with previous explanations, sought to confirm their suspicions ... [H]e reasonably believed that he was being detained. At least as of that moment, any consensual aspects of the encounter had evaporated, and we cannot fault the Florida District Court of Appeal; for concluding that Terry v. Ohio and the cases following it did not justify the restraint to which Royer was then subjected. Royer, supra., 460 U.S. at 503, 103 S.Ct. at 1327.

In the instant case, like Royer, Appellant allegedly fit the drug courier profile. However, he was not travelling under an assumed name. In fact when this was ascertained by the officers their suspicions became less reasonable, because they were less particularized. Also, as in Royer, Appellant “reasonably believed” that he was not free to go. In United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), the Supreme Court held, “We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”

In the present factual situation, in view of the all the surrounding circumstances, we hold that it was reasonable for Mr. Daniels’ to believe he was not free to leave, and therefore the search constituted a violation of his Fourth Amendment rights. Appellant never consented to accompany the officers to the interdiction office, and therefore the consent to search given by Appellant, while he was in the office, was the product of an illegal detention, and was therefore invalid. Consequently, the fruits of this primary illegality, the illegal detention, should have been suppressed. Dunaway, supra.

Furthermore, we hold that the illegal search and seizure was not justified on traditional “Terry stop” reasoning, because, (1) the police did not have “reasonable suspicion” that Appellant was engaged in criminal activity, and (2) even if there were reasonable suspicion, this did not justify a non-consensual search of Appellant’s luggage.

The Supreme Court, in United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989), has recently held that in evaluating the reasonableness of a stop, the courts must look to, “the totality of the circumstances — the whole picture.” In Sokolow, respondent purchased two round-trip tickets from Honolulu to Miami, and paid $2,100 from a large roll of $20 bills. The ticket agent noted that Mr. Sokolow appeared nervous, and that he was wearing a black jumpsuit with gold jewelry. Respondent gave his name as Andrew Kray and neither he nor his travelling companion checked any baggage.

After Mr. Sokolow returned to Honolulu, he was seized by DEA agents and escorted to the DEA office in the airport. A narcotics detector dog sniffed Mr. Sokolow’s luggage and alerted to the respondent’s shoulder bag in the office. Appellant was advised of his rights, and the agents obtained a warrant to search the shoulder bag. They found no illicit drugs, but the bag did contain several suspicious documents indicating respondent’s involvement in drug trafficking. The agents had the dog reexamine the remaining luggage, and this time the dog alerted to a medium-sized bag. It was too late to get a warrant to search this bag, but respondent returned home and the agents retained the bag. The next morning a warrant was issued and the bag was opened revealing over 1,000 grams of cocaine.

The Sokolow court determined that the information from the respondent’s activities which conformed to the drug courier profile and such other activities, such as appearing nervous and looking around the waiting room during a stopover in Los Angeles, constituted, “in the totality of the circumstances” reasonable suspicion. Although, it reversed the court of Appeals, stating that both “probabilistic evidence”, such as evidence available from a drug courier profile, and evidence of “ongoing criminal behavior”, have equal evidentiary significance, nonetheless, each case must be evaluated on a case by case basis as, “the concept of reasonable suspicion is not readily, or even usefully, reduced to a neat set of legal rules.” Id., 109 S.Ct. at 1585.

In the case before us, the officers had evidence which showed that Appellant fit the drug courier profile to the extent that he paid in cash and was travelling for a short duration to a source city. However, it was ascertained that he was not travelling under an assumed name as soon as the officers approached Appellant. Evidence that Appellant looked from side to side, is certainly not indicative of anything, nor is it even suggested that this behavior conforms to the drug courier profile. In fact, we do not know what the profile consists of, or to what degree the profile accurately identifies persons carrying drugs. Rather, all we do know is that when the officers determined that Appellant was not travelling under an assumed name, their suspicions should have been allayed. Therefore, in the totality of the circumstances, we hold that the officers did not have reasonable suspicion to detain Appellant.

However, assuming arguendo, that there was reasonable suspicion to justify a Terry stop, the non-consensual search of Appellant’s hand luggage was certainly not justified under Sokolow. In Sokolow, the Court held that since the seizure or Terry stop in question was justified by reasonable suspicion, the DEA agents could employ a narcotics detection dog to immediately conduct a canine sniff test. See, United States v. Place, 462 U.S. 696, 705, 103 S.Ct. 2637, 2644-2645, 77 L.Ed.2d 110 (1983), (exposure of luggage to a trained canine did not constitute a search within the meaning of the Fourth Amendment). It was only after the dog alerted to a particular piece of luggage, that there was probable cause to obtain a warrant.

Here, there was no canine sniff prior to the search of Appellant’s luggage, and no probable cause to obtain a warrant in order to open and examine the contents of the bag. As we have stated above, since there was no valid consent given for the search of Appellant’s hand luggage, such search can not be justified by the Court’s holding in Sokolow, even assuming there was reasonable suspicion to stop Appellant.

Therefore, we hold that the seizure of Appellant and the search of his luggage was effected in derogation of his Fourth Amendment rights, and the cocaine seized should have been suppressed.

Judgment of sentence is vacated and this case is reversed and remanded. Jurisdiction is relinquished.

McEWEN, J., dissents.

      . The drug courier profile is not a "national profile.” Profiles vary from city to city, airport to airport, and also depending on which law enforcement agency is using them. The profile is subject to racial abuse and gender stereotyping, where the fact that a person is an African-American, Columbian, or Hispanic has appeared as a profile characteristic, as has the fact that the person was the only woman on an airplane carrying business travelers. Commonwealth v. Lidge, 399 Pa.Super. 360, 582 A.2d 383 (1990). A breakdown of profile traits listed in the reported decisions reveals that it encompasses such contradictory characteristics as deplaning first and deplaning last, paying with small bills and paying with large bills. It also encompasses an extraordinary amount of innocent behavior such that the average airline traveler would be hard-pressed to not display at some time during a trip. Furthermore, it is not clear whether the display of one or two characteristics is sufficient to fit the profile, or whether if some characteristics carry greater weight than other characteristics such that the display of one of these weightier characteristics may trigger an airport stop. Note, The Drug Courier Profile and Airport Stops: Reasonable Intrusions or Suspicionless Seizures? 12 Nova.L.Rev. 273, 288-296.