author: BROSKY, Judge. KELLY, Judge,

text:
    678 A.2d 789
    COMMONWEALTH of Pennsylvania, Appellant, v. Christopher Pet DUNKLEY.
    Superior Court of Pennsylvania.
    Submitted April 1, 1996.
    Filed June 6, 1996.

      Bradley Hillman, Assistant District Attorney, Williamsport, for Commonwealth, appellant.
    Mark Cichowicz, Public Defender, Williamsport, for appellee.
    Before CAVANAUGH, KELLY and BROSKY, JJ.
   BROSKY, Judge.

The Commonwealth of Pennsylvania (“Commonwealth”) appeals from the September 27, 1995 trial court order granting defendant-appellee Christopher Dunkley’s motion to suppress evidence.

On March 1, 1995 the local police department in Williams-port, PA learned from a confidential informant that two pounds of cocaine could be found in a room facing the courtyard of the Days Inn Motel in Williamsport; the Williamsport Police informed Lycoming County Detective Todd Prough.

On March 2, 1995, at approximately 7:55 a.m., Pennsylvania Attorney General’s Bureau of Narcotics Investigation and Drug Control Agents Joseph Byerly and Gordon Mincer and Detective Prough went to the Days Inn; the police narrowed their search to Room 154 at the motel (Agent Byerly testified that surveillance on March 1, 1995 indicated that the drugs were located in that room, as were two black males and one white female; however, Agent Byerly’s Suppression Hearing testimony did not reveal the nature of the March 1, 1995 surveillance nor the rationale for narrowing the focus to Room 154 of the motel). Agent Byerly testified that the police wanted to “do a consent search of the room since we did not have enough information to obtain a search warrant.” N.T., 8/10/95, at 5. Agents Byerly and Mincer posed as maintenance workers and knocked on the door of Room 154. Id. at 7,12. Appellee answered the door (dressed only in his underwear) and the agents, posing as maintenance men, told him that they “were there to investigate a leak in the bathroom.” Id. at 8. Appellee permitted the “maintenance men” to enter; he returned to his bed. The agents did not notice any other individuals in the “sleeping area” so they proceeded to the bathroom to make sure that it was empty. Id. at 13. The bathroom was empty and the agents flushed the toilet and, continuing their “charade as maintenance men”, discussed the bathroom water pipes. Id. While inside of the bathroom the agents observed three, % inch, clear, empty plastic bags, similar to the type that they had previously seen used for packaging drugs in unrelated drug investigations.

The agents then re-entered the bedroom area and identified themselves as police officers; they ordered appellee to get out of bed. Appellee was still dressed only in his underwear. They told appellee that they “had information that there was approximately two pounds of cocaine in the room, and possibly a drug deal taking place.” Id. at 14. Appellee initially denied that there were any drugs in the motel room. The agents then told appellee about the three empty baggies that they had discovered. Appellee then stated that “he smoked marijuana and had some, ... in his pants pocket, and [that the police] could have it.” Id. at 15. Detective Prough then entered Room 154 and removed approximately five grams of marijuana from appellee’s trousers.

Detective Prough brought a “Consent to Search” form and he presented to appellee; appellee was told that he had a right to refuse consent for a search. Appellee signed the form and a subsequent search of the room revealed 255 grams of cocaine. Appellee was charged with possession of a controlled substance (cocaine), possession with intent to deliver a controlled substance (cocaine), possession of a controlled substance (marijuana) and possession of drug paraphernalia (pipes and baggies).

Appellee filed a motion to suppress all of the evidence seized (drugs and drug paraphernalia), alleging that “the deception used by law enforcement personnel invalidated his consent to enter his motel room”, and, that “his subsequent consent to search his metel [Sic] room is either tained [Sic] from the initial unlawful entry or was not given willfully.” Appellee’s Motion to Suppress, 5/13/95, at pars. 11, 12. The trial court held a hearing and subsequently granted the motion to suppress the evidence seized. The Commonwealth then filed the instant appeal.

The Commonwealth claims on appeal that,

1. The lower court erred by granting the defendant’s motion to suppress the evidence as defendant’s consent to search was not vitiated when law enforcement officers entered his motel room by a ruse without a search warrant.

Commonwealth’s Brief at 9. We affirm the order of the trial court.

Our Court stated in Commonwealth v. Torres, 429 Pa.Super. 228, 632 A.2d 319 (1993),

In reviewing an order granting a motion to suppress, an appellate court may consider only the evidence of the defendant’s witnesses and so much of the Commonwealth’s evidence that, read in the context of the record as a whole, remains uncontradicted. Furthermore, our scope of appellate review is limited primarily to questions of law. We are bound by the suppression court’s findings of fact if those findings are supported by the record. Factual findings wholly lacking in evidence, however, may be rejected. [Citations omitted.]

Id. at 230, 632 A.2d at 320.

The Commonwealth avers that their “deception or ruse” in gaining entrance to appellee’s motel room was permissible, and it cites to Commonwealth v. Haynes, 395 Pa.Super. 322, 577 A.2d 564 (1990) and Commonwealth v. Reiss, 440 Pa.Super. 151, 655 A.2d 163 (1995), affirmed (by an evenly divided Supreme Court) at No. 70 M.D. Appeal Docket 1995 (March 18, 1996). The Commonwealth also avers that appellee’s subsequent consent for the search of the room was voluntary.

In cases involving police deception,

[t]he common thread is that the deception must not pertain to the consent itself, in some sense it must be collateral to the content of the permission voluntarily granted. Thus, the accused must know what is being consented to, and if the police exceed the scope of that consent, then they have passed their limits of permissible deception. This is consistent with the line of cases which have held that if the accused does not understand what it was that was consented to, then the consent is invalid.

Commonwealth v. Reiss, 440 Pa.Super. 151, 157, 655 A.2d 163, 166 (1995), quoting from Commonwealth v. Haynes, 395 Pa.Super. 322, 337, 577 A.2d 564, 572 (1990).

Our Court stated in Commonwealth v. Moye, 402 Pa.Super. 81, 586 A.2d 406 (1990), “The Fourth Amendment protections against official intrusion are inapplicable where the intrusion is consensual; and, consent is not vitiated though obtained by stratagem or deception.” Id. at 84, 586 A.2d at 408.

In Haynes, supra, the Pittsburgh Police suspected the accused of a murder but did not have probable cause to arrest him. They knew of an outstanding bench warrant but could not arrest him in Wilkinsburg, PA, which was outside of their jurisdiction. They therefore went to the location that he was staying in Wilkinsburg and asked him if he would accompany them to the Public Safety Building in Pittsburgh “to clear up this warrant problem.” Id. at 334, 577 A.2d at 570. The accused complied, but as soon as they reached the Public Safety Building the accused was placed in an interrogation room and advised of his constitutional rights; the police questioned him about the murder. The accused then gave inculpatory statements regarding the murder. Our Court held that the police deception in obtaining the accused’s presence at the Public Safety Building “was impermissible and the consent was invalid because it pertains to the content of the consent itself’; the accused “was taken into custody illegally.” Id. at 338, 577 A.2d at 572.

Our Court in Haynes discussed several examples of police deception: In Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980), an undercover agent misrepresented his identity to gain access to an accused’s barn. Once inside, the agent observed marijuana. The agent then properly obtained a search warrant for the barn. Id. But if an accident victim consents to a blood test with no notice of the criminal investigative purpose of the test, the consent for the blood test is invalid. Commonwealth v. Walsh, 314 Pa.Super. 65, 460 A.2d 767 (1983). If an informant deceives an accused of his or her identity and gains access to the room in which the accused is present, any illicit conversation, that the accused is engaged in and the informant overhears, can be testified to by the informant since the “deception is collateral and permissible.” Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). But if an informant deceptively gains access to an accused’s office, and the informant searches the office (and takes items) when the accused leaves for a few minutes, “the deception pertains to the consent itself, and the informant exceeded the scope of the consent.” Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921).

In Commonwealth v. Reiss, supra, a defendant agreed to cooperate with police in an investigation regarding stolen computer equipment. The defendant, who was acquainted with the accused, told police that the accused had been involved in the burglaries. The defendant brought an undercover officer to the accused’s apartment and introduced the officer as his “cousin”. While the defendant and accused conversed, the officer noticed computer equipment which matched the description of equipment that had been reported stolen. After the defendant and the officer left the apartment, the officer notified other officers of the computer equipment in the accused’s apartment. The police returned to the accused’s apartment, informed him that they were there to investigate stolen computer equipment and asked if the accused would consent to a search of his apartment. The accused was given his Miranda rights and he read and signed a consent to search form. The stolen computer equipment was then seized. Our Court held that although the accused was deceived by the undercover officer’s initial entry, no evidence was gathered at that point. Commonwealth v. Reiss, supra. A warrant was not obtained, and no incriminatory items were seized during the initial entry. Id. The officer left and returned with other officers, this time advising the accused of their purpose for being there. The accused then voluntarily consented to the search; hence, it was proper and any items seized would not be suppressed. Id.

We find that, in the instant case, regardless of the fact that there was no Suppression Hearing testimony regarding the reliability of the confidential informant or the nature of the investigation that occurred on March 1, 1995, that Agents Byerly and Mincer properly entered appellee’s motel room. They used their deception, posing as maintenance workers, to enter appellee’s motel room; appellee consented to their entry. Commonwealth v. Reiss, supra; Commonwealth v. Haynes, supra. The agents’ entry, even into the bathroom, did not exceed the scope of appellee’s consent. Id. Appellee understood that to which he consented. Id. Although the agents noticed three empty baggies in plain sight, no search of the motel room occurred (other than for potential occupants besides appellee) and no seizures occurred prior to second encounter with appellee.

Although the agents were properly inside of the motel room, once they apprised appellee of their discovery of the empty baggies they foreclosed any possibility that a lawful search of the room could occur. If they had simply said to appellee that they had reason to suspect that cocaine was in the room and would like his consent to search, and they were given consent, then the search may have been proper. The agents did tell appellee that they were police officers and that they suspected that there was cocaine in the room but appellee denied that there were any drugs in the room. The agents then confronted appellee with their discovery of the three empty baggies. At this point they had utilized their prior deception (as maintenance workers) to gather evidence (even though the baggies had not been seized at that point), and this exceeded the scope of the consent that appellee had given to them when he gave them permission to enter the motel room. Id.

The agents should never have mentioned the empty baggies. Once they did, they set in motion a chain of events that led to the discovery of the marijuana, the cocaine and the drug paraphernalia. When appellee was confronted with the discovery of the baggies he admitted to his possession of marijuana; the marijuana was then improperly seized. At this point he was standing in his underwear, confronted with three police officers who were presenting him with a “Consent to Search” form. Our Court stated in Commonwealth v. Washington, 438 Pa.Super. 131, 651 A.2d 1127 (1994),

It is well settled that if a person voluntarily consents to a search, evidence found as a result of that search is admissible against him. The consent, however, must be given freely, specifically, unequivocally, and voluntarily. The question whether a consent to search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. The burden of proving a valid consent to search rests upon the Commonwealth.
The fact that a defendant has been placed under arrest and that he has not been informed of his constitutional rights, although factors which must be considered, do not constitute per se a barrier to a finding that consent to search was voluntarily given. [Citations omitted.]

Id. at 136-37, 651 A.2d at 1130. We find that the agents’ improper mention of their discovery of the empty baggies, which led to appellee’s admission that he possessed marijuana and the improper seizure of the marijuana, created a situation whereby appellee, when asked to sign the “Consent to Search” form, was coerced into consenting to the search. Hence, the subsequent discovery and seizure of the cocaine and drug paraphernalia was also improper.

Since all of the evidence was improperly seized in the instant case, we find the Commonwealth’s issue to be without merit and we affirm the trial court Suppression Order.

Order affirmed.

CAVANAUGH, J., concurs in the result.

KELLY, J., files a concurring opinion.

KELLY, Judge,

concurring.

I concur in the result. I write separately, however, to dissociate myself from the paradigm suggested in the lead Opinion as being acceptable search and seizure behavior.

To date, the Courts of Pennsylvania have accepted entrance and seizure by subterfuge in the following situations: 1) a police officer gains access, observes contraband or illegal activity in plain view, leaves, and then obtains a warrant, Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980) (en banc); 2) a police officer gains access, observes contraband or illegal activity in plain view, leaves, and then obtains consent to enter, Commonwealth v. Reiss, 440 Pa.Super. 151, 655 A.2d 163 (1995), affirmed by equally divided court, 543 Pa. 479, 672 A.2d 784 (1996); and 3) a police officer gains access, observes contraband or illegal activity in plain view, leaves for the purpose of immediately obtaining backup assistance and then together reenter after having identified themselves as police officers, Commonwealth v. Moye, 402 Pa.Super. 81, 586 A.2d 406 (1990).

In each of the above cited cases the officer, after having gained entry, observed contraband in plain view and then left the premises prior to returning and effectuating the arrest These factors provide some objective criteria to allow a reviewing court to evaluate the conduct of the officers. In this case, the officers neither observed contraband nor exited the premises prior to obtaining defendant’s consent. In the paradigm suggested by the lead Opinion, officers may enter a premises by subterfuge, and based on unverifiable suspicion, attempt to obtain the defendant’s consent. This poses a far more fluid situation than previously permitted, and would blur established lines for evaluating the legitimacy of a seizure obtained as a result of subterfuge.

CAVANAUGH, J. concurs in the result.

      . The only person to testify at the Suppression Hearing was Agent Byerly. He testified that he had no personal knowledge regarding the reliability of the confidential informant who had originally told the Williamsport Police that cocaine could be found at the Days Inn Motel in Williamsport. N.T., 8/10/95, at 5.

      . Byerly testified that he and Mincer feared for their safety and did not want to identify themselves as police officers; the officers assumed that since the occupants of the room were suspected drug dealers, then they were probably armed and a potential threat to the officers.

      . Detective Prough waited at a location that was not visible from the inside of Room 154.

      . The cocaine was found "in a shaving kit which was inside a bag on the floor between the two beds.” N.T., 8/10/95, at 21.

      . The agents were acting responsibly and competently when they observed the empty baggies; they were performing their duties thoroughly and are to be commended. But they should have kept knowledge of this discovery to themselves until appellee had given voluntary consent to a search. The agents' knowledge of the existence of the baggies should not have been utilized in any way to compel appellee to admit if any drugs were in the room, or, to compel appellee to consent to a search of the room.


source: Caselaw Access Project

author: EAKIN, Judge. DEL SOLE, Judge,

license: Public Domain

text:
    678 A.2d 794
    COMMONWEALTH of Pennsylvania, Appellee, v. Stephanie HEBERLING, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 5, 1996.
    Filed June 7, 1996.

      F. Cortez Bell, III, Clearfield, for appellant.
    Paul E. Cherry, Assistant District Attorney, Dubois, for the Commonwealth, appellee.
    Before CAVANAUGH, DEL SOLE, and EAKIN, JJ.
   EAKIN, Judge.

Stephanie Heberling appeals from the judgment of sentence entered by the Court of Common Pleas of Clearfield County (Reilly, J., presiding) following her conviction under 75 Pa.C.S. § 3361, driving vehicle at unsafe speed. Appellant argues, in essence, that there is insufficient evidence to support her conviction under section 3361. Specifically, she argues the evidence is insufficient because the Commonwealth failed to prove any “prevailing conditions” or “hazards” that made her excessive speed unreasonable.

On July 9, 1994, a police officer saw appellant travelling “at an extreme rate of speed” in a 45 mile-per-hour zone. Appellant was nearing an intersection (approximately one-tenth of a mile down the road) and the crest of a hill (approximately two-to three-tenths of a mile ahead). Appellant was stopped before reaching either of these two points and was issued a citation charging a violation of section 3361. Weather conditions were clear and normal. No other traffic was affected nor were any pedestrians at risk.

The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the factfinder to find every element of the crime beyond a reasonable doubt. Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994). Applying this standard of review, we find appellant’s insufficiency claim without merit.

Section 3361 of the Vehicle Code provides:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

75 Pa.C.S. § 3361 (emphasis added).

The language of section 3361 is clear and unambiguous. The basic tenet of statutory construction requires a court to construe the words of the statute according to their plain meaning. 1 Pa.C.S. § 1903(a); Commonwealth v. Stanley, 498 Pa. 326, 335, 446 A.2d 583, 587 (1982). When the words of a statute are clear and unambiguous, a court cannot disregard them under the pretext of pursuing the spirit of the statute. 1 Pa.C.S. § 1921(c); Coretsky v. Bd. of Comm’rs of Butler Township, 520 Pa. 513, 555 A.2d 72 (1989).

Section 3361 has two sentences that must be read together. The first sentence sets forth two general and alternate types of conduct that, when a person is driving, constitute a violation: (1) at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing; or (2) at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.

The second sentence of section 3361 begins with the phrase “consistent with the foregoing and sets forth several specific examples of conditions and hazards that further define when the general conduct — unreasonable or imprudent speed — constitutes a violation. These situations include, but are not limited to, approaching a hill crest and approaching an intersection. These specifically enumerated situations are not the exclusive or sole situations that, together with inappropriate speed, might constitute violations, because there is a catchall category, i.e., “when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.”

There is no question that speeding alone does not constitute a violation of this section. There must be proof of speed that is unreasonable or imprudent under the circumstances (of which there must also be proof), which are the “conditions” and “actual and potential hazards then existing” of the roadway. These circumstances may include not only the amount of traffic, pedestrian travel and weather conditions, but also the nature of the roadway itself (e.g., whether four-lane, interstate, or rural; flat and wide, or narrow and winding over hilly terrain; smooth-surfaced, or full of potholes; clear, or under construction with abrupt lane shifts.) It is these circumstances under which one’s speed may be found sufficiently unreasonable and imprudent to constitute a violation of section 3361, even if the. driver has adhered to the posted speed limit.

We are guided in this plain reading of the statute by its precursor, section 1002, which read as follows:

(a) Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed, not greater than nor less than is reasonable and proper, having due regard to the traffic surface, and width of the highway, and of any other restrictions or conditions then and there existing; and no person shall drive any vehicle, upon a highway at such a speed as to endanger the life, limb, or property of any person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.

75 Pa.C.S. § 1002(a) (emphasis added). The legislature repealed this section and enacted section 3361 on June 17, 1976 (see footnote 1). The repealed statute did not delineate any specific situations that warranted caution; section 3361 enumerates some of them in its second sentence.

The legislature’s inclusion of some specific situations is little more than its common sense recognition that many driving situations require extra care. Approaching hills and intersections logically demand caution beyond mere adherence to a posted speed limit; proof of unreasonable speed coupled with either of these roadway conditions makes out a violation of section 3361.

We also are guided by our decision in Commonwealth v. Vishneski 380 Pa.Super. 495, 552 A.2d 297 (1989). We found that Vishneski’s speed on a limited access, three-lane highway was unreasonable and sustained his conviction under section 3361:

The trial record indicates that there was a truck traveling on Route 202 North at the same time appellant was traveling on the route. Appellant entered the highway from the Paoli Pike on-ramp and exited at the Route 322 exit. It is apparent from the record that appellant’s speed was unreasonable given the conditions of the highway. Appellant was traveling at 84.5 miles per hour in a 55 miles per hour zoned area where traffic must merge and exit while competing with the northbound flow of traffic. In addition, we note that appellant was entering and exiting the northbound highway at a high rate of speed within a distance of approximately one-tenth mile. The potential for hazards and conditions rendering traveling at a speed of 84.5 miles per hour unreasonable is clearly supported by the evidence.

Vishneski, 380 Pa.Super. at 503-04, 552 A.2d at 301 (emphasis added). Weather was not a factor. Clearly, we examined such “conditions” and “hazards” as the congested traffic and Vishneski’s excessive speed, as well as the nature of the roadway, the exit- and on-ramp design of a limited access highway.

Appellant cites Commonwealth v. Strausser, 18 Pa. D. & C.4th 517 (1993) and Commonwealth v. Walker, 5 Pa. D. & C.4th 631 (1990) to support her case. The Strausser court relied on Walker because of a similarity in fact patterns and stated:

The sole basis for issuance of the citation was the defendant’s act of traveling 41 mph in a posted 25-mph zone. There was no testimony regarding other traffic, pedestrians or children present, and the day was dry and clear. Under the language of section 3361 of the Motor Vehicle Code, simply proving a defendant was speeding is not sufficient for a conviction for failure to drive at a safe speed.
The Commonwealth must show that the prevailing conditions, and/or the existence of actual or potential hazards rendered the defendant’s rate of travel unreasonable and imprudent at that particular place and time.

Id. at 521-22. The Commonwealth presented no “conditions” or “potential hazards” at all that, coupled with Strausser’s excessive speed, could sustain a conviction under section 3361.

While there are few appellate decisions interpreting section 3361, we sustained a conviction under this section in Commonwealth v. Monosky, 360 Pa.Super. 481, 520 A.2d 1192 (1987), in addition to Vishneski discussed above. Monosky was driving through a residential area at approximately 50 mph in a 25 mph zone. The weather was foggy and wet. We held in Monosky:

The applicable provision of the Motor Vehicle Code here involved, 75 Pa.C.S.A. § 3361, states that a vehicle shall not be driven in excess of a speed greater than is reasonably prudent under conditions and potential hazards existing at that time. As the record here discloses, hazards and conditions were readily apparent. The area was residential, and the day was foggy and wet. We conclude that appellant’s driving at a speed in excess of the posted limit was greater than was reasonable and prudent given the prevailing conditions and potential hazards.

Id. at 485, 520 A.2d at 1194 (emphasis added). We found that weather conditions and driving on a roadway in a residential area were “hazards and conditions” that, coupled with Mono-sky’s excessive speed, sustained a conviction under section 3361.

In the instant case the trial court found that appellant was approaching an intersection and a hill crest at an extreme rate of speed:

In dismissing the Defendant’s appeal, this Court notes that the statute requires the operator to have regard for the actual and potential hazards then existing. The statute requires the operator to drive at a safe and appropriate speed when approaching ... an intersection ... when approaching a hill crest ... the Court found as a fact in the instant case that the defendant was travelling at an extreme rate of speed while approaching an intersection and hill crest and determined under the requirements of the statute that the Commonwealth has met its burden.

Trial Court Opinion, 9/27/95, at 9 (emphasis in original). “Approaching a hill crest” and “approaching ... an intersection” are “conditions” specifically enumerated in the statute that require a driver to proceed at a safe and appropriate speed. When appellant drove at an excessive speed under these conditions, she violated section 3361.

Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

Because I would conclude that the Commonwealth failed to offer sufficient evidence to support Appellant’s conviction under 75 Pa.C.S.A. § 3361,1 dissent.

The Majority quotes the relevant statutory provision and notes that in support of a conviction there “must be proof of the speed that is unreasonable or imprudent under the circumstances.” Majority Memorandum at 123. The Majority then goes on the analysis the circumstances of the road conditions in this case. While I do not quarrel with their assessment of the conditions, or the conclusion that the conditions found here required the driver to proceed at a safe and appropriate speed, I cannot find sufficient evidence to support the conviction when there was no evidence offered estimating the speed at which Appellant was traveling. Absent some evidence of Appellant’s speed, it cannot be held that she was traveling at an excessive speed, regardless of the surrounding circumstances.

At trial, Trooper Michael Greene testified that he was in a patrol position when he observed Appellant’s car proceeding northbound “in what appeared to be an extreme rate of speed for the posted speed limit in that area.” N.T. 6/19/95 at 4. He also stated that his experience told him that the vehicle was exceeding the posted 45 mile per hour speed limit. However the trooper never testified to the vehicle’s actual speed, or to his estimation of the actual speed which Appellant was traveling.

The statute at issue does not require that a specific speed must be exceeded in order for a violation to occur, Commonwealth v. Martorano, 387 Pa.Super. 151, 158-60, 563 A.2d 1229, 1233 (1989), however it must nevertheless be shown that the speed was excessive for the conditions. Absent of showing of speed, it is impossible to conclude that an individual was traveling at a speed which was excessive for the conditions.

In Commonwealth v. Monosky, 360 Pa.Super. 481, 520 A.2d 1192 (1987), this court upheld a conviction for failing to drive at a safe speed. In contrast to this case, the record in Monosky disclosed that the appellant was observed by patrol officers driving in excess of the 25 mile per hour posted speed limit. The officers testified that the road was in a residential area and it was a foggy wet day. One officer testified that it was necessary for him to accelerate to between 55 and 60 miles to overtake the appellant. Both officers also opined that the appellant was traveling approximately 50 miles per hour when he was initially observed.

In this case there in no such testimony. I believe absent some evidence of the defendant’s actual or estimated speed, it cannot be concluded that the defendant was traveling at an unsafe speed. A court cannot find one to be traveling at a speed greater than reasonable for the conditions, regardless of the conditions, if no evidence of the defendant’s speed has been offered to the court. Allowing this verdict to stand based solely on the officer’s testimony, elevates the officer’s opinion that Appellant was traveling at an unsafe speed, to a fact. While an officer is permitted to opine as to the speed of a vehicle, the ultimate finding to be made by the factfinder is whether that speed was unreasonable for the conditions. This fact finding function cannot be usurped by permitting the witness to opine on the guilt of the defendant. I would vacate the Appellant’s Judgment of Sentence and reverse her conviction in this matter.

      . Act of June 17, 1976, P.L. 162, No. 81. § 1. effective July 1, 1977.

      . It is only when a statute is unclear that a court may embark upon the task of ascertaining the intent of the legislature by reviewing the necessity of the act, the object to be attained, the circumstances under which it was enacted and the mischief to be remedied. Coretsky, 520 Pa. at 517-18, 555 A.2d at 74 (citing 1 Pa.C.S. § 1921 (c)).

      . The second sentence does not begin with the phrase "in addition to,” "separate and apart from,” "alternatively,” or any other phrase suggesting additional or different standards that the Commonwealth must prove to support a conviction.

      . Section 3362 of the Vehicle Code specifically addresses speeding violations.

      . Strausser was simply speeding, and there was no evidence of conditions or hazards to support his conviction. Walker, however, traveled through an intersection at an excessive speed. In finding only that Walker exceeded the speed limit, the Walker court ignored the situations delineated in the second sentence of section 3361, which clearly requires approaching and crossing an intersection "at a safe and appropriate speed.”

      . Section 3361 prohibits two types of conduct which respect to driving, driving at a speed greater than reasonable and prudent under the conditions, and driving at a speed greater than will permit the driver to stop the vehicle within the assured clear distance ahead. This case concerns application of only the first prohibition. Contrast Commonwealth v. Rishel, 441 Pa.Super. 584, 658 A.2d 352 (1995) (where court upholds violation of conviction under 75 Pa.C.S. § 3361 when the appellant testified that she was unable to maintain control of her vehicle and when an officer testified that the appellant had failed to negotiate a turn in the road causing an accident.)


author: CIRILLO, President Judge Emeritus.

text:
    678 A.2d 798
    COMMONWEALTH of Pennsylvania v. Martinez JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Argued April 30, 1996.
    Filed June 14, 1996.

      L. Roy Zipris, Philadelphia, for appellant.
    Karen A. Braucheau, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, President Judge Emeritus, DEL SOLE, J., and CERCONE, President Judge Emeritus.
   CIRILLO, President Judge Emeritus.

Martinez Jackson appeals from the order entered by the Philadelphia Common Pleas Motions Court denying his petition for certiorari. We affirm.

On December 20, 1994, at approximately 11:20 p.m., Police Officer Clyde Jones received a report over his police radio regarding a robbery in progress at Germantown Avenue and Duval Street in Philadelphia. The report described the alleged perpetrator as an armed male wearing a black baseball hat and black jacket. Officer Jones drove in the direction of the crime scene five minutes after receiving the report, where, approximately two and one-half blocks from the scene of the robbery, he observed Martinez Jackson, wearing a dark-colored baseball cap and black jacket, walking along the street. Jones approached Jackson, asked him to stop walking, and then inquired as from where he was coming. Jackson responded that he had just left his girlfriend’s house. Officer Jones then frisked Jackson, recovering a .45 caliber automatic revolver which was fully loaded and operable. Officer Jones arrested Jackson.

Prior to trial, Jackson made an oral motion to suppress the gun recovered from the officer’s frisk. The motion was heard in Philadelphia Municipal Court. Jackson claimed that the physical evidence should be suppressed since the officer unlawfully searched him without reasonable cause. After the municipal court denied this motion, the Honorable Francis P. Cosgrove, of the Philadelphia Common Pleas Motions Court, convicted Jackson of carrying a firearm without a license and carrying a firearm on public streets. Jackson was sentenced to a one-year term of probation.

Jackson filed a writ of certiorari to the motions court, seeking to appeal the order denying his motion to suppress. This writ was also denied. Jackson now appeals and presents the following issue for our review: Did the Suppression Court err in denying appellant’s Motion to Suppress when the quality and quantity of the information in the police officer’s possession at the time he frisked appellant was insufficiently specific to establish reasonable suspicion under the United States and Pennsylvania Constitutions?

When we review an order denying a motion to suppress evidence, we must determine whether the factual findings of the trial court are supported by the evidence of record. Commonwealth v. Donahue, 428 Pa.Super. 259, 278, 630 A.2d 1238, 1247 (1993), allocatur denied in, 538 Pa. 612, 645 A.2d 1316 (1994) (citations omitted). In making this determination, this court may only consider the evidence of the Commonwealth’s witnesses, and so much of the witnesses for the defendant, as fairly read in the context of the record as a whole, which remains uncontradicted. Id. If the evidence supports the findings of the trial court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are erroneous. Id.

Jackson argues that the description of the robbery suspect, given to Officer Jones over the police radio, was too general and superficial to provide the reasonable suspicion justifying a Terry stop. Specifically, Jackson claims that since the description did not include any information regarding the alleged suspect’s race, age, height, weight or facial features, “any male in Philadelphia” could fit this description, and, therefore, without particularized suspicion, the fruits of the unlawful stop by the officer should have been suppressed.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that a police officer may approach or briefly detain a citizen, without probable cause, for investigatory purposes. The officer need not personally observe suspicious conduct leading to the reasonable belief needed for a Terry stop; rather, he may rely upon information received over the police radio to justify the stop. Commonwealth v. Arch, 439 Pa.Super. 606, 654 A.2d 1141 (1995). “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability.” Commonwealth v. Knotts, 444 Pa.Super. 60, 663 A.2d 216 (1995) (citations omitted). The officer must also be able to point to specific and articulable facts “which in conjunction with rational inferences deriving therefrom” warrant the initial stop. Arch, 439 Pa.Super. at 612, 654 A.2d at 1144-45 (citations omitted).

A major factor in justifying a Terry stop, when the suspicious conduct has not been personally observed by the officer, is the specificity of the description of the suspect. Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986). “[T]he factors that must be considered in justifying an investigatory stop and subsequent frisk include the specificity of the description of the suspect in conjunction with how well the suspect fits the given description, the proximity of the crime to the sighting of the suspect, the time and place of the confrontation, and the nature of the offense reported to have been committed.” Id., 359 Pa.Super. at 438, 519 A.2d at 430 (citation omitted).

Based solely upon the police report, we cannot find that Officer Jones had “specific and articulable facts” to reasonably conclude that criminal activity was afoot when he initially stopped Jackson. Officer Jones did not admit to having observed Jackson exhibiting any unusual or suspicious conduct when he passed him in his patrol car near the crime scene; the police report gave a meager physical description of the alleged perpetrator wearing two common articles of clothing; Jackson unreluctantly approached Officer Jones’s patrol car when he was summoned by the officer; and, Jackson gave an innocuous response to the officer’s inquiry regarding his whereabouts immediately preceding the “stop.” See also Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969) (police officers, seeking suspect described by citizens as a “mustached Negro in his thirties of a certain height and weight wearing a brown coat,” did not have right to stop and search the defendant who only fit the race and age portion of the description); Arch, 439 Pa.Super. 606, 654 A.2d 1141 (1995) (no reasonable suspicion existed for an officer to arrest black male, exhibiting no suspicious behavior, walking around motel parking lot, in which a white Toyota was parked, when police had a report that a white Toyota registered in Virginia was being used by three black males wanted in an armed assault incident; report contained no physical description of the perpetrators other than their race and gender).

Supplementing the above information, however, with the other integral factors enumerated in Jackson creates the requisite “specific and articulable facts” that justify Officer Jones’s stop of appellant. First, Jackson exactly fit the given, yet meager, description from the police report. Second, Jackson was both spatially and temporally proximate to the scene of the crime when stopped by Officer Jones. Third, the nature of the crime was a serious felony. Lastly, the confrontation between Jackson and Officer Jones was late in the evening in an area even Jackson claims was particularly dangerous. See Jackson, supra (although the vague description of a suspect from a police radio report was insufficient, alone, to justify officer’s stop and frisk, when additional facts and circumstances were viewed, court found that the stop and frisk was justified).

In addition, the subsequent “frisk” or “pat-down” of Jackson, which led to the seizure of the revolver, was equally proper. For a precautionary seizure, which follows a legal Terry stop, “there must first exist on the part of the police a reasonable belief that criminal activity is afoot and that the seized person is armed and dangerous.” Hicks, 434 Pa. at 160, 253 A.2d at 278. See Commonwealth v. Lateef, 446 Pa.Super. 640, 667 A.2d 1158 (1995) (officers had reasonable suspicion, warranting a stop and subsequent pat-down of the defendant for their protection, given that the defendant allegedly possessed narcotics; officers were justified in anticipating the possibility that defendant might be armed and dangerous). In the present case, Officer Jones was informed, by a reliable police report, that the perpetrator of the robbery was armed. Given this information and the fact that the crime allegedly committed was a felony, the officers were correct in anticipating the possibility that any suspect might be armed and dangerous; thus, justifying the pat-down of the appellant. Lateef, supra.

Order affirmed.

      . See Pa.R.Crim.P. 6005(a) (governing procedure in the Philadelphia Municipal Court; specifically permits the making of an oral motion for the suppression of evidence). See also Commonwealth v. Rosario, 538 Pa. 400, 648 A.2d 1172 (1994) (citation omitted) (as a means to promote the prompt and expeditious disposal of cases in Philadelphia County, oral suppression motions made in the municipal courts of Philadelphia County have been expressly approved by our supreme court); Commonwealth v. Lewis, 394 Pa.Super. 403, 576 A.2d 63 (1990) (same).

      . 18 Pa.C.S. § 6106.

      . 18 Pa.C.S. § 6108.


author: CIRILLO, President Judge Emeritus: DEL SOLE, Judge,

text:
    678 A.2d 802
    MADISON CONSTRUCTION COMPANY v. The HARLEYSVILLE MUTUAL INSURANCE COMPANY, and Nicholas Ezzi, Brian Murtaugh, Kelran Associates, Inc. and Euclid Chemical Company. Appeal of the HARLEYSVILLE MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 26, 1996.
    Filed June 20, 1996.

      William Salzer, Philadelphia, for appellant.
    Alan Greenberg, Philadelphia, for appellee.
    Lee M. Epstein, Philadelphia, amicus curiae.
    Before McEWEN, President Judge, CAVANAUGH, J., CIRILLO, President Judge Emeritus, and DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON and HUDOCK, JJ.
   CIRILLO, President Judge Emeritus:

Harleysville Mutual Insurance Company (Harleysville) appeals from an order of the Court of Common Pleas of Chester County granting summary judgment in favor of appellee Madison Construction Company (Madison) and requiring Harleysville to defend and/or pay for the defense of a personal injury claim brought against Madison. We reverse.

Kelran Associates, Inc. (Kelran), a contractor performing construction work at the Boeing/Vertol Helicopters plant (Boeing or Boeing/Vertol), hired Madison, a subcontractor, to prepare concrete utility trenches as a part of its work for Boeing. After pouring the concrete, a Madison employee would add a curing agent, known by its tradename, “Eucocure” floor coat, to the poured trench. This agent was applied to the concrete in an enclosed area known as a “construction envelope” which consisted of four sides of polyethylene sheeting erected within a Boeing building. Nicholas Ezzi (Ezzi), a machinist employed by Boeing/Vertol, brought the underlying personal injury action after he was injured within this enclosed area. Ezzi was asked to place a fan in the envelope in order to provide better ventilation from the pungent odor of the curing agent. Upon entering the work area with the fan, Ezzi was overcome by the fumes, became dizzy, and fell into a construction trench where he sustained various injuries.

At the time of Ezzi’s accident, Madison was insured by Harleysville under a comprehensive general liability (CGL) policy. Part of this policy included a “pollution exclusion” provision. Harleysville informed Madison that it would not provide coverage for the lawsuit, claiming that Ezzi’s accident was excluded by this policy provision. Specifically, Harleysville contended that because Ezzi sustained injuries “as an approximate result of his inhalation of Xylene fumes [from the floor coating],” the circumstances surrounding the accident fell within the policy’s pollution exclusion provision.

Madison subsequently instituted a declaratory judgment action in order to determine whether Harleysville was, in fact, contractually obligated to defend Madison. The parties filed cross-motions for summary judgment and the court granted Madison’s motion. Harleysville then appealed to this court, and, in an opinion authored by the Honorable Peter Paul Olszewski, the panel construed the contract in favor of Madison and affirmed the trial court’s order. Harleysville then petitioned this court for reargument en banc. Harleysville raises the following issues for en banc review:

(1) Whether the plain language of the “absolute” pollution exclusion of Harleysville’s Commercial General Liability insurance policy unambiguously applies to negate a duty of defense or indemnification for a claim of damages for bodily injury alleged to have been caused by the release and migration of noxious fumes by the insured, Madison Construction Company; and
(2) Whether the existence of conflicting judicial authority in foreign jurisdictions establish ipso facto an ambiguity in the “absolute” pollution exclusion so as to confer insurance coverage for liability arising out of the release of noxious fumes notwithstanding the plain language of the insurance policy?

When we review the grant of a motion for summary judgment made under Pa.R.C.P. 1035, the appellate court’s scope of review is well-settled: summary judgment is properly granted where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment may be granted only where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989). The moving party has the burden of proving that there is no genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party. Davis v. Pennzoil, 438 Pa. 194, 264 A.2d 597 (1970). The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, 608 A.2d 1074 (1992).

Harleysville claims that the pollution exclusion provision is not ambiguous and must be read strictly, so as to preclude its obligation to cover Madison in the underlying action. We agree.

Harleysville’s CGL policy includes the following exclusionary language:

2. Exclusions.
This insurance does not apply to:
f. (1) “Bodily injury” ... arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants:
(a) At or from any premises, site, or location which is or was at any time owned or occupied by, or rented or loaned to, any insured;
(d) At or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured’s behalf are performing operations:
(i) if the pollutants are brought on or to the premises, site or location in connection with such operations by such insured, contractor or subcontractor;
The term “pollutant” is defined in the policy as:
[A]ny solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

Emphasis added.

The goal of interpreting an insurance policy is to “ascertain the intent of the parties as manifested by the language of the written instrument.” Gene & Harvey Builders v. Pa. Mfrs. Ass’n, 512 Pa. 420, 426, 517 A.2d 910, 913 (1986) (citation omitted). Where a provision of a policy is ambiguous, the provision is to be construed in favor of the insured and against the insurer, the drafter of the policy. Id. When a provision of an insurance policy contains language which is clear and unambiguous, however, a court is required to give effect to that language. Standard Venetian Blind Co. v. American Empire Ins., 503 Pa. 300, 469 A.2d 563 (1983). In order to determine whether a term or language in a policy provision is ambiguous, the term or language must be considered in the context of the entire policy. Garber v. Travelers Ins. Companies, 280 Pa.Super. 323, 421 A.2d 744 (1980).

The seminal Pennsylvania Supreme Court case regarding the interpretation of contract language is Gianni v. Russell & Co., Inc., 281 Pa. 320, 126 A. 791 (1924). The Gianni court determined that an alleged oral agreement regarding an exclusive right to sell beverages under a tenant-lessee contract would not be upheld when the written contract did not evidence such a stipulation, as “the writing [was] not only the best, but the only evidence of [the parties’] agreement.” Id. (emphasis added). Similarly, in Standard Venetian Blind, supra, despite the insured’s lack of knowledge and/or understanding of an exclusion clause in an insurance liability policy, the court held that because the clause was clearly drafted, it was enforceable and effective to preclude coverage for the insured. Id. (emphasis added). Furthermore, this court has reiterated that:

[A]n insurer may draft a policy with explicit exclusions and the Court will uphold the plain meaning of the exclusions since a policyholder cannot reasonably expect unlimited coverage in the face of an explicit, unambiguous limitation.

Huffman v. Aetna Life & Cas. Co., 337 Pa.Super. 274, 282, 486 A.2d 1330, 1334 (1984) (emphasis added).

It is important to distinguish the Harleysville-Madison exclusionary provision from pollution exclusion provisions found in many other insurance policies. Other provisions often contain the language “into the atmosphere” when describing the area into which a pollutant must escape so that the exclusion applies. Such language, when given its technical effect, will most likely preclude insurance companies from denying coverage for accidents occurring within a confined area because such an occurrence does not result in the release of pollutants “into the atmosphere.” See generally Gamble Farm Inn, Inc. v. Selective Ins. Co., 440 Pa.Super. 501, 656 A.2d 142 (1995) (holding that “atmosphere” within meaning of pollution exclusion in CGL policy did not include the release of the pollutant into the air within the insured’s building). Additionally, many courts have held this term to be ambiguous, and the exclusion inapplicable, thus resulting in a verdict against the insurer. Id.

Many of these same policies also contain provisions which carve out an exception in applying the pollution exclusion when the manner in which the pollutants are emitted is “sudden and accidental.” See Lower Paxton Township v. U.S. Fidelity and Guaranty Co., 383 Pa.Super. 558, 557 A.2d 393 (1989) (when evidence of release of pollutants did not support jury finding that there had been a “sudden” discharge, dispersal, release or escape of methane gas from Township landfill into adjoining property owner’s home, suit brought by Township against its insurer, for policy coverage of damage to property owner’s home, was reversed by court and a judgment n.o.v. entered for insurance company). Careful review of the present policy at issue, however, does not reveal any language making Harleysville’s policy exclusion inapplicable to cases of “sudden or accidental” emissions or limiting it to the release of pollutants “into or upon the land or the atmosphere.”

Madison states that the true public policy behind a pollution exclusion provision is to prevent the escape of pollutants “into the environment.” Consistent with this assertion, it claims that because Ezzi’s accident did not involve the escape of fumes into the environment, the exclusionary provision should not be read to apply to the instant case. We follow in the footsteps of this and other jurisdictions that have consistently declined to accept such an argument when the policy language is clear and unambiguous. See O’Brien Energy Systems v. American Employers’ Ins., Co., 427 Pa.Super. 456, 629 A.2d 957 (1993), allocatur denied, 537 Pa. 633, 642 A.2d 487 (1994); Lower Paxton, 383 Pa.Super. at 566-67, 557 A.2d at 397 (citing Broadwell Realty Services, Inc. v. Fidelity & Casualty Co., 218 N.J.Super. 516, 528 A.2d 76 (1987), overruled on other grounds by Morton Int’l, Inc. v. General Accident Ins. Co. of Am., 134 N.J. 1, 28, 629 A.2d 831, 847 (1993)). Additionally, because the Harleysville-Madison provision contains no such “into the environment” language, we, as a court, will not “convolute the plain meaning of a writing merely to find an ambiguity.” See O’Brien Energy, 427 Pa.Super. 456, 462, 629 A.2d 957, 960 (1993).

Madison makes the additional argument that the “fumes” which caused Ezzi to faint and injure himself are not “pollutants,” and, therefore, this accident does not fall within the exclusion provision. Specifically, Madison claims that the sealant, a commonly used “membrane-forming” construction material which it brought onto the helicopter plant in self-contained canisters, was neither an irritant nor a contaminant. In support of its argument, Madison relies on a North Carolina Court of Appeals case, West American Insurance v. Tufco Flooring, 104 N.C.App. 312, 409 S.E.2d 692 (1991). West American, which carries no precedential value, held that under a pollution exclusion provision, fumes emanating from a commonly used construction product are not considered irritants or pollutants, and therefore, should not apply to preclude coverage for the insured. We not only disagree with this holding, but we also refuse to provide such a broad exception simply because a product or material is commonly used in construction.

Specifically, we find no merit in Madison’s argument which' declines to recognize the floor sealant’s Xylene fumes as a pollutant. The prior panel of this court, which addressed this same issue, came to the proper conclusion that:

While the floor-covering material [the Euco Floor Coat] itself was a necessary instrument of Madison’s work, the vapors, however unavoidable, were not. They were an unwanted irritating waste product of the floor covering, and thus could be construed to fit within the policy’s definition of pollution.

This court simply cannot construe the policy language any way other than by finding that the fumes in the instant case were pollutants. First, the language of the exclusion provision clearly states that “fumes” are regarded as a “pollutant.” Second, when canisters of a liquid or other compound are brought onto a premises, opened, and the material, upon exposure to the air or after application to a surface, causes noxious fumes to emanate and make persons dizzy, the fumes are clearly pollutants. Fumes are a reactionary product of a solid or a liquid which often manifest in the form of a vapor, gas, or smoke. In fact, the dictionary definition of fume is “a smoke, vapor, or gas especially when irritating or offensive.” Webster’s New Collegiate Dictionary, 461 (1981). The fact that the fumes from the floor coating were so strong as to overcome a healthy adult, making him dizzy enough to fall into a trench, compels us to classify the fumes as irritating, and, thus, pollutants under the policy.

Based upon the policy terms, which are the controlling means to discern the intent behind the contract, Gianni supra, we find that the pollution exclusion provision is clear and unambiguous. Ezzi incurred bodily injury from the release of pollutant-fumes at Madison’s working site from a product which Madison brought onto the helicopter plant in connection with its contractual obligations with Kelran. We find no need to look further to ascertain the parties’ intent in drafting the contract, Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507 (1986), or determine if the exclusion provision is reasonably susceptible to different constructions and interpretations. Gamble Farm, supra. To do so would unnecessarily create an ambiguity for this court’s resolution as well as add extrinsic language to the existing policy between Harleysville and Madison. O’Brien Energy, supra. Because we find that the trial court committed an error of law in failing to find that Harleysville was entitled to summary judgment, we must reverse the trial court’s order. Hetrick, supra.

Order granting summary judgment reversed. We remand and direct the trial court to enter summary judgment in favor of Harleysville Mutual Insurance Company. Jurisdiction is relinquished.

DEL SOLE, J., files a Dissenting Opinion which is joined by CAVANAUGH and BECK, JJ., and McEWEN, President Judge, concurs in the result of Dissenting Opinion by DEL SOLE, J.

DEL SOLE, Judge,

dissenting.

In ruling that Harleysville is not required to defend Madison in the underlying suit, the Majority has made a fundamental error by not reviewing the basis for the underlying claim in the personal injury action. It is clear from such a review that a duty to defend exists. Further, the Majority compounds this error when it finds the product at issue to be a “pollutant”, as that term is defined in the exclusionary clause of the policy. For these reasons, I dissent.

Initially it must be recalled that a duty to defend is a distinct obligation, which is separate and apart from an insurer’s duty to indemnify. Erie Ins. Exchange v. Transamerica Ins. Co., 516 Pa. 574, 582, 533 A.2d 1363, 1368 (1987). This obligation to defend arises whenever an injured party files a complaint which may potentially come within the coverage of the policy. Phico Ins. Co. v. Presbyterian Med. Serv., 444 Pa.Super. 221, 225, 663 A.2d 753, 755 (1995) (citing Gedeon v. State Farm Mutual Automobile Ins. Co., 410 Pa. 55, 56, 188 A.2d 320, 321 (1963)). The Majority in this case, has failed to appreciate that the question of Harleysville’s duty to defend necessitates an examination of the underlying personal injury claim, as well as the policy. The Majority, accepting Harleysville’s statement summarizing the underlying claim, concludes that the policy’s pollution exclusion applies and Harleysville is not responsible to defend a claim for injuries sustained as an approximate result of the inhalation of Xylene fumes. The underlying claim, however, is not a claim for injuries based upon Madison’s use or release of noxious fumes, rather it is a claim based upon the breach of certain duties including a failure to warn.

Included in the record as Exhibit “A” to Madison’s Complaint is a copy of the Complaint filed by Nicholas Ezzi which names Madison as a defendant. The Complaint alleges facts which resulted in Ezzi’s fall, and claims that Madison is responsible for Ezzi’s injuries for the following reasons.

13. The aforesaid incident and the injuries resulting to the Plaintiff, Nicholas Ezzi, occurred solely as a result of the negligence, carelessness and recklessness of the defendants, Brian Murtaugh, Kelran and Madison, who had exclusive control over the supervision of the Construction Project and the application of the chemical curing agent, which said negligence, carelessness, and recklessness consisted of the following:

a. Failing to properly maintain the construction site in a proper and safe manner for all construction personnel and employees of Boeing helicopters;
b. Failing to properly ventilate the work area to avoid the build-up of dangerous fumes that existed;
c. Failing to warn, by either sign or barricade, Boeing Helicopters’ employees, including the Plaintiff of the dangerous condition that existed resulting from the application of the concrete curing agent;
d. Failing to warn Boeing Helicopters’ employees, like the Plaintiff, of the likely effect of inhaling the noxious fumes that existed;
e. Failing to provide Boeing Helicopters’ employees, like the Plaintiff, with protective gear to protect them from the fumes resulting from the application of the curing agent;
f. Failing to provide adequate safeguards to prevent the injury to Plaintiff;
g. Disregarding the safety and rights of the Plaintiff and other persons in the Construction Area;
h. Failing to detect and observe the dangerous condition caused by the application of the concrete curing agent;
i. Failing to properly barricade or plate the hole where Plaintiff fell;
j. Engaging in other liability producing conduct as may become apparent during the course of discovery.

The so-called “pollution” exclusion in the general liability coverage policy issued by Harleysville excludes it from defending or indemnifying claims for “bodily injury” which arise out of the “actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants.” The injuries claimed by Izzi in his Complaint have not been alleged to have resulted from Madison’s “discharge” of a pollutant. The claims set forth against Madison in Izzi’s Complaint stem from Madison’s neglect in failing to warn and protect others from the situation, failing to ventilate the area and failing to cover a hole into which Izzi fell. These alleged negligent acts by Madison are not excluded in the Harleysville policy.

When one examines both the policy provision and the claims made in the Complaint filed in the underlying personal injury action, it is evident that Harleysville has a duty to defend Madison in the personal injury action. The exclusionary language of the policy which refers to pollution does not apply because the bodily injury claim made by Izzi is not premised upon Madison’s conduct as it may relate to the release of hazardous fumes. Since the claims of negligence made by Izzi do not fall under any exclusion of the policy, I would affirm the trial court’s decision requiring Harleysville to provide Madison with a defense. I would note that the trial court made this ruling on other grounds, however we are free to affirm the decision of the trial court if the result is correct, on any ground. Schimp v. Allaman, 442 Pa.Super. 365, 659 A.2d 1032 (1995).

Although I would affirm the trial court’s decision for the reasons stated above, I am compelled to also remark that the Majority misinterprets the exclusionary language in the policy at issue. Particularly I note my disagreement with the Majority’s conclusion that this case involved the use of a “pollutant,” as that term is defined in the policy.

The definition of “pollutant” included in the policy reads: [A]ny solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

The Majority concludes that the “fumes” were a pollutant. However the Majority fails to recognize that the terms “vapor,” “fumes” and “gaseous” modify the words “irritant or contaminant” which are meant to describe the type of material which constitutes a “pollutant.” Unlike the Majority, I would accept the trial court’s conclusion that the floor coating used in this case was not an “irritant” or “contaminant” because this product was a useful tool for construction. The trial court held that the Euco Floor Coat which was being used by Madison on the work site was a “necessary instrument” and “a tool of the trade,” and that it was not an “irritant” or a “contaminant” because it was neither objectionable nor unwanted. In support of its ruling, the trial court cited the North Carolina Court of Appeals decision in West American Insurance v. Tufco Flooring, 104 N.C.App. 312, 409 S.E.2d 692 (1991).

The West American court considered a strikingly similar situation, with regard to both the product at issue and the policy language. Therein the court was considering whether West American’s policy applied where chicken was damaged at a Perdue plant by an infiltration of vapors or fumes from a resurfacing product used by Tufco. The policy included a definition of pollution identical to the language of the policy at issue here. In concluding that the flooring material was not a “pollutant” under the pollution exclusion clause, the court stated:

Turfco did not bring the vapors or fumes which invaded the chicken to the Perdue plant. Rather, Turfco brought an unadulterated, pure raw material, styrene monomer resin, in one-gallon metal cans with screw-on caps. When this raw material was brought onto the site, it was neither an “irritant or contaminant.” It wras a raw material used by Tufco in its normal business activity of resurfacing floors. Yet, to be a “pollutant” under the exclusion, a substance brought onto the site must be precisely that, an “irritant or contaminant.”

Id. at 322, 409 S.E.2d at 698.

For these same reasons I find the product used in this case, a floor sealant, not to be a pollutant as that term is defined in the policy. The sealant cannot be said to be either an “irritant” or a “contaminant.” While many products may have some related irritating results, the product itself is not an irritant or contaminant. To so label a product would result in a finding that common household cleaners, bleaches, hair care products, or chlorine are pollutants. Nearly all products may be irritating in some fashion to someone, but this does not make the product itself an “irritant or contaminant” such as to constitute a pollutant. Contaminants and irritants are those substances which are commonly recognized as polluting the environment. They may in fact be a commonly used product, if that product is not being used as intended. However useful products, which are being used as intended, cannot, and should not, be considered pollutants.

The Majority quickly dismisses the application of West American to this case and finds that it carries “no precedential value.” While true that we are not bound by the holding of this ruling by our sister state, I believe it to be both wise and prudent to consider its rationale under circumstances so similar. Further in view of the fact that it provides sound rationale for its decision, I would rely on its ruling in support of my conclusion that the pollution exclusion is inapplicable in this case.

Unrelated to the above discussion I wish also to add my comments with regard to the Majority’s discussion of Gamble Farm Inn, Inc. v. Selective Ins. Co., 440 Pa.Super. 501, 656 A.2d 142 (1995). Therein Judge Beck wrote that the term “atmosphere” appearing in a pollution exclusion of a comprehensive general liability policy was ambiguous. The term was then construed in favor of the insured and it was held that the exclusion did not apply to the release of carbon monoxide from a malfunctioning water heater inside a restaurant.

With regard to the Gamble case the Majority first writes that it is distinguishable because it concerns a pollution exclusion which includes the language “ ‘into the atmosphere’ when describing the area into which a pollutant must escape so that the exclusion applies.” Opinion at 143. I have no dispute with the determination that the policy language of the two cases differ, however I do have a problem with the Majority’s latter discussion of the Gamble case and its sub silentio attempt to invalidate the Gamble holding in a footnote. Opinion at 146-147, ftn. 6.

In footnote five the Majority begins with a comment that it need not consider Harleysville’s second issue, which asks whether the existence of conflicting judicial authority in foreign jurisdictions established ipso facto an ambiguity in the pollution exclusion. The Majority then recounts the ruling in Gamble which finds that the existence of an ambiguity is demonstrated by the fact that the decisions of other courts have interpreted the term “atmosphere” differently. The Majority writes that it is not “invalidating” the reasoning of Gamble, however it goes on to state: “[rjather than relying on the fact that jurisdictions are split over construing the provisions or that one jurisdictional line of reasoning is better than another, courts must remember to invoke the basic tenet of contract law and look to the writing itself first, before otherwise deciding that a policy is ambiguous.” Id.

My reading of this footnote finds that the Majority is in fact attempting to do exactly what it claims not to do -invalidate the reasoning of Gamble. I find this inappropriate to do in a footnote and unnecessary to the resolution of the matter before us.

CAVANAUGH and BECK, JJ., join.

McEWEN, President Judge, concurs in the result.

      . This floor coat was manufactured and sold by Euclid Chemical Company, a party defendant to the underlying civil action.

      . Specifically, the trial court’s order, in part, reads:
      AND NOW this 17th day of November, 1994, it is hereby ORDERED and DECREED that Summary Judgment is GRANTED in favor of plaintiff, Madison Construction Company against defendant The Harleysville Mutual Insurance Company....

      . The remaining panel judges, Judge Cavanaugh and Judge Wieand, concurred and dissented in the result, respectively.

      . The term "membrane-forming” is used to describe the curing compound’s ability to waterproof and facilitate the drying of the cement over which it is poured.

      . The record contains a copy of the manufacturer’s "Material Safety” report on this floor coating. The report lists the different physiological effects which may result from inhaling the sealant’s vapors. The data which is most crucial to this case states:
      Inhalation: Vapors may be irritating and may cause CNS [central nervous system] effects, vertigo, muscular weakness, narcosis, confusion [and] coma.
      Additionally, the data sheet lists the different ingredients which comprise the sealant. The first material listed is “aromatic solvent.” This solvent contains various chemicals that act as the medium to dissolve the remaining active ingredients in the sealant. The report also states that the primary route of exposure of the sealant is through “inhalation and splashing.”
      The above data directly contradicts Madison's argument that it did not bring fumes or vapors onto the worksite where Ezzi was injured. In fact, Madison brought a material, classified as a liquid “aromatic,” onto the Boeing/Vertol premises which was inhaled by Ezzi, causing him to fall and sustain injuries.

      . Having determined that the policy language is unambiguous, we need not address the second issue raised on appeal. Even if we were to address this issue, however, we find that appellee-Madison takes its argument too far by claiming that a conflict in the courts is ipso facto ambiguous. A panel of this court, in Gamble Farm, supra, stated that “more important than the actual holdings [of the other jurisdictions] is the fact that their decisions demonstrate the existence of an ambiguity in the crucial term ‘atmosphere’ [in a pollution exclusion provision].” The Gamble Farm court relied on this court’s earlier case, Cohen v. Erie Indem. Co., 288 Pa.Super. 445, 432 A.2d 596 (1981), which held that when several appellate courts from other jurisdictions were split over the interpretation of an identical insurance policy provision defining who is a “named insured," this lack of agreement creates “[the convincing] conclusion that the clause in issue is ambiguous as to whether coverage is to be afforded under the fact situation presented.” Id. at 452, 432 A.2d at 599. Our court, in Lower Paxton, 383 Pa.Super. at 573 n. 4, 557 A.2d at 400 n. 4, however, rejected this same argument and refused to hold that where a provision in an insurance policy has been construed in different ways by various courts, that this alone mandates that we find the provision ambiguous.
      While we do not invalidate the above reasoning of these cases, we will not improvidently "jump the gun” and avoid analyzing the language of the policy merely because various courts have inconsistently interpreted the policy language. Unlike the facts in Gamble Farm and Cohen, when the terms of the Harleysville-Madison exclusion provision are given their plain and ordinary meaning, Ryan Homes, Inc. v. Home Indent. Co., 436 Pa.Super. 342, 647 A.2d 939 (1994), we find that the pollution exclusion clearly applies to the circumstances surrounding Ezzi’s accident. Furthermore, this court believes that in order to increase predictability and uniformity in the interpretation of pollution exclusion provisions, we must predicate our decisions on the application of the language of the exclusionary clauses to the specific facts presented in each case. Rather than relying on the fact that jurisdictions are split over construing the provisions or that one jurisdictional line of reasoning is better than another, courts must remember to invoke the basic tenet of contract law and look to the writing itself first, before otherwise deciding that a policy is ambiguous. See generally Mark J. Manta, The Absolute Pollution Exclusion: The Inside Story, Mealey’s Litigation Reports, Vol. 10, No.3 (November 14, 1995).

       Betz Laboratories Inc., a chemical manufacturer, has filed an amicus curiae brief in support of Madison. Aetna Casualty and Surety Company and The Insurance Environmental Litigation Association have also filed amicus briefs in support of Harleysville.

      . Although I offer this case in support of my determination that the product used here was not a pollutant, it should be noted that unlike the case now before us, the West American case involved a claim of damage directly caused by the use of a product and its emanating vapors. As I stated in my earlier discussion, here the underlying suit is not based upon a claim for damage caused by the release of vapors or the use of a product, rather other grounds of negligence are asserted, including failure to warn and failure to cover or barricade a hole in the floor.


text:
    678 A.2d 810
    Patricia and Dino GREGORIO, Appellants, v. Dr. Martin ZELUCK, Dr. Daniel Colimbi, Dr. Michael Podolsky, and Obstetricians and Gynecologist, Ltd., Appellees.
    Superior Court of Pennsylvania.
    Argued April 11, 1996.
    Filed June 24, 1996.

      Charles J. Cunningham, III, Philadelphia, for appellants.
    Eugene Patrick Feeney and Francis J. McGovern, Blue Bell, for appellees.
    Before CIRILLO and CERCONE, President Judges Emeritus, and BECK, J.
   CIRILLO, President Judge Emeritus.

Patricia and Dino Gregorio appeal from an order entered in the Court of Common Pleas of Philadelphia County denying the Gregorios’ motion to remove a nonsuit in favor of the appellees, and entering judgment in favor of the appellees. We affirm.

In November of 1988, Ms. Gregorio gave birth to a baby boy at Methodist Hospital. During the course of delivery, appellee, Dr. Zeluck, performed an episiotomy, a surgical incision made to a woman’s vagina to prevent tearing of the perineum and trauma to the baby. Following delivery, Ms. Gregorio’s incision was packed with pieces of surgical gauze, known as “sponges,” to reduce bleeding.

Approximately five days after her delivery, Ms. Gregorio complained that she was not feeling well. Specifically, she was itching, was not able to get comfortable when trying to fall asleep, and was bleeding; she was concerned because the bleeding was very dark. Ms. Gregorio telephoned the appellees’ office, spoke with the receptionist, Denise DiDonatis, and was told by Denise that the symptoms Ms. Gregorio described were normal; the itching was caused by the stitches, and bleeding was expected after delivery. Denise assured Ms. Gregorio that she would inform the doctors of her call. A couple of days later, Ms. Gregorio again spoke with Denise, who reassured her that her symptoms were not unusual. After several more days, Ms. Gregorio experienced pain in her lower abdomen, and detected a very bad odor. She called the doctors’ office several more times, and was advised that her “insides were shrinking back to normal” and that the doctors did not need to see her until her regularly scheduled six week checkup.

According to Ms. Gregorio, she began to feel compelled to avoid people, even her baby, as a result of the odor she was experiencing; she was fearful people would notice the smell. Several weeks later, while in the shower, Ms. Gregorio felt a foreign object protruding from her vagina. After pulling it out, she telephoned the doctors’ office; it was determined that the object was a piece of surgical packing left inside of her after the delivery.

The Gregorios filed a complaint against the doctors alleging medical malpractice based on the failure of the attending doctor, Dr. Zeluck, to remove sponges following the delivery, and on the failure of the doctors to respond to Ms. Gregorio’s complaints of odor. A jury trial commenced before the Honorable Bernard Goodheart. At the conclusion of the Gregorios’ case, the doctors moved for a compulsory nonsuit. Notes of testimony were transcribed and oral argument was heard. Judge Goodheart granted the doctors’ motion. The Gregorios’ motion for reconsideration and post-verdict relief was denied. This appeal followed.

The following issues have been presented for our consideration:

(1) Whether Ms. Gregorio’s complaint of severe, noxious, nauseating odor beginning a few days after delivery on November 22, 1988, and lasting until December 29, 1988, caused by surgical sponges left in her vagina, is a compensable injury?
(2) Whether Ms. Gregorio’s post-traumatic stress, lasting for several years beyond December, 1988, is causally connected to the prolonged, severe, noxious, nauseating odor suffered by her?
(3) Whether the three doctors are liable for the failure of their staff to bring Ms. Gregorio in for an office examination after her complaint of odor?
(4) Whether Mr. Gregorio has abandoned his claim of loss of consortium by divorcing Ms. Gregorio where the appellants’ divorce was caused by the effects of the doctors’ negligence?

WOien a nonsuit is entered, the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement. Dion v. Graduate Hospital of Univ. of Pennsylvania, 360 Pa.Super. 416, 520 A.2d 876 (1987); Kelly v. Doran, 312 Pa.Super. 286, 458 A.2d 962 (1983). In order to justify granting a nonsuit, it must appear from the plaintiffs statement of his or her case that there is a complete absence of evidence legally sufficient to maintain the action. Dion, supra. The plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from such evidence; any conflict in the evidence must be resolved in the plaintiffs favor. Gorfti v. Montgomery, 384 Pa.Super. 256, 558 A.2d 109 (1989), appeal denied, 524 Pa. 608, 569 A.2d 1367 (1990).

In order to set forth a prima facie case of malpractice, a plaintiff must establish (1) a duty owed by the doctor to the patient; (2) a breach of that duty; (3) that the breach of duty was the proximate cause, or substantial factor in bringing about the harm suffered by the patient; and (4) damages suffered by the patient resulting directly from that harm. Mitzelfelt v. Kamrin, 526 Pa. 54, 60-61, 584 A.2d 888, 891 (1990). In order to meet this burden, the plaintiff is required to provide expert testimony to establish, to a reasonable degree of medical certainty, that the acts of the physician deviated from acceptable medical standards, and that such deviation was the proximate cause of the harm suffered. Id.; see Chandler v. Cook, 438 Pa. 447, 265 A.2d 794 (1970) (in malpractice cases, a jury will not be permitted to find negligence without expert testimony establishing variance from accepted medical practice); Strain v. Ferroni, 405 Pa.Super. 349, 592 A.2d 698 (1991) (same). An exception to the expert testimony requirement applies only where the physician’s departure from the norm is so simple and obvious, it is within the comprehension of ordinary laypersons. Chandler, supra.

Dr. Dorothy Czarnecki, a physician trained in both obstetrics and gynecology, testified as the Gregorios’ expert witness. Dr. Czarnecki opined that the failure to remove the sponge was “not consistent with medically accepted standards.” Dr. Czarnecki also concluded that Ms. Gregorio “suffered no medical problems, other than an odor, which is not medical but is certainly personal.” Furthermore, the expert conceded that Ms. Gregorio’s complaints of discharge and bleeding were not abnormal. As the testimony must be construed in Ms. Gregorio’s favor, Gorfti, supra, we conclude that Dr. Zeluek was negligent in failing to remove the surgical gauze from Ms. Gregorio after her delivery and episiotomy; such action, according to the Gregorios’ expert, was not consistent with medically accepted standards. Mitzelfelt, supra. In fact, Dr. Zeluck’s departure from the norm in this regard is presumably within the comprehension of ordinary laypersons. Chandler, supra.

What remains for this court to determine is whether Dr. Zeluck’s failure to remove the sponge resulted in harm to Ms. Gregorio. We conclude that the Gregorios failed to establish any link between Dr. Zeluck’s negligence and a legally cognizable injury. It was established that any physical pain experienced by Ms. Gregorio during the days following labor was not related to Dr. Zeluck’s negligence. In fact, the testimony revealed that Ms. Gregorio had no abnormal physical pain related to the sponge; it is the unpleasant odor resulting from the sponge of which Ms. Gregorio complains.

“Not every wrong constitutes a legally cognizable cause of action____ Not every loss constitutes a legal injury for which compensation is available.” Armstrong v. Paoli Memorial Hospital, 430 Pa.Super. 36, 42, 633 A.2d 605, 608 (1993), appeal denied, 538 Pa. 663, 649 A.2d 666 (1994). In an analogous case addressing the compensable harm issue, the Pennsylvania Supreme Court was asked to determine specifically “whether asymptomatic pleural thickening,[] ie., unaccompanied by disabling consequences or physical impairment, is a compensable injury” giving rise to a cause of action. Simmons v. Pacor, Inc., 543 Pa. 664, 672, 674 A.2d 232, 236 (1996). The Court concluded that no physical injury was established necessitating an award of damages. Similarly, in Lubowitz v. Albert Einstein Medical Center, 424 Pa.Super. 468, 623 A.2d 3 (1993), this court found no legally cognizable injury in an appellant’s fear that she would develop the AIDS virus after being exposed to it. We concluded that appellant, in her asymptomatic state, could not recover monetary damages. Id. at 470-72, 623 A.2d at 5.

Likewise, in the instant case, Ms. Gregorio suffered no disabling consequences, physical impairment, or physical symptoms as a result of her odor. While we sympathize with Ms. Gregorio and the unpleasant experience she endured, we find that the odor resulting from Dr. Zeluck’s negligence is not a sufficient physical injury to warrant damages.

The Gregorios cite Botek v. Mine and Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992) in support of their position. In Botek, the plaintiff, a firefighter, utilized an air pak which had been inadvertently filled with carbon monoxide instead of oxygen. The plaintiff suffered injuries as a result of his inhalation of the carbon monoxide and was briefly hospitalized for respiratory therapy. He suffered headaches, nausea, and twitching for several months. The Court specifically found that the plaintiff suffered “objective, measurable, observable physical injuries,” although such injuries were “relatively mild.” Id. at 166, 611 A.2d at 1177. The Gregorios claim that, like the injury in Botek, the odor described by Ms. Gregorio was objective, measurable and observable. The odor cannot, however, be classified as a physical injury, and is, therefore, easily distinguished from the injury in Botek.

In addition to their assertion that the odor itself should be treated as a compensable injury, the Gregorios contend that Ms. Gregorio should recover for the emotional, post-traumatic effects of the odor. Ms. Gregorio’s psychologist, Dr. Frances Bonds-White, testified that Ms. Gregorio suffers from post-traumatic stress disorder. Dr. Bonds-White opined that such disorder was a result of Ms. Gregorio’s “pain and suffering” and the fact that Ms. Gregorio did not believe her “pain” was being taken seriously. While Dr. Bonds-White refers to “pain,” a physical injury has not been proven from Dr. Zeluck’s negligence, only an odor complained of by Ms. Gregorio.

The Gregorios again rely upon Botek, supra, in support of their position. As as a result of his physical injuries, the plaintiff in Botek sustained long term emotional ills, such as post-traumatic stress disorder. The Court found:

Plaintiff-Appellant suffered objective, measurable, observable physical injuries here (although they were relatively mild). All of the consequent psychological and emotional pain and suffering is compensable in that situation, and our law has long so held under the so-called “impact rule.”

Id. at 166, 611 A.2d at 1177 (emphasis added).

In order to sustain a cause of action for negligent infliction of emotional distress, a plaintiff must demonstrate some type of physical injury. Armstrong, 430 Pa.Super. at 43-45, 633 A.2d at 609. The continuing validity of the physical impact rule, see Botek, supra, was recently acknowledged by this court in Brown v. Philadelphia College of Osteopathic Medicine, 449 Pa.Super. 667, 674 A.2d 1130 (1996). In that case, while in her sixteenth week of pregnancy, the plaintiff, Mrs. Brown, arrived at the emergency room with her husband. Mrs. Brown complained of vaginal bleeding, severe abdominal pain, and nausea. Mrs. Brown was placed in an examining room for approximately one hour and fifteen minutes before being seen by a physician. During that time she continued to experience bleeding, pain, and nausea; she suffered a miscarriage with only her husband present. The fetus remained between her legs for approximately fifteen minutes. When the doctor arrived, he cut the umbilical cord and placed the fetus in a pan. A nurse then placed the fetus in Mrs. Brown’s arms and took photographs of Mrs. Brown and the fetus; this was allegedly done to alleviate stress and to help them bond. The Browns filed a claim for negligent infliction of emotional distress. Recognizing the validity of the physical impact rule, this court stated:

Where ... a plaintiff sustains bodily injuries, even though trivial or minor in character, which are accompanied by fright or mental suffering directly traceable to the peril in which the defendant’s negligence placed the plaintiff, then mental suffering is a legitimate element of damages. A legal duty of care is owed by hospitals to persons receiving emergency room treatment. We believe that the finding of a breach of this duty provides a sufficient basis for recovery by appellee. Instantly, appellant’s breach of this duty resulted in a physical impact upon appellee in that she experienced physical harm during her miscarriage as a result of appellant’s failure to attend to her and, further, was physically impacted when she was given the fetus to hold.

Id. at 679, 674 A.2d at 1135-36 (emphasis added). Unlike Mrs. Brown, Ms. Gregorio is not entitled to recovery for her alleged post-traumatic emotional distress; Ms. Gregorio’s distress did not result from a physical harm arising out of Dr. Zeluck’s negligence. See Simmons, supra (holding that because asymptomatic pleural thickening is not a sufficient physical injury, the resultant emotional distress damages are likewise not recoverable); Fewell v. Besner, 444 Pa.Super. 559, 664 A.2d 577 (1995) (claim for negligent infliction of emotional distress dismissed where appellant asserted that her “incarceration” constituted physical impact). Our examination of the record reveals a complete absence of evidence legally sufficient to maintain an action against the appellees. Dion, supra. The trial court did not err in denying the Gregorios’ motion to remove the nonsuit.

The Gregorios’ remaining claims are easily dismissed. The Gregorios have cited no authority for the general averments set forth in their last two issues on appeal. Pennsylvania Rule of Appellate Procedure 2119 states, in pertinent part, “[t]he argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part ... the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a) (emphasis added). See Burrell Construction & Supply Co. v. Straub, 440 Pa.Super. 596, 603, 656 A.2d 529, 533 (1995), appeal denied, 542 Pa. 655, 668 A.2d 1120 (1995) (appellant’s claim found to be waived where no legal authority was cited in support of appellant’s claim); Cober v. Corle, 416 Pa.Super. 191, 197 n. 3, 610 A.2d 1036, 1039 n. 3 (1992) (same). We need not address the remaining issues.

Affirmed.

      . Pleural thickening, detectable by x-ray, has been defined as "the formation of calcified tissue on the pleura, the membranes surrounding the lungs,” and is caused by asbestos exposure. Simmons, 543 Pa. at 672, 674 A.2d at 236.

      . The Court decided three consolidated appeals under the heading of Simmons v. Pacor, Inc.; the two other cases were Murray v. Philadelphia Asbestos Corp. and Giffear v. Johns-Manville Corp.

      . Regardless of the Gregorios’ failure to adequately argue their last two points, these claims would ultimately fail. As we have determined that the Gregorios have not proven a legally cognizable injury, their claim that the remaining doctors are liable for the staff's failure to schedule an examination for Ms. Gregorio is without merit. Likewise, because a loss of consortium claim is a derivative cause of action, such a claim will not survive, as we have determined that no injury was established.