author: TAMILIA, Judge:

text:
    656 A.2d 121
    BANK OF AMERICA, NTSA as Trustee under that Certain Pooling and Servicing Agreement dates as of November 1,1992 for RTC Commercial Mortgage Pass-Through Certificates Series 1992-C8 v. COPLEY QU-WAYNE ASSOCIATES, a Pennsylvania Limited Partnership; Daniel Banks and Jacquelyn Banks, as Tenants by the Entireties, Robert Elwood and Beryl Elwood, as Tenants by the Entireties, Dale Criswell, Raymond Alexander, Leonard Goldman, Esther Goldman and Edward Hollin, all Trading as Brighton Court Associates, a Pennsylvania General Partnership; and Daniel Banks and Jacquelyn Banks, Jointly and Severally. Appeal of: Raymond ALEXANDER, Individually and as General Partner t/a Brighton Court Associates.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1994.
    Filed Feb. 17, 1995.
    Reargument Denied April 25, 1995.

      Noreen M. Walsh, Philadelphia, for appellant.
    Karen L. Turner, Philadelphia, for Bank of America, appellee.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

Raymond Alexander appeals from the March 28,1994 Order denying his petition to open and/or strike the $1,680,175.52 judgment entered against him as a 1% partner of defendant Brighton Court Associates (Brighton). Appellant argues this judgment was based upon an unauthorized exercise of authority by Brighton’s managing partner, Daniel Banks (Banks).

Appellant (1%), along with Daniel and Jacquelyn Banks (67%), Robert and Beryl Elwood (11%), Dale Criswell (4%) and Edward Hollín (17%) are partners in Brighton. Their respective interests in' the partnership are as indicated above. Banks is also general partner in defendant Copley Qu-Wayne Associates, a Pennsylvania limited partnership (Copley). On June 9, 1989, Banks, in his capacities as managing general partner of Brighton and sole general partner of Copley, executed a promissory note for 1.5 million dollars. In relation to the loan, Banks and his wife executed a guaranty and suretyship agreement which contained, among other provisions, a clause authorizing a judgment by confession in the event of default. The makers thereafter defaulted on the loan and, on October 4, 1993, judgment by confession was entered against appellant and the other general partners of Brighton. Appellant’s petition to open and/or strike was denied March 28, 1994, the trial court reasoning, in part, Banks’ authority to execute the note was adequately reflected in the record via the partnership agreement and Banks’ power of attorney. For the reasons which follow we disagree with the trial court and vacate the judgment entered against Raymond Alexander.

A motion to strike judgment will not be granted unless the fatal defect claimed appears on the face of the record. Dollar Bank v. Northwood Cheese Co., 431 Pa.Super. 541, 637 A.2d 309 (1994). A judgment by confession will be opened only when the petitioner acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense so as to require submission of the issue to a jury. Id.

The pivotal issue before us is whether Banks had the authority, apparent or actual, to obligate Brighton to a 1.5 million dollar loan containing a confession of judgment clause. This very issue, not previously addressed by this Court, was recently reviewed by the United States Court of Appeals from the Third Circuit, Eastern District, Pennsylvania. In Resolution Trust Corp. v. Forest Grove Inc., Ronald & Delores Isenhart, 33 F.3d 284 (3rd Cir.1994), a confessed judgment was entered by Resolution Trust against the defendants for repayment of a $1,815,000 loan. The commitment letter for the loan had been executed on October 15, 1986 by Mr. Isenhart, on behalf of Forest Grove, in his capacity as one of three Forest Grove officers. On November 12, 1986, Mrs. Isenhart executed a general power of attorney appointing Mr. Isenhart as her attorney-in-fact. The power of attorney, while giving her husband wide latitude with regard to the management of Forest Grove (mobile home park), did not expressly authorize him to enter into an agreement containing a confession of judgment clause. On this same day, Mr. Isenhart signed a surety agreement in compliance with the lender’s commitment letter condition that Forest Grove officers and their spouses would guarantee repayment of the loan. In his capacity as her attorney-in-fact, Mr. Isenhart signed on behalf of Mrs. Isenhart. The surety agreement contained, in addition to other provisions, the confession of judgment clause upon which judgment was entered. Simultaneously with the execution of the power of attorney and surety agreement, Mr. Isenhart, on behalf of Forest Grove, signed a bond and warrant document which also contained a confession of judgment clause. This documentation was not signed by any of the officers or their spouses as individuals.

Faced with these facts, the court found, inter alia, the power of attorney granted by Mrs. Isenhart to Mr. Isenhart did not give him the power to grant to appellee a warrant of attorney to confess judgment against Mrs. Isenhart. Therefore, the Court of Appeals found the District Court erred when it refused to open/strike the confessed judgment as against Mrs. Isenhart. The court’s Order denying Forest Grove’s and Mr. Isenhart’s motion to open/strike the confessed judgment entered against them was, however, affirmed.

Appellant herein finds himself in precisely the same position as Mrs. Isenhart. The limited power of attorney executed by Alexander did not expressly grant to Banks the authority to enter an agreement containing a warrant of attorney to confess judgment clause. The Isenhart Court relied on the Restatement (Second) of Agency, a Beaver County case, and an Ohio Supreme Court case, in support of its opinion an agent cannot execute a warrant of attorney to confess judgment in the absence of the express authority to do so:

The Restatement (Second) of Agency states:

It is inferred that one having authority to borrow has authority to do what is reasonably necessary in obtaining the money.... It does not, however, include authority to give security or to give a judgment note.

Restatement (Second) of Agency § 75 cmt. b (1958). It is also the general rule that:

An agent may execute a warrant of attorney to confess judgment against his principal where he is expressly authorized to do so....
In the absence of express authority, the power of an agent to execute a warrant of attorney to confess judgment against his principal has generally not been inferred .... This rule that an agent ordinarily is without power to execute a warrant of attorney to confess judgment unless such authority is expressly conferred has been held applicable even where an agent was granted the power to borrow money for his principal or to execute notes, mortgages, bonds, or other securities to secure debts of his principal....

C.P. Jhong, Annotation, Agent’s Authority to Execute Warrant of Attorney to Confess Judgment Against Principal, 92 A.L.R.2d 952, 953-54 (1963) (footnotes omitted).

In Armen v. Frederick, 59 Pa.D. & C. 115 (Beaver Co.1947), a husband granted his wife a power of attorney. This power of attorney authorized her:

to do and perform all matters and things, transact all business, make, execute and acknowledge all contracts, orders, deeds, writings, assurances and instruments which may be requisite or proper to effectuate any matter or thing appertaining or belonging to me, and especially granting to her the power to apply for and renew my restaurant liquor license....

Id. at 116. The wife signed a note to borrow money on behalf of her husband who was stationed overseas in the military. It contained a confession of judgment clause. In considering the effect of the power of attorney, the trial court stated “[pjermission to another to authorize confession of judgment must be expressed in unequivocal language.” Id. at 125. The court concluded that the power of attorney did not include this type of authorization, and therefore struck the confessed judgment. Id.

Similarly, in Peoples Banking Co. v. Brumfield Hay & Grain Co., [172 Ohio St. 545, 18 0.0.2d 88,] 179 N.E.2d 53 (Ohio 1961), the Supreme Court of Ohio stated:
Although an agent with authority to borrow money may have authority to do what is reasonably necessary to obtain that money, including authority to give negotiable instruments in the usual form where required, such authority alone will not support a reasonable inference of authority to give any warrant of attorney to confess judgment.
Id. [179 N.E.2d] at 55 (citing Restatement (Second) of ■ Agency § 75 cmt. b). The court held that “the authority of one to execute a warrant of attorney to confess judgment against another should not be recognized unless expressly conferred.” Id.
We too think it is clear that an attorney-in-fact lacks the power to execute a warrant of attorney to confess judgment on behalf of his principal, unless the power is expressly given in the power of attorney.

Isenhart, 33 F.3d at 293. We agree with the Court of Appeals’ reasoning as it pertains to the power of attorney and apply it to the matter before us. Also, it is apparent had appellant’s intent been to grant Banks full, unbridled authority to act in his stead in all matters, the document would not have been titled Limited Power of Attorney, and would not have specifically and exclusively identified Brighton Court Apartments. We make this observation noting appellant has averred, and Banks and Copley have not denied, the loan secured was not for Brighton’s benefit but rather for the benefit of Copley, Banks’ limited partnership which was admittedly in financial distress.

In further support of our decision, we look to section 8321 of the Uniform Partnership Act, Partner agent of partnership as to partnership business.

(b) Absence of apparent authority. — An act of a partner which is not apparently for the carrying on of the business of the partnership in the usual way does not bind the partnership unless authorized by the other partners.
(c) Limitations on authority of individual partners.— Unless authorized by the other partners or unless they have abandoned the business, one or more but less than all the partners have no authority to:
(1) Assign the partnership property in trust for creditors or on the promise of the assignee to pay the debts of the partnership.
(2) Dispose of the goodwill of the business.
(3) Do any other act which would make it impossible to carry on the ordinary business of a partnership.
(4) Confess a judgment.
(5) Submit a partnership claim or liability to arbitration or reference.

15 Pa.C.S. § 8321(b) and (c). While part (b) generally dictates the acts of a partner in the ordinary course of business may not bind the partnership absent apparent authority, part (c) goes one step further to delineate those peculiar acts for which a partner must obtain express authority from all other partners before acting. Included in this limited list of extreme acts, potentially detrimental to the partnership and requiring full agreement from all partners is the authority to confess judgment. See Mullen v. Slupe, 360 Pa. 485, 62 A.2d 14 (1948). Reading the aforementioned statutes in conjunction with the partnership agreement buttresses our finding Banks was without authority to execute the note in question. The pertinent article from the partnership agreement states:

Article 5. Management.
5.1. All major policy decisions affecting the business of the Partnership, including, without limitation thereto, the time and place of distributions, necessary expenditures of any kind, the necessity, time and amount of additional capital contributions or other cash calls, if any, and decisions involving development, construction, loans, mortgages or other financing or refinancing, leases for all or any part of the Partnership Property and improvements thereto, and sale or other disposition of the Partnership Property or any part thereof, shall be made by Daniel Banks and/or Jacquelyn Banks who shall act as the Partnership’s managing partners (the “Managing Partners”). The Managing Partners jointly or individually are hereby authorized by the Partners to do the following:
(i) to employ or engage other persons to perform services for the Partnership, including persons, directly or indirectly, employed by, in a control relationship with, affiliated with or otherwise related to any Partner and to compensate such persons for their performance of such services;
(ii) to mortgage, encumber, lease (for periods which may exceed the term of the Partnership), sell, assign, transfer, grant options on (for periods which may exceed the term of the Partnership), exchange or otherwise dispose of the Partnership Property or a portion thereof and any interests therein;
(iii) to borrow money and issue evidence of indebtedness and to secure the same by mortgage, deed of trust, pledge or other lien or security interest;
(iv) to enter into and perform contracts and agreements of any kind necessary or desirable to the development and operation of the Partnership Property or business and in connection with any matters incidental or related thereto;
(v) to do anything which the Managing Partners may deem necessary or appropriate for the protection and preservation of the Partnership Property; to carry insurance for public liability and other coverage appropriate to the business of the Partnership in such amounts and of such types as the Managing Partners may determine;
(vi) to make and revoke any election permitted to the Partnership by any taxing authority in such manner as the Managing Partners, in their sole discretion, may decide; and
(vii) to compromise, settle or submit to arbitration and to institute, prosecute and defend any actions or claims in favor of or against the Partnership or relating to its business.
5.2. Notwithstanding the Uniform Partnership Act of the Commonwealth of Pennsylvania, no Partner shall be considered an agent of the Partnership, and no act or signature of any Partner, whether or not apparently for carrying on in the usual way the business of the Partnership, shall bind the Partnership, unless the Partner so acting either possesses or has in fact received authority pursuant to this Agreement to act for the Partnership in the particular matter involved.

Section 5.2 denounces the power conferred on the partners individually by statute to act on behalf of the partnership in the ordinary course of business. That power was granted to the Bankses by section 5.1 of the partnership agreement which identifies those acts, arising in the ordinary course of business, for which Mr. and Mrs. Banks assumed responsibility. Subsection vii of paragraph 5.1 expressly grants Banks the authority to submit a claim to arbitration, one of the recognized, extreme instances identified by section 8321(c) of the Act requiring express authority by all partners. Accordingly, we can’t help but believe that had the partners intended to vest Banks with the authority to confess judgment, a specific provision would have been drafted and included in the partnership agreement.

Lastly, equity demands reversal. It is apparent from the record Banks abused his position of trust with Brighton in an attempt to save Copley. Unfortunately, he was unsuccessful. Brighton, however, should not be made to suffer the same fate as Copley as a consequence of Banks’ irresponsibility.

Based on the foregoing reasons of law and fact, we reverse the March 28, 1994 Order denying appellant’s petition and vacate the October 4, 1993 judgment as entered against appellant, Raymond Alexander.

Order reversed.

Judgment vacated.

Jurisdiction relinquished.

      . Raymond Alexander is the only defendant party to this appeal.

      . The trial court's reliance on an unpublished memorandum by the United States District Court, factually distinguishable from the matter before us, is not controlling.


source: Caselaw Access Project

author: OLSZEWSKI, Judge: JOHNSON, Judge, dissenting.

license: Public Domain

text:
    656 A.2d 125
    Patricia E. KEMETHER and Fred N. Kemether, Appellants, v. AETNA LIFE & CASUALTY COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1994.
    Filed March 16, 1995.

      Noreen Kemether, Philadelphia, for appellants.
    Paul Barrett, Scranton, for appellee.
    Before OLSZEWSKI, JOHNSON and HESTER, JJ.
   OLSZEWSKI, Judge:

Appellant Patricia Kemether was involved in an automobile accident in December 1990. She alleged that she was forced off the road by a large truck approaching on her side of the road. Immediately after the accident, Patricia identified the truck as an Agway truck. After investigation, however, Patricia concluded that the vehicle was not an Agway truck, but was a “phantom” or unidentified vehicle. On this basis, Patricia and her husband notified appellee Aetna of their insurance claim under the uninsured motorist clause of their policy.

Based on Patricia’s initial identification of the vehicle as an Agway truck, Aetna claimed that it was not a “phantom” vehicle, and therefore was not covered under the uninsured motorist terms of the policy. Seeking a determination of liability, Aetna filed suit for declaratory judgment against the Kemethers and Agway. The trial court dismissed the action and referred the matter to arbitration, under the specific terms of the policy, in order to determine if the truck in question was a “phantom” or unidentified vehicle.

On October 18, 1993, the arbitrators issued an award in favor of Aetna, finding that the Kemethers had failed to prove that the accident was the result of a “phantom” vehicle. The Kemethers filed a petition to modify or vacate award of arbitrators, which was denied by the trial court by Order dated April 11, 1994. This appeal followed.

Initially, Aetna asserts that this appeal must be quashed, as no appeal lies from an order denying a petition to vacate or modify. Aetna is correct in noting that an order denying a petition to vacate or modify is not an appealable order under section 7320(a). 42 Pa.C.S.A. § 7320(a). See also Dunlap by Hoffman v. State Farm Ins., 377 Pa.Super. 165, 169, 546 A.2d 1209, 1211 (1988). The proper procedure is for the court to enter an order confirming the arbitrators’ award, either simultaneously with or following the entry of the order denying the petition to vacate or modify. Id. It is from this confirming order that an appeal lies.

While no such confirming order was entered in the instant case, we find that it would be inappropriate to quash the appeal. The responsibility for entering a confirming order in such a case lies with the trial judge, not the appellant. In Dunlap, this Court found that it would not be proper to quash an appeal where no confirming order was entered after the denial of a petition to vacate. 377 Pa.Super. at 169, 546 A.2d at 1211. We wrote:

[Ojnce appellant’s petition to set aside i.e. vacate was denied, it was not appellant’s obligation to file an application to confirm the award denying appellant recovery, but, rather, the obligation of the trial court to enter an order confirming the award simultaneously with the order denying appellant’s petition to set aside.

Id. Therefore, it is incumbent upon the trial court to enter an order confirming the award, and the Kemethers will not be punished for the trial court’s failure to enter the required order.

After determining that quashal was not appropriate, the Dunlap court remanded to the trial court so that the correct order could be entered and reduced to judgment. 377 Pa.Super. at 169, 546 A.2d at 1211. We find such a remand unnecessary in the present case. In Dunlap, the order denying the petition to vacate was never reduced to judgment. Id. Without any order that was reduced to judgment, we simply could not address the appeal. Id. Unlike Dunlap, we do have a judgment in the instant appeal. While it is a judgment on the order denying the petition to vacate or modify, it is nonetheless a final judgment. The record fails to reveal, and no party suggests, any reason why the award should not have been confirmed after the trial court denied the petition to vacate or modify. Therefore, no purpose at all would be served by a remand to confirm the award, reduce that order to judgment, and bring the appeal right back to this Court. See Popskyj v. Keystone Ins. Co., 388 Pa.Super. 429, 432 n. 1, 565 A.2d 1184,1186 n. 1 (1989) (addressing the merits of an appeal taken from the denial of a petition to vacate or modify and refusing to remand for the “ministerial act” of entering a confirming order). Thus, notwithstanding the procedural irregularity, we will address the merits of this appeal.

In the proceedings below, the trial court refused to address the issues raised in the Kemethers’ petition to vacate or modify award of arbitrators. The trial court applied Pennsylvania Rule of Civil Procedure 1307(d), which provides for very limited review of arbitration awards. In the explanatory note to section (d), it states that if a party is unhappy with an award, the sole remedy is an appeal for a trial de novo. It is only in limited situations where there are obvious mathematical or language errors that the trial court can modify or vacate an award without a trial de novo. Pa.R.C.P. 1307(d). Since the Kemethers petitioned to vacate or modify rather than for a trial de novo, and their claims did not involve obvious mathematical or language errors, the trial court denied the petition without addressing the Kemethers’ claims. While the trial court correctly read Pa.R.C.P. 1307(d), it incorrectly applied that rule to this case.

The Kemethers’ claim against Aetna is brought under an insurance contract, which specifically states that arbitration will be in accordance with the provisions of the Pennsylvania Uniform Arbitration Act. R.R. 53a-54a. Since this contract is in writing and expressly provides for arbitration under the provisions of the Uniform Arbitration Act, it is presumed to provide for statutory arbitration pursuant to subchapter A. See 42 Pa.C.S.A. § 7302(d); Cigna Ins. Co. v. Squires, 427 Pa.Super. 206, 208, 628 A.2d 899, 900 (1993). Under the provisions of this subchapter, an appealing party must petition the court to vacate or modify the award. 42 Pa.C.S.A. §§ 7314 and 7315. In contrast, Pennsylvania Rule of Civil Procedure 1307(d), which requires an appeal by a trial de novo, only applies to actions which are submitted to compulsory arbitration pursuant to subchapter C. Therefore, we find that the trial judge incorrectly applied Pa.R.C.P. 1307(d) to the present case.

Under subchapter A statutory arbitration, a party may appeal an award by filing a petition to vacate or modify the award pursuant to 42 Pa.C.S.A. §§ 7314 and 7315. The Kemethers filed the correct petition in accordance with the statute. Therefore, the trial court should have addressed the issues raised in the petition to vacate or modify. Since the trial court failed to address the properly raised claims of error, we must remand to the trial court and order it to hear the facts, make findings on the record, and rule on the claims of error.

Order vacated. Remanded with instructions. Jurisdiction relinquished.

Dissenting opinion by JOHNSON, J.

JOHNSON, Judge, dissenting.

Because I find that this appeal should be quashed, I must respectfully dissent.

A dispute arose between Patricia E. and Fred N. Kemether and Aetna Life & Casualty Company over an insurance claim filed by the Kemethers. Pursuant to the parties’ insurance contract, the dispute was submitted to arbitration under the Uniform Arbitration Act, 42 Pa.C.S. § 7301 et seq., and the arbitrators found in favor of Aetna. Subsequently, the Kemethers filed a petition to vacate or modify the arbitrators’ award. The trial court denied the petition, and judgment was entered. However, the trial court did not issue an order confirming the arbitration award. The Kemethers now appeal, arguing that the trial court erred in denying their petition to vacate or modify the award.

In pertinent part, the provision of the Uniform Arbitration Act governing appeals states:

§ 7320. Appeals from court orders
(а) General rule. — An appeal may be taken from:
(1) A court order denying an application to compel arbitration ' under section' 7304....
(2) A court order granting an application to stay arbitration made under section 7304(b).
(3) A court order confirming or denying confirmation of an award.
(4) A court order modifying or correcting an award..
(5) A court order vacating an award without directing a rehearing.
(б) A final judgment or decree of a court entered pursuant to the provisions of this subchapter.

42 Pa.C.S. § 7320.

In the present case, although the trial court denied the Kemethers’ petition to vacate the award, it did not subsequently enter an order confirming the arbitration award. Therefore, pursuant to the express terms of § 7320, the Kemethers have not presented an appealable order. See Dunlap by Hoffman v. State Farm Ins., 377 Pa.Super. 165, 168, 546 A.2d 1209, 1210 (1988) (“a court order denying a petition to vacate ... is not an appealable order under § 7320(a)”). Rather, as the Majority recognizes, “[t]he proper procedure is for the court to enter an order confirming the arbitrators’ award, either simultaneously with or following the entry of the order denying the petition to vacate or modify. It is from this confirming order that an appeal lies.” Majority op. at 471, citing Dunlap; see also Seay v. Prudential Property & Casualty Ins., 375 Pa.Super. 37, 543 A.2d 1166 (1988), appeal dismissed, 523 Pa. 105, 565 A.2d 159 (1989) (order confirming arbitration award as well as entry of judgment thereon in accordance with § 7316 are prerequisites to appeal). Therefore, the present appeal should be quashed.

In determining that this appeal may lie, the Majority reasons that it was incumbent upon the trial court to enter a confirming order. Therefore, the Majority finds that the Kemethers should not be held accountable for the court’s failure. In reaching this conclusion, my colleagues refer to the following language from the Dunlap case:

[Ojnce appellant’s petition to set aside i.e. vacate was denied, it was not appellant’s obligation to file an application to confirm the award denying appellant recovery, but, rather, the obligation of the trial court to enter an order confirming the award simultaneously with the order denying appellant’s petition to set aside.

Majority op. at 471, quoting Dunlap, supra, 377 Pa.Super. at 170, 546 A.2d at 1211. However, the Majority’s conclusion overlooks the fact that, in Dunlap, this Court, when presented with an appeal from an order denying an insured party’s petition to set aside an adverse arbitration award, remanded the matter for entry of a confirming order and judgment thereon. Therefore, the Majority’s reliance on Dunlap, in support of its decision that the present appeal may lie, is misplaced. See also Carroll v. State Farm Mutual Auto. Ins., 420 Pa.Super. 215, 223 n. 12, 616 A.2d 660, 664 n. 12 (1992), appeal denied, 533 Pa. 641, 622 A.2d 1374 (1993) (once a petition to vacate an award is denied, a subsequent final judgment is to be entered with respect to an order confirming an arbitration award before appeal is proper).

Based on the foregoing, I am constrained to conclude that the lack of an order confirming the arbitration award is fatal to the Kemethers’ appeal. Therefore, I would quash the appeal. Accordingly, I must respectfully dissent.

      . Appellants reduced the April 11, 1994, order denying the petition to vacate or modify to judgment on June 6, 1994.


author: CIRILLO, Judge:

text:
    656 A.2d 129
    COMMONWEALTH of Pennsylvania, v. Sidney BANNISTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 11, 1994.
    Filed March 20, 1995.

      Edward F. Browne, Lancaster, for appellant.
    Joseph C. Madenspacher, Dist. Atty., Lancaster, for Com., appellee.
    Before CIRILLO, JOHNSON and FORD ELLIOTT, JJ.
   CIRILLO, Judge:

Sidney Bannister appeals from a judgment of sentence entered in the Court of Common Pleas of Lancaster County after his conviction on drug charges. We vacate and remand.

On July 1, 1992, Daniel Pilgrim, a confidential police informant, went to the residence of Bridget Cooper on 35 South Ann Street, Lancaster, Pennsylvania to make a controlled drug buy. While at that residence, Pilgrim purchased from Bannister 39 vials of cocaine for $300.00. While Bannister was retrieving the vials, Pilgrim noticed approximately $2,000.00 to $3,000.00 worth of crack cocaine in the room from which Bannister was collecting the vials to sell to Pilgrim. At the time of the controlled purchase, Pilgrim was wearing electronic surveillance equipment. Later that evening, a search warrant was obtained for 35 South Ann Street, where members of the Lancaster County Drug Task Force discovered 464 vials of cocaine hidden in the ceiling panels of the residence. Bannister was arrested and charged with unlawful possession of cocaine with intent to deliver, in violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(30), and criminal conspiracy to commit the crime of possession with the intent to deliver. 18 Pa.C.S.A. § 903(a)(1), (2).

A jury trial ensued and Bannister was convicted of all charges. Post-trial motions were filed and denied. Bannister was sentenced to two and one-half to ten years imprisonment on delivery of 4.5 grams of cocaine, and a consecutive term of five to ten years on the possession of 50.12 grams of cocaine with intent to deliver, with concurrent probationary terms on the conspiracies, plus $20,000.00 in fines. Subsequent to the imposition of sentence, trial counsel was granted permission to withdraw. Present counsel was appointed by the trial court. A motion to modify sentence was filed and denied. This appeal followed.

Bannister raises the following issues for our consideration:

(1) Whether trial counsel was ineffective in failing to raise a suppression issue based upon the warrantless entry of a police informer into appellant’s home while wearing electronic surveillance equipment?
(2) Whether trial counsel was ineffective in eliciting testimony from appellant on his direct examination concerning his prior conviction and sentence for a burglary, and then failing to request a limiting instruction on the jury’s consideration of evidence of the prior conviction?
(3) Whether the sentencing court erred in imposing disparate sentences upon appellant and his co-defendant, without an adequate statement of reasons and sufficient finding of differences between them to substantiate the disparity?
(4) Whether the sentencing court erred in imposing an excessive sentence which focused exclusively on the seriousness of the crime?

Our standard of review when evaluating a claim of ineffective assistance of counsel is well settled. We presume that trial counsel is effective and place on the defendant the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990). We are first required to determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). If the claim is without merit, our inquiry ends because counsel will not be deemed ineffective for failing to pursue an issue which is without basis. Id. Even if the underlying claim has merit, the appellant still must establish that the course of action chosen by his counsel had no reasonable basis designed to effectuate the client’s interests and, finally, that the ineffectiveness prejudiced his right to a fair trial. Id.; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Bannister claims he is entitled to a new trial due to counsel’s ineffective assistance in failing to move for suppression of evidence under Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987) (en banc), aff'd, 539 Pa. 271, 652 A.2d 294 (1994). Schaeffer concerned the legality of a technique of electronic surveillance known as “participant monitoring,” or using a body wire to surreptitiously record a person’s conversations. Id., 370 Pa.Super. at 182, 536 A.2d at 355. There, a confidential informer was sent into the home of an individual to record his conversations and transmit them back to the police. We held that article I, section 8 of the Pennsylvania Constitution, which protects the right of the people to be secure from unreasonable searches and seizures, requires a warrant based on probable cause for the electronic seizure of such communications. Id.

Specifically, in Schaeffer, police officers utilized a confidential informant to make a controlled purchase of marijuana from the appellant in his home. Days later, the same informant was equipped with a body transmitter and was sent into appellant’s home to make another drug purchase. A conversation was recorded indicating that the appellant would have more drugs for sale by the evening of a specified date. The police obtained a search warrant for the appellant’s home, citing as probable cause the controlled drug buys the informer had made and the contents of the taped conversation. Based on the holding set forth above, this court reversed the appellant’s judgment of sentence and remanded for a new trial at which the fruits of the warrantless electronic surveillance would be excluded.

The Commonwealth, in its first of a two-part argument with regard to this issue, avers that this court’s en banc decision in Schaeffer is no longer a viable precedent. The Commonwealth’s argument must fail, as it has been rendered moot. Subsequent to the Commonwealth’s appeal to this court, the Pennsylvania Supreme Court, on December 30, 1994, affirmed this court’s en banc decision in Schaeffer in equally divided, per curiam orders. See Commonwealth v. Schaeffer, 539 Pa. 271, 652 A.2d 294 (1994). On the same day, the Supreme Court upheld the Schaeffer rationale in Commonwealth v. Brion, 381 Pa.Super. 83, 552 A.2d 1105 (1989), rev’d, 539 Pa. 256, 652 A.2d 287 (1994). The Court concluded, “In accordance with the analysis articulated by Judge Cirillo in Schaeffer I ... we hold that an individual can reasonably expect that his right to privacy will not be violated in his home through the use of any electronic surveillance.” Brion, 539 Pa. at 256, 652 A.2d at 287. We determine, therefore, that the Commonwealth’s contention no longer presents an arguable issue; the Schaeffer decision has been upheld by the highest appellate court in this Commonwealth.

[0]n October 17, 1988, our Supreme Court handed down Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988)[, aff'd on other grounds, Blystone v. Pennsylvania, 494 U.S. 299[, 110 S.Ct. 1078, 108 L.Ed.2d 255] (1990)] and Commonwealth v. Rodriguez, 519 Pa. 415, 548 A.2d 1211 (1988). In Blystone, our Supreme Court held that a warrantless one-party consensual electronic interception, as authorized by 18 Pa.C.S.A. § 5704, does not violate article I, section 8 of the Pennsylvania Constitution. Our Supreme Court then followed the Blystone holding in Rodriguez. Although our decision in Schaeffer focused solely on the fact that the interception occurred in the defendant’s home and neither Blystone nor Rodriguez mentions that factor, the broad language of Blystone and its subsequent application in Rodriguez overrules Schaeffer sub silentio. Therefor[e], we are constrained to hold that the trial court erred when it granted the appellee's motion for a new trial based upon our decision in Schaeffer. Brion, 381 Pa.Super. at 83, 552 A.2d at 1105 (footnotes omitted). Thus, while a three-judge panel of this court (in Brion) questioned the viability of our en banc decision in Schaeffer, the fact remains that Schaeffer had never been expressly overruled by the Pennsylvania Supreme Court; rather, as stated above, it was recently affirmed by the Court. In reversing this court's decision in Brion, the Supreme Court distinguished Blystone, stating, "Unlike ... Blystone [,] ... the instant case involves conversations taking place in the sanctity of one's home.”

In addition to the Commonwealth’s contention that this court’s decision in Schaeffer is no longer viable precedent, the Commonwealth alternatively asserts that the holding is inapplicable to the facts of the instant case. Namely, the Commonwealth declares that the Schaeffer decision carved out a narrow requirement that one person consensual recordings conducted in the home of a defendant require a warrant based upon probable cause. It follows, the Commonwealth argues, that since Bannister testified that he did not live at 35 South Ann Street, the Schaeffer holding is inapplicable and counsel cannot be held ineffective for choosing not to pursue a merit-less claim. We must decide, therefore, whether Bannister’s trial counsel was ineffective for failing to move to suppress evidence relating to Bannister’s electronically recorded conversations. Schaeffer, supra, 539 Pa. at 271, 652 A.2d 294.

Specifically, Bannister asserts that the information received from the taped conversations of the controlled buy was obtained as a fruit of the illegal recording and should have been suppressed. Additionally, he points out that the recordings were utilized to obtain a search warrant for 35 South Ann Street and, since there was no warrant based on probable cause for the electronic seizure of the communications between the informant and Bannister, and the subsequent search warrant was based upon the illegal electronic recording, the fruits of the search should have been suppressed.

As set forth above, the Commonwealth argues that since Bannister testified that 35 South Ann Street was not his home, the rule in Schaeffer did not apply. The record reveals that Bannister testified that his home is in Queens, New York. He also testified that he was staying with his girlfriend at “458 Atlantic” in Lancaster between the dates of June 12, 1992 and July 1, 1992 and that he “never” lived at 35 South Ann Street, where the drugs were found. The trial testimony also revealed, however, that Bannister did reside at 35 South Ann Street. Bridget Cooper, whose name appears on the lease for 35 South Ann Street, testified that Bannister moved in with her approximately three weeks before his arrest for the drug charges. This question of whether or not Bannister was actually residing at 35 South Ann Street at the relevant time is, as recognized by the Commonwealth, a key issue and, in light of Schaeffer, should have been explored by trial counsel at an earlier juncture.

Pursuant to the rule enunciated in Schaeffer, we find that Bannister’s ineffective assistance of counsel claim has arguable merit. Johnson, supra, 527 Pa. at 118, 588 A.2d 1303. Arguably, trial counsel could very well have secured a favorable outcome for Bannister had he moved for suppression of the evidence overheard during the recorded conversation. Assuming the electronic recording tapes were suppressed, it is not clear from the record whether the subsequent search warrant was supported by the requisite probable cause in the absence of the evidence gleaned from the tapes. Even so, we cannot comprehend why counsel would opt to take such a chance.

Trial counsel’s inaction at this stage of Bannister’s case in no way served to advance his client’s interests; rather, counsel’s decision not to move for suppression of the evidence could have prejudiced Bannister’s right to a fair trial. Had counsel moved for suppression of the evidence in question, the instant verdict, depending upon the trial court’s findings regarding where Bannister was residing at the time, most certainly would have been different, for there would have been no conviction absent the evidence seized.

We find it necessary, therefore, to remand for a hearing to explore the issue of whether trial counsel was ineffective in his decision not to move for suppression of the evidence in question.

Judgment of sentence vacated. Case remanded for further proceedings. Jurisdiction relinquished.

      . Without having the benefit of the Pennsylvania Supreme Court's recent pronouncements in Schaeffer and Brion, the Commonwealth argued that this court’s en banc decision in Schaeffer had been overruled sub silentio. Specifically, in Brion, the Commonwealth chailenged an order granting the appellee's motion for a new trial and suppressing electronic surveillance evidence. There, a confidential informant, wearing an electronic recording device, was sent to appellee's home to purchase marijuana. Relying upon this court’s en banc decision in Schaeffer, the trial court granted the appellee's motion for a new trial. This court reversed the trial court's order and set forth the following rationale:

      . "[A]n issue can become moot due to an intervening change in the applicable law.” In Re Gross, 476 Pa. 203, 209, 382 A.2d 116, 120 (1978). In Gross, three weeks after oral argument the legislature passed new laws which dealt squarely with issues raised by the plaintiff; thus, there was no longer the need to assess the validity of the former legislation. Id. at 211-13, 382 A.2d at 121-22.

      . Probable cause for the issuance of a warrant must appear within the four corners of the supporting affidavit. Commonwealth v. Simmons, 450 Pa. 624, 626, 301 A.2d 819, 820 (1973). We have carefully examined the record in this case and can find no supporting affidavit for the search warrant obtained as a result of the electronic recording evidence.

      . Because we have remanded this case for an ineffectiveness hearing, we find it unnecessary to address Bannister's remaining claims at this time.


author: DEL SOLE, Judge:

text:
    656 A.2d 133
    COMMONWEALTH of Pennsylvania v. Antonio T. GARAFFA, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1994.
    Filed March 22, 1995.

      Daylin B. Leach, Allentown, for appellant.
    Jacquelyn C. Paradis, Asst. Dist. Atty., Allentown, for Com.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

Appellant, Antonio Garaffa, was convicted of Rape, his post-verdict motions were denied and he was sentenced to two to four years imprisonment. This appeal followed.

The nineteen year old complainant was employed as a waitress in Appellant’s pizza shop located in Jim Thorpe, Pennsylvania. On April 20, 1989, the complainant told Appellant that she was quitting her job because she was leaving her boyfriend and was going to move to Lansdale, Pennsylvania to live with her mother. Appellant urged her to stay and promised that he would help her find and furnish an apartment. He then gave her fifty dollars as a birthday present and asked her to meet with him that evening to discuss the apartment but he cautioned her not to tell his wife.

As arranged, the two met later that evening in the parking lot of another restaurant. From there, the complainant, driving her own car, followed Appellant to another restaurant where she parked and left her car. The complainant then got into Appellant’s car and, after rejecting Appellant’s suggestion that they drive to Atlantic City, the two drove to a pizza parlor owned by one of Appellant’s friends.

After eating dinner, Appellant, the complainant, and Appellant’s friend left the friend’s pizza parlor and went to a nearby bar where the complainant sat with the two men while the men drank. Appellant’s friend testified that during this time, Appellant and the complainant were hugging and kissing. The complainant testified, on the other hand, that while Appellant repeatedly tried to put his arm around her, she rejected his advances.

In spite of the complainant’s objections, after leaving the bar, the three drove to another bar called Spangles, which was located in the Holiday Inn in Fogelsville, Pennsylvania. Upon arriving at Spangles, the complainant left her purse in Appellant’s car. The three then went, into the bar where Appellant and his friend talked and drank and Appellant continued to try to hold the complainant’s hand. The complainant testified that during this period, she attempted to discuss finding an apartment, but Appellant assured her that they would discuss it later. A few times during the evening, under the auspice that she wanted to call her mother, the complainant left the table and, with money given to her by Appellant, called one of her girlfriends. The friend testified that during the calls the complainant sounded upset, was crying, and said that she wanted to go home but that Appellant would not let her leave.

Eventually, Appellant’s friend left Spangles whereupon Appellant suggested to the complainant that they get a room in the Holiday Inn where they could talk about finding her an apartment. After informing Appellant that she was not going to have sex with him and receiving his assurance that they were only going to talk, the two then entered a hotel room located off of the hotel’s lobby area where the following events, as summarized by the trial court, transpired:

Once inside the room, she removed her jacket and sat down on the bed. Defendant smoked a cigarette and then pushed [the complainant] back on the bed and began kissing her. She started to cry and asked him to stop, but she did not push him away. He pulled her pants and underwear down to her knees and began to have oral sex with her. She pushed his head away and told him- to stop. He stopped performing oral sex and stood up in front of her. While she admitted at this point she could have left the room, she did not do so because she was too frightened as she did not know what to expect from Defendant.
Next, Defendant opened his pants, laid on top of her, and had intercourse with her. Defendant’s hands were near her head during the act of intercourse. [The complainant] tearfully told Defendant that he was hurting her and requested that he stop as the act of sex was painful due to a cyst located on her ovary. Defendant complied with her request and, according to his testimony, ejaculated onto [the complainant’s] stomach because she had told him that she was not on the pill. [The complainant] then told Defendant she wanted to go home. However, Defendant did not respond, but instead went into the bathroom and closed the door. [The complainant] smoked a cigarette while waiting for him to come out of the bathroom. When Defendant emerged, [the complainant] went into the bathroom.

Trial court Opinion dated filed February 9, 1994 pages 5-6.

After the complainant came out of the bathroom, Appellant and she left the room. Appellant told the complainant that he had to stop at the front desk and that she should wait for him by his car. The complainant testified that as they were walking down the hallway, Appellant had his arm around her and said “don’t make it look like you just got raped and [then he] laughed”. (N.T., Vol. II, dated 9/11/90 at page 48). The complainant then walked out of the hotel crying and ran up to a young man in the parking lot, told him that she had just been raped and, at her request, the young man drove her to a police station. Thereafter, Appellant was charged with rape and was convicted by a jury. His post-verdict motions were denied, he was sentenced and this appeal followed.

Appellant claims that the trial court erred in determining that the Commonwealth offered evidence sufficient to support the jury’s finding that the necessary element of “forcible compulsion” or “threat of forcible compulsion” contained in our rape statute was present. In addition, Appellant argues that the jury’s verdict is contrary to the weight of the evidence and that his right to a speedy trial was violated.

Our legislature has defined the crime of rape, in pertinent part, as follows:

§ 3121. Rape
A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

18 Pa.C.S.A. § 3121.

Appellant argues that the Commonwealth failed to prove the necessary element of forcible compulsion, or threat of forcible compulsion and argues that this case is factually similar to and, therefore, controlled by our supreme court’s recent decision in Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994).

In Berkowitz, the complainant, a female college student, went to the appellant’s room where the two ultimately engaged in intercourse. Thereafter, the complainant claimed that she was raped by the appellant and he, in turn, argued that the act was consensual. The appellant was convicted by a jury of one count of rape and one count of indecent assault. Appellant’s judgment of sentence with respect to the rape charge was vacated by this court and the matter was remanded to the trial court for a new trial on the indecent assault charge. The Commonwealth appealed and our supreme court affirmed this court’s reversal of the rape conviction finding that the Commonwealth failed to prove forcible compulsion and reinstated the jury’s verdict regarding the charge of indecent assault.

In the present case, Appellant focuses on what he believes to be the similarities between this case and Berkowitz. Appellant argues that factors such as the victim’s admissions that she willingly accompanied Appellant into the hotel room and failed to attempt to leave the room when given the opportunity, coupled "with the fact that Appellant did not verbally threaten her, shows the lack of forcible compulsion. We disagree.

In reaching its decision in Berkowitz, the supreme court wrote that, “[i]n regard to the critical issue of forcible compulsion, the complainant’s testimony is devoid of any statement which clearly or adequately describes the use of force or the threat of force against her.” Id. at 148, 641 A.2d 1161 (1994). After carefully reviewing the victim’s testimony in the present case, we hold that the element of forcible compulsion was proved. The victim testified that Appellant pushed her down on the bed, climbed on top of her and she began crying and asked him to stop. She then stated that, “[h]e just kept huggin’ and kissin’ me, and I was just fightin’, shocked, scared, I didn’t know what to do.” [emphasis added] (N.T., Vol. II, dated 9/11/90 at p. 39). The victim testified that she pushed Appellant’s head away as he attempted to perform oral sex on her and that she begged him to stop. Appellant then stood up and, ignoring her pleas, once again got on top of the victim and vaginally penetrated her. (Notes of testimony dated September 11, 1990 pages 39 to 40).

The supreme court in Berkowitz, citing to the earlier case of Commonwealth v. Mlinarich, 518 Pa. 247, 542 A.2d 1335 (1988), noted that while the complainant testified that she repeatedly said, “no” throughout the encounter, that is only relevant for purposes of determining consent and has no bearing on the issue of force. “[T]he ruling in Mlinarich implicitly dictates that where there is a lack of consent, but no showing of either physical force, a threat of physical force, or psychological coercion, the “forcible compulsion” requirement under 18 Pa.C.S. § 3121 is not met.” Berkowitz, 537 Pa. at 149, 641 A.2d at 1164.

In the present case, there was clearly a showing of “forcible compulsion”. The victim testified that she was pushed back on the bed, that she was “fightin ’ ” Appellant’s advances and that she pushed him away. Accordingly, we hold that the trial court did not err in finding that the Commonwealth proved the requisite element of forcible compulsion.

Appellant also claims that the jury’s verdict was against the weight of the evidence. In reviewing a claim challenging the weight of the evidence our review is constrained to the question of whether the trial court abused its discretion in denying Appellant’s request for a new trial. Commonwealth v. John Wesley Brown, 538 Pa. 410, 648 A.2d 1177 (1994), Commonwealth v. Thompson, 538 Pa. 297, 648 A.2d 315 (1994). After reviewing the record before us, we hold that the trial court did not abuse its discretion in refusing to award a new trial.

Finally, Appellant argues that he was denied his right to a speedy trial as provided for in Pennsylvania Rule of Criminal Procedure 1100, 42 Pa.C.S.A. 1100. This issue was adequately addressed by the trial court in its Opinion authored by The Honorable James N. Diefenderfer and filed February 9, 1994. Accordingly, we adopt the trial court’s reasoning as it relates to this issue.

Judgment of sentence affirmed.

      . The complainant in Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d at 1161 (1994) testified that “it was possible” that she did nothing to discourage the appellant’s attempts at lifting her bra and shirt and that when he placed her on the bed it “wasn’t slow like a romantic kind of thing, but it wasn’t a fast shove either. It was kind of in the middle.” Id. at 148, 641 A.2d at 1164.


author: DEL SOLE, Judge.

text:
    656 A.2d 136
    Edwin HOLLIDAY, Appellant v. Helen PAGE, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1994.
    Filed March 23, 1995.

      Edwin Holliday, pro se.
    Robert G. DelGreco, Pittsburgh, for appellee.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   DEL SOLE, Judge.

Edwin Holliday appeals from the judgment entered following an order denying a motion for post-trial relief requesting a new trial. We affirm.

This civil action was filed as a result of the injuries sustained by Appellant following an automobile accident. The Appellee did not deny liability. The case was submitted to the jury only on the issue of damages. The verdict was for Appellant in the amount of $1,000. Various claims were raised by Appellant in his motions for post-trial relief all of which were denied. Subsequently, this pro se appeal was filed by Appellant.

“We may not reverse an order denying a motion for a new trial unless the trial court clearly and palpably abused its discretion or committed an error of law that controlled the outcome of the case.” Sundlun v. Shoemaker, 421 Pa.Super. 353, 358, 617 A.2d 1330, 1333 (1992).

Appellant questions the validity of the verdict due to statements made by juror No. 8 during the polling of the jury. Juror No. 6 was excused and the remaining eleven jurors decided the case. When the jury was first polled, all of the jurors agreed with the verdict with the exception of jurors Nos. 12 and 8. Since they did not have the requisite ten votes, the trial court polled the jury again. During the second polling, all of the jurors with the exception of juror No. 12 agreed with the verdict. When the court inquired whether juror No. 8 agreed with the verdict, he responded:

JUROR NO. 8: I said no upstairs. We had a disagreement and then when we took the vote, I did say yes.
THE COURT: So that was your vote?
JUROR NO. 8: That was my vote upstairs. It was something else that was brought up.
THE COURT: I just want to make sure I’m clear on this. During the last polling of the jury I heard ten yes votes and one no vote.
When I instructed the jury that when ten of you have agreed upon a verdict, you have arrived at a verdict, when you voted on this verdict, when ten votes agreed to this verdict. Those ten individuals that said yes today this afternoon right now?
THE JURORS: Yes.
THE COURT: Particularly I want to make sure because Juror No. 8, you were the one that created—
JUROR NO. 8: Something upstairs, we talked about something else and I had said no, and I said now I was supposed to say yes.
THE COURT: This is your verdict?
JUROR NO: 8: Yes.
THE COURT: The clerk will be instructed to record the verdict.

Trial Transcript 10-1-92 at 5-6.

Appellee asserts that Appellant failed to object at the time of trial, consequently, any issue pertaining to an improper jury verdict has not been properly preserved for appellate review. The issue of a problematic jury verdict was raised in our (en banc) case Curran v. Greate Bay Hotel and Casino, 434 Pa.Super. 368, 643 A.2d 687, alloc. denied, 539 Pa. 678, 652 A.2d 1323 (1994). In that personal injury case, the jury answered special interrogatories regarding negligence and damages. The jury found that the Sands Hotel was negligent but their negligence was not a substantial factor in causing harm to the plaintiffs. Eastern Elevator Company’s negligence, however, was found by the jury to be a substantial factor in causing the plaintiffs harm. The jury awarded the plaintiff damages in the amount of $301,000. The jury imputed 30% of the damages to Sands and 70% to Eastern. The trial court molded the verdict and judgment was entered only against Eastern for $210,000 or 70% of the $301,000 verdict. Eastern argued on appeal that a new trial should be granted because the jury verdict was inconsistent. The plaintiff and Sands argued that the claim was waived by Eastern when it failed to object to the inconsistent verdict before the jury was discharged. Relying on our Supreme Court’s decision in City of Philadelphia v. Gray and Williams v. SEPTA, 534 Pa. 467, 633 A.2d 1090 (1993), we held that:

[T]he party seeking a new trial failed to request a correction of the verdict before the jury was discharged. Despite the obvious problem with the jury verdict, Eastern did not seek to have the inconsistencies resolved until it filed post trial motions. Thus, we do not have the option of seeking clarification of the jury’s verdict and must enter judgment according to the verdict announced by the jury. It is this failure to act before the jury was discharged that constitutes waiver. Williams, supra. The purpose of requiring action is to enable the jury to correct an obvious mistake.

Curran, 434 Pa.Super. at 376, 643 A.2d at 690-91.

We note that in McDermott v. Biddle, 436 Pa.Super. 94, 647 A.2d 514 (1994), Curran, supra was cited and distinguished on the facts. It was pointed out that Curran was not clearly precedential on the issue of waiver because four judges found that the issue was waived, four judges did not find waiver and the fifth vote in the majority only concurred in the result. However, more recently, a panel of this court in Picca v. Kriner, 435 Pa.Super. 297, 645 A.2d 868 (1994), cited the waiver rule set forth in Curran as controlling.

Based on Picca and our analysis in Curran, we hold that failure to object to an ambiguous or flawed jury verdict prior to the dismissal of the jury will result in the waiver of that claim on appeal. Thus, since Appellant did not object to the response given by juror No. 8 before the jury was discharged, a challenge to the validity of the verdict on that basis will not be entertained by this court.

Judgment affirmed.

      . Having reviewed the arguments raised by the parties, the record and the relevant law, we have determined that the Opinion by the Honorable Alan S. Penkower dated March 7, 1994 appropriately resolved those claims. We find it necessary to address only one issue.

      .. Under 42 Pa.C.S.A. § 5104(b), in a civil case, a verdict rendered by at least five-sixths of the jury shall be the verdict of the jury and shall have the same effect as a unanimous verdict of the jury.


author: CAVANAUGH, Judge:

text:
    656 A.2d 138
    Linda WAKLET-RIKER, Appellant v. SAYRE AREA EDUCATION ASSOCIATION and Pennsylvania State Education Association.
    Superior Court of Pennsylvania.
    Submitted Nov. 17, 1994.
    Filed March 27, 1995.

      Stuart M. Golant, Towand, for appellant.
    William A. Hebe, Wellsboro, for appellees.
    Before CAVANAUGH, POPOVICH and SAYLOR, JJ.
   CAVANAUGH, Judge:

Linda Waklet-Riker appeals from an order which sustained defendants/appellees’ preliminary objections, and dismissed her third amended complaint with prejudice. We affirm.

A review of the factual averments of plaintiff/appellant’s third amended complaint reveals the following. Appellant was employed as a guidance counselor by the Sayre Area School District. In May of 1990, her employer informed her that she was being furloughed from her position as guidance counselor and that the position was being eliminated. Appellant, a member of both the Sayre Area and Pennsylvania State Education Associations (appellees), informed them of this situation. Appellees advised her to file a grievance; and did so on her behalf on June 7, 1990. Three more grievances were filed on appellant’s behalf. These grievances were denied by the Board of Education, which transmitted notice of this denial to appellees on August 16, 1990. Thereafter, appellees informed the School District, on September 28, 1990, that they were submitting the grievance to arbitration. The actions of appellees, however, were not in accordance with the procedures outlined in the collective bargaining agreement between appellees and the School District. A hearing was subsequently held before an arbitrator in accordance with the provisions of the collective bargaining agreement. The arbitrator dismissed appellant’s claim for failure to adhere to the requirements of the collective bargaining agreement, and for failure to file timely notice. More specifically, the arbitrator ruled that the appellees, acting on behalf of appellant, had failed to give adequate and/or timely notice of the intention to arbitrate the grievances, and as a result, appellant’s claims could not be considered on the merits.

Appellant subsequently filed suit against appellees, seeking damages stemming from appellees’ representation of her during the grievance and arbitration proceedings. Appellees filed preliminary objections. Appellant was given three opportunities to amend her complaint. The third amended complaint alleged causes of action for breach of fiduciary duty, breach of contract, and bad faith. Appellees again filed preliminary objections. The trial court sustained appellees preliminary objections and dismissed appellant’s complaint, concluding that: 1) Pennsylvania law does not recognize causes of action for breach of contract and breach of fiduciary duty, for failure of a union to properly process a union member’s grievance; and 2) appellant failed to plead any material facts to support her claim that the unions (appellees) acted in bad faith. Appellant then filed this appeal.

Our standard of review in an appeal from an order sustaining preliminary objections in the nature of a demurrer is the same as that which the trial court employs: all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are admitted as true for purposes of review. Eckell v. Wilson, 409 Pa.Super. 132, 135, 597 A.2d 696, 698 (1991). However, we cannot accept as true conclusions of law. Id. The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Id. A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim on which relief may be granted. Id. A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory. Id. at 135-36, 597 A.2d at 698.

Pittsburgh Nat. Bank v. Perr, 431 Pa.Super. 580, 584, 637 A.2d 334, 336 (1994).

Initially, we note that the appellee unions in this case are unincorporated associations. As a general rule, members of an unincorporated association cannot recover from the association because the negligence of the association or its members is imputed to all of the members. Plasterer v. Paine, 375 Pa.Super. 407, 413, 544 A.2d 985, 987 (1988). We additionally note that the facts of this case implicate the Public Employe Relations Act (“PERA”), 43 P.S. § 1101.101 et seq. Section 903 of PERA requires that all disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement be submitted to arbitration. 43 P.S. § 1101.903. Here, appellees are parties to the collective bargaining agreement and are appellant’s exclusive bargaining representative thereunder. Furthermore, the essence of appellant’s claims involve the terms and conditions which were bargained for by the appellee unions, and which were allegedly not followed by them in pursuing appellant’s grievance. Thus, the present dispute arises out of the interpretation of the collective bargaining agreement, and we must examine the provisions of PERA to determine what relief is available to appellant.

Under PERA, “[arbitration of disputes or grievances arising out of the interpretation of the collective bargaining agreement is mandatory.” 43 P.S. § 1101.903. Relief through the courts is limited. Speer v. Philadelphia Housing Autk, 111 Pa.Cmwlth. 91, 94-98, 533 A.2d 504, 505-06 (1987). A public employee’s sole remedy in the courts, under PERA, is an action in equity to compel arbitration, when the union has breached its duty of fair representation by acting in bad faith. Runski v. AFSCME, Local 2500, 142 Pa.Cmwlth. 662, 666-670, 598 A.2d 347, 349-50 (1991). Moreover, a public employees’ union can be held liable to its members only for acts of bad faith, and not for negligence in processing a grievance. Id. at 670, 598 A.2d at 351. The only exception to this general rule is where the employee can show by specific facts that the employer actively participated in the union’s bad faith or conspired with the union to deny the employee his rights under the collective bargaining agreement; only in these limited circumstances may an equity court award an aggrieved employee damages. Id. at 668, 598 A.2d at 350. See also Martino, supra, 505 Pa. at 391, 480 A.2d 242; Ziccardi v. Com. of PA, Dept of Gen. Serv., 500 Pa. 326, 456 A.2d 979 (1982); Falsetti v. Local Union No. 2026, United Mine Mrs., 400 Pa. 145, 161 A.2d 882 (1960); Hughes v. Council 13, AFSCME, 157 Pa.Cmwlth. 96, 629 A.2d 194 (1993).

Although we are unaware of any caselaw which addresses the specific fact pattern of this case (union member seeking damages against union for breach of contract, breach of fiduciary duty, and breach of the duty of fair representation) it is clear that, under PERA, a public employee’s remedies against his/her union are limited. As noted supra, a public employee’s sole remedy in the courts is an action against the union for breach of its duty- of fair representation when the union acts in bad faith. We conclude, therefore, that the trial court correctly dismissed appellant’s causes of action for breach of fiduciary duty and breach of contract, as they are not cognizable under PERA. With respect to appellant’s bad faith claim, we likewise find that the trial court correctly dismissed this count. Although an aggrieved employee possesses a cause of action for bad faith under PERA, appellant has failed to plead any facts, despite having been given four opportunities to do so, which would, if proven at trial, establish that the unions acted in bad faith or that the School District actively participated in the unions’ alleged bad faith. Appellant insists that bad faith is a state of mind, and thus, may be pled generally. However, her failure to plead any material facts upon which a claim of bad faith could be based is fatal to her cause of action. See Ammlung v. City of Chester, 224 Pa.Super. 47, 302 A.2d 491 (1973) (although state of mind may be pled generally, material facts constituting the conduct of a defendant must also be pled). Having found no error on the part of the trial court, we will affirm its order sustaining appellees’ preliminary objections and dismissing appellant’s complaint with prejudice.

Order affirmed.

      . See 43 P.S. § 1101.101 (purpose of Act is to promote orderly and constructive relationships between all public employers and their employes); 43 P.S. § 1101.301(1) (defining “public employer” to include, inter alia, school districts); 43 P.S. § 1101.301(2) (defining “public employe” or “employe” as any individual employed by a public employer).

      . PERA is applicable in this case even though the School District is not a party. Where a public employee has been discharged, allegedly in breach of the collective bargaining agreement, and the alleged misconduct on the part of the union has prevented the employee from seeking redress, the public employer approaches the status of an indispensable party, and can be joined in the action, as the dispute cannot finally be resolved without its participation. Martino v. Transport Workers' Union of Phila., 505 Pa. 391, 396-97, 480 A.2d 242, 245 (1984). Although neither appellant nor appellees have joined the School District, the present dispute implicates the collective bargaining agreement and is governed by PERA.

      . We finally note that appellant’s complaint does not indicate whether she has exhausted her administrative claims against the unions. See Campanaro v. Pennsylvania Electric Co., 440 Pa.Super. 519, 656 A.2d 491 (Pa.Super. Feb. 10, 1995) (failure to exhaust administrative remedies for a particular claim precludes plaintiff from later asserting that same claim in a lawsuit).


author: BECK, Judge:

text:
    656 A.2d 142
    GAMBLE FARM INN, INC. v. SELECTIVE INSURANCE COMPANY, Larry Coploff, Mary Coploff, Ronald Drewery, Debra Drewery, Louis Winner, Rose Winner, Scott Hayes, Mrs. Maile Marshall, Tami Hershey and Michelle Zellers. Appeal of SELECTIVE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1994.
    Decided Feb. 14, 1995.
    Reargument and Reconsideration Denied April 21, 1995.

      Mitchell S. Pinsly, Philadelphia, for appellant.
    Kristine L. Waltz, Williamsport, for Gamble Farm Inn, appellee.
    Before BECK, HUDOCK and BROSKY, JJ.
   BECK, Judge:

The issue is whether the “pollution exclusion” in a commercial Comprehensive General Liability insurance policy applies to deny coverage for damages arising out of the release of carbon monoxide within a restaurant when the restaurant’s hot water heater malfunctioned. We hold that the pollution exclusion does not apply to the facts of this case, and therefore affirm the trial court’s entry of summary judgment in favor of the insured restaurant.

The relevant facts are not in dispute. Appellant Selective Insurance Company issued a Comprehensive General Liability (“CGL”) insurance policy to appellee Gamble Farm Inn, Inc., which operates a restaurant. The insurance policy provides coverage during the relevant time period for all “sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ ” caused by an “occurrence.” An “occurrence” is defined in the policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

During the policy’s effective period, animals (probably squirrels) deposited nuts into the flue of a hot water heater located on appellee’s premises. As a result, the flue became clogged, the heater shut down, and certain gases or fumes were created. The fumes seeped through the floor between the basement and the dining area of the restaurant, and several patrons became ill and sought medical attention. Patrons have made claims against appellee for payment or reimbursement of medical expenses; to date, appellee has paid approximately $2,000.00 as a result of these claims. Additionally, some restaurant patrons have filed civil actions against appellee.

Just days after the incident, appellee submitted a general liability loss notice to appellant for coverage of the incident. Appellant denied coverage on the basis of the policy’s “pollution exclusion.” The exclusion provides:

The Company shall have no obligation under this policy (1) to investigate, settle or defend any claim or suit against any insured alleging actual or threatened injury or damage of any nature or kind to persons or property which arises out of or would not have occurred but for the pollution hazard; or (2) to pay any damages, judgments, settlements, losses, costs or expenses of any kind or nature that may be awarded or incurred by reason of such claim or suit or any such actual or threatened injury or damage; or (3) for any losses, costs or expenses arising out of any obligation, order, direction or request of or upon any insured, including but not limited to any governmental obligation, order, direction or request, to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize irritants, contaminants or pollutants.
“Pollution hazard” means an actual exposure or threat of exposure to the corrosive, toxic or other harmful properties of any solid, liquid, gaseous or thermal pollutants, contaminants, irritants or toxic substances, including smoke, vapors, soot, fumes, acids or alkalis, and waste materials consisting of or containing any of the foregoing arising out of the discharge, dispersal or release or escape of any of the aforementioned irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water. Waste material includes any materials which are intended to be or have been recycled, reconditioned or reclaimed.

(emphasis supplied).

In its motion for summary judgment and its brief to this court, appellant argued that the pollution exclusion is “absolute” and unambiguous, and that the policy therefore cannot reasonably be interpreted to apply to the restaurant incident. Appellee asserts that the exclusion is ambiguous under the unique circumstances of this case, and that the policy should be construed in favor of the insured, to provide coverage. The trial court agreed with appellee, and granted its cross-motion for summary judgment.

Our review of the summary judgment decision is plenary. Briggs v. Erie Ins. Grp., 406 Pa.Super. 560, 594 A.2d 761 (1991). Judgment may be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.Civ.P. 1035(b).

Generally, the interpretation of insurance contracts is a question of law that properly may be decided by the court rather than a jury. Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983) (citing Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979)). Where a provision of a policy is ambiguous, the policy is to be construed in favor of the insured, who typically lacks bargaining leverage regarding the terms of the coverage, and against the insurer, the drafter of the agreement. Id. at 304-06, 469 A.2d at 566; Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507 (1986). Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language. Standard Venetian Blind, supra; Rusiski, supra.

The threshold determination of whether a writing is clear and unambiguous necessarily lies with the court. Hutchison v. Sunbeam Coal Corp., 513 Pa. 192, 519 A.2d 385 (1986). A contract is “ambiguous” where “it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Id. at 201, 519 A.2d at 390. Ambiguous terms are subject to “more than one interpretation when applied to a particular set of facts.” DiFabio v. Centaur Ins. Co., 366 Pa.Super. 590, 531 A.2d 1141, 1143 (1987); Techalloy Co. v. Reliance Ins. Co., 338 Pa.Super. 1, 487 A.2d 820, 823 (1984).

We examine the insurance contract to determine whether the language is ambiguous. Standard Venetian Blind, supra, instructs the court to examine the language of the policy itself. We conclude the policy language is ambiguous. The policy excludes coverage where the pollutant is discharged “into or upon land, the atmosphere or any water course or body of water” (emphasis supplied). The ambiguity in the policy arises from the meaning of the word “atmosphere.”

Specifically, there is more than one reasonable definition of the term “atmosphere.” If we define the term in its broadest, most all-encompassing sense, surely the air within the restaurant would be included, and appellant properly could deny coverage. Of course, several equally reasonable definitions can be found in the dictionary:

1. The mass or body of gases that surrounds the earth or any heavenly body. 2. The particular climatic condition of any place or region regarded as dependent on the air. 3. Any surrounding or pervasive element of influence: an atmosphere of gloom. 4. The prevailing tone of a poem, novel, painting, etc. 5. Colloq. An indefinable aura regarded as especially characteristic: This cafe has atmosphere. 6. Physics. A conventional unit of pressure....

Funk & Wagnalls, New Comprehensive International Dictionary of the English Language (1982). Webster’s New World Dictionary of the American Language (1966) includes “the air in any given place” within its definition of “atmosphere.”

The parties have not referred us to any binding decision which defines the term “atmosphere” as used in insurance policies, nor have we found any such cases through our own research. We may be guided, however, by the decisions of other jurisdictions which already have grappled with the issue. We are particularly persuaded, for example, by the recent decision of the Supreme Court of Minnesota in Board of Regents of the University of Minnesota v. Royal Insurance Co., 517 N.W.2d 888 (Minn.1994).

At issue in Board of Regents was an almost identical pollution exclusion, which applied to the discharge of “irritants, contaminants or pollutants into or upon land, the atmosphere, or any water course or body of water.” 517 N.W.2d at 890. The subject damage occurred when the insured’s fireproofing material installed inside a building released asbestos fibers within the building. Id. The insurer argued, inter alia, that the discharge of asbestos into the building’s air was a discharge into the “atmosphere,” and that therefore the pollution exclusion applied to deny coverage. The supreme court rejected this contention, and explained that “atmosphere” as used in the pollution exclusion reasonably may be defined more narrowly.

“Atmosphere” (in its ordinarily understood physical sense) is another name for “air,” but — and this is what is important — it is air thought of as being in a particular place. We would not say that the atmosphere in a room is stuffy. We think of atmosphere as the air surrounding our planet, as when Hamlet spoke of “this most excellent canopy, the air.” (Act II, scene ii.) So it is that we speak of releasing a balloon into the atmosphere but letting the air out of a tire. Our problem here is how the term “atmosphere” should be understood in a pollution exclusion.
This much is clear. The pollution exclusion is directed— at least it was initially — at claims involving the pollution of the natural environment. Thus the exclusion is worded broadly to encompass the natural resources of this planet in their natural setting, namely, land, the atmosphere, and bodies of water. It is less clear, however, whether the exclusion was meant to include contamination of these resources outside their natural setting.
Significantly, the pollution exclusion does not use the generic term “water” but rather the phrase “any watercourse or body of water,” a description indicative of water in streams, ponds or lakes. The use of the term “land,” instead of “property,” whether real or personal, likewise appears directed at land as a natural resource. And, within this context, the term “atmosphere,” we think, refers to the ambient air.
We are not saying here that air inside a building differs from the air outside, or that the inside and outside air do not intermingle. Rather, within the context of the pollution exclusion, the distinction is not in the air itself but where the air happens to be. When the air supply within a building becomes contaminated, it is harmful to the controlled environment of that building; but the contamination of the air in a budding is not harmful to the surrounding natural environment, at least not until it escapes into that environment so as to cause personal injury or property damage — a claim not made here. We conclude, therefore, that the term “atmosphere” in the pollution exclusion does not exclude coverage under the primary policies for the contamination or pollution of air within a building.
At one level, the distinction we make may seem to draw a fine line. But words are deliberately chosen in insurance policies to make distinctions, and we think the construction we have given the word “atmosphere” here is contextually sound and functionally pertinent.... [Wjhen the word “atmosphere” is read as part of the whole clause (i.e., “into or upon land, the atmosphere, or any water course or body of water”), “it is readily apparent that the pollution exclusion applies to property damage arising from the discharge of pollution into the external environment, or onto some part thereof, rather than the release of asbestos fibers within a building.”

517 N.W.2d at 892-93 (quoting from United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 Ill.2d 64, 161 Ill.Dec. 280, 287, 578 N.E.2d 926, 933 (1991)) (footnotes omitted).

Other courts have utilized similar reasoning in holding that the pollution exclusion does not apply to deny coverage for pollutant release within buildings. See, e.g., Essex Ins. Co. v. Avondale Mills, Inc., 639 So.2d 1339 (Ala.1994) (the plain meaning of the term “atmosphere” within the context of the policy language would not include the internal environs or surroundings of individual buildings and cannot be held to deny coverage for exposure to asbestos fibers); Continental Casualty Co. v. Rapid-American Corp., 80 N.Y.2d 640, 654, 609 N.E.2d 506, 513, 593 N.Y.S.2d 966, 973 (1993) (“the three places for discharge contemplated by the policy exclusion— into or upon land, the atmosphere, or any water course or body of water — read together support the conclusion that the clause was meant to deal with broadly dispersed environmental pollution,” not dispersal of asbestos inside a building).

We are aware that still other courts have decided the issue differently. See, e.g., Essex Ins. Co. v. Tri-Town Corp., 863 F.Supp. 38 (D.Mass.1994) (pollution exclusion applies to deny coverage for emission of carbon monoxide inside ice skating rink when Zamboni machine malfunctioned; emission was into “atmosphere”); Prudential-LMI Commercial Ins. Co. v. Meadowood Condominium Ass’n, Civ. A. No. 91-3848, 1992 WL 189490 (E.D.Pa. Aug. 3, 1992) (coverage denied under pollution exclusion for damages arising out of release of insecticide into apartment building). However, these cases do not include any discussion of the term “atmosphere” or its potential ambiguity, and that is the precise issue here. Moreover, neither case is binding upon this court.

More important than the actual holdings by other courts is the fact that their decisions demonstrate the existence of an ambiguity in the crucial term “atmosphere.” Our law provides that in the event of such ambiguity, and in the absence of extrinsic evidence on the term’s meaning, we must construe the term against the drafter/insurer and in favor of the insured. See Standard Venetian Blind, supra, 503 Pa. at 300, 469 A.2d 563; DiFabio, supra, 366 Pa.Super. at 590, 531 A.2d 1141. The record in this case reveals no useful extrinsic evidence that could shed light on the meaning of the word “atmosphere.” We therefore hold that the trial court properly entered summary judgment in favor of appellee Gamble Farm Inn.

We note that this result makes sense within the insurance context. An insurer contracts with an insured to provide coverage for certain risks, in return for payment of premiums which are calculated based upon those risks. It is reasonable and understandable that, when issuing an ordinary commercial CGL policy, an insurer undertakes to cover the risks which may occur within a building — a finite, measurable space with certain risks, such as fire or flood. The insurer attaches a pollution exclusion to such a policy because the damage caused by environmental contamination can be the kind of catastrophe the coverage of which is not undertaken by the insurer under normal commercial circumstances; the premiums on an ordinary commercial policy would not reflect the costly coverage of such a risk. However, where large-scale environmental pollution is an appreciable risk, for example where the insured is a nuclear energy producer or a hazardous waste disposal company, the insurer may issue a specific kind of coverage, and charge the insured accordingly.

The pollution exclusion in this case, within the context of an ordinary commercial CGL policy, understandably protects the insurance company from having to pay for losses that are in the nature of an environmental catastrophe — pollution of land, atmosphere, and bodies of water. However, the law does not permit the insurer, by hiding behind the language of its pollution exclusion, to eliminate its responsibility to its insured for the type of loss suffered by appellee. An attempt to apply the exclusion under these circumstances appears to be an afterthought, based upon ambiguous language, rather than the express purpose for which the exclusion was drafted. In such cases, the insured must prevail.

Order affirmed.

      . The trial court did not make a specific finding that the terms were ambiguous. Instead, it based its decision on the "reasonable expectations" of the insured. We need not address this precise question as we hold that the policy is ambiguous and the ambiguity of the policy terms authorizes construction in favor of the insured, regardless of the insured’s reasonable expectations. We note that the “reasonable expectations” analysis for the interpretation of insurance policies does not command a majority of our supreme court. See Gene & Harvey Builders, Inc. v. Penna. Manufacturers' Ass’n, 512 Pa. 420, 517 A.2d 910, 913 n. 1 (1986) (citing Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983) (Hutchinson, J., concurring). See also Grinnell Mutual Reinsurance Co. v. Wasmuth, 432 N.W.2d 495 (Minn.App.1988) (reasonable expectations of insured were that damage caused by deteriorating foam insulation inside home would be covered by insurance policy), overruled by Board of Regents of the University of Minnesota v. Royal Ins. Co., 517 N.W.2d 888 (Minn. 1994) (reasonable expectations analysis is unnecessary; ambiguous terms of pollution exclusion authorize construction in favor of insured). In addition, we point out that an appellate court may affirm the trial court on a legal theory different from that relied on by the trial court. See Strickler v. Huffine, 421 Pa.Super. 463, 618 A.2d 430 (1992); In re Benson, 419 Pa.Super. 582, 615 A.2d 792 (1992).

      . Both parties have cited the few Pennsylvania cases involving pollution exclusions. The pollution exclusions in these cases included an exception for "sudden and accidental" discharges or emissions. See, e.g., O’Brien Energy Systems, Inc. v. American Employer’s Ins. Co., 427 Pa.Super. 456, 629 A.2d 957 (1993) (“sudden and accidental” exception to pollution exclusion is unambiguous and does not apply to gradual migration of methane gas from landfill that ultimately caused explosion; coverage denied); Lower Paxon Township v. United States Fidelity & Guaranty Co., 383 Pa.Super. 558, 557 A.2d 393 (1989) (same); Techalloy Co. v. Reliance Ins. Co., 338 Pa.Super. 1, 487 A.2d 820 (1984) (pollutant contamination occurring over 25 years is not "sudden and accidental” so that exception to pollution exclusion is not applicable and coverage is denied). In this case, the pollution exclusion does not contain the "sudden and accidental” exception, nor is there an issue as to whether the "occurrence” was sudden and accidental. Thus the discussion in these decisions regarding the “absolute” nature of the pollution exclusion, or the fact that the exclusion is "unambiguous,” does not apply under the circumstances of this case.

      . With this holding, the Supreme Court of Minnesota reversed the decision of the court of appeals in Board of Regents of the University of Minnesota v. Royal Ins. Co., 503 N.W.2d 486 (Minn.App.1993) (pollution exclusion applies to deny coverage to insured where damages arose from discharge of asbestos fibers inside building). We note that appellant relied upon the latter decision in making its argument to this court.

      . The court went on to hold that coverage was in fact barred under the excess insurance policies, as those pollution exclusions were unambiguous and applicable. 517 N.W.2d at 893.

      . In fact, the pollution exclusion at issue in Prudential does not even use the term “atmosphere” but rather excludes coverage for claims "arising out of the ... dispersal ... of pollutants ... at or from any site or location on which [the insured] ... is performing operations if the pollutants are brought on or to the site or location in connection with such operations.” 1992 WL 189490 at 1. The occurrence in Prudential —the intentional use of an insecticide on the apartment premises— clearly is covered by the exclusion’s language.


author: WIEAND, Judge:

text:
    656 A.2d 147
    Timothy HOLPP, Appellant, v. FEZ, INC., a corporation, trading and doing business as The Fez, Appellee.
    Superior Court of Pennsylvania.
    Submitted Dec. 19, 1994.
    Decided March 23, 1995.

      Lester E. Zittrain, Pittsburgh, for appellant.
    Arthur Bloom, Pittsburgh, for appellee.
    Before ROWLEY, P.J., and WIEAND and CERCONE, JJ.
   WIEAND, Judge:

In the early morning hours of January 1, 1990, Timothy Holpp, a police officer in Hopewell Township, Beaver County, responded to a complaint of disorderly conduct at a restaurant/banquet hall known as The Fez, Inc. The establishment had been hosting a New Year’s Eve party, and a fight had broken out among its patrons. When Holpp arrived at The Fez, he observed several hundred guests present, some of whom were intoxicated and rowdy. The fight which had prompted the summoning of the police, however, had been diffused prior to his arrival. Because of the size and nature of the gathering, Holpp agreed to return to The Fez around 2:00 a.m. to assist in dispersing the crowd.

Later, when Holpp returned to The Fez, he again observed several intoxicated and rowdy patrons, and a second altercation broke out among a group of unidentified patrons. Holpp, along with fellow officer Pete Cipolla, approached the group to re-establish order. When Cipolla attempted to arrest one of the patrons, he was struck from behind by several others. When Holpp attempted to assist, he was grabbed by another patron and thrown to the ground, where an unidentified person stepped on his hand. As a result, he suffered multiple fractures to his right hand and a torn rotator cuff in his right shoulder.

Holpp commenced a civil action in which he alleged that The Fez had been negligent in serving alcoholic beverages to intoxicated patrons and in permitting an unsafe condition to exist on its premises. A motion for summary judgment by The Fez was granted by the trial court. This appeal followed.

A motion for summary judgment may be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). See: Buckno v. Penn Linen & Uniform Service, Inc., 428 Pa.Super. 563, 565, 631 A.2d 674, 675 (1993); McDonald v. Marriott Corp., 388 Pa.Super. 121, 124, 564 A.2d 1296, 1297 (1989). When considering a motion for summary judgment, the record must be examined in the light most favorable to the non-moving party. Denlinger, Inc. v. Dendler, 415 Pa.Super. 164, 170, 608 A.2d 1061, 1064 (1992). A motion for summary judgment should be granted only where the right is clear and free from doubt. Peluso v. Walter, 334 Pa.Super. 609, 611, 483 A.2d 905, 906 (1984).

The “fireman’s rule”, which provides that a police officer or fire fighter who enters upon the land of another in connection with official duties cannot recover from the possessor of land for subsequent injuries, has not been adopted in Pennsylvania. Mull v. Kerstetter, 373 Pa.Super. 228, 231, 540 A.2d 951, 952 (1988). Accord: Drake v. Fenton, 237 Pa. 8, 85 A. 14 (1912) (fireman who fell down unprotected elevator shaft could sue possessor of property for his injuries). A police officer who enters upon another’s land in his or her official capacity and in response to a call for assistance is generally considered a licensee. See: Mull v. Kerstetter, supra, 373 Pa.Super. at 233 n. 3, 540 A.2d at 953 n. 3. In such situations, the land owner’s duty is to warn the licensee of dangerous hidden conditions. Mull v. Kerstetter, supra, 373 Pa.Super. at 233-234, 540 A.2d at 953; Carpenter v. Penn Central Transportation Co., 269 Pa.Super. 9, 13, 409 A.2d 37, 39 (1979); Cutler v. Dushoff, 192 Pa.Super. 37, 42, 159 A.2d 524, 526 (1960). Even if a police officer enters another’s land as an invitee, moreover, the possessor of the land does not become an insurer of the officer’s safety. Cf. Winkler v. Seven Springs Farm, Inc., 240 Pa.Super. 641, 646, 359 A.2d 440, 442 (1976). The possessor’s duty is only to use reasonable care to protect his or her invitees from unknown or nonobvious dangers. Id. at 645-646, 359 A.2d at 442.

Here, Officer Holpp had been called to the appellee’s establishment to quell a disturbance. He agreed to return at a later time to provide further assistance if necessary. When he returned, he was acting in his official capacity, was aware of the potential for violence among patrons who had been consuming alcoholic beverages, and was conscious of the attendant risks. Under such circumstances, whether Holpp be considered an invitee or a licensee, the trial court could conclude, as a matter of law, that appellee had breached no duty to Officer Holpp.

A violation of the Dram Shop Act is negligence per se. See: Johnson v. Harris, 419 Pa.Super. 541, 550, 615 A.2d 771, 775 (1992); McDonald v. Marriott Corp., supra, 388 Pa.Super. at 125, 564 A.2d at 1298. “[I]f a tavern keeper serves intoxicating liquor to anyone who is in a visible state of intoxication, he [or she] violates the law, and, if as a result of such intoxication the consumer of the intoxicants injures someone else or himself [or herself], the tavern keeper is liable in tort.” Connelly v. Ziegler, 251 Pa.Super. 521, 524, 380 A.2d 902, 903 (1977). See also: Smith v. Evans, 421 Pa. 247, 249, 219 A.2d 310, 311 (1966).

It is not enough for an injured plaintiff to produce evidence that alcoholic beverages were served to patrons. Civil liability is imposed upon the tavern keeper who has served alcoholic beverages to a patron only when the patron was visibly intoxicated and, as a consequence, the patron or another person has been injured. Connelly v. Ziegler, supra, 251 Pa. at 521, 380 A.2d 902. Even if a patron is intoxicated at the time he or she is injured or causes injury to another, the tavern keeper who served the alcoholic beverages to the patron will not be held civilly liable unless the patron was served at a time when he or she was visibly intoxicated. Johnson v. Harris, supra, 419 Pa.Super. at 551, 615 A.2d at 776. See also: McDonald v. Marriott Corp., supra, 388 Pa.Super. at 125, 564 A.2d at 1298; Peluso v. Walter, supra, 334 Pa.Super. at 612, 483 A.2d at 907; Couts v. Ghion, 281 Pa.Super. 135, 141, 421 A.2d 1184, 1187 (1980) (plurality opinion). Accord: Simon v. Shirley, 269 Pa.Super. 364, 367-368, 409 A.2d 1365, 1366 (1979). Moreover, the mere breach of the statutory duty to refrain from serving alcohol to visibly intoxicated persons does not alone establish liability; the plaintiff must also show that the breach was a proximate cause and the cause in fact of the injury. Reilly v. Tiergarten, Inc., 430 Pa.Super. 10, 15, 633 A.2d 208, 210 (1993). Accord: Majors v. Brodhead Hotel, 416 Pa. 265, 271, 205 A.2d 873, 877 (1965) (defendant cannot be found to have proximately caused injury where his negligent conduct of serving alcohol to minor was not a substantial factor in causing the injury). Even if a patron has been served alcoholic beverages while visibly intoxicated, there will be no civil liability imposed upon the tavern keeper unless the injuries to the patron or a third person were proximately caused by the patron’s intoxication. See: Smith v. Clark, 411 Pa. 142, 144, 190 A.2d 441, 442 (1963); Johnson v. Harris, supra, 419 Pa.Super. at 550, 615 A.2d at 776; McDonald v. Marriott Corp., supra, 388 Pa.Super. at 125, 564 A.2d at 1298; Connelly v. Ziegler, supra, 251 Pa.Super. at 524, 380 A.2d at 903.

In the case sub judice, there was evidence that some of the patrons at appellee’s establishment had been intoxicated. However, neither appellant nor any other "witness was able to identify the patrons who had been involved in the altercation which had caused Holpp’s injuries. Whether any of them had been intoxicated or whether they had been served alcoholic beverages by appellee while visibly intoxicated was not known and could not be proved. Given the lack of evidence that appellee had breached a statutory duty or that there had bpen a causal connection between such a breach and the harm to appellant, the trial court could properly grant summary judgment on appellant’s action to impose liability under the Dram Shop Act.

The order entering summary judgment is affirmed.

ROWLEY, P.J., did not participate in the consideration or decision of this appeal.

      . Liquor Code of April 12, 1951, P.L. 90, § 493, as amended, 47 P.S. § 4-493(1).