author:
      BECK, Judge:
      OLSZEWSKI, Judge,

text:
    619 A.2d 285
    HERSHEY FOODS CORPORATION, Appellant, v. GENERAL ELECTRIC SERVICE CO.
    Superior Court of Pennsylvania.
    Argued April 7, 1992.
    Filed Nov. 19, 1992.
    Reargument Denied Jan. 29, 1993.

      C. Kent Price, Harrisburg, for appellant.
    Dennis J. Bonetti, Harrisburg, for appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   BECK, Judge:

The issue is whether appellant Hershey Foods Corporation (“Hershey”) is entitled to indemnification from appellee General Electric Service Company (“GESCO”) under the terms of an electrical services contract.

Hershey brought this action seeking indemnification for the amount of damages it incurred as the result of an accident in its plant which caused the death of a GESCO employee. The trial court granted GESCO’s motion for summary judgment, holding that Hershey was not entitled to indemnification under the facts of this case. The trial court also denied Hershey’s cross-motion for summary judgment, and Hershey filed this timely appeal. For the reasons set forth below, we affirm.

In 1977, the parties entered into a contract, pursuant to which GESCO would perform certain electrical work in a plant owned by Hershey. The contract included Section 5.20 entitled “Indemnification,” which provides:

5.20.1 [GESCO] shall indemnify and hold harmless [Hershey] and their agents and employees from and against all claims, damages, losses and expenses including attorneys’ fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss or[sic] use resulting therefrom, and (b) is caused in whole or in part by any negligent act or omission of [GESCO], ... anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder.
5.20.2 In any and all claims against [Hershey] or any of their agents or employees by any employee of [GESCO], ... anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation under this Paragraph 5.20 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for [GESCO] ... under workmen’s compensation acts, disability benefit acts or other employee benefit acts.
5.20.3 The obligations of [GESCO] under this Paragraph 5.20 shall not extend to the liability of [Hershey], his agents or employees arising out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications,- or (2) the giving of or the failure to give directions or instructions by [Hershey], his agents or employees provided such giving or failure to give is the primary cause of the injury or' damage.

The “Work” to be performed by GESCO under the contract was defined as “electrical work throughout the plant as required by the engineering departments.” Standard Form of Agreement No. 160, Section 1. Hershey drafted the contract, including the indemnification provision.

On April 6, 1978, an employee of GESCO, Robert W. Roland, Sr., was fatally injured while at work in Hershey’s plant. Roland was employed by GESCO as a journeyman electrician, and was assigned to install electrical wiring conduits along the ceilings of the mezzanine level of Hershey’s Building No. 40, in accordance with the contract between the parties. The work location was approximately 28 feet away from Elevator No. 37. Roland’s work did not require that he use the elevator.

Elevator No. 37 is a pallet freight elevator that is automatically activated when a load is placed on a conveyor directly in front of the elevator car, interrupting a photoelectric beam, and causing the conveyor to move the load horizontally into the elevator car. The elevator then moves vertically, depositing its load at a pre-programmed floor above or below the mezzanine level. The evidence in the record established that there were no signs on or around the pallet elevator system explaining its use and automatic activation. Although the elevator was equipped with emergency devices which could deactivate the system and stop the car’s movement, these devices were not labelled in any way. GESCO’s employees were not instructed in the use of the pallet elevator system, as it was not expected that they would need to use it.

Roland worked with Arthur Poorman on the day of the accident. When lunch hour began, Roland indicated that he was going to take a nap and Poorman went to the cafeteria in the basement of the plant. When Poorman returned to the mezzanine level, he saw Roland walking toward the pallet elevator. Roland sat on the pallet conveyor to eat a candy bar. Poorman then heard the noise of the pallet conveyor motor, and turned to observe Roland being carried backwards by the pallet conveyor into the elevator car. As the elevator automatically began moving upward, Roland was struck in the back of the head by a cross bar located at the top of the elevator shaft and died.

Roland’s estate filed suit against Hershey claiming that Hershey’s negligence caused his death. One of the theories of recovery was Hershey’s alleged failure to warn of the danger of the pallet elevator. The jury returned a verdict against Hershey in the amount of $561,018.95, and apportioned 90% of the negligence to Hershey and 10% to Roland. The parties eventually reached a structured settlement, and Hershey brought this lawsuit against GESCO seeking indemnification under the terms of the 1977 contract. GESCO’s motion for summary judgment was granted, and Hershey’s action for indemnification was dismissed as a matter of law.

We first note our scope of review in this appeal from summary judgment. A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the court’s conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035. We will overturn a trial court’s entry of summary judgment only if there has been an abuse of discretion or an error of law. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988). Because the relevant facts were not in dispute, the case was ripe for summary judgment.

We are presented with the following questions of contract interpretation: (1) Did GESCO agree to indemnify Hershey even where Hershey was partly negligent; (2) Did GESCO waive its immunity to suit by an employee under the Workmen’s Compensation Act; (3) Did Roland’s injury and death arise out of the “performance of the Work”; and (4) Is GESCO’s obligation to indemnify Hershey superseded by the jury’s finding that Hershey failed to warn of the dangers of the pallet elevator.

We find that GESCO did unambiguously contract to indemnify Hershey even where Hershey was partly negligent, and that GESCO did clearly waive its immunity to suit by an employee under the Workmen’s Compensation Act. However, the contract between the parties is ambiguous with regard to whether Roland’s death arose out of the performance of the electrical work. We must therefore construe the contract against the drafter, Hershey, and affirm the trial court’s decision to dismiss Hershey’s indemnification claim. Because of our decision on this issue, we do not reach the parties’ final argument regarding the contract’s “failure to instruct” exclusion.

The Pennsylvania courts have long held “that a contract of indemnity against personal injuries should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms.” Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907). “No inference from words of general import can establish such indemnification.” Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991). In the underlying tort action, a jury found Hershey, the indemnitee, to be 90% negligent. In order for a duty of indemnification to exist under these circumstances, the parties must have expressly contracted for it. We agree with the trial court’s holding that Hershey and GESCO did intend to contract for such indemnification.

The contract explicitly requires GESCO to indemnify Hershey against a loss caused “in whole or in part by any negligent act or omission of ... anyone directly or indirectly employed by [GESCO] ..., regardless of whether or not it is caused in part by a party indemnified hereunder.” Section 5.20.1. In this case, the jury found both Hershey and GES-CO’s employee—the decedent—to have been negligent in causing the accident. The contract of the parties unambiguously provides for indemnification even where the indemnitee was negligent. See Woodburn v. Consolidation Coal Co., 404 Pa.Super. 359, 590 A.2d 1273 (1991) (where there is express agreement, indemnitor is contractually bound to indemnify indemnitee who was less than 100% negligent); Deskiewicz v. Zenith Radio Corp., 385 Pa.Super. 374, 561 A.2d 33 (1989) (same contract language found to provide indemnification to indemnitee who was partly negligent); DiPietro v. City of Philadelphia, 344 Pa.Super. 191, 496 A.2d 407 (1985) (it is not contrary to public policy for a party to contract for indemnification of its own torts, but contract language must be clear and unequivocal).

GESCO argues that it cannot properly be sued by Hershey in this indemnification action because Hershey is essentially “joining” GESCO as a third party defendant in the underlying tort claim by the estate of GESCO’s employee. Appellee’s Brief at 8-9. GESCO asserts that it is immune from such a claim under Section 303 of the Workmen’s Compensation Act, which provides in pertinent part:

In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer ... shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contribution, or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

77 Pa.S.A. § 481(b).

As set forth in the Workmen’s Compensation Act, GESCO may not be held liable to indemnify Hershey unless the parties expressly contracted for such indemnification. See, e.g., Remas v. Duquesne Light Co., 371 Pa.Super. 183, 537 A.2d 881 (1988) (indemnification clause in contract did not include express waiver of Section 303 immunity and no indemnification by third party defendant was required); Gerard v. Penn Valley Const. Inc., 343 Pa.Super. 425, 495 A.2d 210 (1985) (general language regarding insurance policy to be obtained by contractor is not express waiver of Section 303 immunity).

As discussed above, the contract expressly provided that GESCO must indemnify Hershey under certain circumstances. The parties also agreed that “the indemnification obligation ... shall not be limited in any way by any limitation on the amount and type of damages, compensation or benefits payable by or for [GESCO] under workmen’s compensation acts, disability benefit acts or other employee benefit acts.” The contract’s indemnification clause clearly constitutes a waiver of the statutory immunity otherwise provided by Section 303(b), and therefore, Hershey would be entitled to indemnification by GESCO if all other conditions set forth in the contract were met by the facts of this case. Szymanski-Gallagher v. Chestnut Realty Co., 409 Pa.Super. 323, 597 A.2d 1225 (1991) (express waiver of 303(b) immunity unnecessary; clear indemnification obligation sufficient to hold employer liable to indemnify third party for injuries to employee); Hall v. Goodman Co., 310 Pa.Super. 465, 456 A.2d 1029, 1036 (1983) (where there is an express agreement by employer to indemnify third party, employer may be joined in action by employee despite Section 303(b)).

The question now becomes whether the parties intended for the indemnification obligation to apply under the facts in this case. Section 5.20.1 of the contract provides that GESCO shall indemnify Hershey “against all claims, damages, losses and expenses including attorneys’ fees arising out of or resulting from the performance of the Work ...” The “Work” is defined in the contract as the performance of “electrical work throughout the plant ...” Section 1, Standard Form of Agreement.

It is clear from the record that Roland was not in the process of performing electrical work when the accident occurred. Cf Deskieivicz, supra, (employee was injured while actually performing work described in contract); Woodburn, supra (same). Instead, he was on his lunch break and was sitting on the pallet conveyor while eating a candy bar. Hershey argues that Roland’s lunch break was merely a “minor deviation for personal comfort or leisure” from the course of employment, and that we should therefore hold that the accident arose “out of the performance of the Work.” See, e.g., Lang v. Workmen’s Compensation Appeal Bd., 108 Pa. Cmwlth 381, 529 A.2d 1161 (1987) (where there was no abandonment of the employer’s business, activity was within course of employment); D’Agata Nat’l Inc. v. Workmen’s Compensation Appeal Bd., 84 Pa.Cmwlth. 527, 479 A.2d 98 (1984) (coffee break is within course of employment); Workmen’s Compensation Appeal Bd. v. Borough of Plum, 20 Pa.Cmwlth. 35, 340 A.2d 637 (1975) (employee’s break for lunch or to relieve himself was within course of employment).

These cases involved claims for benefits under the Workmen’s Compensation Act. The Act provides broad coverage for “injury to an employee ... arising in the course of his employment.” 77 Pa.S.A. § 411(1). In contrast, the contract uses the language, “arising out of or resulting from the performance of the work.” The factual situations which have been included within the Act’s definition of “course of employment” are broad and diverse. See, e.g., Kovalchick Salvage Co. v. Workmen’s Compensation Appeal Bd., 102 Pa.Cmwlth 562, 519 A.2d 543 (1986) (employees’ stop for drinks on the way home held to be within course of employment); Workmen’s Compensation Appeal Bd. v. United States Steel Corp., 31 Pa.Cmwlth. 329, 376 A.2d 271 (1977) (automobile accident caused by employee’s epileptic seizure which occurred in employer’s parking lot prior to employee’s scheduled work time held to be within course of employment).

However, the cases cited by Hershey on this issue are inapposite. The Hershey-GESCO contract does not use the language of the Workmen’s Compensation Act—“in the course of employment”—to describe the kinds of injuries that are included within GESCO’s duty to indemnify. Instead, the contract expressly requires that the loss, in order to be indemnifiable, “arise out of the performance of the Work,” which is specifically defined as electrical work. Moreover, this is not a dispute over workmen’s compensation benefits, but rather a question about the proper interpretation of a written contract. Where there is ambiguity in a contract’s terms, the doubtful language must be construed most strongly against the drafter, in this case, Hershey. See Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507 (1986); In re Estate of Breyer, 475 Pa. 108, 379 A.2d 1305 (1977); Raiken v. Mellon, 399 Pa.Super. 192, 582 A.2d 11 (1990).

Because the contract does not clearly include Roland’s conduct within the definition of “performance of the Work,” and because the contract language is ambiguous with respect to this issue, it must be construed against Hershey. Therefore, Hershey is not entitled to indemnification from GESCO in this case. Because we so hold, we need not reach the fourth issue raised in this appeal, involving the exclusion for losses caused by Hershey’s failure to give instructions or directions.

Order affirmed.

OLSZEWSKI, J. files a dissenting statement.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent. I find that the contract language “arising out of or resulting from the performance of the work,” encompasses Roland’s minor deviation from his duties. Roland’s work for GESCO in this case required him to be in close proximity with the elevator which malfunctioned and caused his death. That Roland was taking a break as part of his lunch hour during the performance of the work is not, in my opinion, sufficient to take Roland’s actions outside the contractual definition of “the. work.” Therefore, I would find that the indemnification obligation applies in this case.

      . The parties agreed in the contract that Hershey would not be entitled to indemnification where the damages arose out of "the giving of or the failure to give directions or instructions by [Hershey].” Section 5.20.3. GESCO asserts that the jury's finding of negligence in the underlying tort action was based on Hershey's failure to warn of the dangers of the pallet elevator system, and that this "failure to give directions or instructions” supersedes GESCO’s indemnification obligation. It is not clear from the contract language that this type of "failure to warn” was intended to be excluded from the duty to indemnify. Nevertheless, we need not reach this issue because we decide on other grounds that Hershey is not entitled to indemnification.

      . The trial court did not address this issue in its opinion. Although we agree with the court's holding that Hershey is not entitled to indemnification, we believe that a discussion of GESCO’s immunity argument is warranted.

      . See note 1, supra.


source: Caselaw Access Project

author: KELLY, Judge: JOHNSON, Judge, DEL SOLE, Judge,

license: Public Domain

text:
    619 A.2d 291
    COMMONWEALTH of Pennsylvania, Appellant, v. George R. QUILES, Appellee.
    Superior Court of Pennsylvania.
    Argued May 1, 1992.
    Filed Jan. 4, 1993.

      Karen L. Grigsby, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Marc Neff, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and WIEAND, MCEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, KELLY and JOHNSON, JJ.

      . Former Judge, now Justice, Montemuro did not participate in this decision.

   KELLY, Judge:

In this opinion we are called upon to determine, inter alia, whether and to what extent law enforcement authorities must inquire as to an individual’s actual authority to consent to police entry into a dwelling. We conclude that law enforcement authorities need not question an individual as to his or her actual authority to consent, once that individual has consented to an entry of the premises. Accordingly, we reverse the suppression order and remand the instant matter to the trial court for proceedings consistent with this opinion.

I. STANDARD OF REVIEW

When reviewing the Commonwealth’s appeal from an adverse decision of the suppression court, we must consider “only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.” Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990). When the evidence supports the trial court’s findings of fact, we may reverse only when the legal conclusions drawn from these facts are erroneous. Id. It is the sole province of the suppression court, as finder of fact, to weigh the credibility of the witnesses. Id. Thus, the fact finder is free to believe all, part or none of a witnesses’ testimony.

II. FACTS AND PROCEDURAL HISTORY

The only witness to testify at the suppression hearing was Police Officer John Sharkey. From this testimony, the suppression court made the following findings of fact which, finding them to have support in the record, we adopt for purposes of this appeal.

1. That on September 7, 1989 [sic], Police Officer Sharkey received information from a confidential informant that an Hispanic male known as Juan was engaging in the sale of narcotics from the location of 2922 North Franklin Street.
2. That on August 24,1988, Officer Sharkey was present at 2922 North Franklin Street when a search was conducted of said premises which revealed narcotics and other drug paraphernalia.
3. That on September 7, 1988, Police Officer Perez, in plain clothes, went to the location of 2922 North Franklin Street in an effort to purchase cocaine.
4. That Police Officer Perez was told by an Hispanic male to go to the corner outside the location to purchase a quarter ounce of cocaine because, as the Hispanic male indicated to him, he did not have any quarter ounces left and could not complete the transaction.
5. That as a result of said information, Police Officer Sharkey, as the affiant, obtained Search and Seizure Warrant Number 64950 on September 7, 1988, to search the premises at 2922 North Franklin Street.
6. That on that same day at approximately 5:30 p.m., Police Officer Sharkey in the company of other police officers went to 2922 North Franklin Street to execute the search and seizure warrant he had obtained.
7. That Police Officer Sharkey knocked on the door, received no response after approximately one to two minutes and then forcibly entered said premises and conducted the search pursuant to the search and seizure warrant.
8. That said search revealed drug paraphernalia as well as narcotics and approximately $.145.00 in U.S. currency.
9. That Police Officer Sharkey returned to his police district to process said search and seizure warrant and received a phone call from a confidential informant who stated that Juan was back at the location of 2922 North Franklin Street.
10. That at approximately 7:30 p.m., Police Officer Sharkey, along with other officers, proceeded to 2922 North Franklin Street with the intent of arresting Juan. The police officers were not in possession of an arrest warrant at that time.
11. That Police Officer Sharkey knocked on the door, and was advised by an unknown female to enter. Whereupon he did enter and subsequently the defendant was arrested. Following his arrest, certain physical evidence was taken from his person.

Trial Court Opinion of 11/2/89 at 1-3. Because the suppression court found Officer Sharkey to be credible with regard to the issue of consent, see N.T. July 6, 1989 at 11-12, we note the following uncontradicted evidence. Upon entering the premises the second time and announcing their identity, Officer Sharkey and a fellow officer observed a male run up a flight of stairs. The officers gave chase, following the male into the front bedroom, and observed him discard a black leather pouch which proved to contain cocaine. The male, later identified as appellee, George Quiles, was thereupon arrested and charged with possession of and possession with intent to deliver a controlled substance, and conspiracy.

From the foregoing facts, the suppression court found that although the initial search of the residence, supported by a valid search warrant was proper, the subsequent entry into the premises was unlawful. Accordingly, the court concluded that any evidence seized as a result of this entry must necessarily be suppressed and that therefore, appellee’s arrest was unlawful. Particularly relevant to the instant appeal, the court held that the entry into the home could not be supported by consent as “there was no evidence which established announcement of purpose,” and “there was no evidence to determine or that the police inquired to determine, the authority of the female to consent to their entry when police believed the house was owned by a male.” Trial Court Opinion of November 2, 1989 at 7-8.

Subsequent to a timely appeal by the Commonwealth and a determination of the issues by a panel of this Court, a timely petition for en banc consideration was granted on October 3, 1991.

On appeal, the Commonwealth raises the following issues for our consideration.

1. DID THE LOWER COURT ERR IN SUPPRESSING ALMOST $4000 WORTH OF COCAINE DISCARDED BY DEFENDANT IN A POLICE OFFICER’S PRESENCE WHEN, AFTER THE OFFICER KNOCKED AT DEFENDANT’S HOUSE, ANOTHER RESIDENT OF THE HOUSE GAVE POLICE CONSENT TO ENTER AND DEFENDANT, UPON SEEING THE OFFICERS, THREW DOWN THE DRUGS?
2. DID THE LOWER COURT ERR IN SUPPRESSING ALMOST $4,000 WORTH OF COCAINE SEIZED PURSUANT TO A WARRANTLESS ARREST OF DEFENDANT IN HIS HOUSE, WHERE THERE WERE EXIGENT CIRCUMSTANCES EXCUSING THE WARRANT REQUIREMENT?
3. DID POLICE HAVE PROBABLE CAUSE TO ARREST DEFENDANT?

Commonwealth’s Brief at 3.

III. CONSENT TO ENTER THE PREMISES

Initially, the Commonwealth contends that the trial court erred in concluding that the officers did not have lawful consent to enter the home. Specifically, the Commonwealth argues that, having recovered evidence in the previous search suggesting that a Leslie Rodriquez lived at the residence, it was reasonable for the officers to conclude that the female voice stating “come in” following the officers’ knock, was that of Leslie Rodriquez,. one who, as a resident of the premises, possessed authority to consent to the entry of the home. Moreover, the Commonwealth contends that the trial court erred in concluding that the officers were required to announce their identity and purpose prior to their entry. Because entry was consensual, the Commonwealth concludes that announcement of identity of purpose was unnecessary pursuant to Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1987). We agree.

In Commonwealth v. Morgan, supra, law enforcement authorities, armed with a search warrant, approached the residence of Joseph Morgan. Two detectives, not in uniform, knocked on the screen door, the inner door being open. Morgan responded, “Who is it?” One of the detectives, observing Morgan inside, exclaimed “Joe,” to which Morgan responded, “Come on in.” The two detectives, joined by other officers, entered the home, identified themselves and read the search warrant to Morgan. The subsequent search uncovered a large quantity of narcotics, drug paraphernalia and currency. Morgan’s motion to suppress was denied and he was convicted of drug related offenses. The trial court granted his Motion for a new trial, finding that the officers who executed the search warrant had violated Pa.R.Crim.P. 2007, the “knock and announce” rule. The trial court specifically found that Morgan had not lawfully consented to the officers’ entry because knowing and voluntary consent could not be given absent identity of the party seeking entry and that party’s purpose for entering. On appeal, a divided panel of this Court affirmed. Commonwealth v. Morgan, 353 Pa.Super. 463, 510 A.2d 754 (1986). Our Supreme Court granted the Commonwealth’s petition for allocatur. 514 Pa. 629, 522 A.2d 558 (1987).

Our Supreme Court began its analysis by recognizing that “as a matter of law, appellee’s statement, ‘come on in,’ cannot be construed as anything other than consent.” Commonwealth v. Morgan, supra, 517 Pa. at 96, 534 A.2d at 1056. The Court then concluded that no violation of Rule 2007 could occur when the officers were invited by Morgan to enter the premises “in spite of the fact that Mr. Morgan did not know who the officers were or why the officers were there.” Id. at 97, 534 A.2d at 1057. The Court instructed that,

An announcement of purpose prior to entry under these circumstances to afford appellee the opportunity to surrender the premises peacefully would have been a “futile gesture” inasmuch as appellee had already surrendered the premises by his consent.

Id. (emphasis in original).

Instantly, the officers likewise reacted to an open invitation to “come on in.” As our Supreme Court has made clear, where an individual extends an open invitation to visitors to enter his or her home, it is immaterial that he or she does not know the visitors to be law enforcement authorities. Having invited those knocking to “come in,” it cannot later be claimed that the entry was unlawful solely because the officers failed to identify themselves and their purpose. The trial court erred when it concluded otherwise.

Neither can it be successfully maintained, as the trial court concluded, that there was an absence of consent because “there was no evidence to determine, or that the police inquired to determine, the authority of the female to consent to their entry when the police believed the house was owned by a male.” Trial Court Opinion of November 2, 1990 at 7-8. In Commonwealth v. Blair, 394 Pa.Super. 207, 575 A.2d 593 (1990), officers investigating a traffic accident in which one of the participants had driven away called at the house at which the suspect vehicle was registered. Upon arriving, the officers observed the damaged vehicle in the driveway. When the officers knocked at the door, a neighbor answered and admitted the officers to the home. The officer immediately observed appellant bleeding from several abrasions and detected a strong odor of alcohol emanating from appellant. Following arrest and conviction of various DUI related offenses, appellant appealed. On appeal, appellant argued that because the individual authorizing entry into the home did not have actual authority to consent, the evidence seized as a result of the entry should have been suppressed.

The Blair panel began by cogently summarizing the law of third party consent as follows.

Third-party consent cases fall into four broad categories. Previous to this decision, cases in our Commonwealth concerned situations where: (1) the consenting party had “superior authority” to the party objecting to the search, see Commonwealth v. Latshaw, 481 Pa. 298, 392 A.2d 1301 (1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979) (barn’s owner had not surrendered any indicia of her absolute control over barn where defendant’s marijuana was found pursuant to warrantless search with consent of barn’s owner); (2) the consenting party had equal or common authority to the party objecting to the search, see, Commonwealth v. Arnold, 331 Pa.Super. 345, 480 A.2d 1066 (1984); Commonwealth v. Lowery, 305 Pa.Super. 66, 451 A.2d 245 (1982); Commonwealth v. Devlin, 302 Pa.Super. 196, 448 A.2d 594 (1982); (3) the consenting party had inferior authority to the party objecting to the search, see, Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978), Commonwealth v. Netting, 315 Pa.Super. 236, 461 A.2d 1259 (1983) (third party who has neither interest nor control in a premises may not give the police valid consent to conduct a warrantless search of the premises); and (4) the last area of third-party consent cases concerns those situations where a police officer is reasonably mistaken as to the actual authority of the party consenting to his entry; stated another way, the police officer reasonably mistakes apparent authority for actual authority to consent to his entry.

Id. 394 Pa.Super. at 215, 575 A.2d at 597 (footnotes omitted). Recognizing that the seminal case of United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), had left for another day the question of whether a warrantless search may be upheld based on an officer’s reasonable belief that the party consenting had actual authority to do so, this Court aligned itself with the majority of jurisdictions and concluded that apparent authority alone was sufficient to justify a consensual entry into and search of the premises. Id. 394 Pa.Super. at 216, 575 A.2d at 597. The Court concluded that,

In adopting the majority position, we are not allowing carte blanche consent entries into residences with the police officer being able to ratify his entry at a later date suppression hearing by merely stating that he was mistaken as to the actual authority of the consenting party. We hold that the police officer’s reasonable mistake must be judged from an objective standard based on the totality of the circumstances. Although the police officer’s state of mind is one factor to be considered in determining the reasonability of the mistake, it is not the only factor. Moreover, the police officer’s mistake must be reasonable. In ambiguous situations, those situations which would cause a reasonable person to question the consenting party’s actual authority or if the consenting party’s assertion of authority appear unreasonable, a police officer should make further inquires to determine the status of the consenting party. Reliance on a third party’s bald assertion in such situations could subject any search to the remedy of the exclusionary rule.

Id. at 216-17, 575 A.2d at 598 (footnote and citation omitted). The panel explained that their holding buttressed an individual’s reasonable expectation of privacy by continuing to deter unreasonable searches or seizures. Id. “Although we could require police officers to secure both actual and apparent authority before entering a residence, we do not believe the police should have to institute an action for declaratory judgment to determine the authority of the third party or individual giving consent to enter or search. Id. (emphasis added).

Following on the heels of Commonwealth v. Blair, supra, the United States Supreme Court, in Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) concluded simply that the United States Constitution was,

no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises, than it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape. See Archibald v. Mosel, 677 F.2d 5 (CA1 1982).

Id. at 186, 110 S.Ct. at 2800, 111 L.Ed.2d at 160. As with other factual determinations regarding search and seizure, the Court stated that, “determination of consent to enter must ‘be judged against an objective standard: would the facts available to the officer at the moment ... warrant a [person] of reasonable caution in the belief that the consenting party had authority over the premises.” Id., quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968); see also Commonwealth v. Blair, supra, 394 Pa.Super. at 217-18, 575 A.2d at 598 (recognizing that “it is reasonable for police officers to assume that a person who answers the door at a residence has authority to consent to the entry into the residence.”) (emphasis in original).

Applying this authority it is clear that, contrary to the trial court’s conclusion, and because the statement “come on in” cannot be construed as anything other than consent as a matter of law, Commonwealth v. Morgan, supra, it is reasonable for police officers to assume that a person answering “come on in” to a knock on the door has, like the individual answering the door in person, apparent authority to consent to the entry into the residence. We hold, therefore, that it is reasonable for officers to assume that an individual answering a knock on the door with a command to “come on in” has the apparent authority to consent to an entry into the premises. For the foregoing reasons, the officers’ entry herein was lawful.

IV. PROBABLE CAUSE TO ARREST

Having concluded that the officers lawfully entered the premises, we must now determine whether appellee’s arrest was lawful. The Commonwealth contends that probable cause existed to justify appellee’s warrantless arrest. Because the officers, armed with the knowledge that a large quantity of drugs, drug paraphernalia and cash had been previously seized from the home, observed appellee flee up a flight of stairs following their entry and announcement of purpose and thereafter discard a pouch, which was found to contain cocaine, in plain view of the officers, the Commonwealth concludes that appellee’s warrantless arrest was lawful. We agree.

Probable cause exists if the facts and circumstances within the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution in believing the suspect has committed or is committing a crime. Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991); Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988), alloc. denied, 521 Pa. 617, 557 A.2d 721 (1989). In determining whether probable cause existed in a particular situation, a court will look not just at one or two individual factors, but will consider the “totality of the circumstances” as they appeared to the arresting officer:

When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element____ We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might.... Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent [persons] act.

Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234 (1982), quoting Commonwealth v. Kazior, 269 Pa.Super. 518, 522, 410 A.2d 822, 824 (1979). It is only the probability, and not a prima facie showing, of criminal activity that is the standard of probable cause for a warrantless arrest. Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1974). Probable cause exists when criminality is one reasonable inference; it need not be the only, or even the most likely, inference. See e.g. Commonwealth v. Kendrick, 340 Pa.Super. 563, 571, 490 A.2d 923, 927 (1985) (probable cause “does not demand any showing that ... a belief [of criminal activity] be correct or more likely true than false”); Commonwealth v. Moss, 518 Pa. 337, 344, 543 A.2d 514, 518 (1988) (in assessing sufficiency of probable cause, the fact that other inferences could be drawn from circumstances does not demonstrate that inference that was drawn by police was unreasonable). As Courts of this Commonwealth have repeatedly emphasized, determinations of probable cause “must be based on common-sense non-technical analysis.” Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985).

Taking a common sense view of the facts presented herein, we are satisfied that the warrantless arrest of appellee was indeed proper. When the officers entered the premises, they were aware that two weeks prior to the date in question, a search of the premises conducted pursuant to a valid search warrant had uncovered a large amount of cocaine, cash and drug paraphernalia. Just hours prior to appellant’s arrest, another lawful search had uncovered close to ten-thousand dollars worth of cocaine, cash and a handgun. Therefore, prior to entering the house, the officers knew that a large scale drug operation was operating out of this residence. Upon entering, the officers had reason to believe that those inside were participants in the operation. When appellee fled upon seeing and hearing the officers identify themselves, the officers gave chase. During the chase, appellee discarded a black pouch found to contain cocaine. While each of these facts, if considered separately, may be insufficient to establish probable cause to justify an arrest, taken in combination, these factors supplied the probable cause to justify appellee’s arrest. Commonwealth v. Dennis, 417 Pa.Super. 425, 431, 612 A.2d 1014, 1016-17 (1992) (“facts insufficient to justify an arrest if considered seperately may in combination supply probable cause”); quoting Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1235 (1982). Accordingly, we find that the officers herein had probable cause to believe appellee had committed or was committing a crime when he fled up the stairs of a house known to supply narcotics upon viewing and/or hearing the officers identify themselves and discarded a black pouch. For the foregoing reasons, the order of the trial court suppressing the evidence seized as a result of the officers’ entry into the premises and subsequent arrest of appellee is reversed.

Order reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

McEWEN, J., joined the dissenting opinion by DEL SOLE, J., and joined the dissenting opinion by JOHNSON, J.

DEL SOLE, J., filed a dissenting opinion and joined JOHNSON’S, J., dissenting opinion.

JOHNSON, J., filed a dissenting opinion and joined DEL SOLE’S, J., dissenting opinion.

JOHNSON, Judge,

dissenting.

I join in its entirety the Dissenting Opinion by my esteemed colleague, the Honorable Joseph A. Del Sole. I agree with Judge Del Sole that Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1987), upon which the Majority principally relies, affords no basis for the Majority’s conclusion that apparent authority to consent to a warrantless entry may be found in the words “come on in.”

The suppression court found that, on August 24, 1988, Police Officer Sharkey was present at 2292 North Franklin Street when, pursuant to a search warrant, a search was conducted of the premises that revealed narcotics and drug paraphernalia. On September 7, 1988, Officer Sharkey received information from a confidential informant that an Hispanic male known as Juan was selling narcotics from that same address. The same day, Officer Perez, in plain clothes, went to that address in an effort to purchase cocaine. An Hispanic male at the address told Officer Perez that he had no more quarter-ounces of cocaine left but that quarter-ounces could be purchased by going to the corner outside that location.

Based upon this information, Officer Sharkey obtained a search warrant the same day. At approximately 5:30 p.m., Officer Sharkey went with other officers to the address and executed the warrant. Officer Sharkey knocked on the door but received no response. After waiting approximately two minutes, the officers forced open the door to the premises and commenced a search which revealed narcotics and about $145.00 in U.S. currency. Officer Sharkey returned to police headquarters where, at approximately 7:30 p.m., he received a phone call from a confidential informant stating that Juan was back at the residence.

Without a warrant, Officer Sharkey and other officers returned to the address with the intent of arresting Juan. The officers knocked on the door and were advised to enter by a then-unknown female. After entering, Officer Sharkey arrested Juan Rodriquez and George Quiles. Physical evidence, the subject of this appeal, was taken from Quiles.

Quiles moved that the evidence taken from him be suppressed on the basis that the officers’ entry into the home was without a warrant and was not justified by exigent circumstances. The Commonwealth argued initially that the authority conferred by the warrant for the first search that day extended to the subsequent entry, but that the search was also justified by both consent and exigent circumstances.

The suppression court held that, once executed, the warrant could not be relied upon to authorize a subsequent entry. The court found that no evidence was presented from which to conclude that the woman who stated “come in” had actual authority to consent. The court further found that the officer’s entry in reliance upon an unknown person’s consent was not objectively reasonable. Finally, the court rejected the argument of exigency as well, holding that the evidence presented would not support such a conclusion.

On appeal, the Commonwealth has abandoned its position regarding the continuing authority of the warrant, but renews its arguments as to consent and exigency. The Commonwealth correctly asserts that, even absent a warrant, police may enter a dwelling for the purposes of making an arrest where the entry is either consensual or justified by exigent circumstances. Commonwealth v. Moye, 402 Pa.Super. 81, 586 A.2d 406 (1990); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

Regarding consent, the Commonwealth sought to establish Leslie Rodriguez’ authority to consent by establishing that she was a resident of the dwelling. My review of the suppression transcript, however, reveals that the only reference made to Leslie Rodriguez’ address was in reference to “one receipt from letters to Juan and Leslie Rodriguez at 2922 North Franklin Street dated 8/31/88.” N.T., May 12, 1989, at 27. The suppression court was not persuaded that this evidence, even though uncontested, established Leslie Rodriguez’ residence or authority to consent to the entry. I am not persuaded that this conclusion was erroneous.

The Majority relies upon the decision of the United States Supreme Court in Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) to support its contention that entry by the police in this case was constitutionally permissible. I believe this reliance may be premature. A steady line of case law has evolved under the Pennsylvania Constitution, making clear that Article 1, Section 8 is unshakably linked to a right of privacy in this Commonwealth. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). The Pennsylvania Supreme Court, in interpreting this provision, has not been bound by decisions of the United States Supreme Court in interpreting similar federal constitutional provisions. See e.g. Edmunds, supra (rejecting the “good faith” exception to the warrant requirement under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)); Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989) (rejecting the installation of pen registers without probable cause under Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert.. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980) (upholding the individual right to privacy in one’s own bank records, rejecting United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976)). Our supreme court has stated that Article 1, Section 8 of the Pennsylvania Constitution “may be employed to guard individual privacy rights against unreasonable searches and seizures more zealously than the federal government does under the Constitution of the United States.” Melilli, 521 Pa. at 412, 555 A.2d at 1258. In light of our supreme court’s reluctance to adopt the holdings of the United States Supreme Court which unduly infringe upon the right to privacy of the citizens of this Commonwealth, I am unwilling to join in the Majority’s adoption of the holding in Rodriguez, absent a statement on these issues by our supreme court.

The Commonwealth also contends that entry into the dwelling to arrest Juan was justified by the exigency of the circumstances. The concept of exigency recognizes that there are situations where the protection of privacy afforded by the warrant requirement is outweighed by the needs of effective law enforcement. See Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Exigent circumstances may therefore justify the warrantless entry of a dwelling for the purposes of searching or making an arrest. Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), cert. denied, Pennsylvania v. Williams, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980). The Williams Court enumerated several considerations which it found pertinent to a determination of exigency, including: 1) the gravity of the offense, particularly if violent; 2) the reasonable belief that the suspect is armed; 3) the clear showing of probable cause; 4) a strong reason to believe that the suspect is on the premises; 5) the likelihood that the suspect will escape if not quickly apprehended; and, 6) peaceable entry. Id., 483 Pa. at 298-99, 396 A.2d at 1179-80.

The Commonwealth sets forth the Williams considerations and urges us to conclude, as it does, that the circumstances were sufficiently exigent to justify a warrantless entry into the dwelling. The Commonwealth posits that the police could reasonably have believed that Juan, the person whom they went to arrest, would flee upon discovering that his residence had been searched if he were not apprehended swiftly. After setting forth the Williams analysis, the suppression court concluded that exigency had not been established. While it is not entirely clear that the considerations deemed relevant in Williams aid in the inquiry here, I concur with the suppression court’s determination that any need to arrest the suspects was not sufficiently urgent to excuse the absence of a warrant.

The contention that Quiles was likely to flee is belied by the fact that he did not flee after the search conducted at the residence two weeks earlier uncovered narcotics. More significantly, there is no evidence in the record that any effort was made to obtain a new warrant in the hours between the search in which probable cause to arrest was found and the return to the dwelling. Further, I am not persuaded that the officers were unable to secure the premises until a warrant could be procured. As I am unaware of any legitimate interest that was served by foregoing a warrant to re-enter the premises, I would deem this to have been an illegal entry into a dwelling to make an arrest in violation of Payton, supra.

I can only conclude that neither consent nor exigent circumstances existed on the facts as found by the suppression court. In the same manner as Morgan is misused by the Majority on the issue of apparent authority to consent, the Majority’s analysis on the issue of probable cause to arrest assumes too much. The Majority correctly asserts that, when reviewing a Commonwealth appeal from an adverse decision of a suppression court, we may reverse only when the legal conclusions drawn from the facts found by the trial court are erroneous. It also correctly observes that it is the sole province of the suppression court to weigh witness credibility. The fact finder is free to believe all, part or none of the witnesses’ testimony.

Nevertheless, Pennsylvania Rule of Criminal Procedure 323(i) makes mandatory the requirement that the suppression hearing judge enter upon the record a statement of findings of fact and conclusions of law. Here, the Honorable Russell M. Nigro did exactly that. The Majority incorporates Judge Nigro’s express findings of fact into its Opinion. Majority opinion, pages 155-159. It goes on, however, and attempts to add additional facts to those expressly found by the suppression court, based solely on its belief that “the suppression court found Officer Sharkey credible.” It is true that Judge Nigro, on July 6, 1989, declared from the bench:

THE COURT: I think he [Officer Sharkey] was honest and truthful with me to start with.

Notes of Testimony, July 6, 1989, page 12, R.R. 94a.

There is nothing in the record, however, to support the Majority’s sua sponte supplementation of the findings of fact. As this court recently stated in Commonwealth v. Lagamba, 418 Pa.Super. 1, 613 A.2d 1 (1992) citing Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983):

The well established judicial principle is that in reviewing a suppression court’s ruling the appellate court is bound by factual findings supported by the record and it may not substitute its own findings for those of the suppression court. This principle of deference to trial courts has one important caveat however, appellate courts are not bound by findings wholly lacking in evidence.

An appellate court does not, in the first instance, make findings of fact and conclusions of law. Commonwealth v. Jackson, 464 Pa. 292, 298, 346 A.2d 746, 748 (1975). I have found no caselaw which permits a reviewing court to add to the facts expressly found by the trial court, for the purpose of permitting the reviewing court to establish probable cause for an arrest. The focus must be, and remain, on whether the evidence supports the suppression coint’s factual findings and not on whether additional facts might be lifted from the record in order to reach a different conclusion. Commonwealth v. Smith, 396 Pa.Super. 6, 7, 577 A.2d 1387, 1388 (1990); compare Commonwealth v. Haynes, 395 Pa.Super. 322, 333, 577 A.2d 564, 570 (1990), appeal denied 527 Pa. 598, 589 A.2d 689 (1991).

The Majority first accepts the facts found by Judge Nigro at the reconvened suppression hearing. Transcript, July 6, 1989, pp. 17-19, R.R. 99a-101a. Majority opinion, pp. 155-159. It goes on, however, and, based solely on its belief that Judge Nigro found Officer Sharkey credible, proceeds to supplement the suppression court’s findings as follows:

.... we add the following relevant facts to those of the trial court. Upon entering the premises the second time and announcing their identity, Officer Sharkey and a fellow officer observed a male running up a flight of stairs. The officers gave chase, following the male into the front bedroom, and observed him discard a black leather pouch which proved to contain cocaine. The male, later identified as appellee, George • Quiles, was thereupon arrested and charged with possession of and possession with intent to deliver á controlled substance, and conspiracy.

Majority opinion, pages 157-158. The Majority would seemingly create a new evidentiary rule, binding on future appellate courts, that the trier of fact is free to believe all, part or none of a witness’ testimony, but once he believes any part of that testimony and enters express findings of fact thereon, the reviewing court may then adopt the balance, or remaining parts, of that witness’ testimony as facts just as if they had been found by the trial court! I am not prepared to so modify existing divisions of judicial responsibility that have worked so well over time.

The Commonwealth argues that once the officers were lawfully inside, a point that I cannot concede, Quiles’ conduct—fleeing from police and discarding a substantial quantity of drugs—provided police with probable cause to arrest him. My esteemed colleagues on the Majority accept this argument. However, acceptance of this argument requires a finding, as fact, that Quiles fled from the police and that he threw down a small, zippered change purse later found to contain drugs. These are two findings which Judge Nigro could have made, based upon the testimony, but clearly did not make. These findings are crucial to any conclusion of probable cause to arrest. Since these findings only occur outside the record certified to us on appeal, I am unable to join my colleagues in adopting the Commonwealth’s arguments.

I find neither consent nor exigent circumstances in this warrantless episode. Neither can I find probable cause to arrest Quiles, a then-unidentified male, based solely upon his having been chased up a flight of stairs and into a front bedroom where he dropped a small, zippered change purse. Particularly this is so, where the suppression court has set forth extensive findings of fact but has stopped short of finding that Quiles “fled” up the stairs or that he discarded a pouch in plain view of the arresting officers. Accordingly, I must respectfully dissent. The action of the distinguished suppression court, Judge Nigro, was without error. The order suppressing evidence should be affirmed.

DEL SOLE, Judge,

dissenting.

I respectfully dissent from the Majority’s ruling in this case because I cannot support its conclusion that the in-home warrantless arrest of Appellee, George Quiles, was valid. In so ruling the Majority accepts the Commonwealth’s argument that the officers’ entry into the home in which Quiles was arrested was consensual and that under such circumstances it was unnecessary for the police to announce their identity and purpose. It is with the Majority’s initial conclusion, that the entry was consensual, with which I must differ.

The Majority rests its decision on two cases. It begins by citing Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1987), which speaks of the requirement of the police to announce their identity and purpose when they are armed with a search warrant and are told by the resident, after observing him inside, to “come on in.” The issue in Morgan concerned the officer’s duty to comply with the “knock and announce rule” prior to executing a search warrant. The court ruled that such compliance was unnecessary where the police already possessed a warrant and where they observed the defendant inside, called the defendant’s name and heard him respond to “come on in.” Because of these factual differences, I view Morgan as non-instructive on the question of whether, in this case, the officers had authority to enter the premises, without a warrant, after knocking and hearing an unidentified voice answering to “come in.”

The Commonwealth asserts that it was reasonable in this case for the officers to presume that the female who. announced “come in” possessed authority to consent to their entry because they had recovered evidence in a previous search suggesting that a female person lived at the residence. The Commonwealth and the Majority cite Commonwealth v. Blair, 394 Pa.Super. 207, 575 A.2d 593 (1990), to support the conclusion that the entry was consensual. The Blair court ruled that consent must be judged objectively and that it is reasonable for officers to assume that a person answering a door has authority to consent to entry into the residence.

In Blair, the officer knocked on the door of a residence seeking to speak to Mrs. Blair who was suspected of being involved in an automobile accident. The door was answered by Mrs. Blair’s neighbor, who did not identify herself but permitted the police officer to enter. Regarding this set of facts the court stated that “the police officer was reasonably mistaken when he assumed that the woman who answered the door had actual authority to admit him.” Although the neighbor in Blair had no actual authority, evidence derived from the officer’s entry into the home was not suppressed because the police officer was found to have made a “reasonable mistake.”

I find the Majority’s reliance on this court’s decision in Blair to be misguided because Blair was decided prior to our Supreme Court’s decision in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). In Edmunds the court expressly rejected the analysis undertaken by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) which concluded that the Fourth Amendment does not mandate the suppression of evidence seized as a result of a constitutionally defect warrant, as long as the officers acted in good faith relying upon a warrant issued by a neutral and detached magistrate. The Edmunds court looked to the purpose of Article I, Section 8 of the Pennsylvania Constitution, which prohibits unreasonable searches and seizure, and distinguished it from the purpose of deterring police misconduct underlying the exclusionary rule under the Fourth Amendment. Based upon this distinction, the Edmunds court ruled that evidence seized as a result of a search conducted pursuant to a defective search warrant must be suppressed despite the police officer’s “good faith” reliance on the warrant. The court remarked on the strong, historically recognized, right to privacy embodied in our Constitution and stated:

Citizens in this Commonwealth possess such rights, even where a police officer in “good faith” carrying out his or her duties inadvertently invades the privacy or circumvents the strictures of probable cause. To adopt a ‘good faith’ exception to the exclusionary rule, we believe, would virtually emasculate those clear safeguards which have been carefully developed under the Pennsylvania Constitution over the past 200 years.

Id. 526 Pa. at 398, 586 A.2d at 899.

I view the Edmunds decision as negatively impacting on this court’s holding in Blair. I believe the rationale in Ed munds cannot support a ruling that it is reasonable for police officers to assume that a person who answers a door has authority to consent to entry and that, based upon this reasonable belief, a mistake as to authority will be overlooked. Edmunds teaches us that the reasonableness of police conduct is irrelevant when examining the strict protections afforded the citizens of this Commonwealth under our Constitution.

In this case the officer’s knock was answered by an unidentified female voice announcing to “come in.” Absent evidence that the officers knew the identity of the speaker, See Commonwealth v. Morgan, supra, (where officer observed the defendant and called his name before defendant answered “come in”), and absent evidence that the speaker had actual authority to consent to the officers’ entry into the premises, I would find that a subsequent search was unconstitutional absent exigent circumstances.

Because I find no evidence of exigent circumstances in this case and because the police officers were presented only with a female voice offering them entry to the premises without evidence of this person’s actual authority to consent to their entry, I would suppress the evidence seized in this case.

      . We note that we are not, as suggested by the dissent, engaging in an improper exercise of fact finding. At the suppression level, appellee pursued three theories: that the entry of the premises was not justified by exigent circumstances; that the entry of the premises was not justified by consent; and, alternatively, that there was no probable cause to arrest appellee. Appellee's Brief in Support of Motion to Suppress, July 3, 1989, at 7-11. To carry its burden that the police actions were lawful, as it must, see Commonwealth v. Williams, 380 Pa.Super. 227, 551 A.2d 313 (1988); Commonwealth v. Verdekal, 351 Pa.Super. 412, 506 A.2d 415 (1986), the Commonwealth adduced evidence relevant to the exigency of the circumstances, N.T. May 12, 1989 at 10-11, the apparent authority of the consenter, id. at 10, and the probable cause to arrest appellee. Id. at 10. This testimony was uncontradicted. Because the uncontroverted facts were adduced below and are part of the fully developed record, we may consult them in the absence of specific suppression court findings. See Commonwealth v. Haynes, 395 Pa.Super. 322, 333-34, 577 A.2d 564, 570 (1990), allocatur denied, 527 Pa. 598, 589 A.2d 689 (1991) (although suppression court failed to make findings of fact on issue, and despite the contradictory testimony surrounding appellant's arrest, this Court “consulted] the record directly,” making inferences from the record "to ascertain the facts of appellant's arrest.”). Cf. Commonwealth v. Gelber, 406 Pa.Super. 382, 594 A.2d 672 (1991), allocatur denied, 529 Pa. 667, 605 A.2d 332 (1992) (despite suppression court's failure to enter findings of fact and conclusions of law on the record, we may refer to trial court’s resolution of post-trial motions and the record in reviewing suppression ■ orders).

      . We note that the Morgan holding was the latest in a line of Pennsylvania Supreme Court cases recognizing that ruse or deception do not invariably vitiate consent. See e.g. Commonwealth v. Albrecht, 510 Pa. 603, 604, 511 A.2d 764 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987) (suspect's consent to search the trunk of his car valid, despite the fact that the uniformed officers did not inform the suspect that they knew incriminating evidence was located in the trunk); Commonwealth v. Brown, 437 Pa. 1, 7-8, 261 A.2d 879, 882 (1970) (uniformed officer's deception as to the reason for wanting suspect’s gun did not render the consensual relinquishment of the gun unlawful); but see Commonwealth v. Slaton, 530 Pa. 207, 608 A.2d 5 (1992) (failure of narcotics agents to disclose change in the focus of their investigation prior to their second search rendered pharmacist’s consent to the search of his establishment invalid as obtained through deception).
      This Court has also recognized that consent may be valid despite deception as to an officer's identity and/or motivation in obtaining a suspect's consensual relinquishment of privacy interests. See Commonwealth v. Carelli, 377 Pa.Super. 117, 136, 546 A.2d 1185, 1194 (1988) (officer’s failure to disclose to wife the primary reason for wanting to speak with her husband would not invalidate her consent to officer’s presence on the premises); Commonwealth v. Markman, 320 Pa.Super. 304, 313, 467 A.2d 336, 341 (1983) ("[cjonsent may be deemed voluntary even when procured by a police officer who misrepresents both his identity and purpose in making the search”); Commonwealth v. Ginter, 289 Pa.Super. 9, 432 A.2d 1024 (1981) (same); Commonwealth v.

        Schaszberger, 285 Pa.Super. 586, 428 A.2d 200 (1981) (same); Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980) (same).

      . Reference to the officer’s reasonable reliance upon a party's authority to consent to the entry into the premises does not suggest a relationship between the apparent authority doctrine and the good faith doctrine of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1974), rejected by our Supreme Court in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). As Professor LeFave has recognized “the apparent authority doctrine was well-established in lower court decisions before Leon." 3 W. LeFave, Search and Seizure, § 8.3 at 52 n. 98.3 (1992 Pocket Part). Indeed, two of the lour states cited by the Court in Edmunds which have rejected Leon have adopted the apparent authority doctrine. See People v. Richards, 152 Misc.2d 775, 578 N.Y.S.2d 380 (1991); State v. Lee, 245 N.J.Super. 441, 586 A.2d 256 (1991); In re C.S., 245 N.J.Super. 46, 583 A.2d 785 (1990). Moreover, unlike in Edmunds, no case which we have uncovered has held, suggested or even intimated that a distinction between the Pennsylvania and United States Constitutions exists with regard to consent to enter into premises. Rather, Pennsylvania cases have interpreted consent to enter into premises consistent with United States Supreme Court interpretation. See, e.g., Commonwealth v. Latshaw, 481 Pa. 298, 392 A.2d 1301 (1978) (plurality), cert. denied, Latshaw v. Pennsylvania, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979) (applying the approach adopted in United States v. Matlock, supra); Commonwealth v. Kean, 382 Pa.Super. 587, 556 A.2d 374 (1989), allocatur denied, 525 Pa. 596, 575 A.2d 563 (1990) (third party consent passes both Pennsylvania and United States constitutional muster); Commonwealth v. Lowery, 305 Pa.Super. 66, 451 A.2d 245 (1982) (applying Latshaw).

      We note that we reject the view taken in Judge Johnson’s dissenting opinion that ”[i]n light of our Supreme Court’s reluctance to adopt the holdings of the United States Supreme Court which unduly infringe upon the right to privacy of the citizens of this Commonwealth, [we should not adopt] the holding in Rodriguez, absent a statement on these issues by our Supreme Court.” Dissenting Opinion per Johnson, J. at 5. We are bound to follow United States Supreme Court decisions interpreting the federal constitution, because “the federal judiciary is supreme in the exposition of the law of the Constitution.” Cooper v. Aaron 358 U.S. 1, 18, 78 S.Ct. 1401, 1410, 3 L.Ed.2d 5, 17 (1958). See also Commonwealth v. Hulehan, 338 Pa.Super. 309, 487 A.2d 980 (1985) ("the United States Supreme Court is the ultimate arbiter of the federal constitution”); Commonwealth v. Conte, 154 Pa.Super. 112, 35 A.2d 742 (1944), cert. denied, 323 U.S. 717, 65 S.Ct. 46, 89 L.Ed. 577 (1944) (“there is no legal ground that would justify us in disregarding the pronouncement of the Supreme Court of the United States. It is the final arbiter and final authority with respect to federal questions, and we are bound to follow its mandate.”). Of course, Pennsylvanians are free to adopt a constitution providing more rights to its citizens. The question is not whether we can do so, but whether we have already done so with regard to every enumerated right. No decision of which we are aware has either expressly or impliedly held that we have already adopted a constitution which, in all circumstances, provides greater privacy rights to criminal defendants than does the United States Constitution. Moreover, no Pennsylvania Supreme Court decision specifically rejects Rodríguez. In the absence of such decision, we are uninclined to 'reject otherwise controlling authority of the United States Supreme Court. Cooper v. Aaron, supra.

      . Because of our disposition regarding the issue of consent to enter the premises, we need not address the argument that exigent circumstances justified the officers’ entry.


author: CAVANAUGH, Judge: KELLY, Judge,

text:
    619 A.2d 304
    Raymond E. BESTER and Judith Bester, His Wife, v. ESSEX CRANE RENTAL CORPORATION v. RUSSELL CONSTRUCTION COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1992.
    Filed Jan. 8, 1993.

      Gretchen J. Fitzer, Pittsburgh, for Essex Crane, appellant.
    Anthony Sanchez, Pittsburgh, for Russell Const., appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, McEWEN, DEL SOLE, BECK, TAMILIA, KELLY, POPOVICH and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge:

The issue presented in this case is did the employer-contractor, Russell Construction Company, agree to indemnify the lessor-supplier of a crane, Essex Crane, for damages in a claim by an employee of the contractor for injuries allegedly caused by an employee of the lessor-supplier, Essex Crane? We agree with the trial court that the indemnity provision herein is insufficient to impose indemnity liability on Russell Construction and affirm.

Essex Crane Rental Corporation appeals from an order entered by the Court of Common Pleas of Allegheny County in this personal injury action. Original defendant/appellant, Essex Crane, sought to obtain joinder of appellee, Russell Construction Company, as an additional defendant. Appellee, Russell Construction, filed preliminary objections to the joinder contending that appellant’s joinder request was untimely and that the attempted joinder was in any event impermissible. The trial court sustained the preliminary objections and dismissed appellant’s joinder complaint.

The complaint was served on the original defendant, Essex Crane, on October 1, 1990. On February 1, 1991, the ex parte motion to join Russell Construction as an additional defendant late was granted by the Honorable R. Stanton Wettick, Jr. Russell Construction filed preliminary objections to the complaint challenging the joinder on the basis of untimeliness, under Pa.R.C.P. 2252, 2253, and on the basis that the complaint did not state a cause of action under an indemnification theory. In ruling on the «preliminary objections on April 24, 1991, Judge Wettick granted Russell Construction’s motion to dismiss on the basis that it had been joined beyond the sixty-day period after Essex Crane had been served with the complaint and that cause had not been shown by Essex Crane for the late joinder, as required by Pa.R.C.P. 2253, and granted the demurrer because the complaint did not allege an express contract to indemnify for injuries caused to employees of Russell Construction.

Where an ex parte motion to join a third-party defendant out of time has been granted, the late-joined party may challenge the late joinder through preliminary objections. Prime Properties Development Corp. v. Binns, 397 Pa.Super. 492, 580 A.2d 405 (1990). Therefore, Judge Wettick did not err in considering the merits of the preliminary objections to the late joinder although he had already granted the ex parte motion to join on February 1, 1991.

We have examined the arguments presented by each of the parties relating the joinder issue. The appellant argues that it was an abuse of discretion of Judge Wettick to fail to find cause for the late joinder where the delay was relatively short (some four months after service of the original complaint), where no showing of prejudice was made by Russell Construction, and where there existed the need to investigate the terms of the lease agreement between the parties. Appellee, on the other hand, contends that there was no abuse of discretion in disallowing the late joinder because Essex Crane did not show why it was unable to timely procure the lease agreement between the parties since it was a business record and it formed the basis of their business relationship. We have concluded that a decision by this court on the propriety of the ruling on the question of late joinder, albeit a close one, is not necessary because we determine that that Judge Wettick correctly ruled in favor of Russell Construction on its demurrer.

Our scope of review over a trial court’s decision to sustain a demurrer was stated in Creeger Brick and Building Supply Inc. v. Mid-State Bank and Trust Co., 385 Pa.Super. 30, 32-33, 560 A.2d 151, 152 (1989):

A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. McGaha v. Matter, 365 Pa.Super. 6, 8, 528 A.2d 988, 989 (1987); Pike County Hotels, Corp. v. Kiefer, 262 Pa.Super. 126, 133, 396 A.2d 677, 681 (1978). It tests the legal sufficiency of the challenged complaint and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief may be granted. Mudd v. Hoffman Homes For Youths, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988). If there is any doubt as to whether a claim for relief has been stated, the trial court should resolve it in favor of overruling the demuri'er. Mull v. Kerstetter, 373 Pa.Super. 228, 229-230, 540 A.2d 951, 951 (1988).

Appellee, Russell Construction, entered into an agreement with appellant, Essex Crane, to lease a crane for the construction of the midfield terminal at the Greater Pittsburgh International Airport. Raymond Bester was an employee of Russell Construction at the construction site. On April 11, 1990, John Henderson, an employee of Essex Crane, arrived at the construction site with a crawler or tracked crane owned by Essex Crane and leased to Russell Construction under a lease signed on April 5, 1990. Bester was asked to assist Henderson in the removal of a track pin from the crane. Bester held a steel bar against the track pin while Henderson hit it with a sledge hammer in an attempt to dislodge the pin. Bester claims that Henderson’s second swing missed the bar and struck Bester’s right hand causing severe injuries. Subsequently, Bester and his wife, instituted the underlying action against appellant alleging that appellant was negligent in supplying an unfit and careless mechanic whose actions caused injury to Bester.

Essex Crane sought to join Russell Construction on the basis of a clause in the lease relating to indemnification:

The Lessee [Russell] shall defend, indemnify and hold forever harmless Lessor [Essex] against all loss, negligence, damage, expense, penalty, legal fees and costs, arising from any action on account of personal injury or damage to property occasioned by the operation, maintenance, handling, storage, erection, dismantling or transportation of any Equipment while in your possession. Lessor shall not be liable in any event for any loss, delay or damage of any kind of character resulting from defects in or inefficiency of the Equipment hereby leased or accidental breakage thereof....
The Lessee will include the interest of ESSEX CRANE RENTAL CORP. as an additional named insured under their General Liability, Excess Liability, and Automobile Insurance Policies as respect to this equipment during the term of the rental with minimum liability limits of $1,000,000 per occurrence and provide a certificate of insurance to Lessor.

Essex Crane argues that this hold-harmless clause adequately grants it indemnity-immunity from negligence of both Russell Construction and itself. Since the injured party, Bester, was an employee of Russell Construction, under the terms of the Workmen’s Compensation Act, any indemnity in favor of Essex Crane would have to be expressly provided for in a written contract. 77 P.S. § 481(b). Under this section a third party may not seek contribution or indemnity from the employer, even though the employer’s own negligence may have been the primary cause of the employee’s injury, see Tsarnas v. Jones & Laughlin Steel Corporation, 488 Pa. 513, 518, 412 A.2d 1094, 1096 (1980), absent an express provision for indemnity in a written contract.

Case law has established that the indemnity provision in the Workmen’s Compensation Act must be construed strictly, and general indemnity language such as “any or all” or “any nature whatsoever” is insufficient. Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 171 A.2d 185 (1961). In Pittsburgh Steel Co., an employee of a contractor was injured by a crane operated by an employee of Pittsburgh Steel. The injured worker sued Pittsburgh Steel, which then joined his employer as an additional defendant. The case was settled by Pittsburgh Steel and subsequently dismissed with prejudice. Pittsburgh Steel then brought a separate action against both the employer and the statutory employer of the injured worker for indemnification. The contractual provision upon which Pittsburgh Steel premised its claim against the employers for indemnification was as follows:

“INSURANCE CLAUSE: Contractor [Patterson] will indemnify, save harmless and defend buyer [the present plaintiff-appellant] from all liability for loss, damage or injury to person or property in any manner arising out of or incident to performance of this order and will furnish buyer with proper evidence that contractor is insured against such liability. Contractor will indemnify, save harmless and defend buyer from any and all claims, demands or suits made or brought against buyer on account of any of the terms or provision of any applicable workmen’s compensation law and will furnish buyer with the proper evidence that contractor is insured against all liability made under such law.”

Id. at 55, 171 A.2d at 186.

The supreme court held that this language was insufficient to cause the statutory employer to give up its immunity from suit for injuries suffered by one of its own statutory employees and caused by the indemnitee’s own negligence. The statutory employer was not liable to the indemnitee under the Workmen’s Compensation Act.

A court will not materially rewrite the contract of the parties and insert terms which are not there in the absence of an explicit expression to waive the protection afforded by the Workmen’s Compensation Act. Potts v. Dow Chemical Company, 272 Pa.Super. 323, 415 A.2d 1220 (1979). In Potts, employees of U.S. Steel sued Dow Chemical for injuries sustained as a result of inhaling fumes created during the process of Dow’s cleaning the water system at the U.S. Steel plant. Dow attempted to join U.S. Steel as an additional defendant. U.S. Steel asserted its statutory immunity under § 481, and Dow cited language in the agreement between them regarding the limitation of Dow’s liability for injuries suffered by employees of U.S. Steel. The superior court held that this language imposed liability upon Dow and did not create an indemnification agreement by “necessary implication” in the event that Dow’s negligence causes injury to an employee of U.S. Steel.

We agree that if the indemnification agreement is clear and includes indemnification in the event of either the indemnitee’s or the employer’s own negligence, its enforceability does not require that the employer, in addition, expressly and in haec verba waive the immunity provided by § 481(b) of the Workmen’s Compensation Act. See Szymanski-Gallagher v. Chestnut Realty, 409 Pa.Super. 323, 597 A.2d 1225 (1991). The intent to indemnify against claims by employees of the alleged indemnitor, however, must clearly appear from the terms of the agreement. Remas v. Duquesne Light Co., 371 Pa.Super. 183, 537 A.2d 881 (1988).

In Remas the original defendant had been sued by an employee of the additional defendant. The additional defendant demurred to the complaint against it on the basis of the statutory immunity from suit conferred by § 481(b) of the Workmen’s Compensation Act. The original defendant sought to avoid the statutory immunity by virtue of the following language in an indemnification clause:

INDEMNIFICATION—To hold harmless and indemnify the Company [original defendant] from and against any liability, loss, damages, cost and expense which the Company may suffer from any claim, demand, action, suit or cause of action which may be made or had against the Company by reason of any act committed by the Contractor [additional defendant], its agents, servants or employees other than an act performed by the Contractor, its agents, servants or employees at the specific instruction of the Company.

Id, at 186, 537 A.2d at 832.

The court held that the language of the indemnification clause did not constitute an express provision for the employer to assume an indemnity obligation for injury to its own employees. Since careful scrutiny and strict construction is required in consideration of indemnification clauses, language which did not expressly say that employer agreed to forego its statutory protection and to assume unlimited liability for damages arising from harm suffered by its own employees resulted in a finding of lack of loss of the statutory immunity by employer.

A panel of this court in Szymanski-Gallagher, supra, reviewed the caselaw requiring specificity of expression regarding indemnification for the indemnitee’s negligence resulting in injury to an employee of the indemnitor. The panel noted that the caselaw which requires express indemnification by the indemnitor in cases caused by the negligence of the indemnitee remains in force. 409 Pa.Super. at 331, n. 1, 597 A.2d at 1229, n. 1. The panel held that the language of the clause in Szymanski-Gallagher clearly covered liability resulting from the indemnitee’s own negligence and, therefore did not abridge any of the prior caselaw relating to the requirement of specificity in instances of the indemnitee’s own negligence. We find, however, that the analysis of the Szymanski-Gallagher panel was faulty where it did not specifically require the indemnification clause to state that the indemnitor would be liable in indemnity for injuries suffered by its own employees.

The language of the indemnification clause in SzymanskiGallagher reads as follows:

Lessee also agrees to be responsible for and to relieve and hereby relieves lessor from all liability by reason of any damage or injury to any person or thing which may arise from or be due to the use, misuse, or abuse of all or any of the elevators, hatches, openings, stairways, hallways, of any kind whatsoever, which may exist or hereafter be erected or constructed on said premises, ... whether such damage, injury, use, misuse, or abuse be caused by or result from the negligence of lessor, his servants or agents or any other person or persons whatever.

We reject the finding in Szymanski-Gallagher that this language is sufficient to create a duty of the employer to indemnify the other party for injuries to the employer’s own employees. Rather than apply the “fair reading” standard implied in Szymanski-Gallagher, id. at 330, 597 A.2d at 1229, regarding the interpretation of the indemnification clause, we require that such a clause contain plain language which would avoid the employer’s protection from double responsibility which is afforded by the Workmen’s Compensation Act. We apply today the requirement in the law that in order for an employer to be held liable in indemnification for injuries to its own employees caused by the negligence of the indemnitee there must be an express provision for this contingency in the indemnification clause. The absence of a provision in the hold-harmless clause that lessee [Russell Construction] would indemnify lessor [Essex Crane] against the negligence of lessor in a claim by lessee’s employee requires the conclusion that the clause does not meet the requirements of the Workmen’s Compensation Act concerning express waiver, 77 P.S. § 481(b).

In order to avoid the ambiguities which grow out of the use of general language, contracting parties must specifically use language which demonstrates that a named employer agrees to indemnify a named third party from liability for acts of that third party’s own negligence which result in harm to the employees of the named employer. Absent this level of specificity in the language employed in the contract of indemnification, the Workmen’s Compensation Act precludes any liability on the part of the employer.

Since we find that the lower court did not err in granting the preliminary objections of Russell Construction, we affirm its dismissal from the instant action.

Order affirmed.

KELLY, J., files a Concurring Statement which is joined by McEWEN, J.

KELLY, Judge,

concurring.

I concur in the result reached by the majority. I would affirm the order sustaining Russell Construction’s preliminary objections solely on the ground that the indemnification clause at issue did not indemnify Essex Crane for the negligent acts of its employees.

As the majority notes, see Majority opinion at 187-88 n. 2, under long-established Pennsylvania lav?, in order to provide indemnification for the negligent acts of an indemnitee, the contract language must be clear and unequivocal. Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 7, 588 A.2d 1, 4 (1991).

[A] contract of indemnity against personal injuries should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms. The liability on such indemnity is so hazardous, and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assume the responsibility unless the contract puts it beyond doubt by express stipulation. No inference from words of general import can establish it.

Id., quoting Perry v. Payne, 217 Pa. 252, 262, 66 A. 553 (1907).

The indemnification clause at issue provides:

The Lessee shall defend, indemnify and hold forever harmless Lessor against all loss, negligence, damage, expense, penalty, legal fees and costs, arising from any action on account of personal injury or damage to property occasioned by the operation, maintenance, handling, storage, erection, dismantling or transportation of any Equipment while in your possession. Lessor shall not be liable in any event for any loss, delay or damage of any kind of character resulting from defects in or inefficiency of the Equipment hereby leased or accidental breakage thereof.

Reproduced Record at 52A. Under established case law, this contract cannot be construed to provide coverage for the negligent acts of Essex Crane’s employees. See Ruzzi, supra. See also Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 404 Pa. 53, 171 A.2d 185 (1961) (contractor’s promise to “indemnify, save harmless and defend buyer from all liability for loss, damage or injury to person or property in any manner arising out of or incident to performance of this order” held too broad to indemnify against buyer’s negligent acts).

That the contract does not indemnify against Essex Crane’s employee’s negligence is sufficient reason to affirm the trial court’s order. The majority holds, however, that waiver of an employer’s Workers’ Compensation Act Immunity must be just as specific, if not more specific, despite our decision in Szymanski-Gallagher, 409 Pa.Super. 323, 597 A.2d 1225 (1991). It is the treatment of this issue that I cannot join.

As we stated in Szymanski-Gallagher, supra, the Workers’ Compensation Act waiver provision, 77 P.S. § 481(b), does not require more than “an express agreement to indemnify that fairly implicates liability under the facts alleged.” Szymanski-Gallagher, supra at 331, 597 A.2d at 1229. In that case, we held that an indemnification for harm against “any person” provided indemnity for harm against the indemnitor’s employees. Id.

I continue to believe that such language evidences the indemnitor’s intent to accept “double responsibility.” Majority opinion at 185-87. In short, undertaking liability for harm to “any person” brought upon by the negligence of the indemnitee constitutes “plain language which would avoid the employer’s protection from double responsibility,” id. See Szymanski-Gallagher, supra.

While the majority requires a clause containing plain language, it also reassures that an indemnification contract’s “enforceability does not require that the employer, in addition, expressly and in haee verba waive the immunity provided by § 481(b) of the Workmen’s Compensation Act.” Majority opinion at 183-187. Therefore, for indemnification, a prospective indemnitee must state that the clause applies to the indemnitor’s employees more specifically than was done in Szymanski-Gallagher, supra (“any person”), but need not actually spell out that the employer would waive its immunity under the Worker’s Compensation Act. I disagree. I would interpret “any person” as specific enough to mean that the employer-indemnitor intended to accept liability for injuries to any person, including its own employees.

In the instant case, I would find that Russell Construction’s preliminary objections were properly sustained because it did not contract to indemnify against the alleged negligent acts of John Henderson, an Essex Crane employee. I cannot join the majority opinion, however, which requires more than “an express agreement to indemnify that fairly implicates liability under the facts alleged,” Szymanski-Gallagher, supra at 311, 597 A.2d at 1229, in order to find that an employer has waived its statutory immunity pursuant to 77 P.S. § 481(b).

Hence, I concur only in the result reached by the majority.

McEWEN, J., joins this concurring statement.

      . 77 P.S. § 481(b):
      In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action. [Emphasis added.]

      . The requirement for specificity for an indemnitee to be indemnified for its own negligence is a related, but independent, concept of the law. Although we decide this case on the basis of application of the terms of the Workmen’s Compensation Act, we note that under the more broad precept of limitation of liability for an indemnitee’s own negligence, the language used in the lease between Essex Crane and Russell Construction does not provide for indemnity for the injuries suffered by Bester.
      The supreme court in Ruzzi v. Butler Petroleum Company, 527 Pa. 1, 588 A.2d 1 (1991) recently reaffirmed the requirement held in Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907) that words of general import cannot establish an agreement to indemnify. Ruzzi held the drafters of the indemnification agreement to the level of specificity established in Peny. Peny held that "... [A] contract of indemnity against personal injuries should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms.” Id. at 262, 66 A. at 553, quoted in Ruzzi, 527 Pa. at 8, 588 A.2d at 4. The clause in Ruzzi failed because it made no reference to the negligent acts of the indemnitee. Similarly, in this case, the hold harmless clause is insufficient to establish a duty to indemnify because it does not unequivocally state that Russell Construction would indemnify Essex Crane for its own negligent acts.
      Essex Crane attempts to distinguish Ruzzi by emphasizing the court's attention to the absence of the word "negligence” in the indemnification clause involved in that case. This, however, ignores the full import of the Ruzzi holding which requires that each distinct concept affecting indemnification must be subject to explicit treatment in the clause. Because the parties in this case did not specifically agree that Russell Construction would hold Essex Crane harmless for acts of its own negligence against employees of Russell Construction, we find that the indemnification clause fails when analyzed under the principles enunciated in Peny and Ruzzi.

      . I also agree that the result reached herein does not require us to address the issue of late joinder.

      . In Szymanski-Gallagher, supra, we noted that the court in Remas v. Duquesne Light Co., 371 Pa.Super. 183, 537 A.2d 881 (1988), allocatur denied, 520 Pa. 597, 598, 552 A.2d 251, 252 (1988) added surplusage which implied that an express waiver of immunity was necessary. Szymanski-Gallagher, supra, 409 Pa.Super. at 330-31, 597 A.2d at 1229. We explained that such a rule was not necessary to reach the result in Remas, because the contract therein only indemnified Duquesne Light against claim arising from acts committed by Green Security Services, Inc. or its agents. There was no indemnification for acts committed by Duquesne itself. Therefore, the Remas court was correct in finding that the indemnification language “could not be construed as an indemnity undertaking or an assumption of liability by Gregg for harm to employees caused by conduct of Duquesne.” Remas, supra, 371 Pa.Super. at 187-88, 537 A.2d at 883 (emphasis added). Accordingly, we are not compelled to infer from Remas that a waiver will only be enforced if it contains highly specific language that the employer waive its statutory immunity. Szymanski-Gallagher, supra.