Suffolk Constr. v. Reliance Ins. Apl of: Suffolk ( 2019 )

[J-119-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
SUFFOLK CONSTRUCTION COMPANY, : No. 40 MAP 2019
:
Objector : Appeal from the Order of
: Commonwealth Court at No. 2 REL
: 2017 dated March 18, 2019
v. :
:
: SUBMITTED: December 17, 2019
RELIANCE INSURANCE COMPANY (IN :
LIQUIDATION) (ANCILLARY MATTER :
TO IN RE: RELIANCE INSURANCE :
COMPANY (IN LIQUIDATION) 1 REL :
2001) :
:
:
APPEAL OF: SUFFOLK :
CONSTRUCTION COMPANY :
OPINION
JUSTICE DONOHUE DECIDED: December 17, 2019
This direct appeal of a decision by the Commonwealth Court involves a question
of contract interpretation under Connecticut law. The Commonwealth Court found that
the language of the contract was clear and unambiguous, thus precluding consideration
of extrinsic evidence of the parties’ intent. After careful review of the contract and the
pertinent law, we conclude that the Commonwealth Court erred. We therefore vacate its
decision and remand for further proceedings consistent with this Opinion.
In 1997, Suffolk Construction Company (“Suffolk”) entered into a contract with the
University of Connecticut (“UConn”) for the construction of several buildings on UConn’s
campus (hereinafter referred to as “the Project”). UConn secured insurance policies from
Reliance Insurance Company (“Reliance”) for the Project, naming Suffolk (and other
contractors) as an insured. Suffolk completed the work in January 2001. The Reliance
insurance policy was extended until January 2004 – three years after final acceptance of
the Project. In late 2001, however, Reliance went into liquidation.
In 2013 and 2014, UConn complained of defects in the construction that resulted
in damage to its buildings. UConn retained counsel and initiated legal proceedings
against Suffolk and other contractors. The claims proceeded through mediation, and
Suffolk put its insurers on notice of the claims. On March 22, 2016, Suffolk submitted a
proof of claim to the Insurance Commissioner of Pennsylvania, as the statutory liquidator
(“Liquidator”) of Reliance.
In June of 2016, in the midst of Suffolk’s attempt to obtain insurance coverage on
its claim from Reliance, UConn entered into a settlement agreement with Suffolk and the
other contractors (“Settlement Agreement”). The Settlement Agreement was between
UConn, “on behalf of itself and its officers, directors, Trustees, insurers, heirs, personal
representatives, successors, assigns and subrogees,” and seven “Defending Parties”
(one of which is Suffolk), “on behalf of themselves and their respective insurers, re-
insurers, third-party administrators, attorneys, successors, sureties, parents, subsidiaries,
affiliates, distributors, suppliers, agents, subcontractors, employees, subrogees,
subrogors and their officers, directors and assigns.” Settlement Agreement at 1
(emphasis added). The Settlement Agreement was entered into “to settle all claims
between and among [UConn and the Defending Parties] arising out of or related to” the
[J-119-2019] - 2
construction work originally contracted for on UConn’s campus. Id. at 2 ¶ G (emphasis
added). The Settlement Agreement called for the release of claims as follows:
Upon receipt of the Settlement Sum described in Paragraph 2
below, the sufficiency of which is hereby acknowledged,
UConn and the Defending Parties hereby unconditionally
mutually release and forever discharge each other, and
their respective insurers, sureties, re-insurers, third-party
administrators, attorneys, successors, parents, subsidiaries,
affiliates, distributors, suppliers, agents, subcontractors,
employees, insureds, subrogees, subrogors and their officers,
directors and assigns from any and all claims, actions,
causes of action, demands, damages, rights or remedies,
past, present and future, known or unknown, foreseen or
unforeseen, arising from or relating to the Project directly
or indirectly of whatever kind or nature, including but not
limited to claims for insurance coverage, indemnity or
attorney's fees, that are in any way connected with the
Project including, but not limited to, errors or omissions in
development, design, construction, provision of products or
materials, equipment, sale or repair of the Project, or
representations relating to the Project, as well as claims for
contribution, apportionment, indemnity, additional insured
status, defense costs and attorney's fees (the "Released
Claims").
Id. at 3 ¶ 1A (emphasis added). The Settlement Agreement further provided, in pertinent
part, that its “purpose, intent and legal effect” was
to extinguish the entire liability of the Defending Parties to
UConn and to each other … arising out of or connected with
the Released Claims, and to bar forever any recovery by way
of subrogation, indemnity, contribution or any other claim
against any Party by any other Party or any third-party
regarding the Released Claims as set out in Paragraph 1
above. Each Party represents that it does not intend to and
shall not pursue claims arising from or related to the Project
and/or that are the subject of this Agreement and that each
Party accepts the payments made or received in this case as
full and final consideration for the claims of all Parties,
including claims against each other for contributions,
deductibles, set-offs, counterclaims, offset premiums,
subrogation or any other claim directly or indirectly relating to
this Project.
[J-119-2019] - 3
Id. at 6-7 ¶ 4. The parties to the Settlement Agreement acknowledged that they were
represented by counsel, were aware of the legal consequences of the Settlement
Agreement, and that it “contains the entire agreement between UConn and Defending
Parties (and as between the Defending Parties) with respect to the Released Claims[.]”
Id. at 8 ¶ 5, 9 ¶ 7.
Pursuant to the Settlement Agreement, Suffolk agreed to pay UConn $3,250,000,
much of which was paid by its other insurers. Suffolk paid $800,000 out of pocket, which
it contended was Reliance’s responsibility pursuant to the proof of claim it submitted to
Liquidator. On April 12, 2017, Liquidator issued a notice of determination regarding
Suffolk’s insurance claim, finding a value of $0.00. On June 12, 2017, Suffolk objected
to the determination. Liquidator responded, raising several bases for its determination,
including that Suffolk had expressly waived its right to seek insurance coverage in the
Settlement Agreement. The parties jointly requested the appointment of a referee, which
the Commonwealth Court did on October 16, 2017. See Pa.R.A.P. 3781(d)(3) (governing
the assignment of a referee in liquidation proceedings).
On November 21, 2017, Liquidator filed a motion for summary judgment before the
referee. On February 28, 2018, the referee issued a report and recommendation to the
Commonwealth Court that it grant Liquidator’s motion based on the language of the
Settlement Agreement, which the referee found precluded Suffolk from seeking insurance
coverage from Reliance. In so recommending, the referee relied on Tallmadge Bros. v.
Iroquois Gas Transmission Sys., L.P., 746 A.2d 1277 (Conn. 2002) (“Tallmadge”), finding
[J-119-2019] - 4
that Connecticut law provides that where a settlement agreement is clear and
unambiguous, courts cannot read in language to reflect the intent of the parties.1
Suffolk filed exceptions to the report and recommendation issued by the referee.
Specifically, Suffolk challenged the finding that Suffolk released its own insurers via the
Settlement Agreement and asserted that Reliance/Liquidator was not a party or an
intended third-party beneficiary and thus was not entitled to enforce the agreement. In a
non-precedential single judge decision, the Commonwealth Court adopted the report and
recommendation of the referee and dismissed Suffolk’s exceptions.
The Commonwealth Court found that the language of the agreement was
“definitive, clear and unambiguous,” and reflected that the parties “extinguished their right
to pursue subsequent claims against their own insurers.” Commonwealth Court Opinion,
3/18/2019, at 10. Because the language was deemed to be clear and unambiguous, the
court recognized that Connecticut law required it to look only at the four corners of the
agreement, examining it as a whole and giving effect to every provision. Id. at 9-10 (citing
Tallmadge, 746 A.2d at 1288; Dunn v. Etzel, 141 A.3d 990, 994 (Conn. App. 2016)).
The Commonwealth Court noted that by the terms of the Settlement Agreement,
the parties included (in relevant part) UConn and Suffolk, as well as their “respective
insurers” and that the parties released “their respective insurers … from any and all claims
1 The Settlement Agreement provides that Connecticut law applies to actions to enforce
the agreement. Settlement Agreement at 9 ¶ 8. Notably, it also provides that actions to
enforce the agreement must be brought in a state or federal court in Connecticut. Id.Neither party seeks to apply this provision or challenges this Court’s in personam
jurisdiction. See Wagner v. Wagner, 768 A.2d 1112, 1119 (Pa. 2001) (finding the failure
to object to personal jurisdiction results in waiver); see also Morgan v. Hartford Hosp., 21
A.3d 451, 458 (Conn. 2011) (same). As Liquidator is a Pennsylvania party, and there has
been no objection to Pennsylvania courts deciding this matter, this provision does not
interfere with our ability to render a decision in this appeal.
[J-119-2019] - 5
… including claims for insurance coverage and indemnity.” Id. The court observed that
the agreement released the parties’ “insurers” generally, and that there was no basis in
the language of the agreement to find, as Suffolk claimed, that the parties intended to
release only insurers who were parties to the agreement or that the parties did not intend
to release their own insurers. Id. at 10-11. The court further stated its belief that claims
for insurance coverage and indemnity are benefits obtained through one’s own insurer,
and the inclusion of this language in the agreement demonstrated that the parties
intended to relinquish their rights to pursue claims against their own insurers. Id. at 11.
The Commonwealth Court thus agreed with the referee that Suffolk released Reliance
from any obligation to make payment on its claim for insurance coverage, and parol
evidence of the parties’ intent was properly ignored. Id. at 12 (citing Venture Partners,
Ltd. v. Synapse Tech., Inc., 679 A.2d 372, 375 (Conn. App. 1996).
Because the Settlement Agreement was executed by the parties on behalf of
themselves and their insurers, the Commonwealth Court further found that Reliance could
enforce the agreement as a third-party beneficiary. By the express language of the
agreement, the parties “intended to confer enforceable rights on their insurers, even
though such insurers were not specifically identified.” Id. at 13; see Wilcox v. Webster
Ins., Inc., 982 A.2d 1053, 1062 (Conn. 2009) (right to enforce a contract as a third-party
beneficiary depends on whether the parties intended that the promisor has a direct
obligation to the third party).
Suffolk filed a direct appeal to this Court, raising the following issues:
[1.] [W]hether the Settlement Agreement executed between
Suffolk and UConn clearly and unambiguously released
Suffolk’s pending unanswered claims against [Reliance].
[J-119-2019] - 6
[2.] [W]hether [Reliance] was a third-party beneficiary to the
Settlement Agreement, wherein Suffolk did not intend to
confer any benefits to Reliance or the Liquidator, such that it
was entitled to reap its benefits or enforce its terms.
Suffolk’s Brief at 4.
Suffolk contends that the language of the Settlement Agreement did not clearly
and unambiguously release its claims for insurance coverage against
Reliance/Liquidator. According to Suffolk, the agreement “is subject to more than one
reasonable interpretation”: (1) that the parties did not release their own insurers and (2)
given the circumstances of the parties, which Suffolk says Connecticut law requires to be
considered, including the pre-agreement attempts to obtain coverage from Reliance,
Suffolk did not intend to release Reliance. Suffolk’s Brief at 12.
Beginning with its first stated interpretation, Suffolk asserts that there is no
language in the agreement indicating the parties are releasing their own insurers.
Instead, the language indicates that UConn and the Defending Parties released each
other and each other’s insurers from any claims. Id. at 14. Suffolk states that it acted on
Reliance’s behalf to secure its release from claims by UConn, but not itself. Id. at 15.
The Commonwealth Court’s interpretation leads to an absurd result, as this would also
mean, for example, that Suffolk could not bring action against one of its officers or
directors for misappropriation of funds connected to the Project if that occurred. Id. at 16.
It would also preclude, for example, UConn from seeking insurance coverage for a fire
that occurred in the subject building. Id. at 19-20.
In support of its second interpretation, Suffolk cites Tallmadge and Muldoon v.
Homestead Insulation Co., 650 A.2d 1240 (Conn. 1994), as requiring consideration of the
[J-119-2019] - 7
“situation” of the parties in determining their intent in drafting a contract/release. Suffolk’s
Brief at 17-18 (citing Tallmadge, 746 A.2d at 1288; Muldoon, 650 A.2d at 1246). Suffolk
argues that it clearly did not intend to release its insurance claim against Reliance, as it
was pursuing coverage both before and after entering into the Settlement Agreement. Id.
at 18.
Suffolk further asserts that the Commonwealth Court failed to give effect to every
provision of the agreement, as required by Connecticut contract law. Id. at 20 (citing,
inter alia, Ramirez v. Health Net of Ne., Inc., 938 A.2d 576, 586 (Conn. 2008)). In
particular, Suffolk points to paragraph four of the agreement that provides it is
extinguishing “liability of settling parties,” which does not include Reliance or Liquidator.
Id. at 21 (emphasis supplied). It further asserts that the referee ignored the word
“respective” in the Settlement Agreement, and that this term makes clear that the parties
were only releasing each other’s insurers. Suffolk’s Reply Brief at 2-6.
Lastly, Suffolk claims that Reliance/Liquidator is neither a party nor a third-party
beneficiary to the settlement agreement and therefore cannot enforce it. Pursuant to
Connecticut law, “a third party seeking to enforce a contract must allege and prove that
the contracting parties intended that the promisor should assume a direct obligation to
the third party,” which is “read in light of the circumstances attending its making, including
the motives and purposes of the parties.” Suffolk’s Brief at 22-23 (quoting Stowe v. Smith,
441 A.2d 81, 82-83 (Conn. 1981), and Condon, Inc. v. Brookfield Dev. Corp., 833 A.2d
908, 914 (Conn. 2003)). Suffolk asserts that Reliance/Liquidator has failed to satisfy that
burden.
[J-119-2019] - 8
Liquidator argues that the terms of the Settlement Agreement clearly and
unambiguously release any claims Suffolk had for insurance coverage from Reliance
related to the Project, noting that it releases “insurers” from “claims for insurance
coverage.” Liquidator’s Brief at 11. Because the agreement is unambiguous, Connecticut
law prohibits looking outside of the contract for evidence of the parties’ intent. Id. at 13
(citing Tallmadge, 746 A.2d at 1292). Liquidator states that Suffolk only partially quotes
Tallmadge, ignoring the portion of the decision that provides, “the intent of the parties is
to be ascertained by a fair and reasonable construction of the written words,” and “where
the language of the contract is clear and unambiguous, the contract is to be given effect
according to its terms.” Id. at 18-19, 20 (quoting Tallmadge, 746 A.2d at 1288). Further,
“any ambiguity in a contract must emanate from the language used in the contract rather
than from one party’s subjective perception of its terms.” Id. at 12 (quoting Tallmadge,
746 A.2d at 1288). Because there is no ambiguity in the agreement, and it cannot be
subject to more than one reasonable interpretation, Liquidator contends that Suffolk’s
argument fails. “Insurers” means “insurers,” all of which were released in the agreement.
Id. at 22.
Contrary to Suffolk’s claim, Liquidator states that this interpretation is not absurd,
as the parties to the agreement intended to end all litigation related to the Project.
Liquidator raised other defenses to Suffolk’s insurance claim against Reliance, and thus
UConn and other of the Defending Parties would be pulled into discovery, depositions
and document requests – precisely the activity the Settlement Agreement was to end. Id.
at 17-18. Further, Liquidator contends that the hypotheticals posed by Suffolk are absurd,
[J-119-2019] - 9
as the Settlement Agreement released only certain claims concerning the construction of
the buildings. Id. at 22-23.
Liquidator asserts that the fact that Suffolk had already submitted a claim for
insurance prior to entering into the Settlement Agreement is of no moment; it could have
reserved a claim against Reliance in the agreement but it did not, and there is no basis
to parse which insurers the agreement was intended to release, as it generally released
“insurers” from further claims for insurance coverage related to the Project. Id. at 16, 26.
Liquidator states that Reliance is unquestionably a “settling party” under the agreement,
as the agreement expressly states that Defending Parties were acting on behalf of
themselves and their insurers. Id. at 23. It therefore has the right to enforce the
Settlement Agreement against Suffolk’s claim. Id. at 27-28.
As stated above, both parties (as well as the Commonwealth Court) rely on the
law as stated in Tallmadge as controlling.2 The case involved a negotiated settlement
agreement between the parties concerning the defendant’s construction of an underwater
natural gas pipeline across the plaintiff’s shellfish beds. Pursuant to the agreement, the
plaintiff took a lump sum of money prior to construction of the pipeline and released the
defendant from any liability incident to the construction. At the time they entered into the
agreement, the plaintiff believed that the pipeline would cover a 200 foot area, but this
understanding was not included in the agreement. In actuality, the area impacted by the
pipeline was 300 feet.
2 “[B]ecause … settlement agreements are commercial contracts containing definitive
language, the determination of the parties’ intent is a question of law[,] and our review of
the trial court’s construction of the settlement agreements is plenary.” Tallmadge, 746
A.2d at 1288 (internal citations omitted).
[J-119-2019] - 10
The plaintiff filed suit against the defendant for the damage caused outside of the
200-foot area, and it ultimately reached the Connecticut Supreme Court for decision. Of
relevance to the case at bar, the Tallmadge Court found that the language of the
agreement was clear and unambiguous, resulting in a finding that the plaintiff had
released the defendant from liability connected with the pipeline’s construction. See
Tallmadge, 746 A.2d at 1288-89. On that basis, it concluded that the trial court’s
consideration of extrinsic evidence of the parties’ intent was error that “cannot be squared
with our well settled principles of contract law.” Id. at 1290. While the Court recognized,
pursuant to long-established precedent, that contract interpretation requires a
determination of the intent of the parties based on their “situation … and the
circumstances connected with the transaction,” it observed that “[w]here the language of
the contract is clear and unambiguous, the contract is to be given effect according to its
terms.” Id. at 1288. “[T]he intent of the parties is to be ascertained by a fair and
reasonable construction of the written words and ... the language used must be accorded
its common, natural, and ordinary meaning and usage where it can be sensibly applied
to the subject matter of the contract.” Id. (brackets and ellipses supplied). Further,
Connecticut precedent dictates that where an unambiguous contract contains a merger
clause indicating that it is the entire and final expression of the agreement, extrinsic
evidence may not be used to vary or contradict those terms (absent fraud). Id. at 1291.
Any ambiguity in a contract “must emanate from the language used in the contract rather
than from one party’s subjective perception of the terms.” Id. at 1288.
Thus, according to the Connecticut Supreme Court, where the language of a
settlement agreement is clear and unambiguous, evidence outside the four corners of the
[J-119-2019] - 11
contract is not admissible to prove the parties’ intent. The Tallmadge Court did not
consider evidence outside of the four corners of the contract because the language of the
agreement was unambiguous and contained a merger clause, which provided, “This
Agreement contains the entire and only agreement between the parties and no oral
statements or representations or prior written matter not contained in this instrument shall
have force and effect.” Id. at 1291. The Court thus found that there could be no
consideration of evidence of the parties’ intent outside of the language of the contract. Id.
Based on our review of the Settlement Agreement, we disagree with the
Commonwealth Court’s determination that the pertinent terms of the Settlement
Agreement clearly and unambiguously precluded Suffolk from filing its claim for coverage
from Reliance. The operative phrase relied upon by the Commonwealth Court as
unambiguously releasing Reliance from any obligation to provide coverage on insurance
claims related to the Project was the parties’ release of each other and “their respective
insurers” for “claims for insurance coverage and indemnity.” Commonwealth Court
Opinion, 3/18/2019, at 10.
At the outset, we note that the Commonwealth Court was incorrect in its assertion
that indemnity can only be claimed against one’s own insurance company. Although an
indemnification claim can be brought against one’s own insurer, there are myriad cases
involving claims for indemnity from non-insurance parties. See, e.g., Maio v. City of New
Haven, 167 A.3d 338 (Conn. 2017) (indemnification claim brought by police officer against
the city); Singhaviroj v. Bd. of Educ. of Town of Fairfield, 17 A.3d 1013 (Conn. 2011)
(indemnification claim brought by IT engineer against town). In the context of this case,
the release of claims for indemnification could have been between and among the
[J-119-2019] - 12
Defending Parties or by one of the Defending Parties against UConn. We therefore
disagree that releasing actions for indemnification clearly and unambiguously indicates
that the parties intended to release their own insurers from financial responsibility for
claims arising from the Project.
Further, while there is an isolated statement in the agreement that provides that
the parties released claims for “insurance coverage,” it is entirely unclear what that phrase
means. It could mean, as the referee and Commonwealth Court found, that the parties
agreed not to seek coverage for insurance claims from its own insurers. Alternatively, it
could mean that one party would not sue another for the failure to provide promised
insurance coverage (or provided inadequate insurance coverage). The latter
interpretation is particularly salient here for several reasons. First, as stated hereinabove,
UConn purchased the Reliance insurance policy in question as part of the Owner-
Controlled Insurance Program for Project naming Suffolk as an insured. In fact, as
Reliance acknowledges in its brief, UConn purchased insurance under the Owner-
Controlled Insurance Program from that company for all of the Defending Parties (other
than the architect). See Reliance’s Brief at 3. Thus, it is feasible that one of the Defending
Parties could have a claim against UConn for failing to purchase sufficient insurance
coverage for the Project.
The other pertinent language included in the Settlement Agreement could also
support a finding that Suffolk did not release its own insurers from providing insurance
coverage. See Se. Conn. Reg’l Res. Recovery Auth. v. Dep’t of Pub. Util. Control, 709
A.2d 549, 556 (Conn. 1998) (interpretation of contract language for ambiguity requires
court to look at “the contract as a whole”). Critical to this Court’s analysis is the meaning
[J-119-2019] - 13
of the word “respective,” which is used more than once in the agreement. First, the
Settlement Agreement states that the agreement was entered into by all of the Defending
Parties on behalf of themselves and their “respective” officers, employees,
subcontractors, parent companies, agents, attorneys and insurers. Settlement
Agreement at 1. Viewed in context, it is clear that the Defending Parties are binding
themselves to the agreement, and similarly binding the named entities. The dictionary
definition of “respective” is “particular, separate.” See https://www.merriam-
webster.com/dictionary/respective. See Nation-Bailey v. Bailey, 112 A.3d 144, 152
(Conn. 2015) (“We often consult dictionaries in interpreting contracts … to determine
whether the ordinary meanings of the words used therein are plain and unambiguous, or
conversely, have varying definitions in common parlance.”) (internal quotation and citation
omitted). Given this definition and the context in which the word “respective” is being
used in the afore-quoted clause, this can only mean that each Defending Party was
entering into the agreement on its own behalf and on behalf of its own insurers (and
employees, officers, attorneys, etc.).
The Settlement Agreement uses “respective” again later in the agreement, in the
clause relied upon by the Commonwealth Court to support its finding of no ambiguity. As
stated above, the pertinent clause states that the Defending Parties (i.e., Suffolk, on
behalf of its insurers, attorneys, employees, etc.) release each other (i.e., the other
Defending Parties) “and their respective insurers,” attorneys, employees, directors,
subcontractors, etc., from claims “arising from or relating to the Project directly or
indirectly of whatever kind or nature.” Id., at 3 ¶ 1A. Based on the prior use of the word
respective, as well as its plain meaning, it would be incongruous for “respective” to now
[J-119-2019] - 14
mean that the Defending Parties were each releasing their own insurers (and employees,
attorneys, directors, etc.). In fact, it would be nonsensical for Suffolk to have waived any
claims against its own attorneys, for example, for malpractice committed concerning their
representation related to the Project. It would be even more nonsensical for the
Settlement Agreement to bar Suffolk’s attorneys from pursuing an action to obtain
payment on unpaid bills related to the Project. The Commonwealth Court’s interpretation,
however, would lead to precisely these results.
Pursuant to our review, the Settlement Agreement can be construed as nothing
more than a mutual general release between UConn and Suffolk (as well as the other
Defending Parties). At best, the language is ambiguous as to whether Suffolk released
its own insurers, including Reliance, from providing insurance coverage for claims related
to the Project. The ambiguity stems not from Suffolk’s “subjective perception” of the terms
of the Settlement Agreement, but from the terms of the agreement itself, as the language
releasing claims for “insurance coverage” and “indemnification” does not have a single,
clear meaning. See Tallmadge, 746 A.2d at 1288. As such, the Commonwealth Court
and referee erred by failing to consider extrinsic evidence, outside of the terms of the
Settlement Agreement, to discern the parties’ intent.
As we conclude that the language of the Settlement Agreement is ambiguous, we
need not decide whether Reliance was a third-party beneficiary to the Settlement
Agreement, as this likewise involves a question of the parties’ intent. See Wilcox, 982
A.2d at 1062. The Commonwealth Court is therefore also instructed to reconsider this
question on remand in light of our decision.
[J-119-2019] - 15
For the reasons stated herein, we vacate the decision of the Commonwealth Court
and remand the case for further proceedings consistent with this Opinion.
Chief Justice Saylor and Justices Todd, Dougherty, Wecht and Mundy join the
opinion.
Justice Baer files a dissenting opinion.
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