dissenting:
I must respectfully dissent. In my judgment the holding enunciated in Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991), reaffirming Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907), should not be applied to the within factual situation. In Ruzzi and Perry, our Supreme Court held that if parties intend to include within the scope of their indemnity agreement a provision that covers losses due to the indemnitee’s own negligence, they must do so in clear and unequivocal language.
*1053In Perry, there was no question as to Perry’s negligence. A Perry employee lowered an elevator, crushing to death a Payne employee. The indemnity agreement did not provide the required coverage. Indemnity denied. In Ruzzi, Butler was found to be eighty-four percent negligent. Indemnity denied. A vigorous dissent was entered by then Justice, now Chief Justice Flaherty, dealing with the wording of the indemnity agreement.
In Bester v. Essex Crane Rental, 422 Pa.Super. 178, 619 A.2d 304 (1993), Russell Construction leased a crane from Essex. Bester, an employee of Russell, sustained a severe injury as a result of the negligence of an Essex employee. Bester sued Essex. Essex sought indemnification from Russell based upon their agreement. We held that the language of the indemnity agreement did not provide coverage for Essex for its own negligence.
In Bethlehem Steel Corp. v. Matx, Inc., 703 A.2d 39 (Pa.Super.1997), indemnity was allowed to a negligent Bethlehem indemnee. The indemnity agreement expressly permitted recovery.
As pointed out by the majority, our appellate courts have been consistent in holding that for an indemnitee to recover for its own negligence under the terms of an indemnity agreement, that agreement to indemnity must be expressed in unequivocal terms.
In the matter now before us, the holding in Perry and Ruzzi has no application to the undisputed facts. Atlantic is not attempting to recover for its own negligence. Atlantic is not a culpable party seeking protection from the consequences of its own malefaction. Judge Sheppard found that Atlantic committed no act which caused or contributed to plaintiff Mace’s injuries. The majority expresses it by stating, “Atlantic, having been loosed of all tort responsibility ...”
Barqawi was in sole possession of the premises (R. 146a). He operated the market as an independent contractor (R. 118a). He controlled the day-to-day activities of the market including the hiring, supervision, and control of all market employees (R. 118a). Atlantic did not fail to perform its obligations under the agreement. Barqawi and Atlantic share no culpability. Atlantic is not seeking recovery from the results of its own negligence. It is beyond question, Atlantic was not negligent.
Atlantic is seeking reimbursement for counsel fees that it was forced to expend in defending itself from the lawsuit instituted by Mace to recover for injuries inflicted by an employee of Barqawi. Atlantic is completely free from negligence; hence, the holding of Perry and Ruzzi should not be applied to this factual situation.
Barqawi’s failure to defend Atlantic compelled Atlantic to enter a defense in order to avoid summary judgment. It had no alternative. Hence, Atlantic seeks not indemnification for its own nonexistent negligence; rather, it is seeking reimbursement for Barqawi’s failure to defend it as set forth in the agreement and lease.
I would, therefore, reverse and remand for the determination of reasonable counsel fees.