text:
    457 A.2d 575
    Laverne PFLUGH, Appellant, v. Betty J. PFLUGH.
    Superior Court of Pennsylvania.
    Argued June 16, 1982.
    March 11, 1983.

      Joseph N. Bifano, West Mifflin, for appellant.
    Anthony A. Seethaler, Bridgeville, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal is from an order dismissing appellant’s motion to strike appellee’s petition for alimony and equitable distribution. Two issues are raised. First, it is argued that appellee failed to apply for leave to proceed under the provision of the No-Fault Divorce Code. Second, appellant contends that he failed to receive either notice or service of this petition. On the basis of either of these arguments, appellant maintains that the petition for alimony and equitable distribution should have been denied. For the reasons below, we reverse and remand.

The instant divorce action was initiated prior to the effective date of the new Divorce Code, 23 P.S. § 101 et seq. This Act also provided, for the first time in this Commonwealth, for alimony and equitable distribution of marital property in connection with an absolute divorce. Under the new Code, an action instituted prior to the effective date of the Code but not yet final may proceed under the provisions of the Code “upon application granted.” 23 Pa.S.A. § 103. Appellant argues that no such application to proceed was ever filed by appellee. We disagree. Appended to the petition for alimony and equitable distribution was a proposed order of court, which was subsequently signed by the Honorable George P. Kiester, granting her leave to file said petition. While we do not believe this to be the preferable procedure for applying for leave to proceed under the new Divorce Code, we believe it does constitute such an application.

This result is indicated by the opinion in Kaskie v. Kaskie, 295 Pa.Super. 523, 442 A.2d 261 (1982). That case also involved an alleged irregularity in the form of a request to transfer to the new Divorce Code. There, as here, a claim was filed for alimony and equitable distribution. This court held in Kaskie that such a claim was an adequate means of filing a request to transfer the proceedings to the Divorce Code.

While the lower court’s analysis comports with the language of section 103, our limited experience with the provision has disclosed a variety of methods triggering transfer of pending cases to the Divorce code. For example... There may still be other permutations of procedure that have, as yet, escaped appellate review. Considering the uncertainty that existed before the filing of our opinions in Gordon [v. Gordon, 293 Pa.Super. 491, 439 A.2d 683], Toll [v. Toll, 293 Pa.Super. 549, 439 A.2d 712], and Conrad [v. Conrad, 293 Pa.Super. 558, 439 A.2d 717] on December 18, 1981, it would be unfair to debar appellant because of a procedural irregularity in her attempt to effectuate a transfer of this case to the Divorce Code.

Kaskie v. Kaskie, supra, 295 Pa.Superior Ct. at 525-6, 442 A.2d at 262-3.

The petition before us was filed a year before Gordon, Toll and Conrad came down. Thus, the factual context present in Kaskie is parallel to the one before us on all pertinent points. Kaskie’s holding is therefore applicable here and the petition will be considered adequate in form.

As to the notice issue, Pennsylvania Rule of Civil Procedure 233(a) provides that:

All legal papers, except writs and pleadings, to be served upon a party under any Rule of Civil Procedure including but not limited to motions, petitions, answers thereto, rules, orders, notices, interrogatories and answers thereto, shall be served by leaving a copy for or mailing a copy to him at the address of the party or his attorney of record endorsed on an appearance or prior pleading of the party.. ,

The petition in question was filed on November 17, 1980 arid was granted by the Court on December 26, 1980. Appellant states that he was given no notice of this petition until receipt of a letter from appellee’s counsel mailed on March 17, 1981. The court mailed appellant on May 29, 1981 notice that a hearing would be held on the substantive matters raised by the granted petition. The record confirms appellant’s allegations and they are not denied by the trial court or by appellee.

The trial court made reference to this issue in its opinion. It is true that defendant’s petition could have been more clearly pleaded; however, it cannot be said that plaintiff was without notice.

The trial court apparently misapprehended the nature of appellant’s notice argument. It was not contended that he failed to receive notice due to a faulty wording of the petition. Appellant’s argument was, rather, that he quite literally failed to receive notice; in that he never received either informal notice or service of the petition until long after the petition was granted. This argument was clearly made and preserved in exceptions.

Appellee makes two counter-arguments on this issue. First, she states that “there was some confusion as to the procedure for filing such petitions.” We note that appellee was not so confused that she failed to file the petition with the Court. Serving a copy of the petition on the opposing party was an elementary requirement of civil procedure and her failure to do so cannot be excused.

Second, appellee argues that the granting of her petition was nondiscretionary and that, therefore, appellant was not injured by his lack of notice. Even if this were indisputably true, we would not find it a convincing reason for not keeping opposing counsel fully informed about petitions filed with the Court.

Also in opposition to appellee’s argument, this Court has established that the trial court does indeed have some discretion (albeit very little), to deny a § 103 petition. Gordon v. Gordon, 293 Pa.Super. 491, 439 A.2d 683 (1981). The existence of discretion in the trial court renders appellant’s absence from the § 103 petition proceedings a serious harm, and not merely a harmless error.

Gordon and the cases following upon it also hold that, “if one party opposes the application the court must ensure that that party has the opportunity to raise objections.” Conrad v. Conrad, 293 Pa.Super. 558 at 561, 439 A.2d 717 at 718 (1981). Appellant was given no opportunity to raise objections to the application as he was not informed of its existence.

It would be an unprofitable and highly speculative exercise for this Court to conjure up all the potential arguments for the denial of the petition and then determine if any one of them would have won the day. That is simply not an appellate court function. The fact is that appellant was denied the opportunity to make any arguments in the court below before the decision was made to grant the petition. It is that denial, through lack of notice, of a forum to challenge the petition that is determinative here; not the merit of potential arguments never made.

Research has disclosed no appellate cases dealing with a failure to comply with Pa.R.Civ.P. 233(a). The rule, being straight-forward, has evidently not been the source of controversy. However, an addition to Rule 233 has generated one instructive case. Rule 233(c) requires that all parties to a suit be served with all papers that must be served under subsection (a). Where such service was not made on another party to the suit the order pursuant to those papers was declared invalid. Falco v. Insurance Co. of North America, 72 Pa.D & C 2d 436 (1975). If an order is rendered invalid through the failure of one of the parties to a suit receiving service, then we may fairly extrapolate the same result when the only opposing party in a suit does not receive service.

The petition to proceed under the No-Fault Divorce Code with respect to alimony and equitable distribution should not have been granted in the absence of notice to the opposing party. Accordingly, we reverse and remand for proceedings consistent with this opinion, including a hearing on the application to proceed under the new Divorce Code. This Court does not retain jurisdiction.

      . 23 Pa.S.A. § 101 et seq. The instant divorce action had been initiated prior to that Act’s effective date. Leave to proceed under the new Code is provided for in 23 Pa.S.A. § 103.

      . As noted above, in the case sub judice there was also appended a proposed order of court. This strengthens our holding that the form of the application to transfer was adequate here.

      . Appellant was represented by the same counsel in a motion made on August 4, 1980 and in the initial complaint on May 5, 1980. Both of these dates occurred before the petition in question was filed. Thus, in addition to serving appellant himself, appellee had the option of serving appellant’s attorney of record.

      . The hearing was to determine the form of equitable distribution and the amount, if any, of alimony. The decision to proceed at all on these new Divorce Code matters was made the prior December when the petition was granted.

      . The faulty pleading argument went to issue number 1, above.

      . In a closely related vein, she states that she did not appear before the court to argue for her petition. Our treatment of appellee's second argument will also dispose of this argument.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    457 A.2d 858
    William C. HOHN, an individual v. NATIONWIDE INSURANCE COMPANIES, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1981.
    Filed Nov. 19, 1982.

      Michael J. Kearney, Jr., Pittsburgh, for appellant.
    Michael B. Kaleugher, Pittsburgh, for appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

This appeal follows a lower court finding that a disability insurance policy issued by appellant covered an injury suffered by appellee. Appellee, Mr. Hohn, accidentally incurred an injury to his right eye while working in his yard. He sought benefits from appellant which denied his claim saying that his injury was not compensable under the terms of the insurance policy which defines “loss” of an eye as “entire and irrevocable loss of sight.” A nonjury verdict was rendered, exceptions were denied and this appeal followed. The sole issue for our determination is whether the injury was covered by the policy. Finding that appellee’s loss is the “entire and irrevocable” one covered by the policy, we affirm.

Mr. Hohn’s injury occurred when a shovel he was using broke, striking the eyeglasses he was wearing. The shattered glass entered and injured his right eye.

Appellant denied the claim made by appellee and argues that its denial was justified because Mr. Hohn’s loss of sight was not entire and irrevocable. The company refers us to vision tests that indicate that without corrective lenses, Mr. Hohn has retained approximately one percent of his central visual efficiency. Thus, the argument goes, the loss was not entire. In any case, appellant contends that the loss could be recovered through the use of a contact lens.

Appellant urges us to find that the term “entire and irrevocable” is unambiguous and deserving of literal application. That is, appellant argues that the retention of one percent visual efficiency precludes us from finding appellee’s loss to have been entire.

We believe, however, that case law illustrates that the term requires interpretation. The loss must be both entire and irrevocable. We will first determine whether it is, in fact, an entire loss.

While we have not found Pennsylvania cases addressing the interpretation of this insurance policy clause, we have found cases in which our courts have interpreted the very similar language of the workmen’s compensation statute. See, e.g., Vovericz v. Workmen’s Compensation Appeal Board, 41 Pa.Commw.Ct. 94, 398 A.2d 734 (1979), and Wall v. Workmen’s Compensation Appeal Board, 12 Pa. Commw.Ct. 12, 315 A.2d 656 (1974), in which the Commonwealth Court applied an “all practical intents and purposes” test to determine whether an injury amounted to a permanent loss of use.

Of course, the present case is not a workmen’s compensation appeal. We mention those cases only by way of illustrating that our courts have utilized a “test” as an aid in the interpretation of language similar to that before us.

More to the point are cases from other jurisdictions in which similar insurance clauses have been interpreted. As was explained in Couch on Insurance, 2d, § 53:25, “entire loss of sight is generally interpreted to mean loss of practical use of sight, rather than literal blindness.” See Lewis v. Metropolitan Life Insurance Company, 397 Mich. 481, 245 N.W.2d 9 (1976); Roy v. Allstate Insurance Company, 34 Conn.Supp. 650, 383 A.2d 637 (1978).

In Roy, id. at 653, 383 A.2d at 638, 9, the Connecticut Superior Court wrote, “Practical use does not necessarily mean use in a particular calling or occupation, but rather that use which will render practical service in respect to many needs and pleasures.”

In Lewis, supra, the Michigan Supreme Court specifically disapproved of an earlier decision in which the Michigan Court of Appeals had found that a. 75 percent to 80 percent loss could not constitute a total and irrevocable loss.

In Wall, supra, the Commonwealth Court applied the “practical intents and purposes” test and found a permanent loss of the use of a hand, even though the claimant retained some use of it. The court cited the testimony of a doctor who said that the claimant has suffered the total loss of use of his hand.

The Wall court said that the question of whether a loss was suffered is a factual one, to be reviewed to a limited degree. We find, too, that the question of whether the entire loss was sustained is a factual one, although we have exercised a broader review as to the interpretation of the insurance contract’s terms.

We find no error in the lower court’s conclusion that appellant’s loss was entire.

Without corrective lenses, appellant’s right eye is essentially of no use to him. Although he could apparently recognize fingers held at some distance from him, this alone does not indicate practical use of his eye. On the contrary, appellant testified that without a corrective lens, he cannot (using only his injured right eye) read street signs, operate an automobile, or see or recognize automobiles.

In a deposition which was made part of the evidence at trial, appellant’s doctor explained in detail the nature of the injury and said that in conjunction with his normal left eye, the injured right eye (without a corrective lens) is essentially useless to appellant.

We must find that the 99 percent loss of vision suffered by appellant is an entire one.

Having concluded that the loss of sight is entire, we must determine whether it was irrevocable.

Appellee was injured in October, 1976. Surgery was performed on that date to repair a corneal laceration and remove a traumatic cataract. Treatment continued, and in October, 1977, appellant was fitted with contact lenses. After corrections were made to the lenses and another operation was performed to remove a cataract that resulted from the original injury, appellant’s distant vision with the contact lenses was found to be approximately 20/20. Appellee did testify that he had some problems wearing the lenses; in particular, he complained of scattering of light. That problem is one that the doctor said is not treatable.

Worse though, than the discomfort that appellee may experience is. the fact that although the contact lenses substantially improve his vision, he can wear them for only eight to ten hours a day. His doctor explained that because of corneal scar which was left on appellee’s eye, it would be unsafe for him to wear the lenses any more than those hours. The doctor further testified that there is no reason to believe that appellee’s condition will improve, enabling him to wear the lenses for a longer period.

The doctor explained that appellant can read only if he wears both the contact lenses and bifocal glasses. Therefore, his reading ability is limited to the hours when he can wear the lens.

As we noted earlier, appellee’s physician concluded that without the contact lens, appellee’s right eye is, for practical purposes, useless.

We cannot say that the entire loss we have found exists is recoverable when appellee has no use of his right eye for 16 hours a day. (Even assuming that he sleeps eight hours, appellee has no use of his right eye for eight hours.) In this connection, we note the Roy case, supra. The claimant in that case had been able, for a short time, to wear contact lenses for four hours a day. The Connecticut Superior Court opined that even if he were still able to wear the lenses for that period each day, “we would hesitate to conclude that the plaintiff’s ability to have some functional vision in his right eye for a maximum of four hours” a day is equivalent to recovery of the practical use of his eye.

.While we do not mean to suggest that a recovery of 20/20 vision is necessary to relieve the insurance company of liability, we also cannot find that eight hours of sight is a recovery of the practical, everyday use of appellee’s eye.

Order affirmed.

MONTEMURO, J., concurs in result.

      . In January, 1982, we quashed the instant appeal because no judgment had yet been entered. An order denying exceptions is not itself an appealable order. See Pa.R.A.P. 301(c). Judgment was entered on January 25, 1982 and a petition for reconsideration was granted in February. We now reach the merits of the appeal.

      . The earlier case is Sump v. St. Paul Fire and Marine Insurance Company, 21 Mich.App. 160, 175 N.W.2d 44 (1970).


author: POPOVICH, Judge:

text:
    457 A.2d 861
    In re ESTATE OF Margaret C. AGOSTINI, Deceased. Appeal of Maria Agostini LEPS and Marco Agostini, Exceptants. In re ESTATE OF Margaret C. AGOSTINI, Deceased. Appeal of Maria Agostini LEPS and Marco Agostini, Exceptants.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1982.
    Filed Jan. 28, 1983.
    Reargument Denied April 8, 1983.
    Petition for Allowance of Appeal Denied June 24, 1983.

      James R. Beam, Norristown, for appellants.
    Stephen M. Cushmore, Norristown, for participating parties.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   POPOVICH, Judge:

This case involves consolidated appeals from the Orders of the Court of Common Pleas of Montgomery County, Orphans’ Court Division, concerning the validity of the Will of Margaret C. Agostini, who died at the age of 82, and the proposed dispersement of estate assets (valued at approximately $140,000.00) in accordance therewith. We affirm.

Procedurally, we observe that initially the appellants, Maria Agostini Leps and Marco Agostini, sought to have the Will of the decedent invalidated. After the court en banc dismissed their exceptions to the trial court’s Decree Nisi upholding the validity of the testamentary document, an appeal, docketed at No. 928 Philadelphia 1981, was filed with this Court. During the pendency of the aforementioned appeal, the executors-appellees, Louis Agostini and Helen Mickel, petitioned the trial court to issue an order directing a bank to release estate funds deposited with the institution. An order was so entered, exceptions thereto were dismissed by a court en banc and an appeal, docketed at No. 221 Philadelphia 1982, was filed with this Court. On March 9, 1982, this Court consolidated the two cases for argument and appeal purposes.

Since both appeals question the chancellor’s findings of fact and conclusions of law, approved by a court en banc, the standard of review consists of the following:

“ ‘[T]he findings of fact of the [c]hancellor who heard the testimony without a jury, approved by a court en banc, are entitled to the weight of a jury’s verdict; that such findings are controlling and that the court’s decree should not be reversed unless it appears that the court abused its discretion or that the court’s findings lack evidentiary support or that the court capriciously disbelieved the evidence.’ The chancellor’s findings are especially binding where they are based upon the credibility of the witnesses.” (Citations omitted) Hankin v. Hankin, 279 Pa.Super. 179, 196-197, 420 A.2d 1090, 1099 (1980).

The caveat to the preceding was reiterated most recently by this Court in the case of In re Hanley Trust, 307 Pa.Super. 153, 163, 452 A.2d 1360, 1365 (1982):

“ ‘ “However, the chancellor’s ‘conclusions whether of law or ultimate fact are no more than his reasoning from the underlying facts and are reviewable’, especially ‘where the underlying facts themselves are not in esse but are matters of inference and deduction’. [Citing cases.] Furthermore, a chancellor’s findings of fact, even though approved by a court en banc, need not be accepted as conclusive if there is no evidence to support them or if they are based on an inference erroneously taken [citing cases] or where the evidence, in order to prevail, must be clear, precise and indubitable or must meet some other prescribed standard [citing a case].” ’ ” (Citations omitted) Id., 307 Pa.Superior at 163, 452 A.2d at 1365. Accord McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991 (1982); Easton Theatres, Inc. v. Wells Fargo Land and Mortgage Co., 265 Pa.Super. 334, 401 A.2d 1333 (1979).

Although both appeals deal with the same parties and subject matter (decedent’s Will), for ease of discussion we shall treat each case in seriatim.

Appeal at No. .928 Philadelphia 1981

The background and circumstances giving rise to this particular appeal, which appear in part in the Opinion of the court below, are as follows: In 1951, the appellants (Maria and Marco) were adopted by the decedent and her husband. Maria lived with the decedent until 1967, thereafter she was married and moved to Oreland, Pennsylvania. Marco, in 1956 and at the age of 18, left home to join the army. Decedent, afflicted with diabetes, degenerative arthritis and gout, moved to Florida in 1971 after her husband died. During her stay in Florida, decedent was cared for by a niece, Ann Maestri. In 1978, decedent returned to this Commonwealth, stayed with Maria for four or five weeks and then moved into an apartment of her own. Shortly thereafter, decedent met with her attorney (Timothy Timoney) to arrange to change her Will—it is to be noted that while in Florida, decedent changed her Will seven times. In accordance with the wishes of the decedent, counsel drafted the testamentary document and had it executed on December 8, 1978. One reason for this latest revision was to “disinherit” Ann Maestri. Decedent felt that Ms. Maestri had not done enough for her to warrant what was provided for the niece in her Will.

On March 29, 1979, decedent sustained burns to her feet while attempting to use the bathtub. It was not until the next day, when the daughter came to visit and observed the injury, that a Dr. Borska was contacted. An examination revealed that the decedent had incurred first and second degree burns that ordinarily would have been considered fairly minor. However, since the decedent was a known diabetic suffering from arteriosclerotic cardio-vascular disease, the threat of infection was serious. Consequently, when the prescribed medications did not improve the decedent’s condition, Dr. Borska admitted her to the hospital a week after the accident.

During the decedent’s stay in the isolation unit, she remarked to an attending nurse that she was disenchanted with her daughter, Maria. This same nurse also testified that decedent, on occasion, would become perturbed and “yell” at Maria.

On April 12, the decedent was moved to a semi-private room and, for the first time, was visited by Rena McHugh (Rena), her niece. During the visit, decedent asked Rena to contact her nephew, appellee-Louis Agostini (Louis), in Scranton, Pennsylvania regarding the transfer of her monies to a bank there. Louis was contacted by Rena and decedent sent him a letter dated May 4, 1979, wherein she wrote: “I want everything done properly because these two [—Maria and Marco—] are going to get a shock they won’t forget.” However, the transfer was never effectuated, apparently because a bank official told Louis that the plan was not feasible.

On May 15, decedent was advised that the injury she sustained would require amputation of a toe. Over the next few days, decedent requested that the surgery be postponed until she could speak with her attorney. In fact, at one point, she asked to be released so it could not be said later that her hospitalization was indicative of her incompetency in matters dealing with her property. Decedent’s physician dispelled such notions by assuring her that she was fully alert, oriented and in possession of her faculties. This evaluation of decedent’s competency was corroborated by the attending nurse from the isolation unit, to which decedent was transferred on May 18. According to the nurse, confusion on decedent’s part did not manifest itself until May 29.

On the evening of May 18, decedent summoned Attorney Timoney and the two spoke for IV2 hours about changing her Will of December 8, 1978. According to counsel, decedent’s primary reason for the revision was to have Maria treated differently. Decedent recounted how she was dissatisfied with the manner in which Maria had cared for her after the accident; that an argument had ensued between the two in which Maria had said things that she would never forget.

Counsel, after reviewing the entire dispositive scheme, felt that the proposed distribution appeared to be an “overreaction” by the decedent to the recent turn of events. She refuted this, contending instead that she had expended enough money on her adopted children and that she did not owe them anything. The next day the decedent sent a letter to counsel supplying a beneficiary’s address.

On May 21, counsel presented decedent with the revised Will. She read the document, paragraph by paragraph, and remarked that she was satisfied with the changes. When counsel again inquired if the instrument and the modifications contained therein were an “overreaction” on her part, decedent answered in the negative. Thus, the Will was executed and witnessed by counsel and a nurse. The following day, decedent had one of her toes removed. Although the attending physician noted in the hospital log that decedent was cheerful the day after the operation, the infection was not arrested and decedent’s leg was amputated on May 30, 1979. Her mental condition deteriorated thereafter and she died on July 4.

On appeal, as well as in the proceedings below, appellants allege that the Will of May 21 should be ruled invalid either because: (a) it was the product of an insane delusion which affected testatrix’s testamentary capacity; or (b) it was the product of undue influence exerted by Rena McHugh.

We commence our discussion by observing that a Will should not be declared invalid except for compelling reasons. This is premised upon the concern of the law with protecting the testator and the legal objects of his bounty. “ 'His property is his own, and he can dispose of it as he pleases, in life, and, after death, by means of his will.’ ” (Citation omitted) In re Duncan’s Will, 147 Pa.Super. 133, 136, 23 A.2d 357, 358 (1941). Moreover, a testator with children can disinherit some or all of them for any reason whatsoever; he can give in. his lifetime and also by Will all of his property to the poor or to any charity he may desire, or he can give it to a friend, or he can prefer one child over all the others. Stated differently, a testator does not have to give any of his property to those he loves or to the relative society believes he should love, and he can give it in such a way that 99 percent of his fellow-citizens believe is foolish, unjust or outrageous. In re Sommerville’s Estate, 406 Pa. 207, 225, 177 A.2d 496, 505 (1962). The preceding is in accordance with the established law of Pennsylvania that:

“... every individual may leave his property by [Wjill to any person, or to any charity, or for any lawful purpose he desires, unless he lacked mental capacity, or the [Wjill was obtained by forgery or fraud or undue influence, or was the product of a so-called insane delusion.” In re Johnson’s Estate, 370 Pa. 125, 127, 87 A.2d 188, 190 (1952).

Where a Will is drawn by decedent’s lawyer and proved by him and the subscribing witnesses, as was the case here, the burden of proving testamentary incapacity is upon the contestants, and “that burden can be sustained only by clear and strong or compelling evidence of lack of testamentary capacity or of undue influence____” (Citation omitted) In re Higbee’s Will, 365 Pa. 381, 382, 75 A.2d 599, 600 (1950); see also In re Estate of Hastings, 479 Pa. 122, 387 A.2d 865 (1978). Similarly, the burden of proving an insane delusion is on the person who asserts it. In re Leedom’s Estate, 347 Pa. 180, 32 A.2d 3 (1943).

It would not be presumptuous to note that the formulation of a definition of an insane delusion which covers every possible case is a difficult one. Nonetheless, a general rule has evolved that it must be, as its name implies, an insane delusion, and it must have caused decedent to make his Will in a manner entirely different from what he would have if the insane delusion did not exist. In re Estate of Protyniak, 427 Pa. 524, 235 A.2d 372 (1967). As our Supreme Court observed in the case of In re Johnson’s Estate, supra, 370 Pa. at 129, 87 A.2d at 190:

“ ‘It is well settled that “A delusion which will render invalid a [W]ill executed as the direct result of it is an insane belief or a mere figment of the imagination—a belief in the existence of something which does not exist and which no rational person, in the absence of evidence, would believe to exist.” ’ ” (Citation omitted)

The Court further pertinently said in In re Sommerville’s Estate, supra:

“[I]t is not enough that the testatrix should have a delusion—it must be an insane delusion. This distinction has been clearly drawn ever since 1902 when this Court in Bennett’s Estate, 201 Pa. [485] at page 490, 51 A. at page 336, supra, said:
‘But all delusions are not insane delusions. A man may, from information given him, believe that his son is dead, when in point of fact, the son is alive. The father’s belief is a delusion; and if, when his son appears to him in person and explains the information was false, the father persists in thinking him dead, his belief becomes an insane delusion. The difference between the two species is that one is the product of reason, and the other a figment of the imagination.’ ” (Emphasis in original) Id. 406 Pa. at 220, 177 A.2d at 502.

As stated earlier, the burden of showing that decedent was suffering from an insane delusion and that such controlled her volition and destroyed her freedom of action in disposing of her estate was on contestants-appellants. To meet this, appellants cite us to “the most persuasive evidence of decedent’s ‘insane delusion’.” That is, “the stories which decedent told the various witnesses[, who testified at trial,] as to why she rewrote her [W]ill to downgrade her daughter, Maria.” Specifically, appellants make reference to the following:

“Florence Agostini, wife of proponent, Louis Agostini, testified decedent told her that Maria had not changed the dressing on her feet as often as she was supposed to ...; Rena McHugh said that decedent told her Maria had gone away and [had] not changed the dressing on her feet three times daily as Dr. Borska had prescribed ... that decedent said Maria went away for six days ..., then said decedent never stated that Maria was not taking care of her ..., then testified decedent said Maria went away for six days ..., then said decedent was mad at Maria because Maria did not call while away ...; nurse Elaine Yolk called by proponents testified decedent told her she was angry at Maria because it was Maria’s fault that her feet were scalded ... and no other complaint [was made to the nurse] about Maria and [decedent] never complained that Maria had not properly cared for her ... and [decedent] never said [to the nurse] that Maria had gone away and left her unattended for six days ...; proponent Helen Mickel testified decedent told her Maria left decedent unattended for three days ...; decedent told Thomas Timoney, Esquire that Maria had left decedent unattended [for five days] ...; and Jean Jennings testified that decedent said Maria left her unattended for 5-6 days.
Maria testified that she changed the dressings on her mother’s feet three times every day as Dr. Borska directed ...; her husband, Richard, verified that Maria never was away a single day ...; and Dr. Borska confirmed that his instructions for [the] care of [the] decedent had been carried out .... ” (Appellants’ Brief at 12-14)

Additionally, appellants point to the psychiatric testimony of Drs. Sibert and Kilgour. The former considered the decedent to be “regressed,” vulnerable to mispreceptions, childish and illogical, as well as prone to being suspicious, paranoid and subject to turning first on her family. Doctor Kilgour found decedent to be suffering from organic brain syndrome and an insane delusion. However, of relevancy here is that both psychiatrists had never seen or interviewed the decedent. In fact, their medical opinions on decedent’s testamentary capacity were predicated upon a review of the hospital records furnished by the Chestnut Hill Hospital where decedent stayed, a reading of the trial record and Maria’s testimony at the proceedings. (RR. 584a & 690a) Because of these circumstances, the testimony (“opinion”) of the psychiatrists is entitled to little weight. See In re Estate of Brantlinger, 418 Pa. 236, 248, 210 A.2d 246, 253 (1965); Masciantonio Will, 392 Pa. 362, 384, 141 A.2d 362, 373 (1958); In re De Maio’s Estate, 363 Pa. 559, 562, 70 A.2d 339, 341 (1950). “We are concerned with testatrix’s mental capabilities at the time she executed the [W]ill, and testimony of her condition close to that time must be considered more significant.” (Citations omitted) In re Estate of Brantlinger, supra, 418 Pa. at 248, 210 A.2d at 253; see also In re Estate of Hastings, supra; In re Dovci’s Estate, 174 Pa.Super. 266, 270, 101 A.2d 449, 451 (1953). Evidence of such state of mind may be received for a reasonable time before and after execution as reflective of decedent’s testamentary capacity. This information can be supplied by lay witnesses as well as experts. See In re Estate of Kuzma, 487 Pa. 91, 94, 408 A.2d 1369, 1371 (1979). In this regard, the doctors who treated decedent during her stay in the hospital testified to her mental condition. In particular, Dr. Messori, the attending physician, recalled that from April 7 through May 21 of 1979 he visited the decedent fifteen times, for approximately ten minutes per visit. He engaged the patient in conversation about her general medical problems and advised her of the appropriate care. Based on such discussions and Mrs. Agostini’s physical condition, Dr. Messori was of the opinion that: “Mrs. Margaret Agostini did not have any impairment of intellectual function up until and including May 21st.” (RR. 1101a) Subsequent examinations by the witness on May 23 and 25 did not alter his initial view. It was not until June 16, 1979 that the witness observed a deterioration in decedent’s mental and physical condition.

As for Dr. Brobyn, who was the plastic surgeon on the case and saw the decedent fifteen times between April 7 and May 16, 1979, his opinion of decedent’s mental condition was consistent with Dr. Messori’s. (RR. 1182a-1183a)

Appellees also presented the testimony of Elaine Yolk, the head nurse of the isolation unit, who spoke with the decedent on numerous occasions during her initial 5-day stay (April 7-12 of 1979) in that area of the hospital. The witness found the decedent to be “alert and oriented to person, place and time.” (RR. 778a) When the decedent returned to isolation on May 18 through May 25, to minimize the likelihood of infection, the witness’ opinion of the decedent remained unchanged. (RR. 787a) For example, the witness detected no signs of memory impairment, confusion or disorientation on the part of the decedent. (RR. 789a)

Counsel who prepared decedent’s December 8, 1978 Will testified that on May 18, 1979 he received a message to see the decedent at Chestnut Hill Hospital. At that time, decedent informed counsel of the circumstances leading up to her injury and that she wanted to make another Will so as “to treat Maria substantially different in a new [WJill than in the old [Wjill, that she had had a dispute with Maria.” (RR. 948a) She said that the dispute was over the amount of care she expected Maria to give her at home after the injury; and that the dispute became so heated that she told Maria, “Leave me and don’t come back. I don’t want you in my house anymore.” (RR. 952a) Furthermore, decedent told counsel that a new Will was warranted because “a lot of money had been spent on both [Maria and Marco] ..., [and] she didn’t feel she owed them anything.” (RR. 956a)

Counsel complied with his client’s wishes and drew up a new Will. On May 21, 1979 the document was presented to the decedent, who manifested no indicia of a weakened intellect. Each paragraph of the instrument was read and then commented upon by the decedent. At this time, decedent reaffirmed her desire to have the new Will finalized, despite the change in the disposition of some property regarding certain beneficiaries. Thereafter, the Will was signed and witnessed by counsel and Diana Cargo, a nurse on duty.

It would serve no purpose to detail further and discuss the testimony. We have carefully reviewed the entire record (consisting of 10 volumes of testimony and exhibits) and find it free from legal error, abuse of discretion, or capricious disbelief of competent or credible evidence. Also, we find that, since a substantial dispute was raised by the evidence, it was for the fact finder to determine whether or not the testatrix had testamentary capacity. We are of the opinion, therefore, that the lower court did not err in refusing to hold as a matter of law that the Will was invalid due to alleged delusions entertained by the testatrix. See In re Estate of Hastings, supra, 479 Pa. at 128-129, 387 A.2d at 868-869; In re Duncan’s Will, 147 Pa.Super. 133, 23 A.2d 357 (1941).

Lastly, appellants maintain that the Will is invalid because it was the product of undue influence imposed upon testatrix by Rena McHugh. As the lower court stated on this subject:

“The evidence is simply insufficient to support the contention.
The uncontradicted testimony is that Rena McHugh was not present during the conversations the decedent had with her attorney. Neither Rena nor Jack McHugh contacted Mr. Timoney to arrange for the change of the [W]ill. The latter testified that, throughout his discussion with the decedent, Rena McHugh’s behavior or influence was never mentioned. The decision to decrease the contestants’ share was that of the decedent alone. She remained steadfast in her decision. Elaine Volk testified that the decedent expressed dissatisfaction with her daughter before Rena McHugh ever visited her. So clearly, Rena could not have been the origin of that emotion.
In that connection, the contestants charge Rena McHugh with reinforcing decedent’s dissatisfaction with Maria. There is no concrete evidence to support the proposition. While it may be true that Rena McHugh flattered the decedent and stressed her own poor financial status, and may even have artfully suggested that Maria seemed well off, this is not enough to establish that she exercised such control over the decedent as to overpower the decedent’s free will. This is particularly the case here where decedent’s history and actions suggest a strong personality.
The contestants assert that Rena and Jack McHugh took steps designed to gain control over all of the decedent’s assets. Indeed, Louis Agostini was contacted to aid in the contemplated transfer of the decedent’s funds to the Scranton area. But this was not initiated by Rena McHugh. On the contrary, it was the decedent’s idea. Furthermore, after an intitial [sic] inquiry by Louis at a Scranton bank, the matter was apparently not pressed by any of the parties, including the decedent.
Finally, it is to be noted that decedent’s action in changing her will because she was angry with someone who was a beneficiary named in her [W]ill was entirely consistent with her history. Decedent changed her [W]ill often, for a variety of reasons, including that of taking a transgressor—real or imagined—out of the [W]ill. It is clear she did so here for reasons she felt sufficient, and not under the control of Rena McHugh. She was not obligated to disclose her reasons for disinheriting her daughter. A parent owes no obligation to his children to leave them any property. Estate of Sommerville, 406 Pa. 207, 177 A.2d 496 (1962).
We conclude that the contestants have not sustained their burden of proving undue influence.” (Lower Court Opinion at 8-10)

In face of the aforementioned, which we find no reason to dispute, appellants argue that the burden shifted to the proponents-appellees to prove that the questioned document of May 21, 1979 was not the result of undue influence for the reason that a weakened mentality and confidential relationship were proved. (Appellants’ Brief at 34)

It is clear to us, as it was to the court below, that appellants failed to establish the existence of a confidential relationship which, coupled with the weakened mentality, would have shifted the burden to proponents-appellees to prove that testatrix’s Will was not procured by the exercise of undue influence. See In re Estate of Treitinger, 440 Pa. 616, 269 A.2d 497 (1970); In re Estate of Brantlinger, supra.

Thus, with the burden upon the appellants to establish undue influence, they were required to show by clear and convincing evidence that there was imprisonment of the body or mind, fraud or threats or misrepresentation, or circumstances of inordinate flattery, or physical or moral coercion to such a degree as to prejudice the mind of the testatrix or destroy her free agency, or to operate as a present restraint upon her in the making of the Will. Quein Will, 361 Pa. 133, 145, 62 A.2d 909, 915 (1949). There is nothing in the instant record to show that Rena McHugh, or for that matter any other person, exercised any such control over testatrix in the making of her Will. In other words, the record is barren as to any indication that any type of influence was exercised upon or directed toward decedent by any one concerning the formulation and carrying out of her testamentary plans. Also, no other person made the arrangements for her consultation with her attorney on the subject; in fact, she phoned counsel herself. Nor was anyone present when testatrix discussed the drafting with him. Indeed, according to the uncontradicted testimony of the lawyer-scrivener, decedent was quite emphatic and definite in her decision despite questioning by the attorney on the subject at the time. See In re Estate of Abrams, 419 Pa. 92, 100, 213 A.2d 638, 643 (1965); In re Franz’ Estate, 368 Pa. 618, 84 A.2d 292 (1951) and compare with In re Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975) and Fees v. Green, 365 Pa. 368, 75 A.2d 602 (1950). Consequently, we are in agreement with the court below that appellants presented no clear and convincing evidence of undue influence which would be sufficient to void the Will. In re Estate of Protyniak, supra.

Appeal at No. 221 Philadelphia 1982

This case deals with appellants’ appeal from the lower court’s order, affirmed by a court en banc, directing a lending institution to release the assets it held in the name of the decedent to the estate. We affirm.

The facts pertaining to the instant litigation, which are based upon the testimony and exhibits produced in the Will contest case and three separate Stipulations of Counsel, consist of the following: From 1972 through the latter part of 1978, decedent made her home in Florida. Subsequent thereto, she returned to Pennsylvania and resided here until her death. While decedent was domiciled in Florida, she obtained three certificates of deposit in the amount of $5,000 each. Certificate No. 59115 was issued to: “Margaret Agostini, Trustee, Luisa Leps, Beneficiary.” Accounts No. 59116 and No. 59117 had similar designations for Richard Leps, Jr., and for Steven Leps. The three named beneficiaries are Maria’s children and decedent’s grandchildren. It so happened that on the same day that decedent affixed her signature to the contested Will, she mailed a handwritten letter to the Florida bank that issued the certificates and asked that the beneficiaries be removed and her name placed thereon. The bank, by letter dated May 24, 1979, responded and specified that, before any changes could be effectuated, its own internal operating procedures would have to be complied with, and this included the return of the certificates to the bank. However, the bank’s procedures were never followed by the decedent.

After decedent’s death, Maria secured the proceeds of the certificates and deposited the funds in her own name in trust for her children at the Bank and Trust Company of Old York Road, Dresher, Pennsylvania. Upon petition by appellees, the funds were “frozen” by order of the lower court.

Appellants urge that: 1) the lower court erred in concluding that Pennsylvania law, rather than Florida law, controlled the determination of what legal consequences resulted from decedent’s purchase of the certificates registered in her name as “trustee” for the grandchildren; and 2) that the lower court erred in concluding that even if the certificates were tentative trusts, the evidence was sufficient to prove that decedent revoked the “trustee” registration.

As to appellants’ first averment, concerning whether a tentative trust or a completed gift resulted from the registration of the certificates in decedent’s name as trustee for her grandchildren, we determine that Pennsylvania law, rather than Florida law, controls. Such finding is predicated upon the rule set forth in Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964).

In Griffith, plaintiff’s decedent purchased an airlines ticket from United Air Lines, Inc., in Philadelphia for a flight to Phoenix, Arizona. This passenger was killed when the plane crashed in the course of landing at Denver, Colorado. United is a Delaware corporation with its principal place of business in Chicago. It regularly does business and maintains operational facilities in Pennsylvania. Decedent’s Will was probated in Pennsylvania and his survivors resided therein. An action in assumpsit was brought in Pennsylvania by decedent’s executor, pursuant to the Fiduciaries Act of April 18, 1949, P.L. 512, § 603; 20 P.S. § 320.603. Preliminary objections were filed, and the lower court held that the law of the place of the injury, Colorado, not the law of the forum, Pennsylvania, controlled the matter of damages. Since plaintiff may have recovered substantial damages under Pennsylvania law, but virtually nothing under Colorado law, he appealed.

In an exhaustive examination of the law of conflicts, the Supreme Court reversed and said that under such a state of facts, the law of the forum would be applied. By so doing, the Court embraced a “government interest analysis” approach for resolving choice of law questions. See Harrison v. Wyeth Laboratories, 510 F.Supp. 1 (E.D.Pa.1980). This flexible approach permits analysis of the policies and interests underlying the particular issue before the court, and gives the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual context and thereby allows the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of the particular litigation. Griffith v. United Airlines, Inc., supra, 416 Pa. at 21-22, 203 A.2d at 805-806; Abiaad v. General Motors Corp., 538 F.Supp. 537, 543 (E.D.Pa.1982).

We observe that Pennsylvania has not restricted the application of this flexible choice of law solely to conflict questions involving torts. See, e.g., In re Adoption of Hunter, 421 Pa. 287, 218 A.2d 764 (1966) (question of whether law of West Virginia or Pennsylvania applied in deciding if natural mother “consented” to adoption); Nationwide Mutual Insurance Co. v. Walter, 290 Pa.Super. 129, 434 A.2d 164 (1981) (New Jersey rather than Pennsylvania was determined to have the most vital contacts, so New Jersey law was looked at to interpret insurance contract); Gillan v. Gillan, 236 Pa.Super. 147, 345 A.2d 742 (1975) (validity of separation agreement); see also Argo Welded Products v. J.I. Ryerson Steel & Sons, 528 F.Supp. 583, 586 & n. 6 (E.D.Pa.1981) (Pennsylvania applies the same choice of law—interest of analysis approach—to conflict questions involving tort, contract or sales); Culbreth v. Simone, 511 F.Supp. 906, 913 (E.D.Pa.1981) (contract).

Thus, contrary to appellants’ position that Griffith be construed to apply only to tort cases, we find that Griffith and its progeny articulate an approach to all conflicts of law which call for the application of the law of the state having the most significant contacts or relationships with the particular issue. Griffith v. United Airlines, Inc., supra, 416 Pa. at 22, 203 A.2d at 806. When doing this, it must be remembered that a mere counting of contacts is not what is involved. The weight of a particular state’s contacts must be measured on a qualitative rather than quantitative scale. Cipolla v. Shaposka, 439 Pa. 563, 566, 267 A.2d 854, 856 (1970). When applied to the case at bar, this means we must determine which state—Pennsylvania or Florida— “has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law.” McSwain v. McSwain, 420 Pa. 86, 94, 215 A.2d 677, 682 (1966). We wish to make it clear, the applicability of the “government interest analysis” approach is not rendered inoperative in the context of the probate of an estate. See In re Estate of Janney, 498 Pa. 398, 446 A.2d 1265 (1982) (in the probate of an estate where the decedent, domiciled in Pennsylvania, devised realty in New Jersey, the law of the situs was superceded by the law of the domicile state because the formalities in question complied with the requirements of the state of domicile); Gillan v. Gillan, supra (Griffith overruled a substantial body of Pennsylvania case law and adopted the new Restatement of Conflict of Laws (Second) § 379 approach to conflicts problems); Grant v. McAuliffe, 41 Cal.2d 859, 264 P.2d 944, 949 (1953); D’Urbano Estate, 29 Fid.Rptr. 557 (O.C.Montg.Cty.1979).

To begin with, since the certificates of deposit have been redeemed and the proceeds “frozen” by court order in a Pennsylvania bank, the decedent’s entire estate is now located here and waiting to be distributed. Additionally, letters of administration were issued to the appellees by a court of this Commonwealth, and, therefore, a Pennsylvania court retains control over the administration of the estate. Consequently, when, as in the present case, all of the parties are domiciliaries of this Commonwealth and the estate of the deceased is being administered here, our Commonwealth is vitally concerned with all facets of the distribution of decedent’s property. See Griffith v. United Airlines, Inc., supra; Grant v. McAuliffe, supra; D ’Urbano Estate, supra.

Even though Florida was the domicile of the decedent at the time the certificates of deposit were acquired, this is hardly sufficient to give Florida an interest in the application of its policies concerning trust accounts. Moreover, given the fact that Florida does subscribe to the “tentative” trust doctrine, Seymour v. Seymour, 85 So.2d 726 (Fla. 1956) (Savings account), we are in actuality doing exactly what Florida would do by deciding whether the certificates of deposit were effectively revoked by the decedent prior to her death, so as to bring the proceeds within the corpus of the estate for distribution purposes. See Title 38, Chapter 658, Section 658.56 of the Florida Banking Code, 19 Fla.Stat.Anno. § 658.56(1) & (2) (Supp.1982) (Presumption that right, title and interest to the proceeds of a certificate of deposit are to devise to surviving account holder or holders may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent). Thus, based on the preceding, there would appear to be no real conflict of laws in this case. See, e.g., Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966); McSwain v. McSwain, 420 Pa. 86, 215 A.2d 677 (1966); Traynor, Robert J., Is This Conflict Really Necessary? 37 Tex.L.Rev. 657, 670 (1959); see also Egnal, John David, The “Essential” Role Of Modern Renvoi In The Governmental Interest Analysis Approach To Choice Of Law, 54 Temp.L.Q. 237 (1981).

Having decided that the law of this jurisdiction is to be viewed as the benchmark against which the validity of decedent’s (attempted) revocation of the tentative trusts is to be measured, we can now turn to appellants’ second averment, i.e., was there sufficient proof presented to establish that decedent revoked the “trustee” certificates. We commence this discussion by observing that:

“Where property of any kind (with exceptions hereinafter discussed) is placed in the name of the donor or settlor in trust for a named beneficiary, the general principle of law is well settled that such facts create a trust which is prima facie irrevocable.
However, an exception to the general principle was engrafted onto and was incorporated in the law of Pennsylvania with respect to a deposit in a savings account by one person of his own money, in his own name as trustee for another. Scanlon’s Estate, 313 Pa. 424, 169 A. 106, ... which adopted the New York rule laid down in In re Totten, 179 N.Y. 112, 71 N.E. 748, 70 L.R.A. 711, is the leading case. The law is well summarized in the syllabus in Rodger’s Estate, 374 Pa. 246, 97 A.2d 789, supra, which reads:
‘1. A [savings] bank deposit by one person of his own money, in his own name, as trustee for another, standing alone, creates merely a tentative trust, revocable at will, until the depositor dies or completes the gift in his lifetime.
‘2. A tentative trust may be revoked, among other means, by (1) oral declarations of the depositor, and (2) facts and circumstances resulting in inadequacy of the estate assets to satisfy the testamentary gifts, funeral and administration expenses, taxes and other charges.
'3. Restatement, Trusts, § 58, cited.
‘4. It was Held that the testimony of the scrivener of decedent’s [W]ill as to his conversations with the testatrix leading to the preparation of her [W]ill was admissible to show her intention that the tentative trust be revoked.
‘5. It was Held that the circumstantial evidence was insufficient to establish that settlor intended to make the tentative trust irrevocable.
However, the tentative trust doctrine has never been extended to any property other than a savings account (or savings share account in a building and loan association) where the donor with his own money opened such an account in his own name in trust for the donee\f\
******
In Ingels Estate, 372 Pa. pp. 176-177, 92 A.2d pp. 883-884, supra, the Court said:
‘The presumption that a revocable trust is intended by such a deposit is an exception to the general rule that trusts are irrevocable unless a power of revocation is expressly [or impliedly] reserved. * * * Because the exception depends on the peculiar circumstances of this type of transaction, we have never extended the doctrine of tentative trusts to any property other than a savings account. “It is clear that a similar trust of property other than savings bank deposits would be invalid,” ’ ” (Emphasis in original) (Footnotes omitted) In re Brose’s Estate, 416 Pa. 386, 396, 206 A.2d 301, 306-307 (1965).

That portion of the Brose case cautioning that the tentative trust had not been extended beyond the strictures of a savings account or a savings share account is no longer viable. In 1976, the Legislature of Pennsylvania promulgated the Act of 1976, July 9, P.L. 547, No. 134, §§ 1 and 2, eff. September 1, 1976; 20 Pa.C.S.A. § 6301 and 6304 (Supp.1982-83) and enlarged the “trust account” to include: “a checking account, savings account, certificate of deposit, share account and other like arrangements.” 20 Pa.C.S.A. § 6301.

No one contends, and the record does not indicate otherwise, that the certificates of deposit, captioned “Margaret Agostini, Trustee” for three separate beneficiaries, were not secured with the decedent’s own money. Thus, it cannot be denied that the certificates were tentative trusts. In re Brose’s Estate, supra. Such being the case, we must now look to the manner in which the trusts could be revoked by the settlor. On this exact topic, this Court has stated:

“A tentative trust can be revoked by the depositor at any time prior to death by any clear manifestation of an intention to do so. No particular formalities are necessary to effect a revocation. Restatement of Trusts 2d, § 58, comment c. It may be revoked by a transfer of the deposit; by the terms of the depositor’s [W]ill; by the depositor’s unequivocal act or declaration of disaffirmance; or by facts and circumstances resulting in inadequacy of the estate assets to satisfy the testamentary gifts, funeral and administration expenses, taxes and other charges.
There is no rule which excludes oral declarations of revocation. Pennsylvania courts, on the contrary, have repeatedly said that a depositor may revoke a tentative trust by oral declaration.” (Emphasis added) (Citations omitted) Estate of Vittorio, 290 Pa.Super. 329, 332, 434 A.2d 777, 779 (1981).

What was the evidence of revocation which satisfied the chancellor and orphans’ court en banc instantly? The court en banc found “that decedent’s letter, dated May 21, 1979, to the First Family Federal Savings & Loan was a clear revocation of the trust.” (Lower Court Opinion at 6) We agree. The letter in question reads:

“May 21—1979
Dear Mr. Scneider [sic]:—
I wish to ask you if you would put my certificates in my name only with no beneficiares [sic] attached. I may not redeemed [sic] them and if I can manage without them I would like them to remain in your bank.
Tomorrow I am having my big toe amputated and dont want any beneficiares on the certificate, [sic] They [sic] doctor said I should not worry but naturally I do. Thanking you.
/s/ Mrs Margaret Agostini
Certificates are
59115
59116
59117
Penn Weldy Apts
1300 Penna Av
Oreland Pa. N—1
19075
Excuse writing but I am a little shaky—Please let me no [sic] if you can take care of the change—” (Emphasis added)

We find that the aforecited declaration, the sole evidence upon which the lower court concluded that the decedent revoked the tentative trust certificates of deposit, did “constitute a clear, unequivocal, immediate disaffirmance or revocation of the trust[s].” Estate of Vittorio, supra, 290 Pa.Super. at 335, 434 A.2d at 781; see In re Rodgers’ Estate, 374 Pa. 246, 249, 97 A.2d 789, 791 (1953) (“Indeed, the original statement of the Totten rule quoted in Re Scanlon’s Estate, supra, clearly implies that revocation may be accomplished by ‘ “some decisive act or declaration of disaffirmance” ’.”); 20 Pa.C.S.A. § 6304(b) (Supp.1982-83) (“Trust account.—At the death of the trustee ..., any sum remaining on deposit belongs to the person or persons named as beneficiaries, if surviving ..., unless there is clear and convincing evidence of a contrary intent[.]”).

A fair reading of the letter evinces that the writer wanted to have her “name only” on the certificates “with no [other] beneficiaries.” In fact, to emphasize this point, decedent reiterated in the letter that she did not “want any beneficiaries on the certificate^].” Ergo, we conclude, notwithstanding the decedent’s failure to comply with the bank’s internal operating procedures for revoking the trust certificates, that the declaration relied upon by the court en banc to find a termination of the tentative trusts was the equivalent of a clear, unequivocal and decisive establishment of a present disaffirmance and revocation of said certificates. See In re RodgersEstate, supra; see generally Estate of Vittorio, supra.

Orders affirmed.

      . This Will provided a $30,000 bequest to Maria and named her residuary legatee. It also gave $5,000 to her husband and primarily favored Maria.

      . This later Will favored Roy, Nicholas, David and Louis Agostini, and Rena McHugh, decedent’s nephews and niece by marriage. This Will also reduced the bequest to Maria to $5,000, eliminated the bequest to her husband, increased bequests to the nephews and niece from $5,000 to $10,000 and substituted them as residuary legatees. Marco’s bequest remained at $5,000, but $2,500 bequests to his children were deleted. There were certain other changes of less relevance.

      . A decedent possesses testamentary capacity if he has an intelligent knowledge regarding those who are the natural objects of his bounty, of what his estate consists, and of what he desires done with it, even though his memory has been impaired by age or disease. In re Franz’ Estate, 368 Pa. 618, 622, 84 A.2d 292, 293, 295 (1951). Since we find that the decedent was not suffering under an "insane delusion” at the time the Will at issue was drawn, see discussion infra, we find that she possessed the requisite testamentary capacity to execute the Will.

      . In view of our determination that appellants did not establish a confidential relationship, we need not decide whether there was sufficient evidence in the record to warrant a finding of mental weakness for the purpose of shifting the burden to proponents to disprove undue influence. See In re Estate of Brantlinger, supra. This also holds true with regard to the third prong of the tripartite test— proof that the proponents received a “substantial benefit" under the contested Will—that needs to be established by the contestants before the burden of proof would shift back to the proponents of the Will to disprove undue influence. See generally Estate of Reichel, 484 Pa. 610, 400 A.2d 1268 (1979); In re Estate of Button, 459 Pa. 234, 328 A.2d 480 (1974). However, we do mention, without deciding, that it is questionable whether Rena McHugh’s share under the May 21, 1979 Will, although an increase over the December 8, 1978 Will, would be considered substantial. See, e.g., In re Estate of Button, supra.

      . For edification purposes, we note that prior to 1976 the tentative or revocable trust was permissible but was limited to bank accounts in Pennsylvania and was created when one deposited money to his or her own name in trust for another. See Ingels Estate, 372 Pa. 171, 92 A.2d 881 (1952); 3 Remick’s Pennsylvania Orphans’ Court Practice § 25.03(b)(9), at 295 (Rev.1978). In 1976, the Legislature extended the law to embrace certificates of deposit under the "tentative” trust doctrine. Act of 1976, July 9, P.L. 547, No. 134, §§ 1 and 2, eff. September 1, 1976; 20 Pa.C.S.A. §§ 6301 and 6304 (Supp.1982-83); see also Nace et al., Executors v. The Fulton County National Bank, 79 D. & C. 325 (Fulton, 1951).

      . Appellants cite us to the case of Seymour v. Seymour, 85 So.2d 726, 727 (Fla. 1956) to show that Florida has not seen fit to extend the Totten trust doctrine beyond the context of a "savings account,” and, therefore, argue that decedent made a gift of the certificates of deposit to Maria’s children rather than establishing a trust account. We disagree with appellants on two counts. First, there has been no evidence presented that a gift inter vivos was intended by the decedent, especially in light of the fact that the decedent retained possession of the certificates until her death. See Reist’s Estate, 158 Pa.Super. 281, 44 A.2d 847 (1946); 17 P.L.E. Gifts § 6 (1959). Secondly, although the courts of Florida may not have seen fit to extend the Totten trust doctrine beyond the confines of the savings account, see

        Seymour v. Seymour, supra, it certainly cannot be attributed to the absence of a law on the subject. Section 658.58, Tit. 38, Chap. 658 of the Florida Banking Code provides:

        "658.58 Deposits in trust
      When a bank deposit is made by any person describing himself as, and making such deposit as, trustee for another and no other or further notice of the existence of the terms of a legal and valid trust than such description shall have been given in writing to the bank, the deposit or any part thereof, together with the dividends or interest thereon, may, in the event of the death of the person so described as trustee, be paid to the person for whom the deposit was thus stated to have been made."
      The factual accounting in Seymour, although dealing specifically with the revocability of a Totten trust in the nature of a savings account, is not to be read to preclude the extension of the Totten trust doctrine to encompass certificates of deposit. This is especially so since the Florida statute in question (19 Fla.Stat.Anno. § 658.58 (Supp.1982)) does not so proscribe the scope of the Totten trust. Moreover, the Florida Legislature has recognized the establishment of a joint account in the context of a certificate of deposit. 19 Fla.Stat. Anno. § 658.56 (Supp.1982).

      . This undermines appellants’ contention that "a trust is irrevocable in the absence of an express power of revocation and will be enforced in favor of the beneficiaries ... Wilson v. Anderson, 186 Pa. 531 [40 A. 1096] (1898) and cases collected at 6 Hunter’s Orphans’ Court Commonplace Book, vol. 6 revised, Trusts Inter Vivos 11(b).” (Appellants’ Brief at 14) Appellants’ position is untenable because the authorities cited for such proposition antedate the Scanlon’s Estate, 313 Pa. 424, 169 A. 106 (1933) decision.


author: SPAETH, Judge:

text:
    457 A.2d 875
    COMMONWEALTH of Pennsylvania v. Jay GIACCIO, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1979.
    Filed Feb. 4, 1983.
    Reargument Denied April 18, 1983.

      Janet W. Mason, Assistant Public Defender, West Chester, for appellant.
    Robert J. Donatoni, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       President Judge Joseph F. O’Kicki, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   SPAETH, Judge:

Appellant was convicted by a jury of recklessly endangering another person and terroristic threats. On appeal he argues that he was unconstitutionally denied the right to waive a trial by jury and to be tried by a judge. The Commonwealth, however, asserts that it has an absolute right to a jury trial on the basis of 42 Pa.C.S. § 5104(c), which provides: “In criminal cases the Commonwealth shall have the same right to trial by jury as does the accused.” In Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982), the Supreme Court declared 42 Pa.C.S. § 5104(c) unconstitutional. We therefore reverse and remand for proceedings consistent with that opinion.

Rule 1101 of the Pennsylvania Rules of Criminal Procedure provides:

In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record and shall be in the following form:
IN THE COURT OF COMMON PLEAS OF THE COUNTY OF......CRIMINAL ACTION NO....... OF......19.... COMMONWEALTH OF PENNSYLVANIA
v.
WAIVER OF JURY TRIAL
AND NOW,........, 19____, comes the defendant and pleads not guilty and with the consent of his attorney and the approval of the judge, waives a jury trial and elects to be tried by a judge without a jury.
Defendant
Attorney for Defendant
Judge
Pa.R.Crim.P. 1101.

In Sorrell, the Supreme Court ruled that 42 Pa.C.S. § 5104(c) is incompatible with Rule 1101 because by entitling the Commonwealth to a jury trial it precludes the trial court “from exercising the discretion conferred by Rule 1101 in assessing whether a non-jury trial should be permitted.” 500 Pa. at 358, 456 A.2d 1326.

Rule 1101 and Sorrell do not give appellant an absolute right to a non-jury trial. Instead, in deciding whether to allow a defendant to waive his right to a jury trial, the trial court must “tak[e] into account all relevant considerations.” Commonwealth v. Sorrell, supra, 500 Pa. at 358, 456 A.2d 1326.

It is not clear what procedure the trial court should follow, or which considerations it should weigh, in deciding whether to approve a waiver. It is clear that under Rule 1101 the defendant must have “the consent of his attorney, if any,” and also the “approval” of “a judge of the court in which the case is pending.” In addition, Sorrell suggests that while the prosecutor’s view as to whether the defendant should be permitted to waive his right to a jury trial is “a relevant consideration,” 500 Pa. at 358, 456 A.2d 1326, “Rule 1101 does not deem any one fact or circumstances controlling,” id.

It is possible to read the rule as providing that if the judge is satisfied that the defendant’s waiver of a jury trial is “knowing and intelligent” (what is the difference between these two words? did the draftsmen intend “knowing and voluntary”?), then approval should be given. But we are not persuaded that this is the way to read the rule. Instead, we believe that under the rule, even if satisfied that the defendant’s waiver is “knowing and intelligent,” still the judge has discretion to decide whether to approve the waiver.

In Commonwealth v. Correa, 485 Pa. 376, 402 A.2d 1011 (1979), the lower court refused to accept the defendant’s waiver of a jury trial. The Supreme Court affirmed. Dissenting, Justice MANDERINO said that “[n]one of the reasons given [by the lower court] has ever been recognized as a valid reason for denying appellant a choice given to other defendants.” Id., 485 Pa. at 378, 402 A.2d at 1012 (MANDERINO, J., dissenting). Neither the majority nor dissenting opinion discusses what were the reasons given by the lower court. The decision is therefore of no assistance in defining what is “a valid reason” for withholding approval of a defendant’s waiver of a jury trial. But it seems to assume the existence of some discretion to withhold approval.

In both Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978), and Commonwealth v. Garrison, 242 Pa.Super. 509, 364 A.2d 388 (1976), this court expressly held that under Rule 1101 the lower court has discretion to withhold approval of a defendant’s waiver of jury trial. In each case we upheld the refusal to give approval, saying that the defendant was “judge-shopping.” In Garrison we said:

It is well established that there is no constitutional prohibition to a court’s denial in appropriate circumstances, of a defendant’s request to be tried by a judge sitting without a jury....
In the instant circumstances, we find that the lower court committed no abuse of discretion in denying appellant’s waiver request since it was apparent that the appellant’s only purpose for attempting such waiver was to maneuver for a judge he thought might be more lenient or for other reasons more desirable. The lower court must examine the waiver of jury trial carefully since it constitutes a relinquishment of a significant and fundamental right.... The defendant must demonstrate a knowing, intelligent and understanding waiver before the trial court can agree to permit trial without jury____ In the instant case appellant’s expressed reasons for requesting jury trial, and total conduct suggests less than a knowing and intelligent basis for the relinquishment of an important constitutional right. Moreover such attempts to “shop” for a more desirable judge, as are exhibited in the record of this case, are not to be condoned. 242 Pa.Super. at 515, 364 A.2d at 390-91.

We acknowledge that these decisions don’t go very far in defining the boundaries of the lower court’s discretion when it is asked to approve a defendant’s waiver of a jury trial. But in the absence of any provision in Rule 1101 defining these boundaries, we must proceed case-by-case.

We therefore reverse and remand for new trial, with instructions to the lower court that if appellant on re-trial again states his intention to waive a jury trial, the court should proceed under Rule 1101 to decide whether to approve the waiver, with the additional instruction that if the court decides to disapprove the waiver, it should state the reasons for its decision, so that on any further appeal we may decide whether it has acted within its discretion. We do not retain jurisdiction.

      . We deferred deciding this appeal until the Supreme Court had decided Sorrell.