author: TAMILIA, Judge: BROSKY, Judge,

text:
    541 A.2d 749
    William W. MACKOWICK, Jr. and Margaret Mackowick, His Wife, Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1988.
    Filed April 29, 1988.

      Maureen D. Harvey, Pittsburgh, for appellants.
    Frederick N. Egler, Jr., Pittsburgh, for appellee.
    Before BROSKY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   TAMILIA, Judge:

This is an appeal from a judgment of the Court of Common Pleas of Allegheny County in favor of the defendant, Westinghouse Electric Corporation, in a products liability action.

Appellants, William and Margaret Mackowick, are husband and wife. In December, 1982, William, a skilled electrician was installing additional capacitors in the switchgear room at Western Pennsylvania hospital. The room has high voltage warnings on its doors and is unlocked only for authorized persons. The capacitors already in use at the time were manufactured by Westinghouse and were enclosed in boxlike covers with cautionary warnings on their lids which were held on by screws.

During the installation, one of William’s co-workers, Thomas McIntyre, removed the cover from a Westinghouse capacitor. On the removed lid was a warning to users that they should disconnect the breaker, wait five minutes, short the terminals and attach the terminals to the ground before handling. The top of the capacitor was approximately the height of William’s waist.

At trial, McIntyre testified he had removed the lid of the energized capacitor to look into it to check the proper installation technique for the new capacitors. At that point, William came over with a screwdriver in his hand which he pointed into the capacitor box resulting in an explosive electrical flash, burning William. He brought this action, claiming Westinghouse’s capacitor box was defective because it should have had a lockout system so that it would be de-energized whenever it was opened. His wife filed a derivative claim for loss of consortium.

Westinghouse’s expert testified that flashover, or arcing as it is called in the trade, will not occur unless an object is within 40/iooo’s of an inch of the fuse. The trial court instructed the jury on assumption of risk though it refused to give the instruction requested by the plaintiffs. The jury returned a verdict for Westinghouse. William and his wife appealed to this Court.

Appellants present three issues for our review: (1) whether the trial court’s instruction on assumption of risk was erroneous; (2) whether the court’s instruction on liability was in error; and (3) whether the court erred in refusing to permit the introduction into evidence of models of alternative capacitor designs and whether the court erred in precluding certain cross-examination of Westinghouse’s expert.

In the instant case, the court’s jury charge provided in pertinent part:

For you to find that a plaintiff assumed the risk of his injury, you must find that the plaintiff was aware of the danger presented by defendant’s product and voluntarily proceeded to encounter the danger. The plaintiff must have realized the danger, but not necessarily the specific defect itself, just the danger.

The jury charge was adequate for the purposes of this case and precisely defines the ambit of risk of the plaintiff in relation to exposing himself to a dangerous condition.

The mandate of this Court is to view the facts in the light most favorable to the defendant as verdict winner and not reverse the trial court’s Order absent an abuse of discretion or error of law which controlled the outcome of the case. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985); Binder v. Jones & Laughlin Steel Corp., 360 Pa.Super. 390, 520 A.2d 863 (1987); Bryant v. Girard Bank, 358 Pa.Super. 335, 517 A.2d 968 (1986); Fannin v. Cratty, 331 Pa.Super. 326, 480 A.2d 1056 (1984).

A careful reading of the testimony elicited at trial showed clearly that the appellant, an experienced electrician of more than thirty years, fully understood the nature of arcing (flashover). The jury obviously found the testimony of Thomas McIntyre, his co-worker, (that appellant had used a screwdriver to point down into the capacitor) to be the facts of this case, contrary to appellant’s testimony that he pointed with his finger. The jury also found, necessarily, that the expert called by Westinghouse was correct in asserting that arcing would occur if one approached within forty one-thousandths of an inch to the capacitor, which was so close as to be indistinguishable from “touching” it. He estimated that distance to be equivalent to the lead of a thick lead pencil or the gap of a spark plug. It is inconceivable that an electrician with the training and experience of the appellant would not realize that arcing can occur under exactly the circumstances involved in this case.

Assumption of the risk frequently occurs with persons who have extensive experience and training and, therefore, take greater chances than persons who are either laymen or not so experienced. The jurors obviously, in light of their own exposure with modern technology, could have concluded that danger of electric shock existed to anyone putting a screwdriver into a fuse box or any other electrical connection in the home, and from their own experience would be reasonably able to infer that a condition with such obvious potential for injury or death, as contained in the switchgear room, was such that an experienced electrician should not have been so reckless as to expose himself to likelihood of injury. Additionally, any person on the jury could conclude from experience with automobiles, once reference was made to a spark plug, that arcing occurs when a test is made to determine if current is passing from the distributor to the spark plug by holding the cable a short distance from the plug to create an arc. These common experiences would belie in the jurors’ minds the lack of subjective knowledge of an experienced electrician of a similar consequence under the facts of this case.

The appellant makes much of the fact that he would have had to know not only of the danger but was required to understand what specific danger existed. The problem with the rationale of the appellant is that he attempts to isolate the danger from the objective and subjective knowledge he had about the nature of the electrical equipment in the switchgear room. It is uncontested that the appellant had removed the lid to one of the Westinghouse capacitors several weeks prior to his accident when he and the foreman were in the switch gear room reviewing the upcoming installation job. In doing so, he had to unfasten two bolts between which was the following warning: “THIS CAPACITOR CONTAINS BUILT-IN DISCHARGE RESISTERS. CAUTION: WAIT FIVE MINUTES AFTER DISCONNECTING. THEN SHORT CIRCUIT THE TERMINALS AND GROUND THE CAPACITOR BEFORE HANDLING.” The testimony in the record establishes that not only did the appellant know of the specific danger, but the reason he went over to the box on the day of his accident was to point out to co-worker McIntyre the high voltage and extreme danger in going into the capacitor box. He testified he knew the capacitor was there and that it contained four thousand volts and that he could get killed. His testimony was that he was concerned McIntyre might touch something or drop the lid inside and he was concerned that the capacitor was open. By his own testimony, appellant established he knew of the specific danger and, with the subjective knowledge that a person of his experience would have, it is inescapable that in pointing into the box with the screwdriver (or his finger), he subjected himself to the probability that arcing would occur and he would be injured. Even if he believed it was necessary to touch the fuse or capacitor to produce flashover, the uncontested expert testimony that arcing would occur within forty one-thousandths of an inch of the fuse, means that he approached the fuse so closely with the screwdriver that it was indistinguishable from touching and no reasonable person would have done so.

This is not the type of product liability case in which a defect exists, unknown to the victim, upon which strict liability may be posited. Here, the product was not mechanically defective and the only manufacturing defect that could be alleged is inadequate warning as to the danger inherent in the product if not properly used. The warning contained on the lid of the capacitor box was designed to alert those professional persons, who had a reasonable basis for going into the box, of the specific steps necessary to discharge the capacitor before it could be touched. This warning was designed for electricians and was adequate to alert electricians to the specific danger — that is, the capacitor stored electricity and could not be handled safely even after the electricity was shut off until the necessary steps were taken to drain it of its charge. Under these conditions, with the current flowing, for an electrician to stick a screwdriver into the box, so close to the fuse that it would arc, can only be classified as an assumption of the risk.

Whether or not he knew of the specific danger and assumed the risk or acted as a reasonable person under the facts of this case was a jury question. The charge given to the jury to aid them in this determination, as well as all of the other instructions given to them by the trial judge, was more than adequate for this purpose. The charge as a whole, including that portion which refers to abnormal use, gave the jury appropriate direction and alternatives to guide them in their determination and provides no basis for reversal. Boyle v. Pennsylvania Railroad Company, 403 Pa. 614, 170 A.2d 865 (1961); Geyer v. Steinbronn, 351 Pa.Super. 536, 506 A.2d 901 (1986); McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514 (1980); also see Commonwealth v. Rodriguez, 343 Pa.Super. 486, 495 A.2d 569 (1985).

The trial court’s charge covered the situation adequately and gave the jury the correct and legal basis upon which it could draw its conclusions in relation to the facts presented at trial. It is inconceivable that adding to the charge the final sentence requested by the appellant, “if you find that such warnings or instructions were not given, the defendant is liable for all harm caused thereby”, would have changed the result or is substantially beyond that which was actually charged by the court so as to warrant a new trial. Appellant’s primary contention as to refusal by the trial judge to give the charge was that it was included in the Standard Jury Instructions. These instructions are guides only and the trial judge is free to deviate from them or ignore them entirely. What is important is whether the charge as a whole provides a sufficient and correct legal basis to guide the jury in its deliberations. Boyle, supra; Geyer, supra; Bell v. City of Philadelphia, 341 Pa.Super. 534, 491 A.2d 1386 (1985).

Having resolved the first issue, assumption of the risk, in favor of the appellee, as to the following issues, whether the court’s instruction on liability was in error, whether the court erred in refusing to permit the introduction into evidence the models of an alternative capacitor design, and whether the court erred in restricting certain cross-examination of the Westinghouse expert, we also find in favor of the appellee and accordingly affirm the jury verdict.

As to the refusal of the trial court to permit the use of a model by appellant’s counsel to illustrate a possible alternative design which might have prevented this accident, it was properly denied by the trial judge as within his discretion on the basis that this was the introduction “of a specific design that this witness invents to show that he could make a better product than Westinghouse made.” (T.T. 1/14-17/86, p. 158.) That was not the issue before the jury; the issue was whether the design in question was or was not defective.

The appellee’s expert, while precluded from introducing the model, testified extensively as to all the information contained in the model. It is evident from the record that all relevant exhibits, including a capacitor, warning, name plate, diagram and photographs, to mention a few, were introduced to aid the jury in its understanding of the case. These, with the accompanying explanation from the two experts, were more than adequate to present both appellant’s and appellee’s points of view.

In a similar vein, appellant attempted to show, through cross-examination of appellee’s expert, that a cutoff switch was employed in a switchgear room to prevent anyone from going in until the switchgear was turned off and that a similar application should have been contained in the product design of the capacitor box. In refusing to permit this line of cross-examination of appellee’s expert, the court properly limited exploration of a different product, designed for a different purpose, as not being relevant to the issue of the adequacy of the design of the capacitor system. We see no error in this holding.

Other issues may be construed as a battle between experts — Dr. Robert J. Cunitz, a psychologist in the field of human factors, and Robert T. Innis, a Westinghouse design engineer, who, among other things, designed capacitors. Conflicting testimony was given as to the adequacy of warnings, design and construction of the equipment in question. The jury heard them all and, within their perogative as jurors, selected the data that carried the greatest weight and credibility to them. Thompson v. Motch & Merryweather Machinery, 358 Pa.Super. 149, 516 A.2d 1226 (1986); Mattox v. City of Philadelphia, 308 Pa.Super. 111, 454 A.2d 46 (1982); see also Heiney Will, 455 Pa. 574, 318 A.2d 700 (1974). In addition, the expert for appellant testified that the warning and lockout system he would design as safe in 1986 was available in 1962, when the product was installed. The appellee’s expert, on the other hand, testified the design suggested by appellant’s expert was not desirable and, in some respects, was more likely to produce harm and that he was unaware that this product introduced in 1922, with more than 75,000 units in use, had ever had a failure attributable to a design defect.

This was an extremely well tried case and in all respects the legal issues were clearly presented to the jury and their function was to apply the law to facts that were easily understood and related to their common knowledge and experience. The issues raised on appeal were either matters of law, properly ruled on by the trial court, or jury questions on which we should not substitute our judgment for that of the jury.

Judgment affirmed.

KELLY, J., concurs in the result.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I must respectfully dissent. I concur in appellant’s claim that the trial court’s jury instruction on assumption of the risk misstated the law, and constitutes reversible error.

A trial judge has wide latitude in charging a jury, as long as the language used adequately and fully conveys the law applicable to the case. Seewagen v. Vanderkluet, 338 Pa.Super. 534, 545, 488 A.2d 21, 26 (1985). Not every misstatement of the law is grounds for reversal. The appellate court must consider the charge in its entirety and determine whether the error was prejudicial to the complaining party. Reilly By Reilly v. Southeastern Pa. Transp. Authority, 507 Pa. 204, 489 A.2d 1291, 1305 (1985).

In Bascelli v. Randy, Inc., 339 Pa.Super. 254, 488 A.2d 1110 (1985), this Court explained the doctrine of implied assumption of the risk. If a person knows that a product is defective and voluntarily proceeds to use the product, his actions constitute a defense to an action for strict products liability. Id, 339 Pa.Superior Ct. at 264, 488 A.2d at p. 1115.

Moreover, our courts have consistently stated that the plaintiff must have known of “the specific defect” which caused his injury. Walasavage v. Marinelli, 334 Pa.Super. 396, 408, 483 A.2d 509, 515 (1984). See also Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893, 901 (1975) (plaintiff precluded from recovery only if he knows of specific defect); Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746, 748 (1966) (plaintiff unaware of specific defect so elements of defense not present); Davis v. Dwyer Ind., Inc., 548 F.Supp. 667, 670 (E.D.Pa.1982) (plaintiff precluded from recovery if he knows of the specific defect).

However, use of the term “defect”, with its mechanical and technological connotations, has caused much confusion among members of the bench and bar. Some have argued that a plaintiff is aware of a specific defect only if he understands the mechanical process which causes the item to be dangerous. This interpretation is an overly technical misstatement of the law. For assumption of the risk to apply, a plaintiff needn't understand the mechanical process, but must be subjectively aware of the nature, character, and extent of the danger posed by the specific attribute which is allegedly defective; this requires more than a general awareness by the plaintiff that the product is somehow dangerous. Ferraro, supra; Crance v. Sohanic, 344 Pa.Super. 526, 530, 496 A.2d 1230, 1232 (1985).

For example, in Crance, a visitor to a home was attacked and bitten by a dog belonging to another visitor. The injured party had been warned to be careful around the dog, but had not been told of its propensity to bite. Our Court ruled that an instruction on assumption of the risk was unwarranted. The plaintiff had had a general awareness that the dog might be dangerous, but had not known of the specific danger of biting posed by the animal. Id., 344 Pa.Superior Ct. at 530, 496 A.2d at 1232.

Similarly, in Ferraro, the plaintiff’s truck had had problems with locking wheels, as well as with a dislodging of the accelerator pedal. However, he had continued to use the vehicle until the two malfunctions occurred simultaneously, causing an accident in which he was injured. The Supreme Court found that assumption of the risk was inapplicable. The plaintiff had not been specifically aware of the danger that the two problems might occur at the same time. Ferraro, supra, 223 A.2d at p. 748.

Finally, in Davis, the plaintiff sued the manufacturer of a plastic material used to form a strip curtain in a car wash, for injuries he had suffered when someone had driven through the curtain. The plaintiff had been standing behind the curtain. He claimed that the product was defective because it was opaque and thus, the other driver had not been able to see him. The court held that the plaintiff had assumed the risk of standing behind the curtain. He had been aware of the specific defect which had caused his injury, i.e. that a person could not see through the curtain. Therefore, he had known of the specific danger caused by the specific defect at issue. The court explained that the plaintiff need not have known “the technological cause of the defect.” Davis, supra.

In the instant case, the court’s jury charge provided in pertinent part:

For you to find that a plaintiff assumed the risk of his injury, you must find that the plaintiff was aware of the danger presented by defendant’s product and voluntarily proceeded to encounter the danger. The plaintiff must have realized the danger, but not necessarily the specific defect itself, just the danger. (Emphasis supplied.)

This charge misstates the law and, based upon the facts of this case, constitutes prejudicial error. Appellant’s claim was that the capacitor in question was defective due to the failure of the fuses to automatically deactivate upon opening of the lid, and that the specific danger posed by this defect was the danger of electrical flashover. Thus, for appellant to have assumed the risk in this case, he would have had to have known of the specific danger of flash-over. The above charge, however, would have left the jury with the impression that appellant need only have had a general awareness that the live fuses were dangerous if touched, to have assumed the risk of injury. This impression was misleading. If appellant thought he was safe from danger unless he actually touched a fuse, he was unaware of the specific danger presented.

This is not to say that appellant need have understood the mechanical process by which electricity “arcs”, or the variables involved in “arcing”, such as humidity, atmospheric pressure, insulation of the electrical source, the shape of the approaching object, or even the precise distance at which an “arc” can occur, in order to have assumed the risk. He need only have known that the possibility of “arcing” was presented by his situation.

This Court has previously recognized that the dangers presented by actually touching a live electrical source, and by coming close enough to an electrical source so as to permit flashover or “arcing”, are two distinct dangers, which present distinct theories of causation.

In Books v. Pennsylvania Power and Light Co., 362 Pa.Super. 100, 523 A.2d 794 (1987), the plaintiff filed a trespass action against PPL for injuries he had sustained when the dump trailer he had been operating either came into contact with, or came too close to, some overhead power lines owned by PPL, thereby electrocuting him. PPL then joined Mack Trucks and Hill Manufacturing Co., alleging that Mack and Hill had failed to affix a warning on their products indicating the danger of raising the dump trailer “in the vicinity of overhead electrical transmission lines.” Id., 523 A.2d at p. 795. The trial court denied PPL’s motion for summary judgment, but entered summary judgment in favor of Mack and Hill on the basis that the plaintiff had admitted, in deposition testimony, that he had known of the danger of electrocution presented by contact with the lines. In reversing, our Court noted the following:

From the inception of the case, plaintiff advanced alternate theories of how the accident occurred: either the equipment came into contact with the power lines, or the equipment was somehow electrified by the lines. PPL advanced the same alternate theories when, in its complaint joining Mack and Hill to the action, it alleged that Mack and Hill should have placed warnings on their products of the danger of operating the equipment in the vicinity of power lines. The trial court recognized the importance of the alternate theories when it agreed that plaintiff assumed the risk of contact, but denied PPL’s motion for summary judgment because the accident could have occurred when electrical current arced from the power lines to the equipment. This theory would not require the equipment to come in contact with the power lines. However, the trial court disregarded this possibility when it found that a warning would have been limited to the danger of contact with the power lines. The trial court was unduly restrictive when it created such a warning since PPL alleged that the warning should have been broader and included the danger of working near the power lines.
There is evidence in the record before us from which a jury could find the plaintiff raised the dump trailer near power lines. Whether the electrical charge that injured plaintiff was the result of the trailer coming into contact with the power lines or was the result of the phenomenon known as arcing is a material fact that is yet to be determined. The trial court recognized this when in its opinion, it noted that, “electricity may have somehow ‘arced’ from the power lines to the truck bed as the dumping trailer approached the lines.” Trial court’s op. at 4. Although plaintiff testified that he was aware of the danger from contact between the trailer and the power lines, there is no evidence in the record to suggest that he was aware of the danger in allowing the trailer to be operated near the power lines. Because there is no evidence to suggest that plaintiff was aware of the danger of operating the dump trailer near the power lines, a genuine issue of material fact exists as to whether the type of warning suggested by PPL would have caused plaintiff to act differently.

Id., 523 A.2d at pp. 798-99. (Emphasis supplied.)

While the Books holding pertains to the erroneous entry of summary judgment on the “failure to warn” question, it cannot be overlooked that the holding is premised upon the fact that distinct theories of causation are presented by the contact theory, and the flashover or “arcing” theory. As I find the reasoning of Books persuasive, I would find, as did the Books panel in dicta, that the theories are distinct for purposes of assumption of the risk in the current context as well.

The majority, of course, makes much of the fact that appellant would have had to have come so close to the fuses for flashover to occur so as to be virtually touching them anyway, which would not have been reasonable behavior on the part of a skilled electrician with thirty years of experience and a general knowledge of “arcing”. This, however, is not the issue in assumption of the risk. If appellant should have realized the danger, but did not, he did not assume the risk, but was contributorily negligent. Carrender v. Fitterer, 310 Pa.Super. 433, 456 A.2d 1013, 1015 (1983), rev’d on other grounds, 503 Pa. 178, 469 A.2d 120 (1983). To assume the risk, a person must actually know of its existence, and not merely possess general knowledge from which he should have reasonably ascertained the danger presented. Id.

As the trial court’s instruction on assumption of the risk would have permitted the jury to conclude that appellant had assumed the risk, even if unaware of the specific danger of flashover, I find prejudicial error. I would reverse and remand for a new trial.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    541 A.2d 756
    In re TRUST OF Isabella W. MUNRO, Katharine S. Weibley, Executrix of the Estate of Richard W. Weibley, Deceased and William A. Cope, Objectants, v. COMMONWEALTH NATIONAL BANK, Trustee. Appeal of Katharine S. WEIBLEY Executrix of the Estate of Richard W. Weibley, Deceased.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1988.
    Filed May 4, 1988.

      G. Thomas Miller, Harrisburg, for appellant.
    Robert C. Spitzer, Harrisburg, for appellee.
    Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   CAVANAUGH, Judge:

The issue before us in whether the court below properly refused to surcharge a corporate trustee for retaining its own stock as principal of the trust.

By Deed of Trust dated July 29, 1932, Joseph Munro and Isabella W. Munro, his sister, placed designated assets in trust, including shares of stock in Carlisle Deposit Bank and Trust Company which was named as sole Trustee. The trust agreement stated, inter alia that the Trustee was:

to hold all stock of the Carlisle Deposit Bank and Trust Company which may come into hands of trustee under this agreement and pay the net income received therefrom, from time to time, to parties of the first part, [the Settlors] in equal shares, during their joint lives and to the survivor of parties of the first part during his or her life and upon the death of said survivor, then to distribute such dividends as received by the trustee in equal shares to the following named grand-nephews of parties of the first part or to such of them as may be living at the death of the last survivor of the parties of the first part, to wit: Edward Weibley, Richard Weibley and William Cope all grand-sons of our deceased brother William S. Munro, for and during their natural lives and the life of the survivor of them, the share of any one of them dying to be paid to the survivor or survivors and upon the death of the last survivor of said grand-nephews to distribute said stock in accordance with the last wills and testaments of the said grand-nephews and a power of appointment by will is hereby conferred upon each of said grand-nephews as to that portion of stock on which he receives the income, distribution however to be deferred as above provided until the death of the last survivor of said grand-nephews.

The trust agreement also provided:

It is expressly agreed that Trustee shall not be liable for accepting and retaining investments not within the laws of Pennsylvania defining lawful investments for trust funds nor for any losses resulting from the depreciation of any such investments.

The settlors are deceased. In 1985, the Commonwealth National Bank, the successor Trustee, filed its First and Partial Account in the Orphans' Court Division of Cumberland County, Pennsylvania. By that time, Edward Weibley had died. The income beneficiaries were Richard Weibley and William Cope. Edward Weibley had exercised his power of appointment and designated Patricia Hain and Barbara Alexander as beneficiaries of one-third of the trust principal upon the death of the survivor of Richard Weibley and William A. Cope. Mr. Weibley and Mr. Cope, the income beneficiaries, filed objections to the account and sought to impose a surcharge on the trustee and other relief. After the account was filed, an auditor was appointed who conducted hearings and filed a report in which he recommended that the trustee not be surcharged, but should be allowed to invest two-third’s of the principal in legal investments other than in its own stock and one-third to be held in shares of Commonwealth Financial Corporation, the successor bank to Commonwealth National Bank. Weibley and Cope filed exceptions to the auditor’s report. By Order of July 8, 1987 the court, by Sheely, P.J., directed that the Auditor’s Report be confirmed absolutely and modified the trust agreement in accordance with the report. In the meantime, Richard W. Weibley died and Katharine S. Weibley, Executrix of his estate, filed an appeal to this court. Mr. Cope did not appeal.

In our opinion, the court below properly refused to impose a surcharge upon the appellee. A surcharge is the penalty imposed for failure of a trustee to exercise common prudence, skill and caution in the performance of its fiduciary duties and is imposed to compensate beneficiaries for the loss caused by the fiduciary’s want of due care. Stephenson Estate, 469 Pa. 128, 138, 364 A.2d 1301, 1306 (1976). The standard of care imposed upon a trustee is that which a man of ordinary prudence would practice in the care of his own estate. McCrea Estate, 475 Pa. 383, 380 A.2d 773 (1977). One seeking to impose a surcharge has the burden of proving that the fiduciary failed to meet the duty of care owed to the estate. Bard Estate, 339 Pa. 433, 13 A.2d 711 (1940); Dobson Estate, 490 Pa. 476, 417 A.2d 138 (1980); Ellis Estate, 460 Pa. 281, 333 A.2d 728 (1975). Further, the exceptant must prove the particulars of the wrongful conduct. Killey Estate, 457 Pa. 474, 326 A.2d 372 (1974); Linn Estate, 435 Pa. 598, 258 A.2d 645 (1969); Maurice Estate, 433 Pa. 103, 249 A.2d 334, 336 (1969); Brown Estate, 343 Pa. 19, 21 A.2d 898 (1941). Where the trustee is authorized to retain certain stock, an exceptant to the trustee’s account has the burden of proving that retention of the stock was negligent. Mereto Estate, 373 Pa. 466, 96 A.2d 115 (1953); Glauser Estate, 350 Pa. 192, 38 A.2d 64 (1944). See also Jones Estate, 344 Pa. 100, 23 A.2d 434 (1942).

The settlors directed the original trustee to retain all of the stock owned in the trustee bank and to distribute income in accordance with the terms of the trust. Had the trustee bank remained the same, it clearly would have violated the express terms of the trust agreement had it sold the stock and diversified the principal. The trust provided that the trustee should hold all of the stock of the Carlisle Deposit Bank and Trust Company and distribute the income to designated individuals during their lifetime. At the death of the last survivor of the class receiving income, the stock was then to be distributed in kind in accordance with the exercise of a power of appointment set forth in the Deed of Trust. Consistent with modern banking tendencies, the Carlisle Deposit Bank and Trust Company did not remain a static institution and in 1962 it merged with the Harrisburg National Bank and Trust Company which thereafter became the Commonwealth National Bank. In due course, that bank became the Commonwealth National Financial Corporation. The auditor found, and the court below confirmed, that the stock in the successor banks was substantially equivalent to that in the Carlisle Deposit Bank and Trust Company and that the trustee properly retained the stock. Macfarlane Estate, 317 Pa. 377, 381-382, 177 A. 12, 14-15 (1935) stated:

At the outset it may be noted that the shares of the new corporation might well be found to be so substantially equivalent to those of the old that the trustee’s retention of them was within its testamentary authority to hold the shares left by the testator, and therefore entirely proper.
The new common shares maintained relatively as important a position and represented substantially the same interest in the enterprise as did the common shares of the former company, and would doubtless have been so considered by the testator. If a trustee holds shares of a corporation which he can properly retain, and the corporation is merged or reorganized into a new corporation, the trustee can properly receive and retain new shares issued in exchange for the old where they are substantially equivalent to the old shares and it is not imprudent for him to do so: In re Smith, [1902] 2 Ch. 667; Anderson v. Bean, 272 Mass. 432 [172 N.E. 647]; see Restatement, Trusts (Tentative Draft No. 4), section 223, comment f.
However, we are not required to decide that question in the situation now before us. The court below denied the claim of surcharge on the ground that appellant’s conduct amounted to an affirmance of the acquisition and retention of the shares. We think it was right in so holding. (Emphasis added.)

The auditor found that the stock in the successor corporation was the substantial equivalent of the original shares. However, as in Macfarlane’s Estate, supra, we do not have to reach that issue. The court determined that the income beneficiaries had acquiesced in the trustee’s retention of the stock in the Harrisburg National Bank and its successors. If the evidence supports the findings of fact and the findings justify the decree, then the decree will not be set aside. Mintz Trust, 444 Pa. 189, 282 A.2d 295 (1971); Walton Estate, 348 Pa. 143, 34 A.2d 484 (1943). The Carlisle Deposit Bank and Trust Company merged with the Harrisburg National Bank and Trust Company in 1962 and the appellant was aware of this merger and subsequent mergers and consolidations. There were regular contact between the income beneficiaries and the officers in the bank’s trust department. Richard Weibley testified to many communications about the trust with the bank. In addition, the income beneficiaries were aware that they could petition the court to modify the terms of the trust. They were advised of this by their own attorney as well as by the trustee and they knew of this option as early as 1979. It was only after the bank suspended dividends in 1983 that the income beneficiaries decided to compel the bank to file an accounting and to seek a surcharge for failure to diversify. The court below properly determined that the beneficiaries acquiesced to the nondiversification of principal and the retention of the stock. As noted in Macfarlane Estate, 317 Pa. at 382-383, 177 A. at 15:

A competent beneficiary who with full knowledge of the facts and of his rights expressly consents to or affirms an investment by the trustee cannot, in the absence of fraud, thereafter question its propriety: (Citing Cases). Affirmance of the investment may be implied from failure of the beneficiary to object within a reasonable time, although aware of the facts and continually receiving benefits from the investment: (Citing cases). Here there was more than enough evidence to indicate that the beneficiary had notice of the reorganization, of the acquisition of the new shares, and of the financial condition of the company from year to year, and that she had been unwilling to sell the shares in 1919. In such a situation it cannot be doubted that if she thought the Trustee’s action was improper she was under a duty to speak____ Plainly, such conduct amounts to an affirmance sufficient to bar her claims of surcharge.

The Supreme Court stated in Walton Estate, 348 Pa. at 145, 34 A.2d at 485: “After a careful consideration of the record we conclude that there is sufficient evidence to warrant and justify the conclusion of the court below that appellant knew of the investment, and was sufficiently advised of all material facts, or of what he would have learned had he inquired, as to any subject in which he considered the information periodically given to him, as inadequate.” This language is particularly applicable in the matter before us.

In 1979 Mr. Weibley discussed with Mr. Reitzel, who was Vice-President of the Commonwealth National Bank, and who had been in the trust department of the trustee bank since 1967, his concern that the income from the trust should be greater. After talking to Mr. Weibley and Mr. Cope, Mr. Reitzel sought an opinion from counsel concerning sale of the bank stock and he was advised that in the light of the trust agreement the trustee could not sell the stock without court 'approval.

In 1979 the bank stock produced income of about 6% which the trustee felt was quite adequate. The income beneficiaries were fully aware of the non-diversification of trust principal, but did nothing about it until after 1983. In that year the bank stock did not pay a dividend. Subsequently, the trustee filed its First and Partial Account to which exceptions were filed. Mr. Weibley and Mr. Cope were fully aware that they could petition the court to direct diversification.

The trustee did not diversify as it believed it was prohibited from doing so under the terms of the trust agreement. This decision was reasonable based on the terms of the agreement and opinion of its counsel. Mere failure to diversify is not a sufficient basis for the imposition of a surcharge as diversification of investments is not required in Pennsylvania. Lentz Estate, 364 Pa. 304, 72 A.2d 276 (1950). The decision whether to diversify must be made on a case by case basis. Knipp Estate, 489 Pa. 509, 414 A.2d 1007 (1980). In the circumstances of this case, considering the intentions expressed by the settlors in the deed of trust, and the acquiescence of the beneficiaries in the retention of the stock in the successor banks, we find that the exceptants have not met their burden of proof that the trustee did not exercise the required prudence in the performance of its fiduciary duties. We note that the trust principal has greatly increased since the inception of the trust and there is no complaint from the remaindermen, who will ultimately obtain principal, about the bank’s performance as trustee.

Order affirmed.

      . The trust agreement also provided as follows concerning trust assets other than stock in Carlisle Deposit Bank and Trust Company:
      And in trust nevertheless, as to all the rest of the securities and investments coming into the possession of the trustee, to pay the income derived therefrom to parties of the first part in equal shares during their joint lives and to the survivor of parties of the first part during his or her life and upon the death of said survivor to distribute the same in accordance with such instruction in writing lodged with trustee as may be given by the last survivor of parties of the first part and in the absence of such instructions then according to the intestate laws of the Commonwealth of Pennsylvania, as if the said personal assets constituted the absolute property of said last survivor.

      . Specifically, the exceptants sought to surcharge the accountant in the amount of $43,960.00 representing the additional income, computed at simple interest, that they calculated they would have received as income from the trust in the calendar years 1979 through 1984 if the principal had been invested in what they considered to be appropriate investments.

      . Patricia Hain and Barbara Alexander, remaindermen, desired that the trust continue to hold the shares of the Commonwealth Bank stock in accordance with the Settlors’ intent as evidenced by the trust agreement. Richard Weibley and William A. Cope wanted the trust to diversify and to invest two-third’s of the principal in legal investments and retain one-third of the principal in the bank stock. The recommendations by the auditor gave effect to these desires. On appeal, there is no issue raised as to the propriety of this recommendation which the court approved and we will not consider it.

      . If a fiduciary has greater skill than that of a man of ordinary prudence, then the fiduciary’s standard of care must be judged according to the standard of one having this special skill. Stirling Estate, 342 Pa. 497, 21 A.2d 72 (1941). Lohm Estate, 440 Pa. 268, 269 A.2d 451 (1970). Further, a trustee who obtains his appointment as trustee by representing that he has greater skill than a man of ordinary prudence will be held to have such skill that he represented he had. Killey Estate, 457 Pa. 474, 326 A.2d 372 (1974). Restatement (Second) of Trusts § 174. In the instant case, although the trustee was a bank, there was no evidence that it had special skill, nor that it represented that it did when the trust was established in 1932.

      . The auditor gave careful consideration to the question of substantial equivalency between the original shares and the shares in the successor banks. There are highly technical factors in determining substantial equivalency of stock in successor corporations which we need not consider in this case. See Bissell Trust, 5 Pa.Fid.2d 27 (Allegheny County 1984); Cope Estate, 351 Pa. 514, 41 A.2d 617 (1945); Buist Estate, 297 Pa. 537, 147 A. 606 (1929).

      . The letter from counsel to the trustee stated in part:
      Pursuant to your request of March 5, 1979, I reviewed the above Trust Account which is pursuant to the Agreement of Trust dated July 29, 1932, between Joseph I. and Isabella W. Munro and the Carlisle Deposit Bank and Trust Company.

        The Trust document clearly differentiates between investments in the Carlisle Deposit Bank and Trust Company and other securities and investments. In so doing, it has limited the control over the Bank stock by providing that it only can be distributed by exercise of a power of appointment or the intestate laws of the Commonwealth of Pennsylvania as set forth in the paragraph beginning on the bottom of page 2 and continuing on page 3 of the Trust document. There is no provision for the liquidation or reinvestment of the Bank security.
      In light of the above, it is my opinion that the Bank cannot liquidate the stock which it now owns as a result of being the successor to the Carlisle Deposit Bank and Trust Company. The only way it could be done would be upon application to the Court.


author: BROSKY, Judge:

text:
    541 A.2d 761
    Kim E. WETZEL v. James F. SUCHANEK, Appellant.
    Superior Court of Pennsylvania.
    Argued April 7, 1988.
    Filed May 2, 1988.

      Michael H. Small, Palmyra, for appellant.
    Before BROSKY, MONTEMURO and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from the Order entered by the trial court finding appellant in contempt and imposing sanctions in action for support.

On appeal, appellant presents but one issue for our review: whether the trial court erred in finding appellant in civil contempt and imposing a jail sentence for his failure to find a job.

Upon consideration of the record and applicable case law we are constrained to reverse the order of commitment for contempt and remand for further proceedings.

The parties to this action are the parents of two minor children, a daughter, age 14, and a son, age 9. Prior to May 1985, there were various support and custody proceedings between the parties. For a period of time the custody of the children was divided between the two parents. During that time, appellee contributed to the children’s support pursuant to an Order of Court. An effort was made to establish a Support Order to be paid by appellant. On June 10,1982, an Order was entered directing appellant to report his return to employment immediately so that a temporary support order could be entered. This was never done.

On May 6, 1985 custody of both children was awarded to appellee who proceeded to seek support from appellant. At the hearing on this request for support, it was found that appellant possessed no impediments to securing employment but did exhibit a poor attitude regarding his responsibility to help support his children. It was also found that appellant’s attempts to secure employment had been less than diligent.

At the conclusion of the hearing, the Hearing Officer recommended, inter alia, that, although no monetary contribution be imposed upon appellant, that appellant be required to report weekly to the Domestic Relations Office in person with a signed list of prospective employers. Appellant filed exceptions which were dismissed, and, on July 7, 1987, the Hearing Officer’s Recommendations were adopted and an Order was entered.

A Petition for Civil Contempt was presented on July 10, 1987 alleging appellant’s failure to comply with the July 7, 1986 Order. A hearing was held on that petition on August 10, 1987.

At the August 10 hearing, the Court found that appellant developed a practice of showing up at the Pennsylvania Job Service Office once a week and then advising the Domestic Relations Office of that appearance and his failure to obtain employment. Appellant also advised the court that he had been on public assistance since 1974. Appellant also demonstrated his lack of desire to secure employment. At the conclusion of that hearing, the case was continued for at least 80 days, during which appellant was expected to obtain employment. Appellant was advised that failure to obtain employment may be a basis for a determination of contempt. Appellant was also directed to report to the Domestic Relations Office in person weekly and advise that office of a minimum of five places during the prior week where he had sought employment. Once again, appellant failed to comply with the Order of Court.

On September 28, 1987, a hearing was held to review appellant’s actions since the previous Order. Appellant was given a chance to address the court. A showing of noncompliance with a court order is insufficient in itself to prove contempt. If the alleged contemnor is unable to perform and has in good faith attempted to comply with the court order, contempt is not proven, (emphasis added). Commonwealth Department of Environmental Resources v. Pennsylvania Power Company, 461 Pa. 675, 337 A.2d 823 (1975).

Instantly, the court took notice of the fact that Lebanon County enjoys one of the highest rates of employment in the Commonwealth. Also, numerous advertisements for jobs appear in the newspapers across the county. The court found that appellant failed to make a good faith effort to secure work. Further, the trial court found that appellant attempted to deceive the Domestic Relations Office in providing documentation to appear to be in compliance with the court order. As stated by the trial court, appellant “thumbed his nose at the opportunities the Court provided him to accept the responsibilities he placed upon himself.” (Tr. Court Op. at 12). Thus, appellant was adjudged to be in contempt of court.

Contempt may be civil or criminal in nature. Criminal contempt however is subdivided into direct and indirect contempt. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980). Even where the same facts might give rise to criminal as well as civil contempt, each has its own distinct procedural rights, and the two may not be casually commingled. Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977).

Civil contempt has as its dominant purpose to enforce compliance with an order of court for the benefit of the party in whose favor the order runs, while criminal contempt has as its dominant purpose, the vindication of the dignity and authority of the court and the protection of the interest of the general public. Marcone, Id. This distinction between civil and criminal contempt is important because the type of contempt being punished will determine the manner in which the contempt is to be adjudicated as well as the punishment which may be imposed. Simmons v. Simmons, 232 Pa.Super. 365, 335 A.2d 764 (1975). It must be noted that the characteristic that distinguishes civil from criminal contempt is the ability of the contemnor to purge himself of civil contempt by complying with the court’s directive. Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976).

When the trial court imposed sanctions upon appellant, it directed that he be incarcerated for 60 days. In order to purge himself, appellant would have to secure full-time employment.

While we recognize the frustration the court must have felt after its repeated dealings with this appellant, we cannot ignore the. case law of this Commonwealth. The Pennsylvania Supreme Court has held that the use of the court’s civil contempt power to enforce compliance with a court order is to be exercised with the objective of compelling performance, and not inflicting punishment; thus, a court may not convert a coercive sentence into a punitive one by imposing conditions that a contemnor cannot perform and thereby purge himself of contempt. Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956).

In Knaus, the Court held that one who ignored a court order that he cease prosecuting a divorce action in Arkansas could not be imprisoned for civil contempt after the Arkansas decree became final because he had no means of purging himself. Similarly, in Barrett, it was held that a contemnor should not be imprisoned until he paid $1,000.00, in the absence of proof that he was presently able to comply with those terms.

Instantly, the only way for appellant to purge himself of the incarceration is to find employment. It would appear that, for this appellant, such a task was difficult enough while out of jail. Requiring him to secure employment while behind bars is tantamount to simply sentencing him to an unconditional 60 days imprisonment which would violate the rules of civil contempt. Kramer v, Kelly, 265 Pa.Super. 58, 401 A.2d 799 (1979).

Had it been the sole intent of the trial court to punish appellant for his continued noncompliance with the order of court, appellant could have been charged with indirect criminal contempt. Cipolla v. Cipolla, 264 Pa.Super. 53, 398 A.2d 1053 (1979). This, of course, would have necessitated the presence of “the essential procedural safeguards that attend criminal proceedings generally.” In re Martorano, 464 Pa. 66, 88, 346 A.2d 22, 29 (1975). These procedural safeguards were absent from the instant case.

Further, the punishment permitted by statute for indirect criminal contempt is limited to fines only. See 42 Pa.C.S.A. § 4132. This was explained in Bruzzi v. Bruzzi, 332 Pa.Super. 346, 481 A.2d 648 (1984), where this court analyzed the various statutes pertaining to contempt. There, the Court came to the conclusion that the only time indirect criminal contempt may result in a prison term is when a restraining order or injunction has been violated. 42 Pa.C.S.A. § 4135. The court then went on to cite Woodruff v. Township of Lower Southampton, 68 Pa.Cmwlth. 171, 448 A.2d 692 (1982) which stated: “Although a court’s right to punish for contempt is inherent, the manner of its exercise is regulated by the legislature.” Id. 332 Pa.Super. at 357, 481 A.2d at 654.

Therefore, even though we certainly cannot condone the behavior exhibited by appellant throughout the course of these support proceedings, we are bound by the dictates of our past case law to reverse appellant’s commitment for civil contempt, and remand this case so that a proper penalty can be imposed. Upon remand, the trial court may, if it deems necessary, receive additional evidence to assist it in determining appropriate coercive conditions. Those conditions, however, must be such with which the court is “convinced beyond a reasonable doubt, from the totality of the evidence before it, the contemnor has the present ability to comply.” Barrett v. Barrett, supra, 470 Pa. at 264, 368 A.2d at 621. See also, Commonwealth ex rel. Heimbrook v. Heimbrook, 295 Pa.Super. 300, 441 A.2d 1242 (1982).

Order reversed. Case remanded with directives. Jursidiction relinquished.

      . The trial court’s findings were based upon incidents described by the trial court as follows:
      Mr. Suchanek indicated to the Hearing Officer that he had been looking for work since 1974 and when questioned further testified that he had been to "numerous” places to find a job in the two weeks prior to the hearing. When questioned further, however, regarding how many places during that period he had actually put in an application for work, his response was "Well, gees, I, I, I don’t think any, you know." (N.T. 12/6/85, pp. 23-24). His explanation was that no applications were being accepted. He was then questioned about his efforts through the “Help Wanted” section of the newspaper. He testified that he did not follow up on any of those advertisements because "... a lot of them advertisements I take notice to are in there for like a tax write-off, I believe — you know, in other words, for advertisements so they could have it for a tax write-off.” (N.T. 12/6/85, p. 24). When questioned about his procedure upon seeking a job and the appearance which he puts forward, Mr. Suchanek testified "When you’re poor and don't have no money, it’s kinda tough to buy a suit and a tie and have your hair washed and be clean. Now, I look the best I can, and I don’t go in there putting on no, no, no act, or anything like that. I go in there and this is me. If they want to hire me, they’ll hire me; if they don’t, they won’t." (N.T. 12/6/85, p. 25). Mr. Suchanek concluded his testimony with a statement criticizing the judicial system and the quality of representation he had received through Court appointed counsel as a "poor man” (N.T. 12/6/85, p. 26). He ended that presentation "Then they talk about Russia. They come to me and talk about other countries. You know, this is disgusting ... And if I have to pay support, you can lock me up." (N.T. 12/6/85, p. 27).
      Trial Court Opinion at 4 and 5.
      Mr. Suchanek’s on-going attitude toward compliance with this Court’s directive was then further demonstrated when the Court suggested a place where Mr. Suchanek could obtain employment and the following exchange took place:
      THE COURT: How would you get here to work?
      MR. SUCHANEK: How?
      THE COURT: Yes.
      MR. SUCHANEK: I don’t know. I’d try to get a way.
      THE COURT: Then why don’t you try to get a way to Weaber’s Saw Mill, they were hiring; why don’t you get a job there?
      MR. SUCHANEK: I applied there.
      THE COURT: You filled out an application?
      MR. SUCHANEK: And I told them that I have no way of getting there. I went out and filled out an application. I still complied with the rules and regulations. I said I have no car and it’s hard for me to get around. (N.T. 8/10/87, p. 5).
      Trial Court Opinion at 7.

      . "Direct criminal contempt" is that which occurs in the presence of the court or so near thereto to interfere with its immediate business. Knaus, supra. "Indirect criminal contempt", however, is that which occurs outside the presence of the court. Petition of Start, 186 Pa.Super. 509, 142 A.2d 449 (1958).

      . We note that the recent United States Supreme Court Opinion of Hicks on Behalf of Feiock v. Feiock, — U.S. —, 108 S.Ct. 1423, 99 L.Ed.2d — (1988), was considered in the disposition of the instant appeal.


author:
BECK, Judge:
      CIRILLO, President Judge,

text:
    541 A.2d 765
    Anthony M. DiLUCIA, Appellant, v. Alvin H. CLEMENS, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1987.
    Filed May 9, 1988.

      David M. Jordan, Norristown, for appellant.
    William J. Brennan, King of Prussia, for appellee.
    Before CIRILLO, President Judge, and BROSKY and BECK, JJ.
   BECK, Judge:

This case raises issues related to the creation of an express trust within a business context, the revocation of the trust by oral agreement, and the applicability of laches to the trust.

Appellant DiLucia brought an action in equity to enforce a written declaration of trust:

DECLARATION OF TRUST
I, Alvin H. Clemens, hereby declare to hold IN TRUST Two Thousand (2,000) shares of Unicom, Inc.’s stock for the equitable owner, Anthony M. DiLucia, with a duty to transfer legal title to said two thousand (2,000) shares to Anthony M. DiLucia thirty-six months from this date. Dated: 4/2/68

DiLucia, a building contractor, constructed certain improvements at the request of appellee Clemens to the offices of Unicom, Inc. (“Unicom”), a corporation of which Clemens was an officer and principal shareholder. In April 1968 DiLucia was compensated for this work, and in addition Clemens created the declaration of trust obligating himself as trustee to transfer 2,000 shares of Unicom to DiLucia. At the time of the creation of the trust the stock was restricted. DiLucia paid $2,000 for the stock which was its fair market value. At the time and all relevant times thereafter, Clemens personally held in excess of 25,-000 shares of stock in the corporation. The shares were fungible. Clemens made no attempt to segregate DiLucia’s 2,000 shares. In June 1972, Unicom began to offer its shares on the public market. Clemens did not transfer legal title of the shares to DiLucia pursuant to the declaration of trust.

Thereafter, the facts are disputed. Clemens alleges that he and DiLucia agreed on a settlement of various claims from subsequent business transactions which "included a release of DiLucia’s rights under the 1968 declaration of trust. DiLucia acknowledges the settlement but denies he relinquished his claim to the Unicom shares. In 1981, DiLucia requested the delivery of the shares. Clemens refused, and DiLucia brought this action in equity to enforce the trust.

The trial court denied DiLucia relief. It found that the settlement included a release by DiLucia of any claims for Unicom stock and for the $2,000 DiLucia had paid in 1968. It also concluded that the declaration of trust did not establish a trust but instead established a contract. The trial court further concluded that DiLucia failed to pursue his claim within the applicable statute of limitations for the contract and that Clemens was prejudiced by DiLucia’s delay. DiLucia’s timely exceptions were dismissed and DiLucia appealed.

Our standard of review as to the findings of a court in equity is well established. “Facts found by the chancellor, when supported by competent evidence in the record, are binding. However, no such deference is mandated for conclusions of law, and we are at liberty to review such conclusions.” Presbytery of Beaver-Butler v. Middlesex Presby. Church, 507 Pa. 255, 266, 489 A.2d 1317, 1323 (1985), cert. denied 474 U.S. 887, 106 S.Ct. 198, 88 L.Ed.2d 167 (1985). We will not reverse on appeal unless the trial court abused its discretion or committed an error of law. Valley Forge Hist. Soc. v. Washington Mem. Chapel, 330 Pa.Super. 494, 479 A.2d 1011 (1984).

I. CREATION OF THE TRUST

We first consider whether the trial court erred in concluding that a valid trust was not created and that the purported trust was actually a contract. The trial court reasoned that a valid trust was not created because there was no identifiable res. The court reasoned that the shares were not identified or segregated. Furthermore, the court reasoned that at the time of the creation of the trust, the stock was restricted and therefore not transferable into the trust. We find the court’s rationales and conclusion to be without foundation.

An analysis of the creation of a trust generally begins with a consideration of the intent of the parties. E.g., Buchanan v. Brentwood F.S. & L. Assoc., 457 Pa. 135, 320 A.2d 117 (1974). Clemens concedes that he intended to create a trust. Id., 457 Pa. at 143-44, 320 A.2d 117 (citations omitted). In the case sub judice however, Clemens does not argue lack of intent to create a trust relationship.

An essential element in the creation of a trust is the existence of the subject matter or res of the trust at the time the trust is created. It is axiomatic that a “trust arises when by a sufficient declaration of its terms, the three following elements concur: sufficient words to create it, a definite subject matter, and a certain or ascertained object.” Pugh v. Gaines, 156 Pa.Super. 613, 615, 41 A.2d 287, 288 (1944). “A trust cannot be created unless the subject matter is definite or definitely ascertainable.” Restatement (Second) of Trusts § 76 (1959).

The subject matter or res of the trust is 2,000 shares of Unicom which, under the terms of the trust, Clemens was under a duty to transfer to DiLucia. Although Clemens never segregated, designated or described the shares specifically, the identity of the shares was clear and the description sufficient because the shares were fungible. It is immaterial that no specific shares were isolated and held in trust.

It is the identity of the [trust] fund, not of the pieces of coin or bank notes, that controls____ Where the agent has mingled his own property with that of the principal, the latter may reclaim from the admixture an amount equal to his own, although it may not be the same identical property____ and where a trustee has mingled trust funds with his own, and afterward takes sums from the common mass for his own use, it will be presumed, so long as the mass is as large as the original trust funds, that the sum so taken was his own and not the trust funds.

Vosburgh’s Estate, 279 Pa. 329, 333, 123 A. 813, 815 (1924). See Rollestone v. National Bank of Commerce, 299 Mo. 57, 252 S.W. 394 (1923) (valid declaration of trust when owner of over a million shares of mining stock stated that he was carrying 10,000 shares of said fungible stock at a fixed price for his friend who had assisted him in raising the money to purchase some shares; the stock was not more specifically described); see also, People v. Lyon, 82 A.D.2d 516, 442 N.Y.S.2d 538 (1981) (prohibition against commingling is not a sine qua non of a trust). It is not fatal to the creation of the trust that Clemens failed to segregate specific shares.

Alternatively, the trial court reasoned that even if it were not necessary for Clemens to segregate the shares of stock, the trust res did not come into existence, because at the creation of the trust, the 2,000 shares were restricted, and their transfer into the trust was impossible.

Although it is hornbook law that a trust can not be created with property that is not transferable into the trust, Restatement (Second) of Trusts 79 (1959), we find that it is unnecessary to address whether the restricted shares in question were transferable, because, “[i]n the case of declarations of trust, [where] the declarant already owns the property no transfer of title to a trustee is need. He ceases to hold for his own benefit and thereafter holds for the benefit of another.” BOGERT, HORNBOOK ON TRUSTS, § 32 (6th ed. 1987). Since Clemens was both settlor and trustee, no specific transfer into the trust was required. We therefore conclude Clemens held the shares in trust for DiLucia whether or not the restriction permitted transfer of the shares. The trial court therefore erred in concluding that a valid trust was not created.

II. REVOCATION OF THE TRUST

We now consider whether there is sufficient evidence in the record to support the trial court’s finding that the parties revoked the trust by oral agreement. Having averred revocation or release as an affirmative defense, Clemens is charged with the burden of proof on the question. We note initially that a trust may be orally revoked. Estate of Vittorio, 290 Pa.Super. 329, 434 A.2d 777 (1981) (Totten trust). However, “the declaration relied upon to terminate a ... trust must clearly, unequivocally and decisively establish a present disaffirmance and revocation thereof.” Id., 290 Pa.Super. at 335, 434 A.2d at 781. Although Vittorio applied this standard where a tentative trust was at issue, the protection that the law affords a trust relationship mandates application of this standard to the express trust sub judice.

The record reveals that Clemens testified that at a settlement in 1976, he and his father paid $200,000 to DiLucia and business associates of DiLucia for property worth $160,000 to satisfy certain unrelated options and debts. Clemens asserts that under the settlement DiLucia also released claim to the 2,000 Unicom shares in trust. Clemens testified vaguely that the transaction was to “clear the decks” and that he understood that DiLucia had waived his claim to the 2,000 shares. N.T., March 3,1986 at 74-75, 81-82, 87. Although Clemens testified to the location of the settlement meeting, he did not testify clearly and with specificity that DiLucia released his claim to the 2,000 shares. Moreover, Clemens’ testimony is not consistent with his conclusion that the $200,000 would “clear the decks” because Clemens also testified that he made additional payments to the DiLucia business associates in relation to the unrelated option agreements, thereby raising the inference that the $200,000 payment did not “clear the decks.” The testimony about the release is vague and uncertain. We find that the record evidence does not clearly, unequivocally and decisively support an oral revocation of the trust. Therefore, the trial court’s finding that the settlement released Clemens from his obligation under the declaration of trust cannot be sustained.

III. LACHES

Lastly we consider whether the trial court erred in concluding that DiLucia’s claim was barred by laches. Laches may be applicable to enforcement of a trust instrument. Truver v. Kennedy, 425 Pa. 294, 229 A.2d 468 (1967); Kehoe v. Gilroy, 320 Pa.Super. 206, 467 A.2d 1 (1983). In order to prevail on his assertion of the equitable defense of laches, Clemens must establish both undue delay from DiLucia’s failure to exercise due diligence and prejudice resulting from the delay. Nicholson Co. v. Pennsy Supply, Inc., 362 Pa.Super. 307, 524 A.2d 520 (1987). Application of “laches does not depend upon the fact that a certain definite time has elapsed since the cause of action accrued, but whether, under the circumstances of the particular case, the complaining party is guilty of want of due diligence in failing to institute his action to another’s prejudice.” Truver, 425 Pa. at 309, 229 A.2d at 475.

The record reveals that under the 1968 declaration of trust Clemens had a duty to transfer legal title of the stock to DiLucia in 1971. Ten years later, in 1981, DiLucia first made a demand for transfer. He testified that he regarded the declaration of trust as the equivalent of the 2,000 shares and that he simply put the declaration of trust with his other stock certificates. He asserted he made the demand for the shares only after he decided to sell them.

Our first inquiry is whether the ten-year time interval prejudiced Clemens. We conclude that Clemens failed to meet his burden of showing prejudice. We therefore need not examine whether, under the circumstances of the instant case, the ten-year interval constituted an undue delay due to lack of due diligence. See Leedom v. Thomas, supra.

To show prejudice, Clemens must show that “some change in the condition or relations of the parties [occurred] during the period the complainant unreasonably failed to act.” Kehoe v. Gilroy, 320 Pa.Super. at 208, 467 A.2d at 5 (quoting Leedom v. Thomas, 473 Pa. 193, 200, 373 A.2d 1329, 1332 (1977)).

The prejudice required is established where, for example, witnesses die or become unavailable, records are lost or destroyed, and changes in position occur due to the anticipation that a party will not pursue a particular claim.

Class of 200 Admin. Fac. Mem. v. Scanlon, 502 Pa. 275, 279, 466 A.2d 103, 105 (1983) (citations omitted). Clemens failed to show any change in position because DiLucia did not pursue his rights under the declaration of trust more promptly. Clemens’ testimony indicates that the delay made it difficult for him to locate certain option agreements. However, Clemens never established the relevance of those agreements to the trust. In addition, Clemens argued that the cost of delivering the shares in 1981 was higher than in 1971, as was his attendant tax liability. Since throughout the relevant time period, he retained at least 25,000 shares, any increase in value was unrealized. He failed to show any reliance on this increase in value. Moreover, his argument that he would be prejudiced by an increase in tax liability is merely a bald assertion. The vague assertion of a difference in tax liability and the difficulty in finding documents with unestablished relevance to the trust do not establish the required showing of prejudice.

Order reversed. Case remanded so that the court may consider appropriate relief. Jurisdiction relinquished.

CIRILLO, President Judge, files a concurring opinion.

CIRILLO, President Judge,

concurring:

While I agree with the result reached by the majority, I believe that the central issue of the transferability of the res was not adequately addressed. Since this goes directly to the validity of the trust, and hence the holding of the case, I write separately.

Clemens, the settlor and trustee, argues that, because the stock was “restricted” when the trust document was executed, it could not be the subject of a trust. He also asserts that the subject matter was not sufficiently identifiable. For these reasons Clemens argues that no trust was created. Alternatively, he argues both parol revocation and laches, saying that any rights DiLueia may have had were released by him as part of a 1976 settlement and, if they were not, DiLueia has waited too long to assert them. DiLueia, as beneficiary of the trust, argues that Clemens has not yet discharged his fiduciary duty under the agreement, that Clemens produced no evidence of prejudice resulting from DiLucia’s delay in enforcing his rights under the trust and that, contrary to the chancellor’s findings, the claimed release was not proven. There is no dispute between the parties that there was an intention to create a trust. Because I am in agreement with the majority that the chancellor erred in finding a contract rather than a trust, with its discussion of the identification issue and with its holding concerning the defenses raised by appellee, I will confine my discussion to the transferability of the res.

The majority notes that, because the settlor and trustee were the same person, no transfer was required. While this is true, whether or not a transfer was required is clearly a distinct issue from whether or not the res was capable of being transferred. Therefore, I cannot agree with the majority’s conclusion that, because a transfer was not required under the facts of this case, it is unnecessary to address the transferability of the shares in question. Transferability of the subject matter is one of the requisites of a valid trust. Restatement (Second) of Trusts § 79 (1959).

The law will not presume an obligation to give away one’s property. It is, therefore, axiomatic that the burden of proving an alleged trust is on the party asserting its existence. However, where there is a written, executed declaration of trust which is authenticated according to the rules of evidence and which contains, on its face, the necessary elements of a trust, this burden has been met. The burden of defeating an authenticated, facially sufficient trust document must fall to him who challenges its validity. See First Federal v. Great Northern, 282 Pa.Super. 337, 422 A.2d 1145 (1980) (writing is sufficient evidence of trust if beneficiary, trust property, and purposes of trust are set forth). The writing speaks for itself and, in this case, there is nothing on the face of the declaration of trust which mandates a finding of invalidity. Therefore, if the beneficiary’s rights under the trust are to be denied enforcement, Clemens must have shown that, for reasons not evident within the document, the trust was fatally flawed.

The subject matter of the trust sub judice was 2,000 shares of Unicom, Inc.’s stock, legal title to which remained with the settlor. Clemens testified that he could not transfer the stock to DiLucia outright because it was “restricted.” He therefore executed the declaration of trust he now challenges for that very reason. As the majority noted, however, there was no evidence as to the nature of this restriction. The record supports an inference that it was legal title which could not be transferred; the evidence did not show that the beneficial interest was inalienable nor that Clemens’ rights in the stock would be forfeited upon his attempt to transfer any interest in it. Absent evidence of this sort, Clemens could not prove that neither the legal nor the equitable interest in the stock was nontransferable. In. fact, the declaration of trust acknowledged that DiLucia, who had furnished consideration, was the equitable owner of the stock. This recital that DiLucia was the equitable owner is an admission by Clemens that the beneficial interest in the stock had already been transferred, and therefore, that at least that portion of the stock was transferable. 1 G. Henry, Pennsylvania Evidence § 91 (1953).

Clemens’ inability to title the stock in either DiLucia’s name, or in his own name as trustee, did not make the stock unsuitable subject matter for a trust. Restatement (Second) of Trusts § 80, which delineates an exception to Section 79 (property which the owner cannot transfer cannot be held in trust), states:

If property is not transferable for a reason applicable only to the transfer of the legal title to the property, it can be held in trust.

Comment (a) to the above section explains:

If the reason why certain property is not transferable is applicable only to the legal title to the property and not to the beneficial interest, the owner of such property can effectively declare himself trustee of the property, although he cannot transfer the property in trust.

A review of the record shows that Clemens did not prove his allegation that the trust failed because the res was not transferable. The equitable ownership having already been transferred at the time of the creation of the trust, Clemens’ argument that his inability to transfer legal title prevented the trust from coming into existence is of no avail. It is clear that limited interests in property may be held in trust. Restatement (Second) of Trusts § 77 (1959). In this case, it was the legal ownership of the stock which was held in trust. The declaration of trust supports this conclusion by referring to DiLucia as the equitable owner of the stock and by imposing the duty to transfer legal title at the end of its term. I agree with the majority that a valid trust was created.

I would also note the law’s view of a trustee who challenges a trust under which he has accepted duties:

It is the duty of a trustee to support the trust and not to aid in any way in attacking or undermining it____ It is a fundamental principle never to be departed from, and is as binding as any axiom of the common law, that he who takes upon himself a trust, takes it for the benefit of him for whom he is entrusted, and will not be permitted to set up the invalidity of the act of its creation.

Carter v. Carter, 321 Pa. 391, 396, 184 A. 78, 80 (1936). Accord In re Briggs’ Estate, 150 Pa.Super. 66, 27 A.2d 430 (1942) (“It is a complete answer to [trustees contention that creation of trust was invalid] that the trustees are not in a position to make it.”). I believe this applies with special force to a trustee who is also the settlor. Clemens was in a position of superior knowledge with regard to the stock and any applicable restrictions. DiLucia was justified in relying on Clemens’ representation, as evidenced by the wording in, and execution of, the trust document, that Clemens could transfer the equitable interest to him and that legal title would be transferred in the future. As the settlor of the trust, Clemens is equitably estopped from asserting its invalidity in an attempt to avoid fulfilling the obligation he assumed under its terms.

That this duty could not have been discharged at the end of the three years specified in the 1968 declaration of trust does not help Clemens’ argument. While a trustee has no duty to comply with a term of the trust which is impossible of performance, if this impossibility is temporary, the trustee is under a duty to comply after the impossibility has been removed. Restatement (Second) of Trusts § 165(1), comment c (1959). At the time of the creation of the trust, Clemens evidently expected that he would be able to transfer legal title later; the fact that he erred in estimating he would be able to do so in three years is not fatal to the trust and does not work to the detriment of the beneficiary. Even though in 1971 he could not have titled the stock in DiLucia’s name, Clemens should have distributed the stock to DiLucia in 1972 when the stock began to be publicly traded. Failure to do so constituted a breach of trust.

Further, Clemens’ argument that “it was incumbent on [DiLucia] to insure that the shares were transferred in 1971” is incorrect. The burden of administering the trust according to its terms is on the trustee. Restatement (Second) of Trusts § 169 (1959). DiLucia’s failure to immediately demand performance by the trustee or to immediately bring an action in equity did not relieve the trustee of his obligation. Until he makes distribution of the res, Clemens remains in his fiduciary capacity with regard to DiLucia. A trustee’s duty continues until the trust is finally terminated by distribution of the trust property. In re Thaw’s Estate, 163 Pa.Super. 484, 63 A.2d 417 (1949). See also Swoboda v. U.S., 69 T.C. 500, aff'd 258 F.2d 848 (1958). Because we find that Clemens did not show prejudice as a result of DiLucia’s delay in bringing this action, Clemens’ duty to transfer legal title to DiLucia is still extant.

For the foregoing reasons, I concur in the result reached by the majority.

      . We note that the record is devoid of any information regarding the nature and purpose of the restriction.


author: DEL SOLE, Judge:

text:
    541 A.2d 771
    F.B. WASHBURN CANDY CORPORATION and Zurich Insurance Company, Appellants, v. FIREMAN’S FUND, Philip Packard and John Cepurneek, George Celia, Jr., Harold D. Lynn and Evelyn Lynn, his Wife, Dale Lynn, Jr. and Valley Home Improvement Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 5, 1987.
    Filed May 2, 1988.

      James F. Manley, Pittsburgh, for appellants.
    Bernard J. McAuley, Pittsburgh, for appellees.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This is an appeal from the trial court order dismissing Appellants’ exceptions in a declaratory judgment action. The facts of this case are as follows.

Appellant-F.B. Washburn Candy Company, whose general omnibus liability insurance carrier was Appellant-Zurich Insurance Company, contracted with Appellee-Philip Packard for the shipment of Washburn’s goods. Appellee-Fireman’s Fund provided insurance coverage for Packard. Subsequently, Appellee-John Cepurneek, one of Packard’s employees, was delivering Washburn’s goods when the truck he was driving collided with a vehicle occupied by Harold D. Lynn and Evelyn Lynn, his wife.

Thereafter, Washburn, Packard, and Cepurneek were named as defendants in a tort action arising from the accident. Upon receiving notice of the suit, Washburn tendered the defense of the action to Fireman’s Fund, claiming that Washburn was an omnibus insured under the insurance policy which Fireman’s Fund had issued to Packard. Fireman’s Fund disagreed, however, and refused to defend Washburn. For this reason, Washburn tendered the defense of the action to its general liability carrier, Zurich. Zurich, in turn, retained legal counsel so that a defense might be entered on Washburn’s behalf. Following a jury trial, a plaintiff’s verdict was returned against the defendants.

Thereafter, Washburn and Zurich commenced an action for declaratory judgment against Fireman’s Fund for the purposes of having the trial court determine the rights of the parties under the policy Fireman’s Fund had issued to Packard, and to recoup the costs associated with Zurich’s defense of Washburn. In its Findings of Facts and Conclusions of Law, the trial court found that Fireman’s Fund, the insurer of Packard’s vehicle, was the primary insurance carrier. Zurich, Washburn’s carrier, was held responsible only for excess coverage. Thus, it was concluded that Fireman’s Fund, should have defended Washburn in the underlying action. The trial court also ruled that Fireman’s Fund was not liable to Zurich for the legal fees the excess carrier incurred in the defense of the underlying action or the declaratory judgment action. Exceptions were filed and later denied by the trial court. This appeal follows.

Appellants raise three issues on appeal:

1. Did not the court err in failing to award costs of defense incurred by Zurich Insurance Company in defending an action where the primary insurer of the vehicle involved in the accident, Fireman’s Fund, refused to defend an omnibus insured;
2. Did not the court err in failing to award attorneys fees for the prosecution of the within declaratory judgment action; and,
3. Did not the court err in finding as a fact and concluding as a matter of law, that the the (sic) owner and operator of the tractor trailer involved in the accident was an “insured” under the policy of insurance issued by Zurich Insurance Company to F.B. Washburn Candy Corporation.

With respect to the first issue, Appellants argue that Fireman’s Fund repeatedly denied any obligation to defend Washburn, thereby acting in bad faith and in repudiation of its contract of insurance. Appellants contend that Fireman’s Fund should be prohibited from benefiting from its own breach of contract. Thus, all of the defense costs associated with the underlying action should be paid by Fireman’s Fund to Zurich. Appellants appropriately point out that the precise issue before us — whether a primary insurer who refuses to defend an insured under the insurance policy must reimburse an excess carrier for defense costs incurred after the excess carrier renders a defense on the insured’s behalf — has not been addressed by the courts of this Commonwealth.

We have, however, had the opportunity to discuss the duties owed by an insurer to its insured after the insurer wrongfully refused to undertake a defense in an action brought by a third party against the policyholder. In Kelmo Enterprises v. Commercial Union Insurance Co., 285 Pa.Super. 13, 426 A.2d 680 (1981), the appellees were forced to engage private counsel after the appellant-insurance company declined to defend the appellees in the underlying tort action. While the action was still pending, the appellees filed a petition for declaratory judgment, seeking a determination of their rights under the policy and an award of counsel fees for the defense of the tort action and the declaratory judgment action. The trial court held that the appellant-insurance company was required to defend the appellees. Likewise, the appellees were awarded attorneys’ fees. The appellant-insurance company appealed arguing, inter alia, that the trial court erred in awarding the attorneys’ fees to the appellees. We affirmed.

With respect to the underlying action brought against the appellees, we opined that “[bjecause our cases are well settled that in an action in assumpsit for the breach of a covenant to defend recovery includes the costs of hiring counsel and other costs of defense, the lower court properly awarded appellees attorneys’ fees for the defense of the [tort] action.” Id., 285 Pa.Superior Ct. at 20, n. 4, 426 A.2d at 683, n. 4. In determining whether or not attorneys’ fees should be granted for the declaratory judgment action, we held that “an insured who is compelled to bring a declaratory judgment action to establish his insurer’s duty to defend an action brought by a third party may recover his attorneys’ fees incurred in the declaratory judgment action if the insurer has, in bad faith, refused to defend the action brought by the third party.” Id. at 426 A.2d at 685, citing New Hampshire Insurance Co. v. Christy, 200 N.W.2d 834 (Iowa 1972) (emphasis supplied).

In the case at bar, the trial court distinguished Kelmo and similar cases from the instant facts by noting that, even though Fireman’s Fund may have breached its duty to Packard or Washburn, there exists no authority in Pennsylvania which states that a similar duty ran from the primary insurer to an excess insurance carrier. The trial court further elaborated that Zurich, being the excess carrier, had its own interest to protect by defending Washburn. Trial Court Opinion, 2/3/87, 2-3.

We disagree with the trial court’s conclusion. Rather, we find that the doctrine of equitable subrogation applies to the facts before us:

[i]t is well established that the action for subrogation is one based on considerations of equity and good conscience. The goal is to place the burden of the debt upon the person who should bear it. The right of subrogation may be contractually declared or founded in equity, but even if contractually declared, it is to be regarded as based upon and governed by equitable principles ... It has often been said that the equitable doctrine of subrogation places the subrogee in the precise position of the one to whose rights and disabilities he is subrogated.

Allstate Insurance Co. v. Clarke, 364 Pa.Super. 196, 527 A.2d 1021, 1023-1024 (1987) (citations omitted). Based on this principle, we are of the opinion that Zurich stands in the same place as Washburn had Washburn been forced to retain private counsel in the underlying action. It is true that there exists no contractual obligation between Fireman’s Fund and Zurich. Nevertheless, we are mindful that, while the interests of a primary insurer are virtually unaffected by the existence of excess coverage, the interests of an excess insurer are very much affected by the actions taken by the primary carrier, especially when the latter wrongfully refuses to defend its insured. Peter v. Travelers Insurance Co., 375 F.Supp. 1347, 1350-1351 (C.D.Cal. 1974).

We do not agree with the trial court’s conclusion that Zurich should bear the costs of litigation by virtue of the fact that Zurich was only protecting its own interests as an excess carrier. Zurich was placed in the posture of defending Washburn only after Fireman’s Fund wrongfully refused to render a defense. Thus, Zurich’s duty to defend was activated under inappropriate circumstances. Moreover, under the doctrine of equitable subrogation, Fireman’s liability as a primary insurer is not increased by Zurich’s recovery of attorneys’ fees. The duty owed to Zurich is identical to that which was owed to Washburn but was refused. See generally Peter v. Travelers Insurance Co., supra, at 375 F.Supp. at 1350.

Accordingly, under the guidance of Kelmo Enterprises v. Commercial Union Insurance Co., supra, we find that Fireman’s Fund is responsible for the counsel fees incurred by Zurich in the defense of the underlying action. However, with respect to the attorneys’ fees associated with the declaratory judgment action, we observe that the trial court did not determine whether or not Fireman’s Fund’s refusal to defend Washburn was in bad faith. Id. at 426 A.2d at 685. Therefore, we must remand this case to the trial court for this determination. If it is found that Fireman’s Fund did act in bad faith, then Zurich is entitled to the counsel fees expended in the declaratory judgment action.

Finally, Appellants argue that the trial court erred in finding that Cepurneek was an insured under the insurance policy issued to Washburn by Zurich. However, we need not discuss this issue. The trial court found that Fireman’s Fund owed insurance coverage for bodily injury of $300,000 per person, with a maximum of $600,000 per accident. Fireman’s Fund was also found to be responsible for $25,-000 in property damages. Decree, 8/28/86. The record shows that the jury verdict was less than the limits of insurance coverage set by the trial court. Opinion, 4/22/85, 2. Thus, Zurich as an excess insurance carrier was not called upon to provide coverage in the instant matter. With this being the case, the issue of whether or not Cepurneek is covered under Zurich’s insurance policy is moot. Further, we note that the only monetary injury complained of in this appeal concerns the assessment of the attorneys’ fees incurred by Zurich.

Order affirmed in part, reversed in part. Case remanded for proceedings consistent with this Memorandum. Jurisdiction relinquished.

      . Ordinarily, an order dismissing exceptions is interlocutory and nonappealable until judgment has been entered on the docket. In Re: Estate of Brockerman, 332 Pa.Super. 88, 480 A.2d 1199 (1984). Although it would appear that Appellant's appeal was taken prematurely, we note from the record that judgment was entered on May 6, 1987. For this reason, there is no need to quash this appeal. See generally Pa.R.A.P. 902.

      . Hereinafter referred to as “Washburn", “Zurich”, and “Packard”.

      . Hereinafter referred to as "Fireman’s Fund”.

      . Hereinafter referred to as “Cepurneek”.