author: CERCONE, Judge:

text:
    568 A.2d 182
    In re ESTATE OF Alphonse K. ROART, Deceased. Appeal of Helena T. GAYDOS, Executrix of the Estate of Lucie Berte Roart.
    Superior Court of Pennsylvania.
    Argued Aug. 22, 1989.
    Filed Nov. 16, 1989.
    Reargument Denied Jan. 26, 1990.

      John K. Weston, Philadelphia, for appellant.
    Mark A. Lublin, Philadelphia, for First Pennsylvania Bank, participating party.
    Before CIRILLO, President Judge, and KELLY and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a decree of the Court of Common Pleas of Philadelphia County, orphans’ court division, dismissing appellant’s exceptions and affirming the denial of her petition for review of a 1975 adjudication of the orphans’ court. We affirm.

The instant action relates to the estate of Alphonse K. Roart, who died in March, 1974. Probate of Mr. Roart’s will resulted in the granting of letters testamentary to the First Pennsylvania Banking and Trust Company (the bank), appellee. The will provided annuities for Roart’s widow, Lucie B. Roart, as well as gifts to several charitable organizations. Mrs. Roart elected against the will.

In April, 1975, the bank filed its first and final account which was confirmed nisi by the lower court on October 8, 1975. No exceptions were filed to the adjudication. On June 24,1976, the lower court approved and filed a schedule of distribution. Objections to the schedule of distribution were filed by Helena T. Gaydos, appellant. Mrs. Gaydos had been granted letters testamentary for the estate of Mrs. Roart, who died in July, 1975.

On September 3, 1976, Mrs. Gaydos filed a petition for review of the lower court’s adjudication of October 8, 1975. The petition alleged that the bank was negligent in failing to sell at an earlier date shares of stock in the bank holding company (First Pennsylvania Corporation) which were part of Mr. Roart’s original estate. In the petition, Mrs. Gaydos requested that the bank be surcharged the amount of $76,930.39 as a result of its alleged negligence. Joining in Mrs. Gaydos’ petition were the Overbrook School for the Blind and St. Edmond’s Home for Crippled Children, two of the beneficiaries under Mr. Roart’s will. The Attorney General of the Commonwealth of Pennsylvania also joined as parens patriae.

On November 17, 1976, the bank filed an answer and new matter in response to appellant’s petition. A period of discovery ensued. Then, on February 11, 1982, appellant filed an amended petition for review. The bank responded to this petition with preliminary objections, which were sustained by the lower court in June, 1984, because the amended petition was filed more than five years after the final confirmation of the account and did not allege fraud.

In December, 1984, the lower court granted the bank leave to file requests for admissions which were answered by all parties. Mrs. Gaydos then requested and received leave to file admissions. The bank opposed this request and the lower court modified its order granting Mrs. Gaydos’ request. The bank was then required to answer only certain of the requested admissions.

A hearing on appellant’s petition was held on April 4, 1986. The lower court determined, in an opinion rendered March 31, 1988, that appellant had failed to sustain her burden of proof on the petition to review, and denied the petition. Appellant filed exceptions to the lower court’s determination and the exceptions were argued before the court en banc. On December 22, 1988, the court en banc dismissed appellant’s exceptions and affirmed the denial of the petition for review. Appellant then filed the instant timely appeal.

Appellant makes the following arguments on appeal: (1) the lower court erred in failing to find that the bank and the holding company had admitted the allegations in certain paragraphs of the original petition for review; (2) the lower court erred in failing to require the bank and the holding company to file answers to all of the requests for admissions which appellant submitted; (3) the lower court erred in failing to find that appellant had demonstrated after-discovered evidence which would justify the granting of the petition for review; (4) the lower court erred in failing to find that the bank violated its own internal policies regarding the sale of holding company stock held in an estate account; and (5) appellant met her burden of proving that the adjudication of October 8, 1975 should be opened.

Before addressing appellant’s contentions, we note that our scope of review in an action challenging an account filed on behalf of an estate is limited to a determination of whether the findings of fact of the lower court are supported by sufficient, competent evidence and whether the court below committed an error of law or abused its discretion. In re Gramm’s Estate, 437 Pa. 381, 263 A.2d 445 (1970). Review of an account is granted as of right only (1) when there are errors of law appearing on the face of the record; (2) where new matter has arisen since confirmation of the account or decree; or (3) where justice and equity require a review. In re Cipriotti Estate, 451 Pa. 91, 301 A.2d 358 (1973); Pincus’ Estate, 378 Pa. 102, 105 A.2d 82 (1954). On a bill of review, the burden is on the person questioning the correctness of the accounts. In re Bailey’s Estate, 208 Pa. 594, 57 A. 1095 (1904).

Appellant first contends that the answers filed by the bank to four of the paragraphs in the original petition for review were actually admissions because they lacked sufficient specificity to constitute denials. The lower court erred, appellant argues, in failing to find that the bank had admitted these allegations. The paragraphs to which.appellant refers and the corresponding answers of appellee are as follows:

15. The asset-quality problems referred to in paragraph 14 hereof were caused, inter alia, by the Bank’s excessive and imprudent loans to real estate investment trusts. The answer:
15. It is denied that the Bank or Holding Company had asset quality problems and denied that the Bank made excessive or imprudent loans to real estate investment trusts.

The petition:

16. Because of the asset-quality problems reported by the Federal Reserve Bank, the financial conditions of the Bank and the Holding Company were greatly weakened. The answer:
16. It is denied that the Bank or the Holding Company had asset quality problems and denied that the financial conditions of the Bank or the Holding Company were weakened.

The petition:

17. Prior to January 1976, the weakened financial conditions of the Bank and Holding Company were not disclosed to the investing public..

The answer:

17. It is denied that the Bank or the Holding Company were in a weakened financial condition and denied that there was any failure to make proper disclosure to the investing public.

The petition:

19. The officers of the Bank knew in 1974 and 1975 that the financial conditions of the Bank and the Holding Company respectively were far weaker than was publicly believed.

The answer:

19. The allegations of paragraph 19 are denied. It is denied that the financial conditions of the Bank and Holding Company were weak. Respondent has no knowledge of the beliefs of the public except what was evident from the decline in the price of the shares of the Holding Company. If the same is material and relevant, proof thereof is demanded.

Under Rule 1029 of the Rules of Civil Procedure, Pa.R.C.P., Rule 1029, 42 Pa.C.S.A., a responsive pleading must “admit or deny each averment of fact in the preceding pleading----” Id., Rule 1029(a). “Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication.” Id., Rule 1029(b). The requirements of Rule 1029 are applicable to orphans’ court proceedings. See Pa. Orphans’ Court Rules, Section 3, Rule 1, 20 Pa.C.S.A. (pleading and practice in the orphans’ court shall conform to pleading and practice in equity in the court of common pleas); Pa.R.C.P., Rule 1501, 42 Pa.C.S.A. (procedure in an action in equity shall be in accordance with rules relating to civil actions).

Under Rule 1029(a), supra, a responsive pleading is not required to an allegation which is not an averment of fact. Kappe Associates, Inc. v. Aetna Casualty & Surety Co., 234 Pa.Super. 627, 341 A.2d 516 (1975). “Whether an allegation is of fact or law is determined by the context disclosing the circumstances and purpose of the allegation.” Id., 234 Pa.Superior Ct. at 632, 341 A.2d at 519, quoting Srednick v. Sylak, 343 Pa. 486, 492-93, 23 A.2d 333, 337 (1941). Similarly, the determination of whether or not a denial is specific must be made in light of the particular averments involved. 2A Anderson Civil Practice, § 1029.3. “No fixed rule can be stated for determining whether a denial is specific. It is a matter which must be determined in each case from an examination of the pleadings.” Id.

We have reviewed the allegations in the petition for review and the answer filed by appellee under the above standards and find no error in the lower court’s holding. We agree with the lower court that the allegations contained in paragraphs 15, 16, 17, and 19 of the petition are appropriately characterized as conclusions of law to which a specific denial was not required. The allegations of “excessive and imprudent loans,” “weakened financial condition,” and “asset-quality problems” are each conclusions of law leading to the ultimate conclusion set forth by appellant in paragraph twenty-one of the petition, i.e., that the bank should be surcharged because of its failure to dispose of Alphonse Roart’s shares in its stock prior to December, 1975. Furthermore, the allegations in the petition are not themselves supported by reference to any specific facts, thereby precluding appellee from preparing a more specific denial.

There is some accuracy to appellant’s contention that the form of the bank’s answers was defective because those answers repeated the words of the allegations in the petition. We are not, however, persuaded by this technical argument. As we have just indicated, our reading of the pleadings involved demonstrates that the specific denial of the type asserted by appellant as necessary in this circumstance was not required. Rather than holding appellee to a technical conformance to the requirements of Rule 1029, we will be guided, as was the court in Kappe Associates, supra, by the dictates of Pa.R.C.P., Rule 126, 42 Pa.C.S.A., which provides:

The rules [of civil procedure] shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

Id. See Kappe Associates, Inc. v. Aetna Casualty & Surety Co., 234 Pa.Super. at 633, 341 A.2d at 519. Taking a similar approach, we find the form of the denials non-determinative of the adequacy of the bank’s pleading. Therefore, we affirm the lower court’s ruling that the allegations of paragraphs 15, 16, 17, and 19 of the petition were not admitted in this case by appellee’s failure to more specifically deny the allegations.

Appellant’s next contention is that the lower court erred in failing to require the bank and the bank holding company to file answers to all requests for admissions submitted by appellant. Specifically, appellant argues that because the lower court failed to order answers to all requests for admissions, “certain material facts were never addressed by bank, and therefore could not be relied upon by appellant.” Appellant urges that the bank’s objection to the requested admissions on the basis that they were an unreasonable burden was invalid.

Under the Pennsylvania Rules of Civil Procedure, a party may serve upon any other party a written request for admissions. Pa.R.C.P., Rule 4014(a), 42 Pa.C.S.A. Objections may be made to such a request, and the reasons therefore must be stated. Id., Rule 4014(b). “Unless the court determines that an objection is justified, it shall order that an answer be served.” Id., Rule 4014(c).

The granting of relief in a discovery proceeding is dependent upon a prima facie showing of necessity, since the relief is not to be granted as a matter of right. Lomish v. Morris Nimelstein Sportswear Co., 367 Pa. 393, 80 A.2d 805 (1951). Much must be left to the chancellor before whom the matter is presented. Id., 367 Pa. at 397, 80 A.2d at 807. In the instant case, the requested admissions to which the bank objected on the grounds of an unreasonable burden totalled thirty-four, and addressed such diverse subjects as the best investment record among fifty major (unnamed) bank trust departments, growth in “classified credits” as reported by the Federal Reserve Bank, and other subjects. The lower court ordered that answers be filed to four of those requests (in addition to other requests for admissions which were objected to on grounds other than unreasonableness). We have reviewed the requests for admissions and find no abuse of discretion on the part of the lower court in ordering that only certain of the admissions be answered. As was stated by the court in Lenkiewicz v. Lange, 242 Pa.Super. 87, 95, 363 A.2d 1172, 1176 (1976), decided under the predecessor to the present Rule 4014, but nevertheless with obvious applicability in principle to the present case,

we believe that a list of requests for admissions may properly be dismissed where it is determined that it places too great a burden on adverse parties. Such a determination, involving as it does, a weighing of factors such as time, reasonableness, and prejudice, is properly left to the sound discretion of the judge who hears the objections.

Id.

Next, appellant contends that the lower court erred in failing to find that they had set forth after-discovered evidence which would justify the granting of the petition for review. Appellant maintains that articles appearing in the New York Times and Wall Street Journal in January, 1976 revealed for the first time that the bank knew, during the time that it was administering the estate of Alphonse Roart, that the value in stock in the bank was declining and that the decline was due to internal problems of the bank and not simply due to market forces. Appellant contends that the information contained in the newspaper articles was not available at the time of the audit, and therefore constituted new evidence justifying a review of the lower court’s 1975 adjudication.

The grant or refusal of a new trial or by analogy the opening of an adjudication in the orphans’ court on the grounds of after-discovered evidence is discretionary with the trial court and will not be reversed on appeal except for an abuse of discretion. Higbee v. Koziol, 383 Pa. 116, 117 A.2d 707 (1955). To justify the grant of a new trial on the basis of afterdiscovered evidence, the evidence must have been discovered since the trial and must be such as would not have been obtainable by the use of reasonable diligence and must not be cumulative or merely go to impeach the credibility of a witness. Helmig v. Rockwell Manufacturing Co., 389 Pa. 21, 131 A.2d 622 (1957), cert. denied, 355 U.S. 832, 78 S.Ct. 46, 2 L.Ed.2d 44, reh’g denied, 355 U.S. 885, 78 S.Ct. 146, 2 L.Ed.2d 115 (1957). The after-discovered evidence must also be likely to have compelled a different result. Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 556 A.2d 819 (1989); Der Hagopian v. Eskandarian, 396 Pa. 401, 153 A.2d 897 (1959), cert. denied, 361 U.S. 938, 80 S.Ct. 381, 4 L.Ed.2d 358 (1960). In addition, a review of an adjudication based on after-discovered evidence is not a matter of right, but rests in the sound discretion of the court. Bailey’s Estate, 291 Pa. 421, 140 A. 145 (1927). “This discretion is to be exercised cautiously and sparingly and only under circumstances which demonstrate it to be indispensable to the merits and justice of the cause.” Id., 291 Pa. at 424-25, 140 A. at 146-147.

In the instant case, the lower court found that the 1976 newspaper articles to which appellant refers were insufficient evidence upon which to grant the appellant’s petition for review. We agree with the lower court’s assessment for the following reasons. First, appellant has not proved that the information contained in the newspaper articles could not have been obtained prior to the confirmation of the account by the exercise of reasonable diligence. As the lower court indicated, the precipitous decline in value of the holding company stock was clearly disclosed in the schedule of distribution. In fact, the schedule of distribution showed an even greater loss on the First Pennsylvania Corporation shares than is covered by the surcharge which appellant has proposed. This information should have placed appellant on notice that the holding company’s financial condition was in decline. “It is the affirmative duty of all competent beneficiaries, upon receiving notice of the filing of an account, to make diligent inquiry concerning the fiduciary’s conduct and management of the affairs of the estate.” Mershon Estate, 364 Pa. 549, 73 A.2d 686 (1950).

Appellant has not proved that had she made diligent inquiry as was her duty as beneficiary, she could not have discovered the information which she alleges was first available to her in 1976. Appellant was well aware of the loss in value of stock held in trust for the estate as demonstrated by her objections to the schedule of distribution wherein she indicated that the accountant had erred in charging her distributive share with a loss on sale of securities. Appellant did not, however, raise the issue of surcharge, although her objections were filed in June, 1976, well after the January, 1976 newspaper articles on which appellant relies for support of her petition for review. Thus, even if the “after-discovered” evidence was not available to appellant at the time of the court’s filing of the adjudication by the exercise of reasonable diligence, the information was certainly available to her in June, 1976, when the schedule of distribution was filed. Having failed to utilize her opportunity for making objections as the means to allege the bank’s negligence in failing to earlier sell the securities, appellant cannot now succeed in such argument on a petition for review. As the court stated in Bailey’s Estate, supra,

[a] bill of review will not be considered where the issues were raised, contested and decided, nor will it operate as an exception to an appeal. The statutory period for appeal cannot be enlarged by a bill of review to correct an error of law which might have been the subject of appeal from the decree of the original account____

Id., 291 Pa. at 424, 140 A. at 146 (citations omitted). See also Pincus’ Estate, 378 Pa. 102, 105 A.2d 82 (1954) (statutory proceeding for review of an adjudication not intended to be employed as a device for accomplishing the late filing of exceptions).

Second, even if the information in the newspaper articles could not have been obtained before final confirmation of' the account, appellant has not demonstrated that the information would have compelled a different result. The evidence revealed that the bank desired to sell the stock early in the administration of the estate and advised Mrs. Roart to do so, but Mrs. Roart indicated that she wanted the estate retained in kind; therefore the stock was not sold. Before equity will grant relief on a bill of review, “it must appear that good conscience and substantial justice require it.” In Re Miller, 386 Pa. 495, 505, 126 A.2d 393, 398 (1956). In the instant case, Mrs. Roart was insistent that the stock be retained in kind, despite the bank’s recommendation to the contrary. Although appellant asserts that her instruction to retain the stock in kind was without full knowledge of certain facts, she has failed to demonstrate knowledge of those facts on the part of the bank. Thus, even if we were to determine that the newspaper articles were afterdiscovered evidence justifying the petition for review, we would be unable to determine that this evidence would compel a different result. See also Linnard’s Estate, 299 Pa. 32, 148 A. 912 (1930) (beneficiary not entitled to opening of adjudication on basis of decrease in value of securities where she was aware of continuing investment in them and in absence of specific averment of facts showing actual deception or misleading of beneficiary by trustee). Thus, we are not persuaded that the lower court abused its discretion in refusing to grant the petition for review.

Next, appellant contends that the lower court erred in failing to find that the bank violated its own internal policies concerning sale of holding company stock held in an estate account. Appellant contends that they were not aware of this policy until after confirmation of the account; therefore the evidence relevant to these internal policies of the bank is after-discovered evidence justifying the petition for review.

Appellant’s entire argument on this issue consists of one paragraph containing no citation to legal authority for the proposition that the alleged after-discovered evidence demonstrated a breach of fiduciary duty on the part of the bank. Considering the extent of appellant’s failure to brief this argument in appropriate appellate fashion, we decline to consider its merits. See Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149, 150 (1982) (“[w]hen issues are not properly raised and developed in briefs ... a court will not consider the merits thereof”).

Appellant’s final argument on appeal is that “based upon the established facts of the case, appellant met her burden of persuasion that the adjudication should be opened.” Specifically, appellant asserts: (1) the bank was under a legal duty to liquidate the holding company securities as soon as it realized that the stock was unsound, and such knowledge should have been available to the bank on or near the time of testator’s death; (2) the bank was not relieved from its duty to sell the estate’s securities by Mrs. Roart’s request that the securities be retained in kind; (3) appellant cannot be estopped from asserting the bank’s negligence in failing to sell the securities at an earlier date because Mrs. Roart’s decision to retain the stock in kind was not a fully informed one.

As we stated previously, review of an account may be granted as of right only (1) when there are errors of law appearing on the face of the record; (2) where new matter has arisen since confirmation of the account or decree; or (3) where justice and equity require a review. In re Cipriota Estate, supra; Bailey’s Estate, supra, 291 Pa. 421, 140 A. 145. The burden of proof on a bill of review is on the party questioning the correctness of the accounts. In re Bailey’s Estate, supra, 208 Pa. 594, 57 A. 1095. The orphans’ court’s grant or refusal of a petition to review its final decree will not be disturbed absent an abuse of discretion. Downing v. Felheim, 309 Pa. 566, 164 A. 598 (1932).

As we have previously indicated, appellant has failed to set forth sufficient grounds upon which to grant her petition. The allegations in the final part of her brief simply reiterate what she has previously argued, i.e., that the bank’s answers to the petition amounted to admissions, that the lower court erred in refusing her request for certain admissions from the bank, and that the 1976 newspaper articles constituted after-discovered evidence justifying her petition for review. We have already addressed these allegations and found them meritless. We agree with the lower court and the court en banc that appellant has failed in her burden of proof. As the lower court stated:

At best, the petitioners have shown that the fact that the Bank was on the “watch list” in 1974 and 1975 was not made public until January, 1976. Even assuming that knowledge of that fact can be imputed to the trust officers who were responsible for the administration of the estate (petitioners have failed to cite a single case to support such a result), there has been no showing what information was available to them which was not available to the public. Nor has there been any showing what information was available to the officers of the bank which was not available to the public. Clearly, the public was able to gain some indication of the weakened financial condition of the bank because the price of the stock of the Holding Company dropped precipitously during the administration of the estate. Petitioners have produced no proof of any of the facts alleged in the petition. They did not subpoena any records of the Bank or Holding Company. They did not offer the testimony of any officer or employee of the Bank or Holding Company. Indeed, the petitioners have done no more than speculate concerning what might have been known to the bank officers and not available to the public.

The court en banc agreed with this assessment of appellant’s failure of proof:

In essence, the petitioners did not offer any evidence in support of their petition. They attempted to prove their case by filing the aforesaid requests for admissions and then taking the position that the bank’s answers or lack thereof were sufficient to prove the facts alleged in support of the petition. We find these arguments lacking in merit.

Our review has similarly failed to disclose sufficient proof to support appellant’s petition for review. Thus, we find no abuse of discretion on the part of the lower court in denying the petition.

Decree affirmed.

      . These parties — Overbrook School for the Blind, St. Edmond’s Home for Crippled Children, and the Commonwealth of Pennsylvania — have joined in the brief of appellant.


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    568 A.2d 190
    Jerry M. BEARY, Appellee, v. CONTAINER GENERAL CORPORATION, a Corporation, Appellant, v. EDWARDS TANK ERECTION, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued May 18, 1989.
    Filed Dec. 1, 1989.
    Reargument Denied Jan. 81, 1990.

      Chester S. Fossee, Pittsburgh, for appellant.
    John R. Gavin, Oil City, for Beary, appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal arises from the trial court’s denial of a Motion by the Defendant-Appellant, Container General Corporation, (hereinafter referred to as “Container”) to mold a verdict. After thorough review, we find no basis for a reversal of the Order of the trial court.

This case has a long and complicated history. In September, 1976, the Plaintiff-Appellee, Jerry M. Beary, was an employee of Additional Defendant-Appellee, Edwards Tank Erection, Inc. (hereinafter referred to as “Edwards”). In the course of that employment, Beary was involved in the erection of a steel storage tank at Container’s plant. On September 13, 1976, Beary suffered significant injuries in the course of that work. He instituted the instant personal injury action against Container and against Pennsylvania Electric Company, contending that they were responsible for his injuries. Edwards, the employer, was joined as an Additional Defendant in the action by Container. Container sought such joinder on the basis of an alleged contract of indemnification between Container and Edwards.

The case was first tried before a jury in October, 1981. The trial court had severed the issue of negligence from the issue of any right of indemnification between Container and Edwards. At the conclusion of that first trial, the trial court directed a verdict in favor of Container, and Plaintiff Beary filed an appeal to our Court. After consideration, our Court issued an Opinion on November 18, 1983, reversing the trial court’s verdict, and remanding the matter for a new trial. Beary v. Pennsylvania Electric Company, 322 Pa.Super. 52, 469 A.2d 176 (1983). In that decision, our Court ruled that the indemnification issue should be severed and tried separately, after the resolution of the Plaintiff’s negligence claims.

A second trial was held in November, 1984. A bifurcated procedure was followed and the issue of liability was first submitted to the jury. It rendered a verdict that Beary and Container were each equally negligent in the accident. Thereafter, the matter of damages was submitted to the same jury. However, the trial court declared a mistrial because members of the jury had read a newspaper article in violation of the instructions of the court.

Another jury was selected which considered the issue of damages during trial proceedings in February, 1985. That jury returned a verdict in the amount of $500,000.00 in favor of the Plaintiff. The trial court molded the verdict to $250,000.00, in accordance with the apportionment of negligence by the jury which had considered the issue of liability in November, 1984. The court also ordered delay damages to be added to the verdict in favor of the Plaintiff.

Thereafter, Container filed a timely motion for post-trial relief. The trial court denied the motion approximately one year later, on March 5, 1986. An appeal was then filed to our Court by Container on April 4, 1986.

After the trial court denied Container’s request for post-trial relief, Container filed a Motion for Summary Judgment against Edwards, on the severed indemnification claim. The trial court granted the Motion and entered a judgment against Edwards and in favor of Container on the indemnification issue, on May 29, 1986.

In early June, 1986, Container filed a motion to mold the verdict in favor of Beary, to take into consideration the Court’s ruling on the severed indemnification claim against Edwards. As will be more fully discussed later in this Opinion, Container essentially contended that it was entitled to have the verdict molded to reflect a set-off of workers’ compensation benefits paid to Beary because Edwards, Beary’s employer, had been held liable to indemnify Container as a result of the injuries to the Plaintiff.

On October 1, 1987, our Court issued an Opinion in connection with the appeal which had been filed by Container. See Beary v. Container General Corporation, 368 Pa.Super. 61, 533 A.2d 716 (1987). The judgment of the trial court was affirmed, with some modification in the award of delay damages. Container filed an application for reargument which was denied by our Court on November 25, 1987. It thereafter filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court on December 28, 1987. That Petition was subsequently denied by the Supreme Court. Beary v. Container General Corp., 520 Pa. 586, 551 A.2d 213 (1988).

The motion to mold the verdict, which had been filed by Container in early June, 1986, was denied by the trial court by an Opinion and Order dated March 15, 1988, while Container’s Petition for Allowance of Appeal was pending before the Supreme Court. On April 20, 1988, the trial court issued an Order providing that its March 15, 1988 Order should be effective on the date that the Supreme Court ruled on the appeal of Container which was then pending before that Court. As a result of a motion by Container, the trial court entered another Order on November 22, 1988, striking its March 15, 1988 and April 20, 1988 Orders. Instead, the court directed the Prothonotary to enter another Order on the date the Prothonotary received notice of a denial of Container’s Petition for Allowance of Appeal to the Supreme Court. In fact, that notice was received on November 4, 1988, and the trial court’s Order was entered bearing that date. The court again denied the Defendant’s Motion to Mold the Verdict and ordered the Defendant to pay the entire sum of $250,000.00, plus appropriate delay damages as determined by our Court, and any interest as required by law. The court refused to allow any deductions to be made for any amounts received by the Plaintiff in workers’ compensation benefits, which had been paid by Edwards’ workers’ compensation insurance carrier, Continental Insurance Company.

The instant appeal contests the trial court’s Order refusing to mold the verdict in favor of the Plaintiff to allow Container credit for workers’ compensation benefits paid to the Plaintiff as a result of his injuries. The Appellant relies upon a provision of the Workmen’s Compensation Act which allows a right of subrogation for an employer or its workers’ compensation insurance carrier from the proceeds of a recovery by the injured employee from a third party arising out of the events leading to the work-related injury. See the Act of June 2, 1915, P.L. 736, art. Ill, 319, as amended, 77 P.S. 671. As noted earlier, the position of Container is that its indemnification verdict against Edwards provides grounds for its request to mold the verdict. It maintains that if Edwards is entitled to a subrogation claim against the Plaintiff, its indemnification right should require the molding of the verdict.

In support of its position, Appellant Container relies heavily upon the reasoning in cases such as Maio v. Fahs, 339 Pa. 180, 14 A.2d 105 (1940) and McDevitt v. Terminal Warehouse Company, 346 Pa.Super. 186, 499 A.2d 374 (1985). Such decisions were based upon the procedure and statutory provisions which were effective under the Workmen’s Compensation Act prior to the amendments of December 5, 1974, which became effective February 5, 1975. See McDevitt v. Terminal Warehouse Company, id. Under the practice prior to February 5, 1975, a third party could join a plaintiff’s employer as an additional defendant in a tort action, and might enjoy a reduction in the amount of any verdict which was to be paid to the injured employee, based upon contributing negligence of the employer, and its prior payment of workers’ compensation benefits to the employee.

However, the Act of December 5,1974, P.L. 782, No. 263, 77 P.S. 481, which amended Section 303 of the Workmen’s Compensation Act, unquestionably bars the joinder of a plaintiff’s employer as an additional defendant in any action brought by its employee against a third party for injuries which may have occurred during the course of employment. Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977). Moreover, it is clear that in this action, which involves injuries which occurred after the effective date of the December 5, 1974 amendment to the Act, Container, the third party tortfeasor, must pay the full amount of the verdict to Beary, the injured employee. Heckendorn v. Consolidated Rail Corporation, 502 Pa. 101, 465 A.2d 609 (1983). Container’s request to mold the verdict, and to reduce the amount it is to pay to the Plaintiff, is literally an attempt to revert to the procedure which existed prior to the 1974 change in the applicable law. It runs directly contrary to the procedure which has been followed under the revised statutory scheme since that time. Moreover, it would have the same practical effect as a joinder of Edwards, the employer, in the Plaintiff’s action, which is obviously contrary to the intent of the 1974 amendment to Section 303.

Container’s request to mold the verdict could also be denied on other independent grounds. It is well established that before indemnification rights accrue, the party seeking indemnification must pay the claim or verdict damages before obtaining any rights to pursue an indemnification recovery. National Liberty Life Insurance Company v. The Kling Partnership, 350 Pa.Super. 524, 504 A.2d 1273 (1987); F.J Schindler Equipment Company v. The Raymond Company, 274 Pa.Super. 530, 418 A.2d 533 (1980). Thus, Container’s purported rights as an indemnitee would not arise until it paid the entire amount of the verdict to Beary. Its claim of an indemnification right against Edwards, on which its request for a molding of the verdict was based, had never been perfected in the absence of a full payment to the Plaintiff, who was the verdict winner.

Another basis for denial of Container’s request to mold the verdict is that the Appellant’s contractual indemnification claim is against Edwards, the employer, rather than Edwards’ workers’ compensation insurance carrier. That carrier, rather than Edwards, paid the compensation benefits to the Plaintiff. While 319 of the Workmen’s Compensation Act (77 P.S. 671) establishes subrogation rights for the “employer”, it has been held that such subrogation entitlement inures to the insurance carrier if it was the payer of the benefits to the injured employee. Reliance Insurance Company v. Richmond Machine Company, 309 Pa.Super. 430, 434, fn. 4, 455 A.2d 686, 688, fn. 4 (1983); Bumbarger v. Bumbarger, 190 Pa.Super. 571, 155 A.2d 216 (1959). Thus, Edwards would not be the party entitled to subrogation in the instant case. Container’s attempt to reduce the verdict is based upon its indemnification contract with Edwards, rather than upon any claim against Edwards’ compensation carrier. Because the insurer, rather than Edwards, enjoys the subrogation right against the Plaintiff’s recovery from Container, the indemnification contract between Container and the employer obviously creates no basis for a claim by Container to reduce the amount of the verdict it must pay to the Plaintiff. Moreover, the workers’ compensation subrogation rights and responsibilities of both the insurance carrier and Beary may not be affected in these circumstances by any contract of indemnification which existed between Container and Edwards.

Therefore, we can discern no merit in the contentions by the Appellant that the trial court erred in denying the request to mold the verdict. Neither the contract of indemnification nor applicable law provide any support for the Appellant’s position.

The Order of the trial court is hereby affirmed.

      . Container’s efforts to have the verdict molded in this matter Eire obviously motivated by the fact that Edwards has been bankrupt since 1981.

      . Section 319, as amended provides:

        Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer; reasonable attorney’s fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employe, his personal representative, his estate or his dependents. The employer shall pay that proportion of the attorney’s fees and other proper disbursements that the amount of compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement. Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employe, his personal representative, his estate or his dependents, and shall be treated as an advance payment by the employer on account of any future installments of compensation.
      Where an employe has received payments for the disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an agreement or award for that injury the employer or insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of hearing before the referee or the board.


author: McEWEN, Judge:

text:
    568 A.2d 194
    Charles L. BUFFINGTON, Sr. and Ruth L. Buffington, his wife, v. Charles L. BUFFINGTON, Jr. and Diane Buffington, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1989.
    Filed Dec. 26, 1989.

      Ronald R. Pellish, Pottsville, for appellants.
    Fred J. Wiest, Jr., Pottsville, for appellees.
    Before CAVANAUGH, McEWEN and POPOVICH, JJ.
   McEWEN, Judge:

We here consider an appeal from a final decree, entered following the dismissal of appellants’ exceptions to a decree nisi, which (1) enjoined appellants from maintaining a fence line, or any other barricade, which would prevent free access to Township Road No. 850, a gravel road abutting the appellees’ premises, and (2) ordered appellants to remove a water line extending from Wildcat Creek across appellees’ premises to the home of appellants. We affirm.

The underlying factual history is well mirrored by the findings of fact recounted by the distinguished Judge Wilbur H. Rubright in his able opinion:

1. Appellees, Charles L. Buffington, Sr. and Ruth L. Buffington, his wife, are adult individuals residing at R.D. 1, New Ringgold, Schuylkill County, Pennsylvania.
2. Appellants, Charles L. Buffington, Jr. and Diane Buffington, his wife, are adult individuals residing at R.D. 1, New Ringgold, Schuylkill County, Pennsylvania.
3. Appellees are the owners of a parcel of ground situate in East Brunswick Township, Schuylkill County, Pennsylvania; being 10 acres and 32 perches, having been acquired by deed dated September 23, 1968 in Deed Book 1103, page 259.
4. The appellants conveyed their undivided one-half interest in the premises referred to in Finding No. 3 by deed dated December 24, 19[70] and recorded in Deed Book 1132, page 772.
5. The common owner of the premises of the appellees and appellants first conveyed the premises now owned by the appellees in 1896 by deed recorded in Deed Book 156, page 298.
6. The description in the deeds of the appellees predecessor in title and the description in the deed into the appellees has remained substantially unchanged since the first deed out of the common owner in 1896. The description contains calls by course and distance indicating its abutment to a public road.
7. The roadway which transverses the property of the appellees and abuts the premises of the appellees and appellants is Township Road No. 850, a township road which has existed since the early 1800’s.
8. The Township of East Brunswick did in fact abandon all except .4 of a mile of Township Road No. 850 where it existed in East Brunswick Township. This abandonment took place just prior to 1932.
9. Following the abandonment by the Township of East Brunswick, this township road was maintained by Atlas Powder Company as access to its plant at Reynolds and was so maintained until another entrance to the plant was constructed from Route No. 443 in West Penn Township to its plant in that township.
10. The general public used Township Road No. 850 until its. abandonment and the roadway was used thereafter by the abutting landowners for necessary access to their properties____
11. That the fence as erected by appellants — confiscates a strip of land of the appellees and prohibits them free access to their property.
12. The appellants acquired title to an abutting piece of property, 1.1113 acres in size, by quit-claim from Atlas Powder Company by deed dated April 14, 1986 and recorded in Deed Book 1373, page 405.
13. The appellants erected a rail fence which encompassed the entire roadbed of the abandoned portion of the road abutting the premises of the appellants and appellees in 1986.
14. The appellants, in 1982, constructed a water line from the stream which transverses both the property of the appellees and the appellants, known as Wildcat Creek.
15. There was no written or oral agreement of any kind between the parties regarding the installation of the water line except by tacit consent of the appellees for failure to object to its construction.

Appellants contend in this appeal from the final decree that:

I. The decree nisi and order of court are contrary to the evidence and contrary to the weight of the evidence in that the evidence presented by the appellees failed to establish any ownership rights to the roadway of the appellants. The evidence further established that the appellants are the owners of the roadway and have exclusive ownership rights as against all other persons, including appellees.
II. Appellants acquired an easement or irrevocable license from appellees to construct a water line on the real estate of appellees.

“ ‘The scope of review of an appellate court in the consideration of an appeal from a final decree in an equity action is well established. A Chancellor’s findings of fact are entitled to the weight of a jury verdict and will not be reversed on appeal if supported by adequate evidence. The Chancellor’s findings are afforded particular weight in cases in which the credibility of witnesses must be evaluated, as the Chancellor has had the opportunity to hear their actual testimony and to observe their demeanor on the witness stand. We should not reverse on appeal unless it is evident that the lower court abused its discretion, lacked evidentiary support for its findings, or was capricious in its disbelief of evidence submitted.’ ” Pirilla v. Bonucci, 320 Pa.Super. 496, 499, 467 A.2d 821, 823 (1983), quoting Sorokin v. Krasner, 289 Pa.Super. 324, 327, 433 A.2d 88, 89-90 (1981) (citations omitted throughout).

We are similarly bound by the findings of the chancellor concerning the credibility of the witnesses, and the weight to be accorded their testimony. Moreover, it is not the prerogative of an appellate forum to find facts when it studies the evidence, or to substitute its judgment for that of the chancellor when it considers the conclusions reached by the chancellor from the evidence he or she found credible. Tyler v. King, 344 Pa.Super. 78, 96, 496 A.2d 16, 25 (1985); Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 114, 464 A.2d 1243, 1255 (1983); Stowe v. Booker, 284 Pa.Super. 53, 57, 424 A.2d 1388, 1390 (1981); In Interest of Black, 273 Pa.Super. 536, 543, 417 A.2d 1178, 1182 (1980). Since there is credible evidence of record to support each of the chancellor’s findings of fact, we may not disturb those findings, but are, instead bound by them.

Section 3 of the General Public Road Law, 36 P.S. § 2131, authorizes owners abutting highways or streets to reclaim their former property underlying the road if and when the highway or street is abandoned. This section provides:

§ 2131. Land to revert to owners
Whenever any highway, street, court, or alley, shall be vacated, or hath been vacated, by authority of law, the adjoining owner or owners shall be authorized to reclaim the same, to the centre thereof, unless the ground was originally taken in unequal proportions from the then owners thereof, and in such case, the adjoining owners shall reclaim, in the proportion contributed by such owners, or by those under whom they shall have derived their titles.

36 P.S. § 2131. See also: Petition of Fried-El Corp., 81 Pa.Cmwlth. 493, 495-97, 474 A.2d 713, 715 (1984).

The first deed out of the common owner in 1896 contains calls by course and distance indicating the abutment of the original tract, which contained both appellees’ and appellants’ land, to a “public road.” The evidence supports the finding of the court that the road was once a public road which was abandoned by the township prior to World War II. John Ketchledge who, together with his family, resided on the property for some twenty-five years between 1927 and 1952, testified:

# * # * * *
Q. Who abandoned it?
A. I don’t know that either.
Q. Well, are you certain that other people didn’t use that road?
A. Yes, when____ Before, yes, before.
Q. Before?
A. Yes, all the Atlas people and other people used it. Q. And other people?
A. Yes.
Q. So it was used by the public then?
A. Right. That’s why we stopped it off, because it went through the middle of the plant.
Q. And it was used by the general public from 1927 until 1952, as far as you know?
A. Yes.
******
Q. I have one question. Mr. Ketchledge, you said that the township took care of this road until it was abandoned?
A. Right.
Q. But you do not know when it was abandoned?
A. No, both townships.
Q. Both townships took care of it?
A. West Brunswick and Walker took care of it, both of them.
Q. Now, as far as determining when it was abandoned, you don’t know?
A. Not exactly, no.
Q. Not exactly. Well, would you know was it before World War II or after World War II?
A; It was before World War II.
Q. It was abandoned sometime before World War II. And up to that time the township took care of it, that’s your testimony?
A. Right.
Q. And after it was abandoned, then Atlas Powder took care of it?
A. Right.
******

Since the road had been a “public road” but had been abandoned, the chancellor properly relied upon 36 P.S. § 2131 to determine the ownership of the roadbed. The chancellor also correctly found that the roadbed had been owned by the former common owner of the tract now comprising appellees’ and appellants’ properties, when he reasoned:

the description in the deeds of the Plaintiffs’ predecessor in title and the description in the deed into the Plaintiffs has remained substantially unchanged since the first deed out of the common owner in 1896____ [T]he description contains calls by course and distance indicating its abutment to a public road____
* * * * * *
[T]he roadbed was owned by the former common owner and upon his conveyance of the premises now owned by the Plaintiffs, it is presumed that with the calls in the deed abutting the Township Road, the intention was that they would convey to the center line of the road. This conveyance was subject to the right of the public user of the roadway until its abandonment.

Thus we reject appellant’s argument that the 1986 deed from Atlas Powder conveyed the entire roadbed to them, and affirm that portion of the decree which enjoins appellants from interference with the free access of appellees to the roadway.

Appellants also argue that an easement by implication, or, in the alternative, an irrevocable license was granted by appellees for the construction and maintenance of a water line across the property of appellees. The record, however, precludes a finding of an easement by implication.

To establish an easement by implication on the severance of the unity of ownership in an estate there must be (1) a separation of the title, (2) such continuous and obvious user before the separation as to show an intention to make the alleged easement permanent, (3) the easement must be necessary to the beneficial enjoyment of the land granted or retained; and (4) the servitude should be continuous and self-acting. Becker v. Rittenhouse, 297 Pa. 317, 325, 147 A 51.

De Pietro, et al v. Triano, et al, 167 Pa.Super. 29, 31-32, 74 A.2d 710, 711 (1950). The particular importance of the element of necessity in the analysis and balancing of these factors was subsequently addressed by this Court in Potis v. Coon, 344 Pa.Super. 443, 496 A.2d 1188 (1985):

“In the greater number of cases, its necessity to the use of land of the claimant is the circumstance that contributes most to the implication of an easement. If no use can be made of the land conveyed or retained without the benefit of an easement, it is assumed that the parties intend the easement to be created.” Conversely, as the degree of necessity decreases, the need to refer to other factors suggestive of an intent to create an easement increases substantially.

Id., 344 Pa.Superior Ct. at 448 n. 6, 496 A.2d at 1191 n. 6, quoting Thomas v. Deliere, 241 Pa.Super. 1, 4-5, 359 A.2d 398, 399-400 (1976) [emphasis added]. Accord: Restatement (First) Property, § 476 (1944); Flaherty v. DeHaven, 302 Pa.Super. 412, 418-20, 448 A.2d 1108, 1112 (1982).

Consideration of the first of these factors, namely, separation of title, reveals that the sole basis for the claim by appellants to ownership of the parcel which the asserted easement was meant to serve, arises from the 1986 quitclaim deed to them from Atlas Powder Company. Since then, their claim of ownership stems not from appellees, but from Atlas Powder, the unity of ownership which must necessarily precede the separation of title was not established. Since the separation of title was not established by appellants, they were necessarily unable to demonstrate the further factor of continuous and obvious use prior to the separation.

Appellants similarly failed to demonstrate the factor of necessity, namely, that the easement is necessary to beneficial enjoyment of their land. As the trial court noted, the evidence was uncontradicted, that Wildcat Creek flows in such volume through both properties as to enable appellants, as well as appellees, to benefit therefrom. Since direct access to that stream is available to appellants, they have not demonstrated that the water line easement is necessary for their enjoyment of the property.

And, finally, the fourth factor, namely, whether the servitude has been continuing and self-acting becomes inconsequential in light of the failure of appellants to demonstrate any of the other three factors suggestive of intent, particularly, the factor of necessity.

Since appellants were unable to establish necessity, or indeed, demonstrate any of the other factors indicative of an easement by implication, they are obliged, if they are to prevail, to demonstrate with some certainty that the parties intended to create an easement. Potis v. Coon, id. Thus appellants also argue that the intent of the parties to create an easement was demonstrated by (1) appellees’ assistance in construction of the water line, and (2) the absence of any objection by appellees to the construction. We disagree.

First, the assistance of appellees in restoring the area excavated by appellants is equivocal and does not demonstrate an intent to create an easement since appellees merely repaired the damage appellants created. Second, appellee stated during cross-examination, that he did not object to appellees’ activities, because he sought to effect a reconciliation between appellants and himself. Thus, neither the failure of appellees to object, nor their assistance in restoring the area excavated, manifested any intent to create an easement.

Finally, while the principal assertion of appellants is that an easement was created in their favor for maintenance and use of the water line through the property of appellees, they argue, in the alternative, that the license conferred upon them by appellees became irrevocable. It is not disputed that appellees conferred upon appellants a license by their knowledge of and acquiescence to the construction of the water line together with their subsequent participation in the restoration of a portion of the area through which the line was constructed. Our Supreme Court squarely confronted the issue of irrevocable licenses in Bieber v. Zellner, 421 Pa. 444, 220 A.2d 17 (1966):

A license to use the promisor’s land will become irrevocable for the duration of the license term when the promisee in justifiable reliance treats his land in a way he would not otherwise treat it, that is, by making expenditures of money for such changes as would prevent his being restored to his original position, [emphasis supplied]

Id., 421 Pa. at 447, 220 A.2d at 19. That court thereby established the following conditions precedent to the irrevocability of a license, and recounted those conditions in such fashion as to indicate that each is a condition of the next. As a result, a negative resolution of any of these conditions precludes inquiry upon the remaining conditions:

Did appellants acquire a license?
Did appellants justifiably rely on the license extended them by appellees?
Did appellants treat their land in a way they would not have otherwise?
Did they do so to the extent that appellants cannot be restored to their original position?

Appellees do not dispute that appellants acquired a license. Appellees argue, however, and the trial court agreed, that the license was revocable. Thus, the first task in our inquiry is to consider whether the action taken by these licensees was in justifiable reliance on the license. Appellants would create this irrevocable burden on the land by arguing that construction of the water line not only conferred on them a license, but also, as well, composed the required justifiable reliance. This argument was rejected by our Supreme Court in Bieber, supra, where the underlying factual history mirrored that of the instant case:

In this case, plaintiff did not make any oral or written representations to defendants that they would be allowed to use the roadway. Plaintiff may have been able to observe [the rendition of expenditures in reliance]. These activities were equivocal, however, and no promise should be inferred from them. Restatement, Property § 519 comment f (1944). Even if defendants had established that plaintiffs silence with knowledge [of the reliance] was a representation of permission to use [the license], they failed to show that they acted in reliance. Defendants argue that their construction was action in reliance. Where, as here, both representation and reliance are sought to be proved from a single activity the silence of the plaintiff must clearly be shown to have been relied on in the completion of that activity. Defendants did not establish that they knew plaintiff had observed the construction. They, further, did not establish that the construction was of such duration that, if they did know of plaintiffs observance, there was sufficient time after such knowledge and before completion for them to conclude permission from his silence. The doctrine, therefore, is inapplicable.

Id., 421 Pa. at 447-48, 220 A.2d at 19. [emphasis supplied].

Thus, in order to rely upon but a single circumstance to prove both the license, and also reliance on a license, the licensee must demonstrate not only that a license had been acquired, but also that reliance was thereafter rendered on faith of the license. Here, while the evidence indicated that appellees observed and thereby tacitly permitted appellants to construct the water line, there is no evidence to support the further factor of “justifiable reliance”. Appellants have not specifically established the required justifiable reliance since the record is devoid of any testimony or other evidence concerning (1) the duration of the construction effort, in hours or days, since appellant husband testified that he performed all the labor, (2) the complexity of that effort, since appellant indicated only that he used a backhoe, (3) the precise dollar cost of the effort, (4) at what stage of the construction appellees first observed the construction, (5) through what stage appellees observed the construction, and (6) at what point appellants concluded the permission from appellees was complete. Moreover, a license acquired by silent acquiescence can come into existence only when the intrusion of the would-be licensee is completed and the intruder is no longer susceptible to ejection by the landowner. Thus, the license upon which appellants rely did not become viable until completion of the water line construction, as well as the backfilling and replanting effort in which both appellants and appellees engaged. Since the notion of justifiable reliance implicitly requires a viable license, since the license only became viable upon completion of the entire construction, backfilling and planting efforts, and since appellants do not claim any act of justifiable reliance other than the entire construction effort, their argument that the construction also composed the reliance is seen to be circular.

Our Supreme Court in Bieber, supra, indicated that the licensee must meet each element as a condition precedent, and since, as we have seen, appellants have not demonstrated the required justifiable reliance, any discussion concerning the remaining conditions is unnecessary. Nonetheless, the record is devoid of evidence concerning the manner in which appellants treated their land in a way they would not have otherwise, other than the aforementioned imprecise testimony of appellant husband that he did the labor and hired a backhoe. Thus, the same failure of proof which refuted appellants’ claim of justifiable reliance, defeats their argument of actual reliance.

Nor have appellants, by reason of the same evidentiary deficiencies already recounted in our rejection of the argument of justifiable reliance, established the required detrimental reliance, namely, evidence of obstacles which preclude a restoration to their original position — indeed, it does not seem likely that appellants could demonstrate such detriment since they have direct access to a sufficient supply of water from Wildcat Creek. And, finally, it merits mention that our courts have declined to weigh the element of detrimental reliance when a licensee has derived more value in benefits from use of the license than he has expended in reliance on the license. See: Baldwin v. Taylor, et al, 166 Pa. 507, 512, 31 A. 250, 252 (1895). Thus, if appellants intended to prove impossibility of restoration, appellants were required — but failed — to demonstrate that the expenditures rendered in reliance outweigh the benefits derived from the use of the license. See: Baldwin v. Taylor, et al, supra; Thompson v. McElarney, 82 Pa. 174, 133 A. 199 (1876); Dark v. Johnston, 55 Pa. 164, 93 A. 932 (1867); Huff v. McCauley, 53 Pa. 206, 91 A. 203 (1866).

Thus, we also affirm that portion of the decree which declares that appellants are without right to maintain a water line through the property of appellees. We remand, however, to the trial court so as to enable that court to determine whether removal of the water line is the most efficacious method of enforcing the rights of appellees and precluding use of the line by appellants.

Decree affirmed. Case remanded. Jurisdiction relinquished.

      . Act of February 27, 1849, P.L. 90, § 3, as amended, 36 P.S. § 2131.

      . The activity of appellees in connection with the water line is described in appellee’s cross-examination:
      Q. You didn’t help him install it?
      A. I never touched the waterline. I helped to backfill and plant grass on it but I never touched the pipes.
      Q. In other words, you did plant some grass seed over the area that was disturbed.
      A. Yes.
      Q. At the time the water line was installed, who did you think owned the property in which you and your wife occupy now?
      A. We were, we thought we owned it.

      . Q. Is it yes or not, did you or did you not object when he placed the waterline on the property?
      THE COURT: Say yes or not.
      A. No.
      THE COURT: Then you can give your answer.
      A. No. My reason why, we were on the outs at the time and I didn’t want to, I had hopes of us reconciliation and I didn’t want to throw more coals on the fire, and I left it go and I didn’t say nothing about it. I left him do it.

      . It is well established that the existence of a parole license can be inferred from the circumstances surrounding the parties. Baldwin v. Taylor, et al., 166 Pa. 507, 514, 31 A. 250, 252-53 (1895) Accord: Pierce v. Clelland, 133 Pa. 189, 197-99, 19 A. 352, 353 (1890); Leininger v. Goodman, 277 Pa. 75, 77-78, 120 A. 772, 773 (1923); Kovach v. General Tel. Co. of Pennsylvania, 340 Pa.Super. 144, 148-49, 489 A.2d 883, 885-86, (1985); Dailey's Chevrolet, Inc. v. Worster Realties, Inc., 312 Pa.Super. 275, 458 A.2d 956 (1983), quoting Hennebont Co. v. Kroger Co., 221 Pa.Super. 65, 69, 289 A.2d 229, 231 (1972).

      . Appellants also assert that the doctrine of equitable estoppel should be invoked in order to estop appellees from revoking the license. The doctrine of equitable estoppel is ordinarily advanced as a defense, as it is here, and as such must be raised in the pleadings under the heading of New Matter. Failure to so plead the defense of equitable estoppel constitutes a waiver of that defense. Pa.R.Civ.P. 1020, 1032. Straup v. Times Herald, 283 Pa.Super. 58, 68-70, 423 A.2d 713, 719 (1980). Since appellants have not complied with this rule, this claim has been waived.

      . It is true that the would-be licensee in Bieber failed to establish that the landowner had observed the construction, while in the instant case it is undisputed that the appellees did observe the construction. This difference is not, however, of significant consequence since the cases are identical in certain other essential features, such as, for example, the would-be licensee did not establish (1) the duration of the construction, (2) the stage of the construction at which the landowner observed the construction, and (3) how much time intervened between that observation and the completion of the construction.

      . Nor is our disposition of this case controlled by the decision of this court in Kovach v. General Telephone Company of Pennsylvania, 340 Pa.Super. 144, 489 A.2d 883 (1985):
      Licenses are ordinarily revocable at will. Pennsylvania, however, has adopted the equitable doctrine of irrevocable licenses. This doctrine, based upon the equitable principle of estoppel, recognizes that, “if a license, ... is given by parol, then followed by the expenditure of money, on the faith of the parol agreement, it is irrevocable and is treated as a binding contract.” Cole v. Ellwood Power Co., 216 Pa. 283, 289, 65 A. 678, 680 (1907). See also Dailey’s Chevrolet v. Worster Realties, Inc., supra; Harkins v. Zamichieli, 266 Pa.Super. 401, 405 A.2d 495 (1979). [emphasis supplied]

        Id. 340 Pa.Super. at 148-49, 489 A.2d at 885.
      The compelling feature of Kovach was the undisputed oral permission granted the licensee by the landowner, a factor conspicuously absent here. Moreover, the instant case differs from Kovach in further important factors: -

        The license in Kovach was acquired by the licensee prior to the time that the licensee commenced the expenditures.
      The licensee in Kovach had expended an unquestionably large sum of money in constructing radio transmission lines.
      Therefore, it was unnecessary for the Kovach court to weigh and to balance the elements of justifiable reliance, actual reliance, and detrimental reliance. Thus, the assertion that any expenditure of money causes a license to become irrevocable is without foundation.

      . The evidence indicating the alleged actions in detrimental reliance was wholly provided by the testimony of appellant:
      Q. Now, did you have any expense in putting the waterline in? A. Yes.
      Q. And do you know how much it cost you to put the waterline in?
      A. Offhand I couldn’t tell you. I had a backhoe in to dig it, I had to buy the plastic pipe. I couldn’t tell you offhand.
      Q. Did you perform the labor yourself?
      A. Yes.
      Q. But you had to hire a backhoe to put the pipe in?
      A. Yes.

      . "I would not have made these expenditures, had you not given me the license, and, of course, I would not have the license, had I not made the expenditures", Alice might well have said through Mr. Carroll.