author: ROWLEY, Judge: SPAETH, Judge,

text:
    466 A.2d 1370
    COMMONWEALTH of Pennsylvania v. Robert PITTMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 4, 1982.
    Filed Oct. 14, 1983.

      John J. Kevlock, Philadelphia, for appellant.
    Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   ROWLEY, Judge:

This is a direct appeal from the judgment of sentence imposed upon appellant after a jury returned its verdict finding him guilty of criminal conspiracy, criminal trespass, and attempted theft in connection with an early morning break-in on September 10, 1980, of the Mission Church in South Philadelphia. Post-verdict motions were filed and denied on June 17, 1981. This appeal followed. We conclude that the trial court committed no error and, accordingly, the judgment of sentence will be affirmed.

Appellant makes several arguments. However, except for one, they have been waived. In his post-verdict motions, appellant assigned numerous errors. Appellant’s counsel filed no brief in support of the motions. When the motions were called for argument, counsel at first stated that he had no argument but then he asked leave to present argument in support of the sixth assignment of error, which reads:

6. That Defendant was denied his Constitutional, legal, and procedural rights as set forth by Rule 1106 by the Attorney for the Commonwealth’s exercise of a peremptory challenge of a juror after said juror had been accepted by both sides.

Leave was granted and argument was heard, after which the lower court denied the motions.

Appellant has waived the assignments of error that he neither briefed nor argued. See Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979) cert. denied 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979), (issues raised in post-verdict motions but not presented orally or in a brief to lower court are waived); Commonwealth v. Holzer, 480 Pa. 93, 100-101, 389 A.2d 101, 105 (1978) (“failure to either brief or orally argue 102 issues ... deprived [lower court] of any meaningful opportunity to consider them”). Commonwealth v. Williams, 476 Pa. 557, 570, 383 A.2d 503, 509-510 (1978) (“requirement that counsel either brief or argue points of error raised in the written post-trial motions ... furthers the policies underpinning [Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) ]”). Therefore, we will discuss only the single claim presented to the trial court.

The single claim which appellant has preserved is that the trial court erred in permitting the Commonwealth to peremptorily excuse prospective Juror No. 10. Appellant argues that the Commonwealth had “accepted” Juror No. 10 within the meaning of Pa.R.Crim.P. 1106(e)(1)(B). Because this juror was “accepted,” appellant contends, he could not be removed because Rule 1106(e)(1)(B) specifically states that “[o]nce accepted by all parties, a prospective juror shall not be removed by peremptory challenge.” Although the assistant district attorney had written “acceptable” next to Juror No. 10’s name, he informed the court very shortly thereafter that he had made a “mistake” and actually intended to peremptorily dismiss Juror No. 10. The record is not clear as to which jurors the Commonwealth had accepted or whether the parties were in fact alternating in casting the initial vote to retain or dismiss a given juror. The only record of what transpired is in a partial transcript of the voir dire and discussion in chambers. The relevant portion of that transcript is reproduced in an Appendix to this opinion. It shows only that defense counsel had “accepted” Juror No. 10; that the assistant district attorney then “accepted” No. 10 and, nearly simultaneously thereafter, defense counsel accepted No. 11 and the assistant district attorney discovered that he had made a mistake: he had intended to excuse Juror No. 10. The record indicates that this was the first peremptory challenge utilized by the Commonwealth. The trial court accepted the prosecutor’s explanation and permitted the challenge to be exercised.

The trial judges of this Commonwealth exercise broad powers while presiding at the trial of cases assigned to them. These powers include ruling on the admission or exclusion of evidence and controlling the scope of examination and cross-examination of witnesses. Such matters are committed to the sound discretion of the trial judge. Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980). Likewise, the process of selecting a jury is committed to the sound discretion of the trial judge. The principles of law, including our scope of review, concerning claims regarding the erroneous grant or denial of a challenge of a prospective juror for cause were aptly set forth by Judge Price in Commonwealth v. Short, 278 Pa.Super. 581, 590-591, 420 A.2d 694, 698-699 (1980):

The sole purpose of voir dire examination is to provide the accused with a “competent, fair, impartial and unprejudiced jury.” Commonwealth v. Biebighauser, 450 Pa. 336, 345, 300 A.2d 70, 75 (1973). See Commonwealth v. Dukes, 460 Pa. 180, 331 A.2d 478 (1975). Nevertheless, voir dire is not designed to provide a defendant with twelve persons devoid of emotion or opinion.
The law recognizes that it would be unrealistic to expect jurors to be free from all prejudices, a failing common to all human beings. We can only attempt to have them put aside those prejudices in the performance of their duty, the determination of guilt or innocence. We therefore do not expect a tabula rosa [rasa] but merely a mind sufficiently conscious of its sworn responsibility and willing to attempt to reach a decision solely on the facts presented, assiduously avoiding the influence of irrelevant facts.
Commonwealth v. Johnson, 452 Pa. 130, 136, 305 A.2d 5, 8 (1973)
Thus, “[t]he test of disqualification is the juror’s ability and willingness to eliminate the influence of his scruples and render a verdict according to the evidence____” Commonwealth v. Bighum, 452 Pa. 554, 560, 307 A.2d 255, 259 (1973), quoting, Commonwealth v. Gelfi, 282 Pa. 434, 437, 128 A. 77, 79 (1925). Moreover, this determination is to be made by the trial judge based upon the juror’s answers and demeanor, and we will not reverse a judge’s ruling on a challenge for cause absent a palpable abuse of discretion, Commonwealth v. Bighum, supra. (Emphasis supplied.)

Furthermore, in determining whether or not the trial judge has palpably abused his discretion, we should bear in mind that it is necessary to establish more than a mere error of judgment. It is only if we determine that “the law is overriden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, [that] discretion is abused.” Commonwealth v. Niemetz, 282 Pa.Super. at 445 n. 12, 422 A.2d at 1376 n. 12, quoting, Man O’War Racing Association Inc. v. State Horse Racing Commission, 433 Pa. 432, 451 n. 10, 250 A.2d 172, 181 n. 10 (1969), quoting, Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934).

In reviewing the trial court’s allowance of a peremptory challenge, our standard should be the same. The allowance or disallowance of a peremptory challenge, without more, sheds neither light nor doubt upon the competence, fairness or impartiality of the jury selected to hear the evidence. Taint will arise, if at all, from unfairness inherent in the mechanics of the selection process itself. It is only when the court permits the selection process to impugn the fundamental qualities of competence, fairness and impartiality that we may conclude that a “palpable abuse of discretion” has been committed. Our review of the record in this case convinces us that the actions of the trial court did not undermine any of the fundamental qualities of the jury which heard this case. Therefore, we cannot conclude that the trial court committed a palpable abuse of discretion and we will not disturb appellant’s conviction.

Although the appellant invokes the provisions of Pa.R. Crim.P. 1106(e)(1)(B), our review of the record leads us to the conclusion that subsection (e)(1) of the Rule does not apply. The sequence of events leading up to the striking of Juror No. 10 shows that the parties were utilizing the “List System” of selection prescribed by subsection (e)(2) rather than the “Individual Voir Dire” system prescribed by Rule 1106(e)(1). The parties examined the prospective jurors after they had taken seats as a group in the jury box. (See Tr.Ct.Op., p. 4; N.T. 3/2/81, pp. 6-7.) After the examination regarding the qualifications of the jurors was complete, see Rule 1106(e)(2)(F), the attorneys for the Commonwealth and the appellant exercised their peremptory challenges by passing back and forth between them a sheet of paper with each juror’s name and number written upon it. The record reveals that the parties were exercising their peremptory challenges seriatim, without any intervening examination of other jurors. The attorneys took turns casting votes either to “accept” or peremptorily excuse the prospective jurors.

This hybrid method of selecting the jury is not within the ambit of the individual system prescribed by Rule 1106(e)(1). That subpart contemplates, rather, that the parties completely examine a juror and challenge his fitness for cause, peremptorily remove him from service or refrain from doing so in one single stage before the next prospective juror is even called. The critical difference between the two methods of jury selection is that in the case of individual voir dire, an attorney selecting a jury sees and examines only one prospective juror at a time. At the time an attorney must decide whether to challenge the particular juror in question, the attorney knows absolutely nothing about which panel member might next be called for examination. Under the list system, on the other hand, as occurred in the case at bar, the attorneys know the entire panel of prospective jurors by name, face and the qualifications revealed by the voir dire colloquy prior to the time the list is passed back and forth. The timing and manner in which the challenges are exercised only underscores and preserves the differences in the selecting attorney’s mental state. Furthermore, the trial court’s requirement in this case that peremptory challenges be exercised seriatim in numerical order supports the conclusion that the list system was used. Requiring the uninterrupted numerical exercise of peremptory challenges presupposes that the challenges for cause are to be exercised at some other time. The only system in which such a bifurcation takes place is under the list system. Under the individual system, the parties are to challenge a prospective juror either for cause or peremptorily or refrain from doing so before continuing on to examine the next juror. There is no evidence on this record that this was done.

Moreover, appellant is required to show that the individual system does apply in this case before relief can be granted on the basis of Rule 1106(e)(1). This he has not done. Rule 1106(e) states that “[i]n non-capital cases, the trial judge shall select” either of the two methods of voir dire set forth. See n. 1, supra. Here, appellant has not claimed that the trial judge in fact chose the individual voir dire and challenge system nor that he requested the trial judge to so choose. In the total absence of such information, appellant cannot properly invoke that rule to protect him now.

We will, therefore, not apply Rule 1106(e)(1), but rather Rule 1106(e)(2), because this latter subpart more closely approximates the procedure actually utilized in this case. A perusal of subsection (e)(2) discloses no provision identical or similar to that contained in (e)(1)(B) upon which appellant relies. Appellant was entitled, under (e)(2)(F), only to an alternating vote as to the jurors each side sought to exclude by peremptory challenge. He was not entitled at any time to have the Commonwealth vote on the jurors in any order or to have the Commonwealth vote to “accept” any juror. Those requirements were imposed by the trial court and were not the subject of an objection by either party. The trial judge permitted the Commonwealth to exercise a peremptory challenge only after carefully evaluating the situation and insuring that the assistant district attorney was not “fishing” and that no harm would accrue to the defense. We agree. The Commonwealth had already known appellant’s decision in regard to Juror No. 10 prior to making the mistake. The Commonwealth, therefore, could gain no advantage. Furthermore, the trial judge permitted the parties to vote again on Juror No. 11. The trial court’s ruling was not “manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.” Commonwealth v. Niemetz, supra. The trial judge, therefore, did not abuse his discretion in permitting the Commonwealth to peremptorily challenge prospective Juror No. 10. Accordingly, appellant’s argument is meritless.

Moreover, even if any “error” occurred, it was caused by an unintentional mistake on the part of the assistant district attorney in mismarking the jury list. However, a determination that “error” has been committed does not and should not end our inquiry. Error in the abstract does not require a new trial. Error which does not result in prejudice to the accused or deny the accused a fair trial does not warrant an appellate court’s reversal of the trial court’s denial of a motion for a new trial.

The right to a fair trial is not, it has been properly said, the right to a perfect trial. Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980); Commonwealth v. Grimm, 249 Pa.Super. 441, 378 A.2d 377 (1977). In almost every trial, error will occur, and it would be intolerable to require that a trial be repeated, and re-repeated, until no error occurred. Accordingly, the question is not whether there was error, but whether the error was so serious as to deprive the defendant of his right to a fair trial. See, e.g., Commonwealth v. Snopek, 200 Pa.Super. 455, 190 A.2d 161, cert. denied, 375 U.S. 933 [84 S.Ct. 338, 11 L.Ed.2d 265] (1963); Commonwealth v. Harris, 195 Pa.Super. 606, 171 A.2d 850 (1961).

Commonwealth v. Nicholson, 308 Pa.Super. 370, 390, 454 A.2d 581, 591 (1982) (Spaeth, J., dissenting). In fact, the Pennsylvania Supreme Court has itself applied a harmless error-type analysis to the jury selection process. In Commonwealth v. Moon, 389 Pa. 304, 132 A.2d 224 (1957), cert. dismissed, 355 U.S. 908, 78 S.Ct. 335, 2 L.Ed.2d 270 the defendant complained that the trial court had improperly permitted the Commonwealth to peremptorily challenge a prospective juror after the juror had been passed. Drawing on precedent with respect to jury instructions, the Supreme Court summarily dismissed this claim, stating:

The defendant ... has no standing in an appellate court to complain ... unless the error contributed to the result reached by the jury. Id. 389 Pa. at 308-309, 132 A.2d at 226.

See also Commonwealth v. Short, 278 Pa.Super. at 598, 420 A.2d at 702-703 (Spaeth, J., concurring). Because the appellant has only a right to reject, rather than select jurors, and because the Commonwealth in this case did not and could not have gained any unfair advantage, we conclude that the error, if any, was harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

It also seems appropriate that we should consider what would be accomplished were we to remand this case for a new trial. In some cases, what we view as error may be “corrected” or “rectified” by a second trial. For example, if the “error” is the result of the admission of inadmissable evidence, a second trial will correct the error by eliminating such evidence from the fact-finder’s consideration. Or the converse: if the “error” is the result of the exclusion of relevant and admissable evidence, a second trial will correct the error by making it possible for the fact-finder to consider and evaluate the evidence in reaching its verdict. Or if the accused is tried without having the assistance of counsel, a second trial will correct the error by providing a second trial at which the accused will have the benefit of an attorney’s knowledge, training and experience in order to better cope with the government’s accusations against him.

In this case, however, a new trial will not in any way correct what is claimed to be “error.” The claimed “error” was committed by allowing the Commonwealth to exercise a peremptory challenge removing from service prospective Juror No. 10. Appellant’s new trial would not be by a jury on which prospective Juror No. 10 would sit; we cannot order that, at appellant’s new trial, the jury be composed of eleven citizens chosen at random plus Juror No. 10. All that would be accomplished is that appellant would receive a second undeserved fair trial. Worse yet, we would have invaded, without justification or cause, the responsibility that rightfully rests with the trial court to exercise its sound discretion in resolving problems such as these that arise in the course of a trial.

Judgment of sentence is affirmed.

SPAETH, J., files a dissenting opinion.

APPENDIX

(Discussion in chambers as follows:)

MR. KEVLOCK [Defense Counsel]: Your Honor, I wish to point out what I think was an irregularity in the procedure and make my objection noted. This District Attorney accepted a juror and apparently reconsidered his acceptance and later struck a juror.

MR. McGOYERN [Assistant District Attorney]: What I did, if I may clarify, I numerically made an error on the last one I wanted to strike. I think I had the option. I thought it was ten or it might have been eleven.

THE COURT: Let’s start from the beginning. What juror is in question?

MR. KEVLOCK: Juror No. 10.

THE COURT: Who had the first choice with Juror No. 10? Whose turn was it?

MR. KEVLOCK: Defense.

THE COURT: So the defense indicated their acceptance?

MR. KEVLOCK: Correct, Your Honor. And Commonwealth indicated acceptance and it came back to us.

MR. McGOVERN: What I am trying to say to the Court is—

THE COURT: When did you exercise your strike on 10, after you had picked 11?

MR. McGOVERN: I was handed the form and I wished to strike. He had already accepted No. 10. I wanted to strike and I had O.K. written down next to the names of two prospective jurors and I wrote “acceptable” and I believe I handed it back to Mr. DuBeck. As soon as I handed it to Mr. DuBeck, I looked at my pad and realized it was a mistake on my part.

THE COURT: Let’s do this—in fall [sic] fairness to the defense, we are going to X out the “acceptable” on 11 and 12. It is really 11. And both of you just follow the same order and indicate what you want to do on 11, so the defense is not prejudiced.

MR. McGOVERN: What I am explaining was that—

THE COURT: As an officer of the court, I accept your explanation that you made a mistake. But I want to make it so that the defense, before they go on to 11, know how you feel about 10. That is why I am doing it this way.

MR. KEVLOCK: Your Honor, I understand that. My objection has to do with the fact that the defense believes we have a right to have that juror. My understanding was the juror was accepted, that the questioning had been completed.

THE COURT: The questioning has been completed, but we didn’t dismiss anyone, and you were in the process of handing this back and forth. It may be in a very technical sense it is a little wrong. It was not as if there were eight numbers later; it was within a few seconds or so of the acceptance of No. 10.

MR. McGOVERN: I immediately handed the pad back to Mr. DuBeck and I had not exercised any strike at that point. It was after he had already been accepted by Mr. Keylock. It wasn’t that I was trying to fish out what he was going to do.

MR. KEVLOCK: I should like to put my reason on the record that 11 was accepted after the acceptance of 10.

THE COURT: I understand your position. Under all the circumstances I am going to allow it. You had already taken a position as to 10 and the District Attorney knew that.

MR. McGOVERN: It wasn’t that I was trying to fish out what you wanted to do.

THE COURT: Whose turn would it be for 11? It would be your turn. You have to decide whether you want 11 or not.

MR. McGOVERN: No. 11 was acceptable.

THE COURT: You can talk it over with your client whether you want to accept 11.

(End of discussion in chambers.)

SPAETH, Judge,

dissenting:

The premise of the majority opinion is that the appropriate rule is Rule 1106(e)(2) (“List System”). At 171-172. The record demonstrates, however, that the appropriate rule is Rule 1106(e)(1) (“Challenge System”). When Rule 1106(e)(1) is applied, it is apparent that a new trial should be granted.

The essential feature of the list system, provided by Rule 1106(e)(2), is that the prospective jurors are examined and challenges for cause are exercised first, so that counsel may thereafter exercise their peremptory challenges in whatever order they wish. This is accomplished by passing a list of the names of those prospective jurors who have not been removed for cause back and forth between the prosecutor and defense counsel, each alternately exercising a peremptory challenge. Thus, for example, one counsel may first strike Prospective Juror No. 17, then No. 3, then No. 6. The essential feature of the challenge system, provided by Rule 1106(e)(1), is that prospective jurors are examined and challenged in numerical order, with “[challenges, both peremptory and for cause, [being] exercised alternately beginning with the attorney for the Commonwealth, until all jurors are chosen.” Pa.R.Crim.P. 1106(e)(1)(B).

Here, contrary to the majority, the record demonstrates that the list system was not used, and the challenge system was. After Prospective Juror No. 10 was examined for cause, defense counsel “accepted” him and passed the list to the prosecutor. The prosecutor then wrote “acceptable” after No. 10, and proceeded in his turn to No. 11, and marked No. 11 “acceptable.” Thus challenges were not exercised randomly as in the list system but in numerical order as in the challenge system. It is, moreover, apparent from the record that both the trial court and counsel thought they were proceeding by the challenge system. The court specifically required counsel to accept or reject the prospective jurors in numerical order. N.T. 3/2/8.1 at 6-8. Also, the Commonwealth’s argument is not that Rule 1106(e)(1) is not applicable but that it was not violated. Brief for Commonwealth at 5-6. The argument that Rule 1106(e)(2) is applicable originates with the majority. I think it inappropriate to decide a case on the basis of an argument suggested by neither side and inconsistent with their conduct at trial.

When Rule 1106(e)(1) is applied, it is apparent that a new trial should be granted.

Prospective Juror No. 10 was a Catholic priest. In response to questions by appellant’s counsel, he said that the rectory of his church, in Germantown, had been burglarized three or four years ago. The court pointed out that this case also involved the burglary of a church, and asked whether he would “set aside that incident that happened to your church and decide this case solely on the evidence presented in court,” to which the priest replied, “I think I would be able to do that.” N.T. 3/2/81 at 3. Appellant’s counsel said he had no further questions, and the assistant district attorney took up the questioning. This questioning disclosed that the assistant district attorney remembered that the priest had appeared before another judge. The priest said that he didn’t remember the assistant district attorney but he acknowledged his appearance before the other judge, explaining that he worked with youth groups and was trying to help a young man who had been in prison.

After the assistant district attorney’s questioning, a sidebar discussion occurred:

MR. McGOVERN [the assistant district attorney]: Your Honor, Father Rock doesn’t remember me. In all fairness, I didn’t realize it because he was in clerical garb the last time I saw him, but I know him and I had some dealings with him on a case. I just want to alert the Court to that. He didn’t remember me.
THE COURT: He doesn’t remember you and he didn’t give any indication in his responses that he would be anything but fair. I think it goes without saying he is a Catholic priest. I think without any question most people, certainly Catholics, would say he would be more than fair.
MR. McGOVERN: Fine, Your Honor.
N.T. 3/2/81 at 4-5.

It was appellant’s counsel’s turn to vote first. He marked on the voting form that he accepted Prospective Juror No. 10, and then passed the form to the assistant district attorney. The assistant district attorney also marked on the form that he accepted Prospective Juror No. 10. Then, proceeding in his turn, the assistant district attorney marked on the form that he accepted Prospective Juror No. 11. After passing the form back, N.T. 3/2/81 at 6, so that appellant’s counsel could indicate whether he too accepted Prospective Juror No. 11, the assistant district attorney told the court that he had made “a mistake,” id., and that he wished to remove Prospective Juror No. 10 by exercising a peremptory challenge. (The record is clear that the assistant district attorney made this request after he had accepted both Prospective Juror No. 10 and Prospective Juror No. 11 and had given the voting form to a “Mr. DuBeck”—pre-sumably a court officer who then handed the form to appellant’s counsel. N.T. 3/2/81 at 6. In colloquy, appellant’s counsel indicated in addition that he had already accepted Prospective Juror No. 11, when the assistant district attorney made his request to be permitted to remove Prospective Juror No. 10. N.T. 3/2/81 at 7, 8.) Appellant’s counsel objected to the assistant district attorney’s request, but the trial court granted it, and the assistant district attorney removed Prospective Juror No. 10 by exercising a peremptory challenge.

Pa.R.Crim.P. 1106(e)(1)(B) provides:

Challenges, both peremptory and for cause, shall be exercised alternately beginning with the attorney for the Commonwealth, until all .jurors are chosen. Challenges shall be exercised immediately after the prospective juror is examined. Once accepted by dll parties, a prospective juror shall not be removed by peremptory challenges. Without declaring a mistrial, a judge may allow a challenge for cause at any time before the jury begins to deliberate____
(Emphasis added.)

No rule could be clearer. Nor could the record be clearer that the rule was violated: the Commonwealth did not exercise a peremptory challenge “immediately after” Prospective Juror No. 10 was examined; and once he was accepted, Prospective Juror No. 10 was removed by peremptory challenge.

In support of its belated peremptory challenge, the Commonwealth relies heavily on Zell v. Commonwealth, 94 Pa. 258 (1880). There, “the first juror ... was passed without challenge by the Commonwealth’s counsel, over to the prisoner, and the prisoner accepted him. He was then, at the request of the district attorney, ordered to stand aside, and was not again called until the whole panel had been gone through with, when he was challenged peremptorily by the Commonwealth, and the challenge sustained against the objection of the prisoner’s counsel.” Id., 94 Pa. at 264. On appeal, the Supreme Court upheld this procedure.

Zell has no relevance to the present case, for the procedure approved by it has long since been expressly abolished, as appears from our decision in Commonwealth v. Brown, 23 Pa.Super. 470 (1903). There the trial court ruled that when the Commonwealth accepted a juror, defense counsel had to state whether he exercised a peremptory challenge, and that if he did not exercise his challenge then, “he waives his challenge, and, having waived it, he is bound by it.” Id., 23 Pa.Superior Ct. at 482. In support of this ruling the trial judge relied on the Act of March 16, 1901, P.L. 16, as amended by the Act of July 9, 1901, P.L. 629. We affirmed. We noted that the Act of 1901 was intended to abolish the practice of asking a juror to “stand aside,” and went on to hold:

By this act the commonwealth and the defendant are put on an equality, both as to the number of peremptory challenges, and as to the time when the right to make them is to be exercised. The right is to be exercised, not “when the jury is called,” not “when the juror comes to the book,” not “at any time before the impaneled jury is sworn,” but “when the juror is called.” If the legislature had intended that either the prosecuting officer or the defendant might hold his peremptory challenges in reserve until there were twelve jurors in the box as to whom no specific cause of challenge could be assigned, we are confident that they would not have used this expression, “when the juror is called.”
Id., 23 Pa.Superior Ct. at 500.

The same observation may be made here. If the authors of Rule 1106 had intended to permit counsel, either for the Commonwealth or the defense, to exercise a peremptory challenge after a prospective juror had been accepted, I am confident that they would not have said that “[cjhallenges shall be exercised immediately after the prospective juror is examined,” and that “[o]nce accepted by all parties, a prospective juror shall not be removed by peremptory challenge."

The old practice of asking a juror to “stand aside” was abolished, and the present practice adopted, first by the Act of 1901, supra, and now by Pa.R.Crim.P. 1106, for reasons of fairness. Each party is permitted only so many peremptory challenges. If a party is permitted a belated peremptory challenge—if he is not bound to exercise it at once or forever lose it—he will be tempted to gamble: he may think, “I don’t really want this prospective juror, but maybe the Commonwealth [the defense] doesn’t either. I’ll accept him for the moment, and thereby save one of my peremptory challenges. That way maybe I can jockey the Commonwealth [the defense] into using up one of its peremptory challenges. If they accept him, then I’ll ask leave to exercise a belated peremptory challenge, and get rid of him that way.”

The danger of such unfair maneuvering has been expressly recognized by the courts. In Commonwealth v. Evans, 212 Pa. 369, 61 A. 989 (1905), the trial court ruled that after a party—the defendant—had questioned and then accepted a prospective juror, and had turned the juror over to the Commonwealth for questioning, it was too late for that party to exercise a peremptory challenge. The case arose under the Act of 1901, supra, discussed in Commonwealth v. Brown, supra. Affirming, the Supreme Court said:

He [the defendant], therefore, knew that after the juror had passed the ordeal of his examination, the commonwealth might be content to ask no further questions, and to accept him as not being liable to challenge for cause. This is just what happened, and when the juror was so accepted by the commonwealth, the defendant, who had the right in the first instance to challenge without cause—peremptorily—then insisted upon so challenging. To have allowed him to do so would, as is forcefully put by the court below, have given him “a distinct advantage in excess of what the statute accords him____ and the result would have been precisely the same as if the defendant had been speculating on the chance of saving a challenge.”
Id., 212 Pa. at 371, 61 A. 989.

We similarly commented on the unfairness of permitting a belated peremptory challenge in Commonwealth v. DiFi-lippo, 176 Pa.Super. 608, 109 A.2d 224 (1954). There, “[a]s additional jurors were called, appellant’s counsel continued to exercise his right of [peremptory] challenge, without any corresponding exercise on the part of the Commonwealth, until he had exhausted his quota of twenty peremptory challenges. It became apparent that, as a matter of tactics, the defense had succeeded in securing an all male jury. The District Attorney was then permitted by the trial judge to exercise his right of challenge, and proceeded therewith until he had exhausted his original quota of peremptory challenges.” Id., 176 Pa.Superior Ct. at 610, 109 A.2d at 225. Reversing, we said:

While a defendant is “entitled to a trial by a fair and impartial jury, but not to a trial by any particular juror or jurors,” he nevertheless has the right to select that jury in a manner designed to accord, both to him and the Commonwealth, that fundamental equality which the Act of 1901 was designed to secure.
Id., 176 Pa.Superior Ct. at 615, 109 A.2d at 227 (footnote omitted).

The Commonwealth argues, however, that the assistant district attorney was not speculating—was not attempting to save a peremptory challenge at the defense’s expense— but, rather, that he requested permission to exercise a belated peremptory challenge only because he had mistakenly marked the voting form, indicating his acceptance of Prospective Juror No. 10 when he had intended to indicate his rejection. This explanation seems inconsistent with the assistant district attorney’s response (“Fine, Your Honor”) to the court’s statement, after Prospective Juror No. 10 had been questioned, that the court was convinced that the prospective juror would be fair. However, the explanation may nevertheless be correct; the assistant district attorney told the court that he had mistakenly marked the voting form, and that he had not been “fishing.” N.T. 3/2/81 at 7. The court accepted his explanation, N.T; 3/2/81 at 7, and I do too. Nevertheless, the dispositive fact, established by the record, is that the assistant district attorney did accept Prospective Juror No. 10, and then, Prospective Juror No. 11—in other words, that he did not do what Rule 1106 requires: object peremptorily to Prospective Juror No. 10 before accepting him, or lose the right to remove him except for cause.

The Rule is absolute: it makes no allowance for “mistake.” It informs counsel, for the Commonwealth and the defense, that if they wish to remove a prospective juror by exercising a peremptory challenge, they may do so only if they proceed in a certain way. These absolute terms both reflect and arise from the nature of a peremptory challenge.

A peremptory challenge is by nature an arbitrary decision. Counsel cannot demonstrate by his questioning any reason for a ruling by the court that the prospective juror will not be fair and should therefore be removed for cause. Counsel nevertheless doesn’t want the prospective juror as a juror. He has a hunch that the prospective juror won’t be sympathetic to, or will dislike, his client. The hunch may be shrewd, and based on close observation and long experience. Its accuracy, nevertheless, cannot be demonstrated— and any trial lawyer of experience can tell a story of having rejected, or accepted, someone on a jury, only to learn later that his appraisal of that person’s attitude toward his client was entirely mistaken.

The decision whether to exercise a peremptory challenge is thus a sort of game. It’s a game we permit counsel to play because of our belief that thereby some beneficial flexibility is introduced into trial by jury. In every trial by jury, but especially perhaps in a criminal trial by jury, it is important, not only that the persons on the jury appear to be fair, as shown by their response to questions asked them on voir dire, but that the parties feel they will be fair. If a party, for whatever intuitive reasons, feels, suspects, that a prospective juror will be unsympathetic, or worse, isn’t it better to let the party remove the prospective juror peremptorily? We have answered this question by saying that it is better, up to a point. Plainly, limits must be set, or else we should have cases in which one party was never satisfied with the composition of his jury, and the trial could never be held. The right to be tried by a jury of one’s peers is not the right to be tried by a jury of people one likes. See Commonwealth v. Crow, 303 Pa. 91, 100, 154 A. 283 (1931) (“A defendant is entitled to an impartial jury, but not to any particular juror or jurors”); Commonwealth v. Antico, 146 Pa.Super. 293, 22 A.2d 204 (1941). And so we allow a limited number of peremptory challenges. You may remove prospective jurors arbitrarily, we say, but only a few of them.

The essentially arbitrary—game-like—nature of peremptory challenges is illustrated by the facts of Commonwealth v. DiFillipo, supra, where defense counsel’s hunch—theory—was that women would be unsympathetic jurors, and so he exercised his peremptories with the aim of achieving an all-male jury. An even clearer illustration is in the cases involving race. Suppose the prosecutor exercises his peremptories so as to remove all prospective jurors who are black. May the defendant, who is black, complain of racial prejudice? Our Supreme Court has held that he may not—that so long as the prosecutor exercises his peremptories in the manner prescribed by the Rule, he may strike whomever he pleases, without any obligation to say why. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), reh’g denied, 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442 (1965); Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975). Accord, Swope v. State, 263 Ind. 148, 325 N.E.2d 193 (1975) cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100 (1975); State v. Smith, 55 N.J. 476, 262 A.2d 868 (1970) cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed.2d 256 (1970). Contra, People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978); People v. Payne, 106 Ill.App.3d 1034, 62 Ill.Dec. 744, 436 N.E.2d 1046 (1982); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979) cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). See generally 79 A.L.R.3d 14.

The Commonwealth should not, as the majority permits, have it both ways. It should not be able to invoke Rule 1106 against the defendant, but then seek to avoid the Rule. The situation is precisely as in a card game: you may not change your play of a card because you played by “mistake.” Rule 1106 provides that if you want to play your peremptory challenge card, you must play it at a certain time or you may not play it at all. If the defendant does not play his card in time, he must accept the prospective juror—unless he can challenge for cause. Commonwealth v. Evans, supra. The same should be true of the Commonwealth. For the very purpose of the practice embodied in Rule 1106 is to ensure that as to the exercise of peremptory challenges, the Commonwealth and the defendant are in a position of equality. Commonwealth v. Brown, supra, 23 Pa.Superior Ct. at 500.

Since Rule 1106(e)(1) was violated, a new trial should be granted at which appellant will have the opportunity to have the jury selection proceed according to the rules. The majority, citing Commonwealth v. Moon, 389 Pa. 304, 132 A.2d 224 (1957), cert. dismissed, 355 U.S. 908, 78 S.Ct. 335, 2 L.Ed.2d 270 (1957) suggests that a new trial is not the proper remedy because any error in violating Rule 1106(e)(1)(B) was harmless. At 177-179. Moon, however, was decided before the promulgation of Rule 1106. So far as a violation of Rule 1106(e)(1)(B) is concerned, a harmless error analysis is inapposite. To determine whether an error was harmless, the court must decide whether the error was so serious as to affect the outcome of the trial. That isn’t the question here, for one can never know whether the outcome would have been different. The question here is what sanction to impose for the violation of a mandatory rule (“shall be exercised immediately after ...;” “shall not be removed____”). The only sanction available is to grant a new trial. Not to impose any sanction, as does the majority, makes the rule meaningless.

The judgment of sentence should be vacated and the case remanded for new trial.

      . Appellant contends that (1) the preliminary hearing was defective; (2) the trial court improperly allowed the Commonwealth to exercise a peremptory challenge at voir dire; (3) the court improperly allowed the Commonwealth to introduce a photograph; (4) the court improperly prohibited him from cross-examining a police officer concerning his financial interest in the case; (5) the prosecutor's summation exceeded the bounds of propriety; and (6) the trial court did not properly charge the jury concerning the failure of a witness to make a pre-trial identification.

      . Rule 1106(e), in pertinent part, states:
      (e) ____In non-capital cases, the trial judge shall select one of the following alternative methods of voir dire, which shall apply to the selection of both jurors and alternates:
      (1) Individual Voir Dire Challenge System
      (A) Voire dire of prospective jurors shall be conducted individually and may be conducted beyond the hearing and presence of other jurors.
      (B) Challenges, both peremptory and for cause, shall be exercised alternately beginning with the attorney for the Commonwealth, until all jurors are chosen. Challenges shall be exercised immediately after the prospective juror is examined. Once accepted by all parties, a prospective juror shall not be removed by peremptory challenge. Without declaring a mistrial, a judge may allow a challenge for cause at any time before the jury begins to deliberate, provided sufficient alternates have been selected, or the defendant consents to be tried by a jury of less than twelve, pursuant to Rule 1103.
      (2) List System of Challenges
      (A) A list of prospective jurors shall be prepared. The list shall contain a sufficient number of prospective jurors to total at least twelve, plus the number of peremptory challenges (including alternates).
      (B) Prospective jurors, may be examined collectively or individually, regarding their qualifications. If the jurors are examined individually, the examination may be conducted beyond the hearing and presence of other jurors.
      (C) Challenges for cause shall be exercised orally as soon as the cause is determined.
      (D) When a challenge for cause has been sustained, which brings the total number on the list below the number of twelve (12) plus alternates plus peremptory challenges (including alternates), additional prospective jurors shall be added to the list.
      (E) Each prospective juror subsequently added to the list may be examined as set forth in paragraph (e)(2)(B).
      (F) When the examination has been completed and all challenges for cause have been exercised, peremptory challenges shall then be exercised by passing the list between prosecution and defense, with the prosecution first striking the name of a prospective juror, followed by the defense, and alternating thereafter until all peremptory challenges have been exhausted. If either party fails to exhaust all peremptory challenges, the jurors last listed shall be stricken. The remaining jurors and alternates shall be seated; but no one shall disclose which party peremptorily struck any juror.

      . There is no indication in the record before us when, if ever, the parties exercised any challenges for cause.

      . It is a fundamental tenet of appellate jurisprudence that a correct decision in the trial court will be sustained on appeal for any reason presented on the record, even if the trial court offered an erroneous reason or no reason at all to support it. Commonwealth v. Hines, 461 Pa. 271, 273 n. 3, 336 A.2d 280, 282 n. 3 (1975); Commonwealth v. Dancer, 460 Pa. 95, 101 n. 5, 331 A.2d 435, 438 n. 5 (1975); Gilbert v. Korvette, Inc., 457 Pa. 602, 604 n. 2, 327 A.2d 94, 96 n. 5 (1974); Estate of Prynn, 455 Pa. 192, 197 n. 9, 315 A.2d 265, 267 n. 9 (1973); Concord Township Appeal, 439 Pa. 466, 469, 268 A.2d 765, 766 (1970); Ridley Township v. Pronesti, 431 Pa. 34, 37, 244 A.2d 719, 720-721 (1968); Taylor v. Churchill Valley Country Club, 425 Pa. 266, 268, 228 A.2d 768, 769 (1967); see also 9 Standard Pennsylvania Practice § 169; 5 Am.Jur.2d § 931.


source: Caselaw Access Project

author: CIRILLO, Judge: JOHNSON, Judge,

license: Public Domain

text:
    466 A.2d 1382
    ESTATE OF Israel SCHWARZBARTH, Deceased. Appeal of Laura FREIMAN, Exceptant.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1983.
    Filed Oct. 14, 1983.

      Delano M. Lantz, Harrisburg, for appellant.
    Bernard Chanin, Philadelphia, for participating party.
    Before CIRILLO, JOHNSON and MONTEMURO, JJ.
   CIRILLO, Judge:

This is an appeal from a Final Decree of December 23, 1981, issued by the Court of Common Pleas of Luzerne County, Orphans’ Court Division, which dismissed objections to a Petition for Adjudication and Account.

Israel Schwarzbarth died testate on December 17, 1965, and his Will and Codicils were probated on December 31, 1965. Among the assets of his estate was a trust, created out of the residuary estate, the income of which was to be paid to his widow, the executrix, Goldie Schwarzbarth (hereinafter “Goldie”). Mrs. Laura Freiman, decedent’s adopted daughter and the appellant here, filed objections to the account on November 18, 1969 and amended objections on October 18, 1978, claiming that she was entitled to a share of the trust property. The basis for her claim was that Goldie had failed to comply with the terms of the trust and had thereby forfeited her interest therein.

The matter was heard before the Orphans’ Court which found that the requirements set forth in decedent’s Will, relating to the trust, had been complied with and entered an Adjudication and Decree Nisi to that effect on November 12, 1981. Appellant filed a motion for leave to file exceptions nunc pro tunc to the Adjudication and the Decree. The Orphans’ Court, on December 23, 1981, entered a Final Decree, which while granting the motion to file exceptions nunc pro tunc, dismissed the exceptions in their entirety.

Paragraph 2, Subsection (a) of Israel Schwarzbarth’s Will, executed on February 23, 1965, and on which the appellant’s claim is predicated, provides as follows:

To pay the net income therefrom periodically, but not less than quarterly, to or for the benefit of my wife, GOLDIE, during her life or for so long as she shall retain the surname of SCHWARZBARTH, whichever event shall first occur.

Subsection (b) of Paragraph 2 of the Will was altered by Codicil dated June 25, 1965, and provides that,

“Upon the occurrence of either of the two events mentioned in Subparagraph (b) of this Item of my Will, the said Trust shall terminate and the Trustee shall distribute all the undistributed principal and income, free of Trust, in three equal shares, with one of the said shares to go to my daughter, LAURA, another of the said shares to my daughter, MAXINE, if they are then living, and third of the said shares shall be cut up into as many parts as I have grandchildren then living, that is to say, children of my said daughters, LAURA and MAXINE, with each of the said grandchildren to take per capita. In the event, however, that either of my daughters, LAURA or MAXINE, should not survive the occurrence of either of the two events mentioned in Subparagraph “A” of this item, then the share of such deceased daughter as she would have received had she survived, shall be paid to her issue, per stirpes, free of Trust.”

Appellant contends that Goldie’s remarriage to A. David Fried on May 18, 1969, in and of itself, or, in the alternative, the occasional use of her marital surname constitutes noncompliance with the condition set forth in subsection (a) which provides that the income of the trust shall be distributed to Goldie “during her life or for so long as she shall retain the surname of Schwarzbarth ____” (emphasis added). Therefore, appellant contends that since Goldie has not “retained” the surname of Schwarzbarth within the terms of decedent’s Will, Goldie’s life estate therein has been forfeited and the principal and undisposed income should be distributed pursuant to the terms of subsection (b) of the second paragraph of the probated Will.

The Orphans’ Court, after determining that the intention of the testator was unclear from the actual language utilized in his Will, looked to extrinsic evidence and found that Goldie had retained the surname of Schwarzbarth in the manner and to the extent intended by the decedent. For the following reasons we affirm the holding of the Orphans’ Court.

The process of testimentary adjudication has been well-established by the Pennsylvania Supreme Court.

It is, of course, a cardinal rule that a will is to be construed according to the intent of the testator. Where a court feels that it can with reasonable certainty ascertain the intent of the testator through examination of the will itself, the court generally does not look to matters external to that document. Where, however, a court cannot feel such confidence in distributing the estate by reference to the will only, ... it is proper and necessary to inquire into the circumstances of the testator at the time of execution of his will and other evidence which bears on intent. And if even then a court is unable to say with reasonable certainty what the testator intended, resort is had to the canons of construction.

Taylor’s Estate, 480 Pa. 488, 494, 391 A.2d 991, 994 (1978) (citations omitted).

Looking to this process, the appellant argues that the testator’s intent may be ascertained from the actual words of the Will without resort to extrinsic evidence. We disagree. When examining the phrase “for so long as she shall retain the surname SCHWARZBARTH____” it is unclear whether the testator intended to penalize his widow’s remarriage by requiring her to forfeit her right to life income by remarriage, or whether he intended merely to require her to use the Schwarzbarth surname as her own in order to maintain her eligibility as income beneficiary. The instant case is one envisioned by the Supreme Court where the Court cannot feel confidence in distributing the estate by reference to the terms of the Will alone, as the testator’s intent is shrouded in ambiguity by the literal terms of the Will. Taylor’s Estate, supra. We must therefore resort to extrinsic evidence to clarify the intention of the testator with respect to the trust estate and to determine whether Goldie’s use of the Schwarzbarth surname complied with this intent.

It has long been held in Pennsylvania that examination of prior wills is helpful in determining the intention of the testator. Thus, in Williamson’s Estate, 161 Pa.Super. 106, 53 A.2d 869 (1947), this Court held:

Where there is such an ambiguity in a Will as to justify consideration of extrinsic evidence former Wills executed by testator may be considered to throw light on his intention.

161 Pa.Super. at 110, 53 A.2d at 871.

The 1965 Will, in effect at the time of testator’s death, revoked a prior Will, dated August 26,1957, which provided for a trust with a life estate to Goldie and which contained, inter alia, the following language:

FOURTH: (a) I give, devise and bequeath all of the rest, residue and remainder of my estate, real, personal or mixed, wheresoever and whatsoever, unto my Trustees hereinafter named, in Trust, nevertheless, to hold the same in Trust, and to collect the income therefrom and, after paying all proper expenses, taxes and charges incident to the management and administration of the Trust, to pay GOLDIE, until she shall attain the age of Sixty-five (65) years, or until she shall remarry, whichever event shall first occur. (Emphasis added).

Therefore, the testator’s immediately preceding Will had expressly and unambiguously provided for the forfeiture of his widow’s interest in the trust in the event of her remarriage. That language, which was eliminated in the probated Will, demonstrates that the testator was capable of expressing an intention to cause a forfeiture under the circumstances of remarriage. His failure to have carried that provision over demonstrates an intention different than that manifested in the 1957 Will. Instead, he chose to free Goldie to remarry, subject only to the condition regarding the Schwarzbarth name.

Other evidence presented also indicates that the testator did not intend for his widow to forfeit her life estate upon remarriage. The testator had no male heirs. Both the widow and the scrivener testified that the testator was preoccupied with the continuation of his name. During the course of the 20 years during which the Schwarzbarths were married, the testator became convinced of his wife’s devotion and loyalty and his only concern was that his name live on. As the scrivener explained, the change from prohibition of remarriage to continuation of the surname Schwarzbarth reflected “a deep genuine feeling by the decedent toward his wife of love, affection and appreciation.” Furthermore, because of the 30 year difference in their ages, the testator was aware that Goldie would probably remarry. Therefore, we conclude that remarriage was not what the testator wished to prohibit and that under the terms of the Will, Goldie did not forfeit her life estate upon her remarriage. The right to receive the income of the trust was subject only to the retention of the Schwarzbarth name.

We must now determine the testator’s actual intent surrounding the use of the phrase “for so long as she shall retain the surname of SCHWARZBARTH____” Appellant strongly urges this Court to interpret this phrase as requiring exclusive and continuous use. Upon review of the evidence presented at trial, and the circumstances surrounding the testator at the time of execution of the Will, we conclude that the testator did not intend this phrase be given such a strict construction.

Almost all of the extrinsic evidence presented in the instant case reveals a close, devoted arid trusting relationship between the testator and his wife. During the testator’s later years when he was ailing and unable to conduct his business, Goldie assumed the duty of its supervision and oversight. In this regard, all parties to the controversy testified that the success of testator’s business ventures was due in large measure to the efforts of Goldie Schwarz-barth. Testimony by the scrivener of the probated Will established that over the course of the many years of marriage, the testator came to trust and believe in the loyalty of his wife. Accordingly, the testator revoked his prior Will, which contained an absolute forfeiture provision, and in its place created a life estate for Goldie subject only to the condition that Goldie “retain” the Schwarzbarth surname.

In light of this evidence, we agree with the Orphans’ Court that the testator must be deemed to have understood that Goldie would encounter some difficulty in maintaining the Schwarzbarth surname in each and every transaction following remarriage. Rather, the testator, through the use of the phrase in question, was asking that his widow perpetuate the Schwarzbarth name in the community in which it was known in order to give it viability and currency, and did not intend to create any hardship for his widow in the event of her remarriage.

Evidence presented at trial indicates that Goldie utilized the Schwarzbarth surname in many aspects of her private and public life. The Schwarzbarth surname appears on her driver’s license, social security health insurance card, personal checking account, and numerous credit cards, both old and new. In addition, Goldie has exclusively utilized the Schwarzbarth surname in the Harvey’s Lake, Luzerne County area where the Schwarzbarths resided during their marriage. Accordingly, the surname appears with regard to her real estate holdings in the Harvey’s Lake area. Furthermore, Goldie testified that in her ongoing relationships with her acquaintances, neighbors, community and friends in the Harvey’s Lake area, she holds herself out to be “Mrs. Schwarzbarth.” With respect to Goldie’s use of the Fried surname, the appellant produced documents which are largely official in nature, such as voting records and bank accounts, appearing most often in connection with Goldie’s present husband’s business transactions.

We conclude, therefore, that Goldie perpetuated and “retained” the Schwarzbarth surname in accordance with the testator’s intent. She maintained the currency of the surname in the area in which it was known. To require exclusive use of the name would be contrary to the intentions of a man who had a loyal and rewarding relationship with his wife.

Additionally, we note that when construing conditions in wills, a reasonable construction must be given in favor of the beneficiary. In Davis Estate, 275 Pa. 126, 118 A. 645 (1922), the Pennsylvania Supreme Court stated,

[W]hether there has been a performance or breach ... of a condition subsequent, depends upon a construction of the condition, a reasonable construction to be given in favor of the beneficiary and a strict construction against a forfeiture, ...

275 Pa. at 130, 118 A. at 647. To interpret the phrase in question to mean exclusive and continuous would require a strict construction working a forfeiture of Goldie’s interest in the decedent’s estate and would not give Goldie the benefit of the reasonable construction to which she is entitled to avoid such forfeiture.

Furthermore, it is well-established that a court construing a will should do so “in [accord] with the principle which resolves doubts in favor of a widow who accepts the provisions of a will in lieu of her rights under the intestate laws.” Tarter’s Estate, 291 Pa. 458, 462, 140 A. 502, 504 (1928).

Order of the Orphans’ Court affirmed.

JOHNSON, J., filed a dissenting opinion.

JOHNSON, Judge,

dissenting:

This case involves the enforcement of a testimentary provision requiring decedent’s widow to continue to use decedent’s surname. The majority limits the surname requirement to the community of Harvey’s Lake in which decedent resided at the time of his death and provides an exception for situations where it could inconvenience or embarrass the widow or her current husband. Finding such interpretation to be contrary to the clear intent of the testator, I must respectfully dissent.

The primary consideration in construing and interpreting a will is to give effect to the intent of the testator. Matter of Estate of Blough, 474 Pa. 177, 185, 378 A.2d 276, 280 (1977); In re Estate of Jacobson, 460 Pa. 118, 122, 331 A.2d 447, 446 (1975); Estate of Zerbey, 313 Pa.Super. 297, 302, 459 A.2d 1237, 1240 (1983). Unless the will is ambiguous, a court should extract such intent from the four corners of the will. Blough, supra; Jacobson, supra. Only where a court cannot ascertain the testator’s intent from the will itself may the court look to matters outside of such document. Estate of Taylor, 480 Pa. 488, 494, 391 A.2d 991, 994 (1978); In re Estate of Soles, 451 Pa. 568, 571-72, 304 A.2d 97, 99 (1973). The majority relies on extrinsic evidence to support its interpretation of the will; I find such unnecessary.

The Schwarzbarth will, paragraph SECOND, which is in dispute, reads as follows:

(a) To pay the net income therefrom periodically, but not less than quarterly, to or for the benefit of my wife, GOLDIE, during her life or for so long as she shall retain the surname of SCHWARZBARTH, whichever event shall first occur.
(b) Upon the occurrence of either of the two events mentioned in Subparagraph (b) [sic] of this Item of my Will, the said Trustee shall distribute all the undistributed principal and income, free of Trust, in three equal shares, with one of the said shares to go to my daughter, LAURA, another of the said shares to my daughter, MAXINE, if they are then living, and the third of the said shares shall be cut up into so many parts as I have grandchildren then living, that is to say, children of my said daughters, LAURA and MAXINE, with each of the said grandchildren to take per capita. In the event, however, that either of my daughters, LAURA or MAXINE, should not survive the occurrence of either of the two events mentioned in Subparagraph “A” of this item, then the share of such deceased daughter as she would have received had she survived, shall be paid to her issue, per stirpes, free of Trust.

(Emphasis supplied.) In the majority’s view, paragraph (a) is unclear as to whether the testator wished to penalize his widow if she remarried or merely wished to require her to use the surname of Schwarzbarth. The majority then examines a preceding will and determines that the provision required merely the continuation of the name. The Orphans’ Court accepted testimony from both the widow and the scrivener concerning testator’s preoccupation with the continuation of his name. The majority construes such concern as not requiring exclusive and continuous use.

In reaching its conclusion, the lead opinion looks to the testator’s and his widow’s relationship. As the lower court did, my colleagues infer that the testator must have understood that his widow upon remarriage would encounter difficulty in maintaining the surname. Therefore they theorize that the testator only wished that the name be perpetuated in the community in which it was known, as he did not intend to cause any hardships to his widow.

In re Estate of Kelly, 473 Pa. 48, 54, 373 A.2d 744, 747 (1977) held that:

[A]n ambiguity in a will must be found without reliance on extrinsic evidence before the extrinsic evidence is admissible. As we said In re Mizener’s Estate, 262 Pa. 62, 66, 105 A. 46, 48 (1918):
“A latent ambiguity can exist [only when] necessary to identify the subject matter or object of a devise and if there is in existence a subject or object that satisfies the terms of the will, and to which they are applicable, there is no occasion for the introduction of parol evidence, and a doubt suggested by extrinsic circumstances cannot be permitted to affect its construction. To do so would, in effect, amount to changing the will of the testator, and writing a new one for him, rather than interpreting the will of his making.”

See also Battles’ Estate, 379 Pa. 140, 143-44, 108 A.2d 688, 690 (1954); contra, In re Estate of Jacobson, 460 Pa. at 123, 331 A.2d at 449. The majority, after reviewing the extrinsic evidence, determines that the testator’s chosen language is ambiguous and therefore, in my opinion, reforms the clear intent of the decedent.

Declarations allegedly communicated to the scrivener of the will should not be admitted to alter the intent of the testator as gleaned from the four corners of the will. In re Estate of Kelly, supra. In a similar light, extrinsic evidence of the surrounding circumstances existing at the time the will was executed cannot be received as evidence of intent independent of the written form used. In re Estate of Jacobson, supra. Furthermore, “[t]he duty of the court is not to determine what the testator might or should have said in light of subsequent events but, rather, the actual meaning of the words used.” Estate of Blough, 474 Pa. at 185, 378 A.2d at 280; quoted in Estate of Toland, 495 Pa. 482, 486, 434 A.2d 1192, 1194 (1981) and Estate of Zerbey, 313 Pa.Super. 297, 302, 459 A.2d 1237, 1240 (1983).

The chancellor relied on all three sources: the scrivener’s recollection, the relationship of testator and his widow at the time the will was signed, and the subsequent effect of the provision upon the widow. I cannot condone such consideration when the will, in my opinion, is straightforward. The will conditions the payment of the income of the trust upon the widow’s continual use of the surname Schwarzbarth; it does not condition it upon the use in a certain community nor so long as it does not create any inconvenience. Should the widow discontinue the use of the name the income goes to the testator’s daughters. To interpret it otherwise is to write the condition out of the will.

Nor do I believe that the rules of construction, as they pertain to such conditions, require us to give it such an interpretation. The language here in dispute is “for so long as.” Such a phrase creates and denotes a valid determinable life estate which would automatically expire upon appellee’s failure to retain testator’s name. See Higbee Corp. v. Kennedy, 286 Pa.Super. 101, 107, 428 A.2d 592, 594-95 (1981); Stolarick v. Stolarick, 241 Pa.Super. 498, 506, 363 A.2d 793, 797 (1976). While such conditions are not favored in law as they terminate estates, where the grantor’s intention to limit the grant is clear, the condition will be enforced. Cooper v. Milikovsky, 382 Pa. 30, 112 A.2d 616, 617 (1955) (per curiam affirmance on basis of trial court’s opinion; opinion not reprinted in official reporter); Higbee Corp., 286 Pa.Super. at 109, 428 A.2d at 596.

The majority has relied on various rules of construction to aid them in determining the testator’s intent. However, one should not resort to such canons of construction unless the will is ambiguous. Estate of Sykes, 477 Pa. 254, 257, 383 A.2d 920, 921 (1978), Estate of Blough, supra. Since, in my opinion, the intent of the testator is clear from the four corners of the will, the only question that must be decided is whether appellee retained the surname of Schwarzbarth.

I find that the record is abundantly clear that appellee used both the surname of Schwarzbarth and Fried, independently of each other, depending upon which community she was concerned with. If she was dealing with the Harvey’s Lake area she was known as Mrs. Schwarzbarth. When she was in Allentown she was known as Mrs. Fried. It is true that many of her credit cards were in the name of Schwarzbarth; but it is equally true that the majority of them were continued from the time she was married to the decedent. Of those later acquired, one was in the testator’s surname, the other in the name of Fried.

The majority notes that appellee’s driver’s license was in the name of Schwarzbarth, but refers to her voting record and bank accounts, which were in the name of Fried, as being “largely official.” Many of these records or documents are justified by their relationship to Mr. Fried’s business. I am unpersuaded. A voter’s registration is non-business related. Many of the various bank accounts held in the name of Fried are not business related. Furthermore, such business was conducted under a non-family corporate name; hence, in my opinion, the use of her husband’s name was not necessary.

The decedent had been very proud of his Jewish heritage. The record reflects that he had made sizeable donations to Jewish organizations. Yet, his widow, who has accepted trust payments conditioned upon her continued use of the decedent’s surname, made her pledge to the Jewish Federation of Allentown in the name of Mrs. A. David Fried, rather than in the name of Schwarzbarth.

Appellee’s own testimony summarizes the use of decedent’s name. She stated: “Whenever it is proper and whenever I can, I use the name of Schwarzbarth. When it would have any effect or embarrassment on my husband, I use the name of Fried.” (N.T. p. 177) “Whenever I can use the name of Schwarzbarth without embarrassing my husband, I use it.” (Id.) Is such use consistent with Mr. Schwarzbarth’s clearly expressed intent? I think not.

If we place ourselves in the testator’s arm chair and assume his point of view, see In re Estate of Soles, 451 Pa. 568, 574, 304 A.2d 97, 100 (1973) (plurality opinion), we are appalled by what we now see before us. He was in failing health, married to a woman thirty years his junior, he was without male heirs, but intent on continuing his name. He did not want to unduly inhibit his wife from remarrying, but he did want his name to be remembered. To promote the continuation of his name he required his widow to continue its use, under the threat of forfeiture of trust payments. A few years after his death, his widow remarries and instead of honoring his name, only uses it when it is convenient for her to do so. Decedent provided for such possibility by providing for the forfeiture provision. However, the courts have refused to honor his wish and, instead, his name continues on only in the legal journals of this Commonwealth.

The majority expresses its view that forfeiture would be unjust in light of appellee’s faithfulness to the decedent for twenty years. I find the majority’s resolution of this appeal to be unjust to the testator; it is his intent we are to effect.

I would reverse the order of the Orphans’ Court. Hence, this dissent.

      . We refer to decedent’s widow as “Goldie" with all due respect, because of the issue involved in this case.

      . Under Paragraph 2, subsection (b) of the probated Will, upon the termination of the trust in question, the undisposed principal and income is to be distributed in three equal shares: the first share to the appellant, the second share to the decedent’s second adopted daughter Maxine, and the third share to the children of both daughters.

      . In her objections, appellant also claimed that there were accounting errors in the account. The accounting objections were later withdrawn.

      . Appellant argues that under common-law principles, a married woman adopts the surname of her husband unless she uses her premarital surname exclusively and continuously. Appellant cites several cases from other jurisdictions in support of this position. However, because we are dealing with testimentary interpretation, we must follow the well established mandate that the testator's intention is polestar in the construction of every will and must prevail, Houston’s Estate, 414 Pa. 579, 201 A.2d 592 (1964), and determine the effect which the testator intended through the use of the phrase in question.

      . By Codicil to the probated Will, dated October 30, 1965, the testator appointed his wife Goldie the sole executrix, altering the provision in the Will which appointed appellant’s husband and the testator’s son-in-law, Gerald Freiman, and Goldie, joint executors of the Will. This is a further indication of growing trust and devotion in the Schwarzbarth marriage.

      . The above language of subparagraph (b) may be found in a codicil dated June 25, 1965.

      . He had no male heirs to continue the name.

      . The majority does not address the possibility that the widow would remarry and remain in the same community nor the fact that the couple had spent considerable time in New York State.

      . The record in no way suggests how some of the uses could embarrass Mr. Fried.

      . I do not reach the question of whether the surname had to be used exclusively without exception, as the facts of this case indicate more than an occasional variance from the requirement.


author: SPAETH, Judge:

text:
    467 A.2d 1
    Sylvia KEHOE, John Kehoe III, and Sylvia Ann Mack, Appellants, v. Hazel E. GILROY, Executrix of the Estate of Edmund P. Gilroy, Trustee, and the American Casualty Company of Reading Pennsylvania.
    Superior Court of Pennsylvania.
    Argued April 7, 1983.
    Filed Oct. 7, 1983.

      James R. Anzalone, Wilkes-Barre, for appellants.
    Blase L. Gavlick, Philadelphia, for Gilroy, appellee.
    Enid W. Harris, Wilkes-Barre, for The Amer. Cas., appel-lee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from an order sustaining preliminary objections in the nature of a demurrer and dismissing appellants’ complaint in equity on the ground that appellants were guilty of laches. Since we find that the record does not disclose laches, we reverse.

On May 10, 1944, Frank M. Kehoe executed an irrevocable deed of trust, naming John C. Kehoe, Jr., trustee. Early in 1964, John Kehoe resigned as trustee and the First National Bank of Pittston was appointed successor trustee, but it too resigned, and on November 25, 1964, Edmund P. Gilroy was appointed successor trustee. On December 3, 1964, Gilroy and the American Casualty Company of Reading, Pennsylvania, posted a $50,000 bond for the faithful performance of the terms of the trust, and on December 11, 1964, Gilroy acknowledged the receipt of the sum of $37,-735.53 as the balance of the trust principal.

The deed of trust directed that income was to be paid to Frank Kehoe during his life and after his death to his wife, Sylvia Kehoe, during her life, and after her death, principal to be paid to her children, John Kehoe, III, and Sylvia Ann Mack.

On July 1, 1969, Edmund Gilroy, the trustee, died, and letters testamentary were issued to his wife, Hazel E. Gilroy. On January 10, 1975, Frank Kehoe, the settlor, died. On January 24, 1977, Sylvia Kehoe, John Kehoe, III, and Sylvia Ann Mack brought this action in equity against Hazel Gilroy, as Edmund Gilroy’s executrix, and American Casualty Company, as surety on the bond for Edmund Gilroy’s performance as trustee. We shall have occasion to quote the complaint in a moment. Stated generally, it alleges: the terms and history of the trust; that Sylvia Kehoe has received no income since the death of her husband, Frank Kehoe, the settlor; that Edmund Gilroy, Hazel Gilroy’s decedent, failed to perform his obligations as trustee; and that the American Casualty Company has failed to perform its obligations under its bond for Edmund Gilroy’s performance. The complaint requests an accounting and distribution.

As defendants, Hazel Gilroy and American Casualty Company each filed preliminary objections. Each set of preliminary objections raised a question of jurisdiction. In its opinion the trial court states that this question has been settled by transferring the action to the Orphans’ Court Division, and on this appeal the trial court’s jurisdiction has not been questioned.

Hazel Gilroy’s preliminary objections include, in addition to a petition raising a question of jurisdiction, a demurrer alleging that the complaint “sounds in assumpsit” and is “barred by the passage of six (6) years from the date of death of Edmund P. Gilroy.” American Casualty Company’s preliminary objections include, in addition to a petition raising a question of jurisdiction, a demurrer alleging five grounds: plaintiffs “are guilty of laches”; the action “is barred by the applicable Statute of Limitations”; the trust instrument by its terms “relieves the trustee of any duty to account”; there is “a presumption that the trust was properly administered”; and the complaint “does not state a cause of action” against American Casualty Company.

The trial court dismissed the complaint “[a]fter hearing oral argument and reviewing the pleadings and briefs.” Slip op. at 6. Sylvia Kehoe, John Kehoe, III, and Sylvia Ann Mack filed this appeal.

. In its opinion in support of its order dismissing the complaint, the trial court states that “[sjince the Demurrer will be sustained based on laches, the Court need not reach conclusions as to the other objections raised by the Defendants.” Id. Therefore, we shall not consider all of the issues raised by the preliminary objections; the only issue before us is whether in finding laches, the trial court erred.

In explaining its finding of laches, the trial court states: The pleadings in this case reveal certain significant factors:
1. No action was taken by Settlor against his Trustee for a period of almost six years even though during that time he should have been receiving the trust income.
2. The successor beneficiaries had knowledge of the trust’s existence and eventually joined together to enforce their vested rights even though they were not possessory at that time as to all Plaintiffs.
3. Even though the account of a deceased trustee’s fiduciary is due upon the death of a trustee, no request was made of Hazel E. Gilroy, Executrix for the Estate of Edmund B. Gilroy, for a period in excess of eight years. Slip op. at 5.

The court concludes its opinion by stating:

Under the circumstances presented, the Court believes it unjust to force the Trustee’s widow to account for her husband’s action with regard to the trust, now 12 years later.
Since the liability of a surety is no greater than that of a principal, the Preliminary Objections with regard to the American Casualty Company____are also sustained____
Slip op. at 6.

We are not persuaded by this reasoning.

Contrary to the trial court’s statement, the pleadings in the case—the complaint and the preliminary objections—do not reveal the facts recited by the court. The preliminary objections are purely conclusory, alleging no facts in support of the plea of laches; the complaint, after alleging the terms and history of the trust and the death of Edmund Gilroy, trustee, and Frank Kehoe, settlor and life beneficiary, only alleges: that “Sylvia Kehoe, Plaintiff, has not received any income from said trust and is without knowledge as to the whereabouts or the amount of the principal or income of said trust” (Complaint, para. 15); that Edmund Gilroy “has wholly failed and refused to perform his obligations as Trustee of said trust in so far as he has failed to account to the Plaintiff and has concealed the amounts of principal and income of said trust” {id., para. 16); that American Casualty Company “has wholly failed and refused to perform its obligations under the bond ... in so far as it has failed and refused to perform the objections of accounting and distribution of income and principal upon [Edmund Gilroy’s] default____” (id, para. 17); that John Kehoe, III, and Sylvia Ann Mack are each entitled to one-half the principal of the trust but are “without knowledge as to the whereabouts of the principal” (id., paras. 19-20, 24-25); and that Edmund Gilroy “has concealed, absconded or otherwise failed” to account for the principal, and American Casualty Company has “failed and refused to pay [the principal] into said trust” (id., paras. 21-22, 26-27).

We assume that the trial court derived its statement of the “significant factors” on which it based its decision from statements by counsel at oral argument. However, the record contains no transcript of the oral argument. We are therefore obliged to conclude that the court’s statement is unsupported by the record.

We need not however, rest our decision on this conclusion. If we assume that the trial court’s statement of “significant factors” is accurate, and as appellants, Sylvia Kehoe, John Kehoe, III, and Sylvia Ann Mack have not challenged its accuracy, still the court’s order must be reversed.

“While the defense of laches may be raised by preliminary objections, laches should never be declared unless the existence thereof is clear on the face of the record.” Estate of Marushak, 488 Pa. 607, 610, 413 A.2d 649, 651 (1980) (citation omitted). This means that the party asserting laches must show, first, a delay arising from the other party’s failure to exercise due diligence, and second, prejudice from the delay. Id. See also Leedom v. Thomas, 473 Pa. 193, 200, 373 A.2d 1329, 1332 (1977) (collecting cases). Whether this burden has been met is a factual question, answered by examining the circumstances of the particular case. Leedom v. Thomas, supra, 473 Pa. at 200-201, 373 A.2d at 1332-1333. See Shapiro v. Shapiro, 424 Pa. 120, 131, 224 A.2d 164, 170 (1966) (laches determined only after all circumstances of case examined): Stahl v. First Pennsylvania Banking and Trust Co., 411 Pa. 121, 128, 191 A.2d 386, 390 (1963) (well-settled that complaint will be dismissed on preliminary objections only if laches clearly apparent) (collecting cases). It is not enough to show delay arising from failure to exercise due diligence; for “[ljaches will not be imputed where no injury has resulted to the other party by reason of the delay.” Brodt v. Brown, 404 Pa. 391, 394, 172 A.2d 152, 154 (1961); Estate of Marushak, supra; Leedom v. Thomas, supra; Bedillion v. W.A. Wilson Stave Co., 271 Pa.Super. 292, 413 A.2d 411 (1979).

In considering whether from the facts characterized by the trial court as “significant” it appears that appellants failed to exercise due diligence, it is important to distinguish two periods: the period from July 1, 1969 (the date of the trustee’s death) to January 10, 1975 (the date of the sett-lor’s death); and the period from January 10, 1975 (when appellant Sylvia Kehoe was entitled to receive income from the trust), to January 24, 1977 (when appellants filed their complaint seeking an accounting and distribution of the trust).

It is possible that appellant Sylvia Kehoe failed to exercise due diligence during the first period, even though during that period she had no right to receive income from the trust. For if in fact the trustee did repudiate the trust, and Sylvia Kehoe knew of the repudiation, she might have brought her action earlier, even during her husband’s lifetime, since she had a protectible future interest. See Restatement (Second) of Trusts § 219 (1959) and Comment e (beneficiary with future interest and knowledge of trustee’s repudiation of trust may be guilty of laches where there is failure to sue before interest becomes possessory). And Comment g to § 219(2) states in part:

Such repudiation [by the trustee] need not be in specific words; it may consist of conduct on the part of the trustee inconsistent with the existence of the trust. Id.

Similarly, John Kehoe, III, and Sylvia Ann Mack might have brought an action to protect their remainder interest.

However, it is not apparent that Sylvia Kehoe, John Kehoe, III, or Sylvia Ann Mack should have acted sooner. There may in fact have been a repudiation by the trustee: the complaint alleges that the trustee “failed and refused to perform his obligations ... in so far as he has concealed, absconded or otherwise failed to have accounted [to the beneficiaries]” (Complaint, paras. 21, 26); and the trial court states that “[i]t is undisputed that during the eight years following the Trustee’s death no action was taken by either the Settlor or his widow against the estate of the Trustee” (Slip op. at 3). But the record does not disclose, and the trial court does not say, either when the repudiation occurred, or when Sylvia Kehoe, John Kehoe, III, or Sylvia Ann Mack learned of it. The relevance of the fact that no action was brought by them before the settlor’s death is therefore at least questionable.

But even if we assume, for the sake of argument, that an action might, and should, have been brought by appellants, Sylvia Kehoe, John Kehoe, III, and Sylvia Ann Mack, at some point during the five and one-half odd years between the death of the trustee, on July 1, 1969, and the death of the settlor, on January 10, 1975, still, it does not appear how appellees, Hazel Gilroy, as the trustee’s executrix, and American Casualty Company, as his surety, have been prejudiced by appellants’ delay in not bringing the action until January 1977. For to show prejudice, appellees must show that “some change in the condition or relations of the parties [occurred] during the period the complainant unreasonably failed to act.” Leedom v. Thomas, supra, 473 Pa. at 201, 373 A.2d at 1333 (citing 2 J. Pomeroy, Equity Jurisprudence § 419d, at 177 (5th ed. 1941)). And appellees have shown no such change. What difference has appellants’ (assumed) failure to exercise due diligence made? Have documents been lost? Have the trust assets been dissipated? Is it impossible to trace and recover them? Appellees don’t say. True, two probable witnesses—the trustee and the settlor—have died. But that fact alone cannot support the trial court’s order. Otherwise an accounting could never be required after the death of a settlor and his trustee. What appellees’ argument comes down to is that simply because of the trustee’s death, the settlor’s death, and appellants’ delay, no accounting is required. But that argument is without support in the law.

The order of the trial court dismissing the complaint on the grounds of laches is reversed, and the case is remanded so that the court may consider the remaining preliminary objections. We do not retain jurisdiction.

      . We note that Hazel Gilroy did not plead laches. (As appears from her demurrer, which we have just quoted, she only pleaded, albeit without citation, the six year statute of limitations applicable to an action in assumpsit. 42 Pa.C.S.A. § 5527.) The trial court, however, treated both sets of preliminary objections as raising the issue of laches, slip op. at 3, and the propriety of so proceeding has not been questioned.