author: CERCONE, Judge:

text:
    533 A.2d 765
    TRAVELERS INDEMNITY COMPANY, Appellant v. COMMERCIAL UNION INSURANCE COMPANIES and Swarthmore College.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1987.
    Filed Nov. 17, 1987.

      Thomas A. Wimmer, Media, for appellant.
    Andrew S. Levine, Philadelphia, for appellees.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

When the owner of an uninsured vehicle is struck by an insured vehicle while entering his uninsured vehicle, is the insurance carrier for the insured vehicle a proper source of basic loss benefits under section 204 of the Pennsylvania No-fault Motor Vehicle Insurance Act? (hereinafter “No-fault Act”) The trial court held that the designated carrier under the assigned claims plan, Travelers Indemnity Company (hereinafter “Travelers”), appellant herein, was the proper source rather than the insurer of the striking vehicle, Commercial Union Insurance Companies (hereinafter “Commercial Union”). We affirm.

On October 2, 1982, Demetrius Kattes was involved in a motor vehicle accident. The facts are undisputed. At the time Mr. Kattes was injured, he was seated in his uninsured, parked vehicle in the driver’s seat, with keys in the ignition, his right hand on the steering wheel. He was in the process of closing the driver’s door with his left hand, his left foot was on the ground as he reached to close the door. He was struck by a motor vehicle insured by Commercial Union and owned by Swarthmore College, appellees herein.

Travelers was the assigned obligor for the payment of Kattes’ basic loss benefits through the assigned claims plan. Travelers has filed the instant action in order to recoup basic loss benefits paid to Kattes in the amount of $21,303.34. In the court below, both parties filed cross-motions for summary judgment contending that the other party was liable for payment of basic loss benefits. The Honorable Ethan Allen Doty of the Court of Common Pleas of Philadelphia County granted Swarthmore College and Commercial Union’s motion and denied the motion filed by Travelers.

That Mr. Kattes was a “victim” under section 201 of the No-fault Act and entitled to basic loss benefits is apparently conceded by Travelers. The present controversy concerns only the ultimate security liable for the basic loss benefits for which Mr. Kattes was paid. Section 204 of the No-fault Act, 40 P.S. § 1009.204, establishes “categories and priorities as between insurers responsible for payment of benefits.” Tyler v. Insurance Company of North America, 311 Pa.Super. 25, 29, 457 A.2d 95, 96-97 (1983) (quoting Schimmelbusch v. Royal-Globe Insurance Co., 247 Pa.Super. 28, 31, 371 A.2d 1021, 1023 (1977)). This section, which creates a hierarchy among potential sources of security provides:

(a) Applicable security. — The security for the payment of basic loss benefits applicable to an injury to:
(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
(2) an insured is the security under which the victim or deceased victim is insured;
(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
(5) any other individual is the applicable assigned claims plan.

40 P.S. § 1009.204. In determining the source of basic loss benefits under section 204’s scheme, the applicability of each preceding subsection must be excluded before the next may be considered. The parties and the lower court concede that subparagraphs (1), (2), and (3) of paragraph (a) do not apply. The parties’ dispute centers on whether subparagraph (4) or (5) controls in this case.

Subparagraph (4) directs “an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident [e.g., a pedestrian],” to present his claim to an insurer of any motor vehicle involved in an accident (in this case appellee Commercial Union). Subparagraph (5) provides that all other individual claimants submit a claim to the assigned claims plan (in this case appellant Travelers).

The gravaman of the dispute herein centers around a determination of whether Mr. Kattes was an occupant of his motor vehicle at the time of the accident, which would place him in subparagraph (5), or whether he was a pedestrian, thus placing the liability determination within the confines of subparagraph (4). Because this determination depends on a reading of the facts and circumstances of the specific situation, this case presents a question of first impression in interpreting the now repealed No-fault Act.

The term “occupant” is not defined by the No-fault Act and, therefore, we look to the Statutory Construction Act of 1972, 1 Pa.C.S. § 1501 et seq., and prior case law for guidance. The Statutory Construction Act provides that “[w]ords and phrases shall be construed ... according to their common and approved usage----” Id. at § 1903.

“Occupant” is defined as, “one who has the actual use, possession or control of a thing.” Black’s Law Dictionary 973 (5th ed. 1979).

The term “occupant” was applied to a specific set of facts in Tyler v. Insurance Company of North America, supra, wherein the victim had stepped off a bus and was struck by a motorcycle before she reached the safety of the sidewalk. The Tyler court reasoned:

In general, it can be said that a person who is alighting from a vehicle is still an occupant thereof. He continues to “occupy” the motor vehicle until he severs all connection with it. That point of severance is reached when he becomes highway oriented as opposed to being vehicle oriented. Until then, the alighting passenger continues to be an occupant of the bus. Until such person is on his or her own without reference to the bus, the person has not ceased to be a passenger or occupant. See and compare: Allstate Insurance Co. v. Flaumenbaum, 62 Misc.2d 32, 308 N.Y.S.2d 447 (1970) (a passenger who steps out of a taxi cab to pay his fare is still vehicle oriented); Government Employees Insurance Co. v. Keystone Insurance Co., 442 F.Supp. 1130 (E.D.Pa.1977) (a passenger who leaves a vehicle to engage in a fist fight is no longer vehicle oriented).
Applying a vehicle oriented versus highway oriented test to the facts of the instant case, we conclude that at the time of the accident Carol Tyler had not severed her relationship with the bus from which she was alighting. The bus company had a duty, not only to carry her safely, but to afford an opportunity to alight safely. Where, as here, the bus had stopped five feet from the safety of the shoulder, Carol Tyler continued to be vehicle oriented until she reached the shoulder of the road.

311 Pa.Super. at 31, 457 A.2d at 97-98 (citation omitted). Various other cases have addressed this issue. In Ashcraft v. Lutz & Rockwood, 256 Pa.Super. 626, 389 A.2d 691 (1978), this court affirmed, by per curiam order, a lower court’s ruling that the injured plaintiff was a pedestrian as he was working under the hood of his uninsured parked car, although he was actually heading back to the driver’s door to enter the vehicle. In Hayes v. Erie Insurance Company, 261 Pa.Super. 171, 395 A.2d 1370 (1978), an uninsured owner was deemed to be a pedestrian when she was struck after she had emerged from her car and was crossing an intersection.

A reading of the aforementioned cases supports a common sense approach to determining Mr. Kattes’ status in the present case. Whether we apply the dictionary definition or the Tyler highway versus vehicle orientation approach, we reach the same result, that Mr. Kattes was an “occupant” of his vehicle at the time of the accident. Applying the dictionary definition, it is clear from the facts that Mr. Kattes was in actual use, possession or control of his car.

Applying Tyler’s highway versus vehicle orientation test is slightly more difficult. Appellant argues that Tyler stands for the proposition that until the victim has totally severed the last clear orientation, that orientation is the one which controls. Therefore, appellant’s argument continues, because Mr. Kattes had not yet removed his foot from the highway, his last clear orientation, i.e., the highway, should control. We do not agree that Tyler stands for the proposition as set forth by appellant. A major consideration in Tyler was the fact that the bus, as a public carrier, had a duty to afford its passengers an opportunity to alight safely and until the passenger had reached the safety of the curb, the owner of the bus had a duty towards her. In the instant case, there is no similar connection between Mr. Kattes’ role as a pedestrian and his act of occupying the car. Therefore, based on an overview of the facts in this case, we agree with the lower court’s conclusion that Mr. Kattes should most properly be considered an “occupant” of his vehicle. To conclude otherwise would require a forced analysis, not comporting with common sense or logic.

Accordingly, we affirm the order of the court below.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.204, repealed February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . See 40 P.S. § 1009.108, repealed.

      . This determination appears to be one for the court to make, rather than the trier of fact. Therefore it was proper for the lower court, in ruling on cross-motions for summary judgment, with undisputed facts, to determine that Mr. Kattes was an "occupant" of his vehicle. Accord: Tyler v. Insurance Company of North America, supra; Barwis v. Government Employees Insurance Co., 352 Pa.Super. 604, 508 A.2d 1234 (1986).


source: Caselaw Access Project

license: Public Domain

text:
    533 A.2d 768
    Alvin LASTER, Appellant, v. GLASGOW, INC.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1987.
    Filed Nov. 17, 1987.
    Edward T. Feierstein, Philadelphia, for appellant.

      John J. O’Brien, Jr., Philadelphia, for appellee.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order denying appellant’s request for delay damages following the entry of a jury verdict in his favor.

On September 29, 1986, the trial began in the civil suit brought by Alvin Laster, appellant, against Glasgow, Inc., appellee. On October 10, 1986, the jury awarded appellant $150,000 in damages. At the conclusion of the trial and subsequent to the verdict being received in open court, counsel for the appellant made an oral motion for delay damages. See Pa.R.C.P. No. 238, 42 Pa.C.S.A. The lower court advised that it would compute the delay damages and mold the verdict to reflect the addition of delay damages. Defense counsel did not object to this.

After computation of the delay damages, totalling $32,-999.99, but before filing the order for damages, the lower court became aware of the decision of the Pennsylvania Supreme Court in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), and accordingly the computation was crossed out on the verdict sheet. The verdict sheet was then filed indicating no delay damages on the basis of the above case. On October 24, 1986, the lower court handed down its order that no delay damages would be awarded in this case since the plaintiff had not filed a petition in accordance with the requirements as set forth in Craig v. Magee Memorial Rehabilitation Center, supra.

In Craig, the Pennsylvania Supreme Court was faced with a due process challenge to Rule 238. The appellant in Craig argued that Rule 238 punishes a defendant without fault. In response to this challenge, the court stated:

Having had now the opportunity for observation of the workings of Rule 238, and being presented herein with a factual context which frames in sharp relief the Rule’s inequitable operation, we direct that those mandatory provisions of Rule 238 which assess delay damages against defendants without regard to fault are suspended as of this date for all cases now pending in the courts of this Commonwealth, and for any cases instituted hereafter.
In its stead we direct that claims for delay damages are to be presented by petition within five days of a jury verdict or arbitration award.

Craig, id., 512 Pa. at 65, 515 A.2d at 1353. The opinion in Craig was filed October 8, 1986, two days before the jury verdict below.

The directives of Craig are clearly applicable to the instant case. As such, appellant was to file a petition within five (5) days of a jury verdict. This, appellant failed to do. However, this failure will not act to deny appellant an opportunity to comply with the directives of Craig.

It is axiomatic that the Rules of Civil Procedure are to be construed liberally to secure the just determination of applicable proceedings. Pa.R.C.P. No. 126, 42 Pa.C.S.A. For the following reasons, we find that the lower court’s strict adherence to the changes instituted by Craig resulted in an unjust denial of appellant’s claim.

First, counsel for appellant cannot be held to a standard whereby he is charged with the knowledge of a decision two days after it is handed down. Practicalities in the judicial system of reporting cases make this standard almost impossible. In fact, Craig was not reported in the Legal Intelligencer until October 16, 1986, and was not published in the Atlantic Reporter until November 11, 1986.

Second, appellant had no notice, outside of Craig, that an oral motion for delay damages was inadequate. It was not until October 24, 1986, when the lower court handed down its order that no delay damages be awarded, that appellant finally received notice that a written petition was required. The lower court, initially unaware of Craig, stated that it would formulate delay damages pursuant to appellant’s oral motion. We find that it was reasonable for appellant to rely upon the court’s statement. It should also be noted that appellee made no objection to appellant’s oral motion for delay damages which suggest that it also was uninformed of the recent mandates of Craig.

When considering the facts in this case, it is obvious that appellant would be unfairly prejudiced by holding him to a standard of constructive notice of a case filed two day previously. Having taken judicial notice of the fact that appellant’s counsel, and practicing bar at large, would not, in the exercise of due diligence, have had notice of Craig immediately after its filing, we remand this case for the parties to proceed nunc pro tunc, as required by Craig. Accordingly, we reverse the order of the court below and remand for the filing of a motion for delay damages nunc :pro tunc and for further proceedings consistent with the directives of Craig.

      . Rule 238, states in pertinent part:
      (a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15, 1975, P.L. 390, 40 P.S. § 1301.101 et seq., shall
      (1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court’s decision in a nonjury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict or decision;
      (2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision.

        . The Montgomery County Civil Rules require all motions to be in writing. Since neither party spoke to this issue, we will not sua sponte address this aspect. Nevertheless, the fact that the lower court acting in contravention of the local rules would constitute a waiver of the local rule in this instance.

      . Accord Yates v. Pacor, Inc., 352 Pa.Super. 335, 507 A.2d 1258 (1986) (retroactive application of an overruling decision would severely prejudice appellant and thus will not be applied). See also Rule 105 of the Pennsylvania Rules of Appellate Procedure, which provides:
      Rule 105. Waiver and Modification of Rules
      (a) Liberal construction and modification of rules. These rules shall be liberally construed to secure the just, speedy and inexpensive determination of every matter to which they are applicable. In the interest of expediting decision, or for other good cause shown, an appellate court may, except as otherwise provided in Subdivision (b) of this rule, disregard the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction.
      (b) Enlargement of time. An appellate court for good cause shown may upon application enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for review.
      Pa.R.A.P. Rule 105, 42 Pa.C.S.A.


author: McEWEN, Judge:

text:
    533 A.2d 770
    COMMONWEALTH of Pennsylvania v. Michael MITCHELL, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1987.
    Filed Nov. 17, 1987.

      John J. Kerrigan, Jr., Newton, for appellant.
    Lawrence M. Cherba, Assistant District Attorney, Doylestown, for Com., appellee.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   McEWEN, Judge:

These consolidated appeals have been taken from an order directing the forfeiture of bail which had been posted to guarantee the appearance of the defendant, Michael Mitchell, at all proceedings attendant charges of murder which had been lodged against him.

When Michael Mitchell was charged with the offense of murder, bail was set at $400,000. David Mitchell, the father of the defendant, posted $40,000 cash bail and retained counsel to represent his son. A jury subsequently determined that Michael Mitchell was guilty of third degree murder. When the defendant failed to appear at sentencing, the Commonwealth filed a petition to forfeit bail. The court conducted a hearing and directed that the bail be forfeited, rejecting an argument by counsel for Mitchell that $20,000 of the cash bail, assigned to him as payment of his counsel fees, should not be forfeited to the Commonwealth. Counsel for Mitchell asserts in this appeal that this court should, in the interests of justice, declare that the hearing court erred and direct that he be paid his fee from the forfeited sum.

Initially, we note that Michael Mitchell remains a fugitive. It is, of course, well-settled that a defendant who elects to escape from custody or become a fugitive while free on bail forfeits his right to appellate review. See: Commonwealth v. Passaro, 504 Pa. 611, 613-617, 476 A.2d 346, 348-349 (1984). However, the defendant has not undertaken this appeal. Rather, trial counsel for appellant has undertaken this appeal asserting that the court committed an abuse of discretion in ordering forfeiture.

The procedure of remission is as ancient as the right to bail, and it is well established that “[Remission of forfeiture is a practice, calculated to encourage bondsmen to seek actively the return of absent defendants. Commonwealth v. Reeher, 245 Pa.Super. 282, 369 A.2d 404 (1976). Allowance or denial of a remission lies within the sound discretion of the trial court. Commonwealth v. Jones, 286 Pa.Super. 507, 429 A.2d 436 (1981).” Commonwealth v. Fleming, 336 Pa.Super. 377, 379, 485 A.2d 1130, 1131 (1984). Accord: Commonwealth v. Nolan, 288 Pa.Super. 484, 488, 432 A.2d 616, 618 (1981).

Similiarly, the United States District Court for the Western District of Pennsylvania, in denying an application for remission factually identical to the instant matter, declared that “ ‘[rjelease [of a defendant] is conditioned on the execution of a bail bond in order to assure the presence of the accused, ... Remission of forfeited bonds while their subjects are still at large would undermine that purpose.’ ” United States v. Ciotti, 579 F.Supp. 276, 278 (W.D.Pa.1984) quoting United States v. Skipper, 633 F.2d 1177, 1180 n. 6 (5th Cir.1981).

We have not, however, discovered any Pennsylvania appellate court decisions involving a petition to remit a forfeiture (1) where the petitioner is neither the defendant nor a surety, and (2) where the petition was filed while the defendant remained a fugitive.

It is unnecessary to discuss the legal arguments assembled by the Commonwealth, or to address the compelling personal plea of counsel for payment of his fee, since we are of a mind that public policy precludes the remission here sought. There exist a number of public policy preclusions to remission of the forfeiture to counsel for the defendant, not the least of which is the temptation, and even encouragement, that such a result would present to other defendants released on bail. It is sufficient to simply observe that crime should never pay — either the criminal or his counsel — and, surely it is obvious that to honor such a claim by counsel for a fugitive is to reward the fugitive for his escape. That result might even justify the description of the law provided by Mr. Bumble. Therefore, we conclude that the distinguished Judge Paul R. Beckert properly denied the application for partial remission.

Order affirmed at No. 00790 Philadelphia 1987. The appeal at No. 00789 Philadelphia 1987 is quashed.

      . The appeal at No. 00789 Philadelphia 1987 has been taken from the order of forfeiture. The appeal at No. 00790 Philadelphia 1987 has been taken from the order dismissing "exceptions” to the order of forfeiture which, for purposes of this appeal, we have treated as a petition for remission, the denial of which is appealable pursuant to Pennsylvania Rule of Appellate Procedure 311(a)(1).

      . See footnote 1 supra.


author: BECK, Judge:

text:
    533 A.2d 772
    In re ESTATE OF Melba F. WOOD, Alleged Incompetent. Appeal of William J. IRVIN.
    Superior Court of Pennsylvania.
    Argued May 6, 1987.
    Filed Nov. 19, 1987.

      Carl N. Weiner, Lensdale, for appellant.
    Douglas A. Gifford, Souderton, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   BECK, Judge:

This is an an appeal by William J. Irvin from an order dismissing exceptions to the denial of his petition to have Melba F. Wood adjudicated incompetent. We affirm the order of the trial court.

Appellant Irvin is the step-nephew of Mrs. Wood. He is the step-son of Mrs. Wood’s late husband’s brother. In 1982, Mrs. Wood gave appellant’s wife Bertha Irvin a power of attorney. In 1984, Mrs. Wood released the power of attorney. She then entered into a revocable inter vivos trust agreement with the Union National Bank and Trust Company of Souderton (“the Bank”) which now handles her financial affairs. Shortly thereafter, appellant Irvin filed a petition under the Decedents, Estates and Fiduciaries Code requesting that Mrs. Wood be declared incompetent and that his wife Bertha Irvin be appointed her guardian. See 20 Pa.Cons.Stat.Ann. § 5511 (Purdon 1975). The petition alleged that Mrs. Wood was eighty-four years old, that she resided in a nursing home, and that she was unable to manage her property, and was liable to dissipate it or become the victim of designing persons.

The Orphans’ Court Division of the Court of Common Pleas of Montgomery County held a competency hearing. Mr. Irvin testified that in recent months Mrs. Wood had appeared very confused. He related the following incidents: Mrs. Wood had claimed that for three days she had nothing to eat at the nursing home although she was well fed; she had attempted to eat breakfast cereal with a fork; she had been unaware that a lens was missing from her glasses; and she had stated on one occasion that her deceased husband would need a sweater the following winter.

Counsel for appellant Irvin called Mrs. Wood to the stand. Mrs. Wood could not accurately state her age, or the name of the nursing home where she lived, or the names of the President of the United States or of the Governor of Pennsylvania. She did not know the purpose of the incompetency proceeding, and she could not describe the difference between a checking account and a savings account. She also admitted that her memory “sometimes slows up ...” N.T. at 19. However, she was aware that the Bank was managing her money.

Q. Did you want Bertha [to] continue acting as your power-of-attorney in handling your finances?
A. No, we have — for the estate we have the bank, and we’re well pleased with it.
Q. Okay. But you decided you didn’t want Bertha; is that right? To continue?
A. Well, yes, that’s right.
Q.' You don’t write any checks on your own?
A. No.
Q. You don’t make any deposits in the bank on your own?
A. No.
Q. Is the bank doing all that?
A. That’s right.

N.T. at 21-22.

At the close of appellant Irvin’s case, counsel attempted to introduce into evidence an affidavit from a physician who had treated Mrs. Wood at the nursing home. The trial judge sustained an objection to this evidence on the grounds that it constituted inadmissible hearsay. Counsel for Irvin did not come forward with any other evidence or testimony of a medical nature.

Counsel for Mrs. Wood called as his sole witness a psychiatrist with over twenty-five years experience. The psychiatrist testified that based upon his examination of Mrs. Wood, he had concluded that she showed signs of minimal organic brain disorder. However, he believed that she was competent to make decisions regarding who should assist her with her financial affairs.

The trial judge found that incompetency had not been established and entered an order dismissing Irvin’s petition on September 24, 1984. Irvin directly appealed this order and also filed exceptions to the order. On September 22, 1985, Superior Court quashed the appeal as interlocutory and remanded for disposition of the exceptions. See In Re Estate of Wood, 355 Pa.Super. 442, 513 A.2d 993 (1986). On October 15, 1986, the trial court dismissed the exceptions and entered its prior order as a final order. Irvin then filed this second appeal.

Appellant Irvin raises three allegations of error. None merits reversal of the trial court’s final order.

Appellant contends that the trial court erred by refusing to admit into evidence the affidavit of a physician affiliated with the private nursing home in which Mrs. Wood is a resident. Appellant asserts that this affidavit— although hearsay — should have been admitted pursuant to section 5518 of the Decedents, Estates and Fiduciaries Code. That section provides:

In any hearing relating to the mental condition of a person whose competency is in question, the deposition of, or sworn statement by, a superintendent, manager, physician or psychiatrist of any State-owned mental hospital or veterans’ administration hospital or a physician or psychiatrist at any hospital or institution shall be admissible in evidence as to the condition of an inmate of such hospital in lieu of his appearance and testimony, unless by special order, the court directs his appearance and testimony in person.

20 Pa.Cons.Stat.Ann. § 5518 (Purdon 1975) (emphasis added).

We need not decide if the affidavit in question falls within the purview of section 5518. The trial court’s decision to exclude this document by sustaining an objection to its admission was the functional equivalent of a “special order” directing the treating physician to appear and testify in person. As the trial judge noted in his opinion:

Notwithstanding the failure of counsel to cite § 5518 to the court at the hearing, the issue was in fact essentially dealt with in accordance with that section. The affidavit was ruled inadmissible, thus by implication (as opposed to a “special order”) the testimony of the treating physician was required — a result clearly authorized by § 5518. Petitioner could have requested a continuance to produce the treating physician. He chose not to do so, and therefore should not now be heard to complain.

Tr. Court Op. at 3-4. Accordingly, we will not reverse on this basis.

Appellant next argues that the trial court erroneously assumed that medical testimony in support of a guardianship petition is an absolute prerequisite for a finding of incompetency. At the close of the petitioner’s case, the trial judge remarked “I do not think that it is within my power to declare someone incompetent without medical testimony of any kind, and that’s the position we find ourselves in at this moment.” N.T. at 25. We agree with appellant that this is not a correct statement of law.

Medical testimony is of great significance since it assists the trial court in determining the nature, severity, and consequences of an alleged incompetent’s disability. The Pennsylvania Supreme Court has stated in dicta that “[ejxpert testimony is needed when transactions fall within the penumbra between competence and incompetence, when the light of reason may come and go unbidden.” Hagopian v. Eskandarian, 396 Pa. 401, 404, 153 A.2d 897, 899 (1959), cert. denied, 361 U.S. 938, 80 S.Ct. 381, 4 L.Ed.2d 358 (1960). However, the appellate courts have never adopted a rule of evidence which would require the use of expert testimony in all incompetency proceedings without exception. The testimony of lay witnesses who have observed the alleged incompetent is admissible and highly probative since “[ojne’s mental capacity is best determined by his spoken words, his acts, and his conduct.” Urquhart Estate, 431 Pa. 134, 142, 245 A.2d 141, 146 (1968). See also Weir by Gasper v. Ciao, 364 Pa.Super. 490, 494-495, 528 A.2d 616, 619-620 (1987) (court may base finding of competency on evidence provided by lay witness).

Although the introduction of expert testimony from psychiatrists, psychiatric nurses, and other health care professionals is to be encouraged, we cannot say that lay testimony alone can never be sufficient to meet the heavy burden of establishing incompetency. Nevertheless, in the case sub judice, appellant was not prejudiced by the trial judge’s comment. The trial judge based his decision to dismiss the guardianship petition on his assessment of the testimony of both Mrs. Wood and the psychiatrist who spoke on her behalf. Tr. Court Op. at 4. We find that the trial judge properly evaluated all of the evidence before him.

Finally, appellant claims that the trial court abused its discretion by failing to find that Mrs. Wood is incompetent. An “incompetent” is defined as:

... a person who, because of infirmities of old age, mental illness, mental deficiency or retardation, drug addiction or inebriety:
(1) is unable to manage his property, or is liable to dissipate it or become the victim of designing persons; or
(2) lacks sufficient capacity to make or communicate responsible decisions concerning his person.

20 Pa.Cons.Stat.Ann. § 5501 (Purdon 1975).

A trial court must act with circumspection when applying this definition. As one commentator has noted:

That guardianship of a person’s property is sometimes the only reasonable course does not mean, however, that it is to be embarked upon whenever a person seems to be having property-management problems. The consequences of guardianship are far too dire to be unleashed lightly. In Pennsylvania, the incompetent must relinquish possession of his real and personal property to his guardian. [See 20 Pa.Cons.Stat.Ann § 5521(1)], who is empowered to “sell, at public or private sale, any personal property of the [incompetent].” [20 Pa.Cons.Stat.Ann § 5151 incorporated by 20 Pa.Cons.Stat.Ann. § 5521(22).] The incompetent is “incapable of making any contract or gift or any instrument in writing____” [20 Pa.Cons.Stat. Ann. § 5524.] This provision may prevent an incompetent from legally marrying, and from executing a valid will, as well as from forming enforceable business contracts and from making valid inter vivos gifts. An incompetent also loses the capacity to initiate lawsuits on his own. [See Pa.Rs.Civ.P. 2051-64.] After a person has been declared incompetent, the burden shifts to him, in a petition for termination of the guardianship, to show that he has regained competence. [See 20 Pa.Cons.Stat.Ann. § 5517.]
Beyond the direct legal consequences, an incompetent may suffer severe social, commercial, and psychological effects. He is told that he is unable to handle the estate he may have accumulated through years of hard work. It is not difficult to imagine the sense of despair, the loss of dignity, and the frustration that often must rage in the mind of one who is told that the state’s “preventative and protective” law will now relieve him of the right to spend his own money freely.

Comment, An Assessment of the Pennsylvania Estate Guardianship Incompetency Standard, 124 U.Pa.L.Rev. 1048 (1976) (footnotes omitted).

For all these reasons, the appellate courts have cautioned that a guardianship statute is “a dangerous statute easily capable of abuse ...” Smith v. Smith, 365 Pa.Super. 195, 204, 529 A.2d 466, 470 (1987) (Beck, J., concurring) (citing Myers Estate, 395 Pa. 459, 462, 150 A.2d 525, 526 (1959)), and have required that the petitioner bear the burden of proving incompetency by clear and convincing evidence. See Matter of Caine, 490 Pa. 24, 415 A.2d 13 (1980).

In the instant case, the record indicates that although Mrs. Wood’s memory is seriously impaired, she is aware that the Bank is managing her assets and she has consistently maintained that she wants to entrust her money to the Bank rather than to appellant’s wife. Moreover, the psychiatrist who interviewed Mrs. Wood concluded that she was capable of choosing a financial representative. Under these circumstances, we conclude that the trial court did not abuse its discretion by finding that appellant did not clearly and convincingly prove that Mrs. Wood is incompetent within the meaning of the statute.

Order affirmed.

WIEAND, J., concurs in the result.


author: HESTER, Judge: CAVANAUGH, Judge,

text:
    533 A.2d 776
    COMMONWEALTH of Pennsylvania v. Jeffrey T. WEGE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 21, 1987.
    Filed Nov. 20, 1987.

      Samuel K. Gates, Hanover, for appellant.
    Gary E. Hartman, District Attorney, Gettysburg, for Com., appellee.
    Before CAVANAUGH, ROWLEY and HESTER, JJ.
   HESTER, Judge:

This appeal from the judgment of sentence involves a single issue: whether the trial court erred in refusing to suppress the results of a breathalyzer test. For the reasons which follow, we conclude that the trial court did not err, and affirm.

The record reveals that appellant, Jeffrey Wege, was arrested for driving under the influence of alcohol on October 26, 1986. He entered a plea of guilty on December 30, 1986, which he successfully withdrew on March 2, 1987. Thereafter, on May 29, 1987, the trial court denied appellant’s pretrial motion to suppress, and appellant entered a plea of nolo contendere on July 6, 1987. The court sentenced appellant to a term of incarceration of thirty days to twenty-three months, plus the payment of fines and costs. This appeal followed.

The facts of the case are as follows. On October 26, 1986, Officer Ricky Williams of the Littletown Borough Police, observed appellant driving, at 1:25 a.m., at approximately five miles per hour. When appellant crossed over the center line several times, Officer Williams put on his flasher and stopped appellant’s vehicle. Appellant attempted to perform several field sobriety tests, but failed. The officer noticed that appellant’s eyes were bloodshot, his speech was slurred, and he had an odor of alcohol on his breath. Appellant was arrested and taken to the Gettysburg Police Station where police administered Miranda warnings and requested appellant to submit to a breathalyzer test. Appellant twice refused, but on the third request, submitted to the test. The test indicated that appellant’s blood alcohol level was .26 percent.

Appellant argued in his pretrial motion to suppress, and argues now, that inasmuch as 75 Pa.C.S. § 1547(b) provides that chemical testing shall not be conducted upon a refusal to submit to such testing, the police improperly requested appellant to submit to the breathalyzer after his initial refusal. He thus asserts that the trial court should have suppressed the results of the breathalyzer exam. We do not agree.

Section 1547(b)(1) provides:
(b) Suspension for refusal.—
(1) If any person placed under arrest for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) is requested to submit to chemical testing and refuses to do so, the testing shall not be conducted but upon notice by the police officer, the department shall suspend the operating privilege of the person for a period of 12 months.

Appellant does not allege that he was coerced into taking the test. He simply contends that once a test is refused, the police are prohibited, by the language of 75 Pa.C.S. § 1547(b)(1), from making a subsequent request.

We have stated that the purpose of the above provision and prior enactments is “to facilitate the acquisition of chemical analyses and to permit their utilization in legal proceedings.” Commonwealth v. Tylwalk, 258 Pa.Super. 506, 511, 393 A.2d 473, 475 (1978). We do not believe appellant’s interpretation of § 1547 is in keeping with such a purpose.

There is nothing in the statute that precludes an officer’s discretion in allowing an accused to change his mind. Corporal Dennis Wright of the Gettysburg Police Department, who administered the breathalyzer, testified that it is the policy of his police department to give each person charged with driving under the influence three opportunities to take a breathalyzer exam. Such benevolence is certainly not required. Indeed, once an accused refuses to submit to chemical testing, a subsequent assent to the test need not be accepted. E.g., In re Miller, 79 Pa.Cmwlth. 648, 470 A.2d 213 (1984). Indeed, the Miller court quoted with approval the following language in the opinion of the trial court therein. “[P]olice officers are not required to spend effort either cajoling the defendant or ... waiting to see if the defendant will ultimately change his mind.” Id. at 650, 470 A.2d at 214. That the Gettysburg police do more than they are required by law to do is to their credit.

Although we have found no cases addressing the precise issue in this case, there are many examples where police afforded an accused drunk driver more than one opportunity to assent to chemical testing. See, e.g., Phillips v. Commonwealth, 84 Pa.Cmwth. 217, 478 A.2d 958 (1984) (police offered accused three opportunities to take a breathalyzer test and one chance to submit to a blood test); In re Weitzel, 41 Pa.Cmwlth. 235, 400 A.2d 646 (1979) (police made four requests of accused to take breathalyzer exam).

We conclude that the police were not prohibited from extending appellant a second and third opportunity to submit to a breathalyzer test by the language of 75 Pa.C.S. § 1547(b)(1). Accordingly, the judgment of sentence is affirmed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent.

75 Pa.C.S.A. § 1547(b) requires that the police officer inform a person under arrest for driving under the influence that his operator’s privileges will be suspended upon refusal to submit to the testing before he is subjected to the chemical testing. (Pa.C.S.A. § 1547(b)(2)). The defendant is thus faced with an informed choice. The law further requires that if the person under arrest is requested to submit to chemical testing and refuses to do so — “the testing shall not be conducted.” I would read this statute’s plain words to restrict the police efforts to have one already under arrest submit to chemical testing limited to a single request and refusal. I believe that repeated requests after a refusal would, under the circumstances, be far more likely interpreted as coercion rather than benevolence.

      . Appellant’s arrest occurred while on ARD probation for drunk driving. However, appellant never informed his probation officer of this second arrest, and he was released from ARD. For that reason, the Commonwealth did not seek revocation of ARD. Notes of Testimony, 12/30/86, at 2, 6-7.

      . The notes of testimony from the May 29, 1987 suppression hearing have not been transcribed. The trial court opinion issued in compliance with Pa.R.A.P. 1925 on August 26, 1987, sets forth Corporal Wright’s testimony.


author: MONTEMURO, Judge:

text:
    533 A.2d 1015
    In re ESTATE OF Abram NESBITT, Deceased. (Two Cases) Appeal of Abram NESBITT, III, Natural Son of Abram Nesbitt, 2nd. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1987.
    Filed Sept. 24, 1987.
    Reargument Denied Sept. 24, 1987.

      Frank Townend, Wilkes-Barre, for appellant.
    Before CAVANAUGH, OLSZEWSKI and MONTEMURO, JJ.
   MONTEMURO, Judge:

This consolidated appeal arises from an order of the Court of Common Pleas of Luzerne County, Orphans’ Court Division, denying appellant’s exceptions to a decree nisi entered May 14, 1986. The order, dated June 19, 1986, made final the decree nisi which found appellees to be proper heirs and beneficiaries under three trusts established by two different wills. We affirm in part and reverse in part.

The three trusts involved in this appeal were established under the wills of Abram Nesbitt and Abram G. Nesbitt, who died in 1920 and 1926, respectively. Abram G. Nesbitt was the unmarried and childless son of Abram Nesbitt. Appellant is the natural son of Abram Nesbitt’s grandson, Abram II. Appellees are the adopted children of Abram Nesbitt’s other grandson, Samuel. [See “Nesbitt Family Tree” Exhibit “A” of this opinion.]

In 1919, Abram Nesbitt adopted his two minor grandsons after the death of their mother, Sarah Nesbitt Smythe. After adoption, the boys’ names were changed to Abram Nesbitt II and Samuel Nesbitt. Abram Nesbitt died in 1920, survived by his unmarried and childless son, Abram G. Nesbitt and by his two adopted sons (grandsons), Abram II and Samuel. In March, 1922, following the death of Abram Nesbitt, Abram II and Samuel were adopted for a second time, this time by Abram G. Nesbitt. Abram G. Nesbitt died in 1926, survived by his two adopted sons, Abram II and Samuel. Abram II died in 1982, survived by his natural son, appellant Abram Nesbitt, III. Samuel died in 1984 survived by his three adopted children, appellees Marie Lynch Nesbitt Stefenhagens, Samuel Nesbitt, Jr., and Frank McCormick Nesbitt.

Abram Nesbitt’s will, executed on April 20, 1919, created a trust for his minor grandsons Abram II and Samuel. Article Third of the will established a residuary trust for the maintenance and education of his “grandsons” until they reached age twenty-five. Thereafter, each would receive one half of the income and interest from the fund for life. The clause of the will now in issue provides that

[a]t the death of either or both of these grandsons leaving child or children or the issue of child or children him or them surviving all the said Fund including the accumulations so held shall descend to and vest absolutely in such child or children or the issue thereof taking the share of the parent (emphasis added).

Appellant contends that appellees, the adopted children of Samuel Nesbitt, should not receive any share of the Fund because it was not Abram Nesbitt’s testamentary intent that they should share in his bounty.

Abram G. Nesbitt’s will, executed on April 1, 1922, established a residuary trust for the maintenance and education of his “two adopted sons,” Abram Nesbitt II and Samuel Nesbitt, until they reached thirty years of age. At that time, each would receive one half the interest or income from the fund for life. On June 5, 1923, Abram G. Nesbitt executed a codicil to his will wherein he established another trust, the “Bank Stock Trust,” subject to the same terms and for the same uses as the residuary trust. The clause of the will controlling both trusts that is now at issue states that:

[f]rom and after the decease of either of my said adopted sons, leaving child or children, or issue of child or children, him surviving, and until twenty-one years after the decease of the survivor of my said adopted sons, to divide the net income arising from said residuary estate and accumulations into as many parts or shares as, at the time of each semi-annual or other convenient distribution of income, there shall be an adopted son of mine then alive, and an adopted son of mine then dead, represented by descendants then alive, or an adopted son or sons of mine then dead, represented by descendants then alive, and to subdivide the share falling to each set of descendants of an adopted son of mine then dead, amongst them per stirpes upon the principle of representation, and to pay over at each of said times of semi-annual or other convenient distribution, unto each adopted son and descendant of an adopted son who shall thus be found entitled, his or her share of said income.

Article Third, ¶ 4 (emphasis added). Appellant contends that appellees should not receive any income under either of the trusts because the words used by testator Abram G. Nesbitt evidenced an intent to exclude appellees, as adopted children, from sharing in the trusts.

Due to the death of Samuel Nesbitt, the last surviving grandson of Abram Nesbitt, the trustee of the Abram Nesbitt residuary trust filed its “Eighth and Final Account” on July 26, 1985. The trustee asked the court whether “principal and income of the trust is to be distributed to the adopted children of Samuel Nesbitt [appellees] or the natural son of Abram Nesbitt, 2nd [appellant].” On that same date, the trustee of the Abram G. Nesbitt residuary trust filed its “Seventh and Partial Account” with a petition for adjudication on the question of whether the trust income “is to be distributed to the adopted children of Samuel Nesbitt [appellees] or the natural son of Abram Nesbitt, 2nd [appellant].” On November 27, 1985, the trustees of the Bank Stock Trust filed their “First and Partial Account.”

The parties filed stipulations concerning the trusts. The Luzerne County Orphans’ Court conducted an evidentiary hearing, rendered its adjudication and issued a decree nisi. The decree stated that appellees were beneficiaries under all three trusts. The court denied appellant’s subsequent exceptions and, on June 19,1986, adopted the decree nisi as the final decree. Notices of appeal from the adjudications were timely filed. We consolidated these matters for appeal because they raise identical issues:

(1) Are appellees, the adopted children of Samuel Nesbitt, the proper beneficiaries and/or remaindermen of the three trusts established under the wills of Abram and Abram G. Nesbitt?
(2) Did the court err when it excluded evidence and testimony concerning the lives and careers of the testators?
(3) Did the court err when it excluded evidence offered to prove estoppel against appellees’ claims?
(4) Did the court err when it directed the trustee of the three trusts to file accounts instead of approving or modifying the accounts already filed by the trustee?

We will address these issues seriatim.

We first note that “[i]n reviewing the Orphans’ Court’s findings, our task is to ensure that the record is free from legal error____ [W]e are not limited when we review the legal conclusions that [the] Orphans’ Court has derived from [its findings of fact].” In re Estate of Ketcham, 343 Pa.Super. 534, 538, 495 A.2d 594, 596 (1985).

Appellant first questions whether appellees, as adopted children, are proper beneficiaries and/or remaindermen under the three trusts established under the wills of Abram and Abram G. Nesbitt. In 1972, our supreme court handed down its decision in In re Tafel Estate, 449 Pa. 442, 296 A.2d 797 (1972) (plurality), wherein it enunciated the rule that there is a presumption “that a testator, in the absence of any expressed intention in the will to the contrary, intended to treat adopted children in the same manner as natural children and to include in the testamentary words “child” or “children” an adopted child regardless of the date of his or her adoption.” Id., 449 Pa. at 453-54, 296 A.2d at 803 (emphasis in original). The court stated that such a “rule does not preclude nor prevent any testator who desires to distinguish between natural and adopted children as recipients of his bounty from doing so; an expression of such intent in his will accomplishes that result.” Id., 449 Pa. at 452, 296 A.2d at 802 (emphasis added). Prior to the enunciation of the Tafel rule, our case law had held that in the absence of any testamentary language demonstrating the testator’s intent to the contrary, it was presumed that when the testator made a bequest to “child” or “children,” he intended to exclude adopted children. See Tafel Estate, supra, 449 Pa. at 445, 296 A.2d at 803.

The rule in Tafel has been expanded and affirmed in subsequent decisions. In Estate of Riley, 498 Pa. 395, 446 A.2d 903 (1982), wherein the supreme court affirmed a decree allowing two adopted children of one of the testator’s grandchildren to share in the trust principal, the court stated:

Where, as here, a testator has expressed no clear intent with regard to adopted children and directs only that a distribution be made to “issue,” it is a settled canon of construction that the testator intended to include adopted children within his bounty. Estate of Sykes, 477 Pa. 254, 383 A.2d 920 (1978) (bequest to “issue” presumed to include adopted children); Estate of Sewell, 487 Pa. 379, 409 A.2d 401 (1979) (same). See Tafel Estate, 449 Pa. 442, 296 A.2d 797 (1972) (adopted children permitted to take under bequest to testator’s “children”); Estate of Flinn, 479 Pa. 312, 388 A.2d 672 (1978) (bequest to “children” of testator’s children presumed to include adoptees); Estate of DeRoy, 481 Pa. 403, 392 A.2d 1355 (1978) (adopted child permitted to take under bequest to “children” of testator’s children); Estate of Biddle, 487 Pa. 616, 410 A.2d 782 (1980) (adopted child permitted to take under bequest to “children and issue” of testator’s grandchildren). See also Farmers Trust Co. v. Bashore, [498 Pa. 146, 445 A.2d 492 (1982)] (conveyance to “children” of settlor’s children in inter vivos trust presumed to include adoptee).

498 Pa. at 397-98, 446 A.2d at 904-05. See also Estate of Ogden, 353 Pa.Super. 273, 509 A.2d 1271 (1986) (“heirs of their body” and “children of the body” presumed to include adoptees). Furthermore, even before its decision in Tafel, our Supreme Court had held that the testamentary word “descendant” included adoptees. See Collin’s Estate, 393 Pa. 195, 142 A.2d 178 (1958).

We now turn to the Nesbitt wills and conclude that the rule in Tafel applies. In the absence of a clear expression in the instrument to the contrary, adoptees are embraced within general designations such as “children” and “issue.” Abram Nesbitt’s will instructs that the principal from the testamentary trust should be distributed to the “child or children” of his grandsons. Because the will contains no expressed intention to treat adopted children different from natural children, we find that appellees, the adopted children of testator’s grandson, are entitled to recover under the will of Abram Nesbitt.

With regard to Abram G. Nesbitt’s will, appellant argues that the will is not neutral concerning distributions to adopted children. Because testator used the word “adopted” nineteen times when referring to his adopted sons, but never used the word when referring to children or descendants, appellant contends that “this fact provides the clear implication in the will that adopted children of his adopted sons are to be excluded.” Appellant’s Brief, Estate of Abram G. Nesbitt and In re Estate of Abram G. Nesbitt (consolidated) at 16. We reject this argument. Tafel requires an expressed intention in the will to exclude adopted children. There is no such clear expression in Abram G. Nesbitt’s will. The more logical implication to be drawn from Abram G. Nesbitt’s use of the word “adopted” when referring to his adopted sons is that he was striving for clarity and used the word for identification only. We refuse to find in the use of the word a clear intent to exclude adopted children. Because there is no clear expression in the will excluding adopted children, we apply the rule in Tafel and find that appellees are included in Abram G. Nesbitt’s scheme of distribution.

Appellant next argues that evidence concerning the lives and careers of the testators was improperly excluded by the trial court. He asserts correctly that at the time these two wills were executed, if a will did not clearly include adopted children in the distributory scheme, then there was a presumption that they were excluded. Appellant argues that the proffered evidence, paragraph 13 of the Stipulations, is relevant because it would prove that the testators were experienced businessmen who understood the meaning of their testamentary words and intended to exclude adopted children of others from sharing in the trusts.

We reject appellant’s argument and agree with the trial court’s conclusion that

[i]n essence, counsel would have us ignore the mandates of [Tafel] Estate as [enunciated] by the Supreme Court of Pennsylvania and reinstate a presumption to exclude adopted children by presuming that the learned testator would have presumably known the law. This tortured line of reasoning is not legally permitted.

Trial Court Opinion at 4. See also In re Estate of Ketcham, 343 Pa.Super. 534, 539, 495 A.2d 594, 597 (1985) (“the canon of construction adopted in Tafel applies, irrespective of any prior presumptions in the law regarding adoption”). Because no ambiguity of language existed in the wills concerning an intention to treat adoptees different from natural children, the trial court properly excluded the extrinsic evidence. Under such circumstances, the canon of construction from Tafel is applied: we presume that when the testator made a bequest using such general designations as “children” or “issue,” adoptees are embraced within that language.

Extrinsic evidence might have been properly admitted had we concluded in our discussion above that there existed in Abram G. Nesbitt’s will language that at least created an ambiguity regarding the question of testator’s intent as concerns adopted children. See, e.g., Estate of Sykes, 477 Pa. 254, 383 A.2d 920 (1978) (will gave testator’s niece power to appoint blood relatives of testator or herself or, failing that, to distribute the corpus to the issue of testator’s niece). Where a will is ambiguous concerning testamentary intent, a court may find it necessary to examine “the scheme of distribution, the circumstances surrounding execution of the will and other facts bearing on the question [of intent].” Id., 477 Pa. at 257, 383 A.2d at 921. The testator’s intent must appear with reasonable certainty such that there is “little doubt of his intent,” id. “If, from the language of the document, the scheme of distribution, and the relevant facts and circumstances, a court cannot determine a testator’s intent with reasonable certainty, it must resort to canons of construction.” Id. (citations omitted).

However, in the case before us, the extrinsic evidence that appellant seeks to introduce, Paragraph 13 of the Stipulations, is not relevant to the question of testator’s intent. The evidence is only a general statement highlighting some of the testators’ business and philanthropic accomplishments. The stipulations do not make it more probable that the testators knew the legal significance of their testamentary words. Even if the evidence did support the proposition for which appellant seeks to have it admitted, the evidence would not conclusively prove the testators’ intent with reasonable certainty. Therefore, the Tafel canon of construction would be applied in any event, and appellees would be included as trust beneficiaries. See Estate of Sykes, supra.

Appellant next asserts that the orphans’ court improperly excluded evidence and testimony offered to show that appellees were estopped from making their claims under the wills. We find this argument without merit. Appellant sought to have evidence admitted that would prove that because the trustees and the representative of Samuel Nesbitt believed that the adopted Nesbitt children would not succeed to their adoptive father’s share in the trusts established under the Nesbitt wills, from 1927 to at least 1971, trust investments were made in income-producing rather than growth stocks. Such evidence is irrelevant to a claim of estoppel against appellees and was properly excluded.

Estoppel is a flexible doctrine that is applied or denied as the equities between the parties demand. Straup v. Times Herald, 283 Pa.Super. 58, 423 A.2d 713 (1980). Reduced to its essence, equitable estoppel “is a doctrine of fundamental fairness designed to preclude a party from depriving another of a reasonable expectation when the party inducing the expectation ... knew or should have known that the other would rely upon that conduct to his or her detriment.” Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 312, 369 A.2d 416, 418 (1976) (emphasis added). The doctrine has two essential elements: inducement and justifiable reliance on that inducement. See Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 457 A.2d 502 (1983). Moreover, “[t]he gist of estoppel ... is a misrepresentation.” Murphy v. Burke, 454 Pa. 391, 398, 311 A.2d 904, 908 (1973) (emphasis deleted).

The evidence offered by appellant to prove estoppel lacks the essential element of inducement by appellees to cause appellant to act or forbear to act in a particular manner. The understanding of appellees’ father concerning the exclusion of his adopted children from sharing in the funds under the wills and actions taken by him pursuant to that understanding cannot form the basis of an estoppel against appellees’ present claims. Nor can appellant’s disappointed expectations in these matters support a claim of estoppel. Appellees have taken no actions contrary to their rights under the wills, but cf. In re Mintz’ Trust, 444 Pa. 189, 282 A.2d 295 (1971) (beneficiary could not complain about a transaction where certain shares were sold by her trustees after she signed an agreement assenting to such a transaction), nor have they caused appellant to change his position in reliance on their inducement.

Finally, both parties agree that no new accounts with regard to the three trusts need be filed. The orphans’ court, however, in its decree nisi and in its final decree ordered accounts to be filed consistent with its decision. Appellant took exception to the order for new accountings but the court never addressed the issue. We, therefore, do not have before us the court’s rationale for requiring new accounts to be filed.

Because the court’s decision that appellees should be included in distributions under the trusts does not invalidate the prior accounts, we reverse only that part of the orphans’ court decree that requires the trustees to file new accounts. We reach this conclusion because we are persuaded that none of the parties wants a new accounting, and a trustee’s duty to keep clear and accurate accounts is owed to the trust’s beneficiaries. Restatement (Second) of Trusts § 172 (1959)

Affirmed in part, reversed in part.

      . Abram Nesbitt was also survived by a granddaughter, but for the purposes of this consolidated appeal, we are concerned only with Abram Nesbitt’s son and adopted sons (grandsons).

      . The rule in Tafel "applies where the adoptee or adoptees at the time of the adoption were minors and not adults and does not apply where an adoptee or adoptees was or were adults at the time of the adoptions." 449 Pa. at 454, 296 A.2d at 803.

      . Evidence offered concerning the life and career of Abram Nesbitt was as follows:
      Abram Nesbitt, who was born in Plymouth, Pennsylvania, December 30, 1831, started working as a surveyor. After three years of association with his brother-in-law, Samuel Hoyt, he practiced as a surveyor from 1852 until 1864. In 1863 he was one of the organizers of the Second National Bank of Wilkes-Barre, Pennsylvania. He was a Director of the Bank until 1871 when he became Vice-President. In 1877 he became President of that Bank and served as President for 53 [sic] years until his death in 1920. That bank is now the First Eastern Bank of Pennsylvania. In 1884 he helped organize and then served as a Director and Officer of the Wyoming Valley Coal Company. In 1887 he helped organize the Spring Brook Water Company, and remained a Director of that company and its successors until his death. In 1898 he was chosen President of the new Gas Company of Luzerne, which was formed by a combination of the Wilkes-Barre Gas Company and the Consumers Gas Company. In 1909 he became President of the Wilkes-Barre Railway Company, a combination of the various local traction companies in the area.
      He was a trustee of Wyoming Seminary from 1863 until his death and gave the Seminary the building which housed the Science and Fine Arts departments. He was a trustee of the Kingston Methodist Episcopal Church. For a time he was a member of the council of the Borough of Kingston, Pennsylvania.
      In 1912 a group led by Dr. D. H. Lake, persuaded him to establish the Nesbitt West Side Hospital (now the Nesbitt Memorial Hospital in Kingston). He purchased the Jacob Sharps property and other land in Kingston for the hospital, which now is a 210-bed hospital operating on that site.
      Stipulation, December 10, 1985, ¶ 13, Estate of Abram Nesbitt.

      Evidence offered concerning the life and career of Abram G. Nesbitt was as follows:
      Abram G. Nesbitt, born November 18, 1866, was the third son of Abram Nesbitt, a very successful businessman and philanthropist. He never married. He worked closely with his father in various business enterprises. When his father died in April, 1920, he became President of the Second National Bank of Wilkes-Barre and held that position until his death. He bought control of the Powers Accounting and Tabulating Corporation and merged that with the Wales Adder Machine Company to keep the business in Wyoming Valley. That business was sold after his death to the Remington Rand Corporation. He continued the philanthropy of his father. He completed the arrangements for Nesbitt Field, the athletic facility of Wyoming Seminary, which had been started by his brother George. He made possible an entire new set of buildings for the Nesbitt Memorial Hospital.
      Stipulation, December 10, 1985, ¶ 13, Estate of Abram G. Nesbitt.

      . We dismiss appellant’s argument that the rule in Tafel should not be applied “retroactively” to wills drafted in 1919 and 1922. He asserts that it is repugnant to our legal system to apply a change in law, precipitated by a 1972 court decision, to the Nesbitt wills. The supreme court rejected a similar argument in Estate of Flinn, 479 Pa. 312, 388 A.2d 672 (1978) (will drafted in 1923). The court stated that the analysis in Tafel was based upon an interpretation and reevaluation of section 16(b) of the Wills Act of 1917. The act was in effect when the Nesbitt wills were executed.

      . We find unpersuasive appellant’s argument that he was prejudiced as a result of the investment decisions made allegedly to favor the appellees, the adopted children of Samuel Nesbitt. It would appear that pursuant to the terms of the trusts that equal income distributions were made to Samuel and Abram II. Subsequent to the death of

        Abram II in 1982, appellant received his father’s share of the income.
      We fail to see how appellant has suffered from this arrangement.


author: TAMILIA, Judge: MONTEMURO, Judge,

text:
    533 A.2d 1023
    Millard J. SHAFFER v. PULLMAN TRAILMOBILE, DIVISION OF M.W. KELLOGG CO., a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued April 29, 1987.
    Filed Oct. 1, 1987.
    Reargument Denied Nov. 25, 1987.

      David M. Neuhart, Pittsburgh, for appellant.
    Arthur Cutruzzula, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant, Pullman Trailmobile, a division of M.W. Kellogg Co. (Pullman), appeals from the judgment entered following the jury verdict and the Order entered by the court below on August 12, 1986, denying Pullman’s motion for post-trial relief.

The facts surrounding the appeal are as follows. Appellee, Millard J. Shaffer, was employed as a truck driver to haul steel, interstate, on flatbed trailers. On August 22, 1979, appellee was assigned to pick up a trailer which had previously been loaded; his job was to tie down the load with chains. The chains were tied around the load and were fastened to the trailer bed by the use of chain binders or snap binders. Appellee used an extension pipe to get more leverage on the snap binders. The chain in question broke, thrusting appellee backward against the edge of another flatbed trailer parked along side his trailer and then to the ground. Appellee sued the appellant, under 402A of the Restatement of Torts, Second, as it was the distributor of the chain he alleged was defective. Following a jury verdict for appellee in the amount of $175,000, appellant sought judgment n.o.v., or in the alternative, a new trial. When the trial court denied that motion, appellant filed this timely appeal.

The first issue appellant brings before us for review is that the trial court improperly instructed the jury on the malfunction doctrine. Because appellant failed to except to the jury charge at trial, however, we are unable to review this allegation of error. Rule 302 of the Pennsylvania Rules of Appellate Procedure provides:

Rule 302. Requisites for Reviewable Issue
(a) General rule. Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.
(b) Charge to jury. A general exception to the charge to the jury will not preserve an issue for appeal. Specific exception shall be taken to the language or omission complained of.

The note to this rule reminds us,

Rule 2117(c) (statement of place of raising or preservation of issues) and Rule 2119(e) (statement of place of raising or preservation of issues) require that the brief expressly set forth in both the statement of the case and in the argument reference to the place in the record where the issue presented for decision on appeal has been raised or preserved below.

Note to Pa.R.A.P. 302.

A specific exception must be lodged to preserve an objectionable charge for post-trial motions. Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); Crosbie v. Westinghouse Elevator Co., 297 Pa.Super. 304, 443 A.2d 849 (1982); see also Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). In addition to a timely specific objection to a trial court’s charge to the jury, appellate review may be preserved by submitting “a specific point for charge.” Broxie v. Household Finance Co., 472 Pa. 373, 377, 372 A.2d 741, 743 (1977); Loos & Dilworth v. Quaker State Oil Refining Corp., 347 Pa.Super. 477, 500 A.2d 1155 (1985); Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984) appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985); Brancato v. Kroger Co., Inc., 312 Pa.Super. 448, 458 A.2d 1377 (1983).

Our careful review of the trial transcript reveals appellant neither took exception to the trial judge’s charge nor submitted a specific point for charge. In fact, he stated: “Judge, I don’t have any objection ...” (T.T. 11/26/85, p. 342). Accordingly, appellant has waived the issue for purposes of review. See Commonwealth v. Jensch, 322 Pa.Super. 304, 469 A.2d 632 (1983).

Appellant’s second argument is that the judge improperly submitted the case to the jury in the face of the existence of reasonable secondary causes, such as wear and tear, exposure and over-torquing. Appellant argues appellee admitted he had continuously used the chain to secure heavy loads which had a tendency to shift and that he repeatedly tightened the chain by using a cheater bar to increase leverage. It adds that appellee also admitted the chain was visibly rusting (T.T. at 155) and had been repeatedly dragged on the ground (T.T. at 153). Additionally, appellant urges that testimony showed the chain had been in continuous use for at least two and one-half months (T.T. at 153). Thus he argues that the wear and tear, deterioration and age of the chain were all reasonable secondary causes of any alleged malfunction which the appellee failed to rebut.

Pennsylvania federal cases have held that a plaintiff may establish a defective condition within the meaning of section 402A by proving that the product functioned improperly in the absence of abnormal use or reasonable secondary causes. See Sochanski v. Sears Roebuck & Co., 621 F.2d 67 (3d Cir.1980); Knight v. Otis Elevator Co., 596 F.2d 84 (3d Cir.1979). The plaintiff’s burden of proving by the preponderance of the evidence that the product malfunctioned can be satisfied by negating other reasonable secondary causes. Sherman v. Puritan-Bennett Corp., 544 F.Supp. 159 (E.D.Pa.1982). “A plaintiff need not eliminate every possible cause of the event other than malfunction, but only such other causes as fairly arise from the evidence.” Id. at 162 (citing Greco v. Bucciconi, 407 F.2d 87, 91 n. 7 (3d Cir.1969)).

Appellee presented evidence the chain had appeared silver and new when it was given to him by his employer in June of 1979 (T.T. at 129). The chain, one of eight to ten chains given appellee, was taken from a round barrel (T.T. at 129). Appellee kept the chain with him through August 22, 1979 (T.T. at 129). Further, appellee presented evidence that new chains of the type in question develop rust quickly, after one or two trips, because of exposure to the elements (T.T. at 173). Since neither party established the precise age of the chain, and there was evidence from which the jury could reasonably have believed the chain was new when it was given to appellee, the appellant is not justified in arguing that age and deterioration are secondary causes of appellee’s injury which were not rebutted at trial.

The last possible secondary cause which appellant urges the appellee failed to dispel is appellee’s “overtorquing” the chain. By this, appellant apparently means appellee’s use of a pipe in tightening the chain to gain leverage, causing the chain to be tightened beyond the standard level. While appellee did not present any evidence to the contrary, he did bring out, through testimony of witnesses engaged in the business, that the practice of using a pipe to gain leverage while securing the chain was a common practice in the industry and, in fact, was necessary, as the self-closing snap binders on the chains would not snap closed until the chains were under the proper amount of tension (T.T. at 61, 125-27, 159, 175). Appellee also offered the testimony of another trucker to the effect that he had experienced the breaking of a chain of the type involved here only one time in his years as a trucker, that being when he stopped suddenly to avoid an accident, and his heavy load shifted and broke the chain (T.T. at 176). Appellant, moreover, did not introduce any evidence to support its theory that use of a pipe for leverage on the % inch thick high-test chain would subject the chain to too much stress and cause it to break. Thus we see no merit to appellant’s contention that the trial court committed error in submitting the case to the jury.

Appellant’s last contention is that the trial court improperly permitted the appellee to introduce evidence regarding his alleged disability where that issue had previously been decided by the workmen’s compensation appeal board. Appellant states that at trial appellee claimed a permanent partial disability resulting from the accident which is the subject of this appeal but, in March 1983, the workmen’s compensation appeal board denied appellee’s claim for benefits arising from this accident and found he was not disabled as a result thereof after July 31, 1980. Appellant presented this argument to the court on the day of trial by way of a motion in limine, which the trial judge denied. The issue, therefore, has been preserved for our review. See Pa.R.C.P. 227.

Appellant is correct in its argument that the workmen’s compensation determination that appellee was no longer disabled after July 31, 1980, could have worked a collateral estoppel on the identical issue in the subsequent civil trial.

Collateral estoppel requires: (1) the party against whom the estoppel is involved be the same; (2) the issue be identical; (3) the previous judgment be final on the merits; and (4) the party had a full and fair chance to litigate on the merits. Gulentz v. Schanno Transportation, Inc., 355 Pa.Super. 302, 513 A.2d 440 (1986). See also Keystone Water Co. v. Pennsylvania P.U.C., 81 Pa.Commw. 312, 474 A.2d 368 (1984) (collateral estoppel is designated to prevent relitigation of issues which have once been decided and have remained substantially static, factually and legally). We have said in the-context of the application of res judicata,

[T]he application of res judicata principles is not precluded merely because administrative proceedings are involved and where an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate the courts will not hesitate to apply res judicata principles.

Philadelphia Electric Co. v. Borough of Landsdale, 283 Pa.Super. 378, 392, 424 A.2d 514, 521 (1981). However, workmen’s compensation claims have been distinguished from a common law (tort) cause of action and we hold the same reasons apply to strict liability actions since the actions are not identical. See Melcher v. Pennsylvania Threshermen and Farmers’ Mutual Casualty Insurance Co., 389 Pa. 125, 132 A.2d 190 (1957). While res judicata principles do not apply, collateral estoppel principles do apply. In Nicklos v. Firestone Tire and Rubber Co., 346 F.Supp. 185, aff'd 485 F.2d 680 (E.D.Pa.1972) citing Pennsylvania law, it is stated:

The Workmen’s Compensation claim and a common law cause of action are not identical, consequently res judicata is not applicable. See Melcher, supra. Where, however, there is an identity of parties, even though the causes of action are not identical, those material matters which have been litigated between the parties are barred from relitigation in subsequent proceedings by the doctrine of collateral estoppel. Restatement, Judgements § 68; Vanderveer v. Erie Malleable Iron Co., 238 F.2d 510 (3d Cir.1956), cert. denied, 353 U.S. 937, 77 S.Ct. 815, 1 L.Ed.2d 760 (1957); United States v. Webber, et al., 396 F.2d 381 (3d Cir.1968); Walker v. Ohio River Co., 44 Pa.Dist. & Co.R.2d 200, aff’d per curiam on opinion of court below, 428 Pa. 552, 239 A.2d 206 (1968); and see Larsen v. Larsen, 392 Pa. 609, 141 A.2d 353 (1958) (dictum); Thal v. Krawitz, 365 Pa. 110, 73 A.2d 376 (1950) (dictum). In the Workmen’s Compensation proceedings, Nicklos had the burden to show an accident, and a causal connection between the accident and the complained of physical condition____ The Board found against him on both counts; that he had failed to prove an accident in that he had failed to prove unusual exertion, and that he had failed to prove, with the requisite medical certainty, causal connection.
In the instant suit, plaintiff is advancing the same issue which was before the Workmen’s Compensation Board.

Id. at 188.

Further, there is no problem created by the fact that the parties to the workmen’s compensation appeal and the instant matter are not identical because the appellee was plaintiff in each.

Unlike res judicata, there is no requirement that there be an identity of parties between the two actions to invoke the bar. ‘Parties to a subsequent action need not be the same as those in the prior suit in order to raise the question of collateral estoppel. Collateral estoppel may be used as either ‘a sword or a shield’ by a stranger to the [prior] action, as long as the party against whom the defense is invoked is the same.’ (Citations omitted.)

Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 464 A.2d 1313 (1983). See also Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984); In re Estate of Ellis, 460 Pa. 281, 333 A.2d 728 (1975).

Appellee urges that the workmen’s compensation referee had no knowledge of appellee’s surgery in 1984 to remove a herniated disc or the repeat CAT scan and myelogram confirming disc herniation at multiple lumbar levels as well as the E.M.G. study which indicated chronic (longstanding) denervation, all of which were attributed to the accident (Brief of appellee at 17). He argues, therefore, that the issue was not previously adequately and fully litigated. Granted, this might be the case if defendant had suffered no other injuries, however, the record discloses that the causal connection, despite expert testimony, was not established in that subsequent accidents and periods of treatment occurred after the finding of the Workmen’s Compensation Appeal Board that appellee was not disabled after July 31, 1980. Keeping in mind the accident in question occurred on August 22, 1979, and specifically relates to an alleged defect in a tie down chain, the trial transcripts show the following. January 17, 1978, prior to this accident, appellee had fallen from a truck and was treated for a back injury until June 5, 1979 when he returned to work. The accident in question occurred on August 22, 1979. He returned to work in March of 1980 and continued to work until April 28, 1980, when he was injured rolling up a tarp (T.T. 186-201). He has not worked since. Appellant slipped on ice and fell on his back on March 15, 1984, requiring medical treatment, and on April 12, 1984, he submitted to surgery.

The issues thus advanced in plaintiffs pleadings in the instant action were the very issues litigated between plaintiff and defendant in the Workmen’s Compensation proceedings.

Appellee contends, however, that appellant has waived a collateral estoppel defense by its failure to assert such until its motion in limine, which it presented on the day of trial.

We agree that under normal circumstances appellant would have been forced to allege collateral estoppel in its answer and new matter since this is an affirmative defense. See Pa.R.C.P. 1030 and 1032. Although Rule 1030 does not specifically list collateral estoppel as one of the affirmative defenses within the scope of the rule, its nonexclusionary language, taken together with federal decisions, indicates that the rule is to be applied to that concept.

In the instant action, however, appellant’s answer was filed in 1981, whereas the workmen’s compensation board appeal decision was not made until 1983. Thus appellant was not able to raise collateral estoppel in its answer and new matter. Two years did elapse, however, between the workmen’s compensation appeal and the time that the case came to trial in 1985. During that time, appellant should have amended its new matter to reflect the outcome of the appeal and raise collateral estoppel as a defense, as permitted by Pa.R.C.P. 1033 which provides:

Rule 1033. Amendment
A party, either by filed consent of the the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

See Ecksel v. Orleans Const. Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987) and Commonwealth v. Rodebaugh, 102 Pa.Commw. 592, 519 A.2d 555 (1986).

Upon presenting the amendment to the court for approval, if the amendment was denied, it would have the effect of putting the appellant out of court on that issue. For appeal purposes, this is a final Order and is appealable pursuant to Pa.R.A.P. 311 and 302(a). James A. Mann Inc. v. Upper Darby School District, 99 Pa.Commw. 276, 513 A.2d 528 (1986). As this procedure was not followed, we hold that the trial court committed no error in denying appellant’s motion in limine on the day of trial. Since no appeal was taken, therefore, even if it could be construed as a motion to amend pursuant to Rule 1033, appellant has waived that issue and may not assert the defense of collateral estoppel on appeal.

Judgment affirmed.

CIRILLO, President Judge, concurs in the result by TAMILIA, J.

MONTEMURO, J., concurs with statement.

MONTEMURO, Judge,

concurring:

The majority addresses at length the merits of the collateral estoppel even though Pullman Trailmobile waived the defense by failing to raise it in new matter. I am convinced that we should defer decision on Pullman’s third issue until such time as the matter is properly before us. Because the discussion of the collateral estoppel defense is dicta, I do not join that portion of the majority’s opinion. I nevertheless join in the remainder of the majority’s well-reasoned analysis.

      . Complicating this case is the fact that the chain in question was lost and was, therefore, not able to be identified for purposes of suing the manufacturer. Appellee presented evidence that a co-worker of appellee had been instructed after the mishap to turn over the chain in question to their employer (T.T. at 170, 172). The manager of the trucking company, which employed appellee, testified that he had placed the chain in his file cabinet (T.T. at 53). The director of maintenance testified that he had contacted the equipment manager in February of 1981, who told him where the chain was kept; he had found the chain there and removed it (T.T. at 89). Prior to these proceedings, though, "it disappeared.” (T.T. at 90.) The co-worker, as well as the managers, testified they had observed the chain to be a
        A inch high-test chain, with only one break (T.T. at 53, 89, 173).

      . Rule 227. Exceptions
      (a) It shall not be necessary on the trial of any action or proceeding to take exception to any ruling of the trial judge. An exception in favor of the party against whom the adverse ruling was made shall be deemed to have been taken with the same force and effect as if it had been requested, noted by the official stenographer and thereafter written out, signed and sealed by the trial judge.

      . Those rules state in pertinent part:
      Rule 1030. New Matter
      All affirmative defenses including but not limited to the defenses of ... estoppel, ... res judicata ... shall be pleaded in a responsive pleading under the heading of ‘New Matter’. A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading.
      Rule 1032. Waiver of Defenses. Exceptions
      A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply, except
      (1) that the defense of failure to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits, and
      (2) that whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter or that there has been a failure to join an indispensable party, the court shall dismiss the action.

      . Pennsylvania Rule of Civil Procedure 1030 closely resembles Federal Rule of Civil Procedure 8(c). Several federal decisions conclude that collateral estoppel is an affirmative defense. See Overseas Motors, Inc. v. Import Motors Limited, Inc., 375 F.Supp. 499 (E.D. Mich.1974) (collateral estoppel, because it operates as a limitation on the issues in a case, not on the types of evidence which may be introduced in support of those issues, is a substantive defense, affirmative in nature, and therefore falls within the ambit of Rule 8(c)); and Exxon v. Texas Motor Exchange of Houston, Inc., 628 F.2d 500 (5th Cir.1980) (res judicata and collateral estoppel are affirmative defenses). See also Wright, Miller & Cooper, Federal Practice and Procedure, Civil §§ 1270 & 1278 (1978).