text:
    527 A.2d 1028
    Timothy P. McCORMICK, M.D., Appellant, v. ALLEGHENY GENERAL HOSPITAL.
    Superior Court of Pennsylvania.
    Argued March 5, 1987.
    Filed June 11, 1987.

      Lisle A. Zehner, III, Pittsburgh, for appellant.
    David L. McClenahan, Pittsburgh, for appellee.
    Before CAVANAUGH, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment on the pleadings entered against Timothy P. McCormick, M.D., appellant. We vacate.

The record (examined under the standard for reviewing a trial court’s award of a judgment on the pleadings ) discloses that a complaint in equity was filed by the appellant alleging that, as a result of a nationwide program involving medical colleges and hospitals, he was “matched” with Allegheny General Hospital in March of 1985 to commence a two-year Surgical Intern and Residency Program.

In anticipation of a June, 1985, commencement date, the appellant moved to Pittsburgh from Philadelphia. However, upon his arrival for orientation, “he was advised by representatives of Allegheny General Hospital ... that he would not be permitted to enter [the] Residency Program”, and his $22,800.00 per year salary would also not be paid. Further, the appellant asserted in his complaint that the hospital had offered its failure to send timely his application for a temporary medical license to the State Board of Medicine and Licensure as a reason for his exclusion from the program.

The relief the appellant sought was compensation for costs incurred from moving and his living expenses, as well as immediate admission into the Residency Program with retroactive salary.

On August 7, 1985, upon motion of counsel for the appellant, a Rule was issued directing Allegheny General to show cause why the relief requested should not be granted. It was made returnable August 30.

In response, Allegheny General filed preliminary objections and a brief in support thereof on August 26 claiming that it was precluded by law (63 P.S. §§ 421.1-.18) from allowing the appellant to practice medicine in the context of its Residency Program prior to his application for a license being approved by the State Board — a matter which was exclusively within the Board’s control. Also, Allegheny General did offer that with the approval of his license the appellant would be accepted into its program.

Therefore, because the only equitable relief asked for was the appellant’s admission into a program that was outside of the hospital’s control without licensure approval and because the remaining claims were for monetary damages, the court was requested to certify the action to the law side. This occurred and Allegheny General was ordered to file an Answer to the Complaint or otherwise plead.

On September 19, 1985, Allegheny General filed an Answer denying, inter alia, that:

1) the Residency Program was for two years — it was to have been for one year;
2) the non-payment of the appellant’s moving expenses— they were paid ($531.87) after their submission on August 7, 1985; and
3) the appellant would not be admitted to the Residency Program — the State Board’s inaction on the appellant’s temporary medical license and the hospital’s failure to make a final determination on the appellant’s qualifications were the real reasons for nonadmission.

In the New Matter portion of the pleading, it was averred that Allegheny General first learned of the appellant’s three convictions for violations of The Controlled Substance, Drug, Device and Cosmetic Act (63 P.S. § 421.1 et seq.) with his application to the State Board for a temporary medical license.

This revelation prompted Allegheny General to investigate the appellant’s background and qualifications more closely before forwarding his application for a license to the State Board. Thereafter, with the license still pending, the hospital concluded that the appellant would be accepted into its program if a license were secured and the associate dean of his medical college “reiterated” a favorable recommendation. The latter was secured but not the former. Thus, the hospital asserted that it was “prohibited by law from allowing Dr. McCormick to enter the Residency Program.”

Additionally, Allegheny General contended that without a license a condition precedent to the contract of acceptance into the program and payment of salary had not been satisfied. Accordingly, it was justified in its actions since no claim upon which relief could be granted was stated. Further, its payment of the appellant’s moving expenses discounted the requested remedy of their payment.

No responsive pleading having been filed by the appellant, on April 3, 1986, Allegheny General filed a Motion for Judgment on the Pleadings (accompanied by a brief) pursuant to Pennsylvania Rules of Civil Procedure 1029(b), 1034(b) and 1037(c). The Motion recounted that, e.g.,

5. Dr. McCormick’s response to new matter was required to be filed on or before October 9, 1985. At no time did counsel for Dr. McCormick request an extension of time in which to prepare and file a response.
6. Dr. McCormick did not file the required response to new matter on October 9, 1985, and at no time during the approximately six months since October 9, 1985 ha[d] Dr. McCormick filed the required response or indicated that a response would be forthcoming.
7. By letter dated December 23, 1985, counsel for the Hospital notified Dr. McCormick’s counsel that if Dr. McCormick persisted in his failure to file a response to new matter, the Hospital would take the appropriate steps to see that the action [was] dismissed. A redacted copy of th[e] letter [was] attached ... as “Exhibit B”.
8. Dr. McCormick ha[d] failed to respond to the letter dated December 23, 1985 by filing the required response to new matter.

The remaining portion of the Motion recited that the appellant’s failure to respond to the Answer and New Matter, in accordance with Rule 1029(b), resulted in his admission to all averments of fact contained therein, i.e.,

1) Residency Program was for one year;
2) The appellant was advised during orientation week that he would not be permitted to enter the Residency Program because the State Board had not yet approved his license application and the hospital had not yet made a final determination as to his qualifications;
3) Allegheny General first learned of the appellant’s drug conviction with receipt of his application for license;
4) Allegheny General acted properly in conducting a more thorough investigation of the appellant’s qualifications upon learning of the drug convictions;
5) The appellant was advised on or about July 8, 1985 that he would be accepted into the hospital’s program provided (i) a license was granted by the State Board and (ii) the associate dean of the appellant’s medical school repeated his recommendation of the appellant;
6) Licensure approval from the State Board had not yet been received when suit was instituted;
7) The appellant’s moving expenses had been paid by the hospital; and
8) The appellant had yet to receive a medical license enabling him to practice in the hospital’s Residency Program.

On June 10, 1986, after hearing oral argument on the Motion of Allegheny General, a judgment on the pleadings was entered against the appellant. An opinion followed and reconstructed the uncontroverted factual assertions, as is permitted by Rule 1029(b) when no responsive pleading is submitted in the face of averments in a pleading to which a responsive pleading is required.

The court below concluded that the absence of any allegations of a contract between the parties or the non-payment of moving expenses by the hospital, when coupled with the appellant’s failure to obtain approval of his application for a license to practice (and, thus, participate in the Residency Program), rendered the entry of judgment on the pleadings proper.

“By failing to file a reply to new matter, plaintiff was deemed to have admitted each of these defenses. Thus, a trial would have clearly been a fruitless exercise.” (Lower Court Opinion at 3)

This timely appeal followed and raises the sole contention of whether the lower court erred in granting the hospital’s Motion and deeming the averments in its New Matter admitted by the appellant/plaintiff, when the New Matter “failed to contain the required notice to plead”.

In light of the applicable law, we are to confine our consideration to the pleadings and documents properly attached thereto in resolving this case. SN, Inc. v. Long, 208 Pa.Super. 38, 220 A.2d 357 (1966).

To start with, under our Rules, of Civil Procedure, a pleading is to be filed within twenty days after service of a preceding pleading, provided, of course, the preceding pleading contains a notice to plead. See Pa.R.Civ.P. 1026(a). Where such a notice to plead is present, one’s failure to respond is treated as an admission of the allegations made in the pleading. See Pa.R.Civ.P. 1029(b). The converse is also true, i.e., where a pleading fails to contain a notice to plead, the averments contained therein are deemed denied. Id. at (d).

We make these observations given the fact that, “[b]y failing to file a reply to new matter, plaintiff was deemed to have admitted each of the[] defenses” proffered in that pleading. (See Lower Court Opinion at 3) Since this was the predicate for the ruling, it is our function as an appellate court to determine whether the judgment entered in favor of the appellee is supported by the record. Greene v. Liebergott, 235 Pa.Super. 475, 344 A.2d 501 (1975).

Thus, absent the appellant’s submission of a reply, if the appellee’s Answer with New Matter contained a notice to plead, the court below would have been justified in reading the contentions made therein as being admitted by the appellant. See Louis v. Clark, 227 Pa.Super. 547, 323 A.2d 298 (1974).

The Answer and New Matter filed by the appellee contains no notice to plead, and as much is admitted by the appellee in footnote 2 of its brief to us. Further, we find that this defect was not remedied by the appellee’s letter of December 23, 1985 to the appellant advising him that a response had not yet been received by the defense, and a failure to do so within two weeks would cause the appellee to take steps to have the lawsuit dismissed. The reasons for so holding are two.

First, Rule 1026’s time allowance for responding to a notice to plead is twenty days. In contrast, even viewing the appellee’s letter as a pleading-information instrument on the notice to plead aspect, the appellee only afforded the appellant fourteen days to act. Second, and most importantly, the notice element in Rule 1026 is reserved specifically to a “pleading”, which, under Pa.R.Civ.P. 1017(a), does not encompass a “letter”. Cf. Jones v. Van Norman, 513 Pa. 572, 522 A.2d 503 (1987) (Pretrial memorandum is not a permissible pleading); Marzullo v. Stop-N-Go Food Stores of Pittsburgh, 364 Pa.Super. 106, 527 A.2d 550 (1987) (Motion for reconsideration is not a “pleading”). If the Rules of Civil Procedure had intended such a result, it could have been drafted into the Rules by those responsible for such an implementation. This has not occurred. Compare Pa.R. Civ.P. 237.1 and accompanying Note; Bittenbender v. Southeastern Pennsylvania Transportation Authority, 362 Pa.Super. 243, 523 A.2d 1173 (1-987).

As previously stated, the Answer and New Matter filed by the appellee discloses no endorsement of a notice to plead. Accordingly, under our Rules of Civil Procedure, the matters averred in such a document cannot be held to have been admitted by the appellant. The court’s conclusion to the contrary is at odds with the record evidence and case law on the subject. See City of Philadelphia v. Housing Improvement Corp., 334 Pa.Super. 83, 482 A.2d 1092 (1984); Greene, supra. To the same effect see the appellee’s Motion For Judgment on the Pleadings at Points 5 and 6, wherein it was averred that the appellant was “required” to respond to its New Matter. This is just not the case.

Because no notice to plead was endorsed on the appellee’s Answer and New Matter, the appellant had no obligation to file a responsive pleading or suffer the contentions contained therein to be viewed as admitted by him.

It is beyond peradventure that the theory upon which the appellant bases his request to have the judgment reversed, albeit raised in his brief to us, is not readily discernible as an argument proffered to the court below at oral argument on the Motion For Judgment on the Pleadings. The reason we make mention of this relates to the question of waiver and issue preservation, a subject which our Supreme Court feels quite emphatic about; viz.:

We have often stated that as appellate tribunals, we are bound to resolve only those issues properly preserved for our review.
Issues not preserved for appellate review cannot be considered by an appellate court even though the alleged error involves a basic or fundamental error. Additionally, in resolving those issues properly before us, we may only look to the record prepared in the trial court. Alleging facts in a brief which a trial court has not passed on has been specifically condemned * * * and we continue to view such practice as improper.

Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 214-15, 489 A.2d 1291, 1296 (1985) (Citations omitted).

The only indication we have that the appellant raised his contention of not having to file a response to the appellee’s Answer and New Matter appears in the appellee’s brief to us at pages 6-7, wherein it is written:

After the Hospital’s attorney presented its argument, the Court inquired of Dr. McCormick’s attorney why he had not responded to the Motion or filed a brief. Counsel for Dr. McCormick then announced, for the first time, that he had no obligation to respond to the New Matter in the Answer because he had not been served with a notice to plead in accordance with Rule 1026 of the Pennsylvania Rules of Civil Procedure. He stated that he had no other defense to the Hospital’s Motion and that he had no obligation to present any. The Hospital’s counsel advised the Judge about the December 23, 1985 letter in which he had expressly notified Dr. McCormick’s counsel that a response was overdue to the Answer and demanded that a response be filed. Dr. McCormick’s counsel admitted receiving the letter, but argued that it did not count because the notice contained in the letter had not been endorsed on the pleading itself.

Unfortunately, we, the appellate court, do not have a transcript of the proceedings at the oral argument. Nor does the record disclose that any evidence was taken by the court below. As a result, we are foreclosed from considering any material (such as in a party’s brief) which has not been duly certified in the record transmitted to us. See Wolf v. Commonwealth, 403 Pa. 499, 170 A.2d 557 (1961); Society Hill Towers Association v. Matthew, 306 Pa.Super. 13, 451 A.2d 1366 (1982); McAllonis v. Pryor, 301 Pa.Super. 473, 448 A.2d 5 (1982); General Accident Fire and Life Assurance Corp. v. Flamini, 299 Pa.Super. 312, 445 A.2d 770 (1982); Greene, supra.

The record, viewed without the taint of attributing the appellant with admitting to the allegations in the appellee’s Answer and New Matter, reveals a breach of contract claim premised upon the appellee's failure to honor the terms of its agreement which brought the appellant to Pittsburgh from Philadelphia, caused him to incur moving and living expenses which remain outstanding and are the obligation of the appellee to absorb.

The appellee, on the other hand, claims the contract with the appellant was conditional and executory at the time the appellant arrived to seek admittance into the Residency Program. The condition precedent to enforcement of the contract not having been satisfied (i.e., securement of a license to practice medicine from the State Board of Medical Examination and Licensure), it was not bound to any agreement of employment. And, as for moving expenses incurred by the appellant, the appellee averred that such were paid upon presentment and, thus, rendered the relief of reimbursement moot.

Given the contested issues of fact, when coupled with the fact that the appellant had no obligation to file a responsive pleading to the appellee’s Answer and New Matter because of no endorsement to plead thereon, the remarks of the court below that the appellant’s failure to file a reply to New Matter resulted in the allegations therein being admitted, and a resultant trial a fruitless exercise, is unsupported by any evidence of record.

Consequently, we believe it appropriate to remand the case to the court below with directions that evidence be received to resolve the factual issues involved. See, e.g., Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319 (1986); Pittsburgh Airport Motel v. Airport Asphalt, 322 Pa.Super. 149, 469 A.2d 226 (1983); Hatalowich v. Bednarski, 315 Pa.Super. 303, 461 A.2d 1292 (1983); Anmuth v. Chagan, 295 Pa.Super. 32, 440 A.2d 1208 (1982); Greene, supra.

Judgment vacated and case remanded for further proceedings in accordance with this opinion. Jurisdiction is not retained.

      . See, e.g., Jones v. Travelers Insurance Co., 356 Pa.Super. 213, 514 A.2d 576 (1986).

      . Repealed by the Act of December 20, 1985, P.L. 457, No. 112, § 48, effective January 1, 1986. See, now, 63 P.S. § 422.1 et seq. (Supp. 1986).

      . Ibid.

      . On remand, the court below can reconstruct in an opinion what transpired at oral argument. See McCahill v. Roberts, 421 Pa. 233, 219 A.2d 306 (1966). Reliance can be had by reference to bench notes, if any, or to the court's own recollection of the events in question. If need be, a hearing can be conducted.
      If the argument on the theory asserted to us by the appellant is determined to have not been made and no evidence to the contrary is presented (see McCahill, supra), the matter is waived. See Pa.R. App.P. 302(a). On the other hand, if the argument at issue were made, yet the court intends to reinstate its initial judgment in favor of the appellee anyway, we would ask that an opinion in support thereof be prepared if an appeal is filed.
      Also, inasmuch as the appellee attributed the court below (at page 6 of its brief) with having queried the appellant’s counsel on his failure to file a brief in response to the Motion, and, therefore, we cannot totally discount what affect this may have had on the court’s decision, we would offer the following: Dismissal of a case on the basis of a local rule of court mandating such a result when no brief is submitted to the court has been condemned. See Brogan v. Holmes Electric Protection Co., 501 Pa. 234, 460 A.2d 1093 (1983).
      Although our review of the Local Rules of Court of Allegheny County fails to disclose any such harsh rule on briefing — in fact, one need be filed only “when required" (Rule 210), we make mention of this because of our uncertainty of what factors influenced the court’s decision in favor of the appellee and, moreover, in an abundance of caution to avoid any further delay in the disposition of this case.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    527 A.2d 1034
    In re ESTATE OF Rosaline B. FEINSTEIN, Deceased. Appeal of COMMONWEALTH of Pennsylvania as Parens Patriae for Charities.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1987.
    Filed June 19, 1987.

      Lawrence Barth, Deputy Attorney General, Philadelphia, for appellant.
    Before CAVANAUGH, OLSZEWSKI and MONTEMURO, JJ.
   MONTEMURO, Judge:

The Attorney General, as parens patriae for charities, challenges an order in which the Court of Common Pleas of Philadelphia County, Orphans’ Court Division, confirmed absolutely the first and final account of appellee trustees. Appellees administered a charitable remainder unitrust established under the Will of Rosaline B. Feinstein. The question before us is whether appellees unduly favored the interests of the interim beneficiaries over those of the remainderman charity by retaining tax-exempt municipal bonds as the primary asset of the trust. We conclude that appellees have not breached their duty of impartiality, and we therefore affirm.

Rosaline Feinstein died on November 20, 1972. In her Will, Ms. Feinstein appointed appellees, I. Jerome Stern and Saul J. Freedman, as co-executors of her estate. She directed appellees to hold $200,000 of the estate in trust for her sister, Charlotte B. Orlick, and her brother-in-law, Ira P. Orlick. Charlotte and Ira were to receive from this trust a yearly income equal to five percent of the annual net fair market value of the trust assets. Upon the death of both, the Federation of Jewish Agencies of Greater Philadelphia would receive the balance of the assets, including any income that had accrued over the trust period in excess of those ¿mounts which appellees had paid out to the Orlicks. Appellees funded the trust initially with tax-exempt municipal bonds directly from the holdings of Ms. Feinstein. These bonds at the time had a market value of $198,627.08. Appellees, according to the testimony of I. Jerome Stern, regarded tax-exempt bonds as a stable investment that would yield a regular, tax-free income for Charlotte and Ira Orlick without compromising the remainder interest of the charity. Although taxable investments would have produced a greater return for the trust, Mr. Stern and his co-trustee believed that the resulting tax burden, which would have rested on the Orlicks alone, outweighed any potential gain. The Orlicks, moreover, had indicated to appellees at the Outset that they hoped to receive $10,000 of tax-free income yearly from the trust. Federal tax law would treat the five percent “unitrust” payments as tax-exempt income to the Orlicks only to the extent that the trust itself generated tax-exempt income. See I.R.C. §§ 664(b)(1), 643(a)(5); 26 C.F.R. §§ 1.664-l(b), 1.643(a)-5. The municipal bonds in the estate of Ms. Feinstein offered an investment that was both authorized under Pennsylvania law, see 20 Pa. C.S.A. §§ 7303, 7305, and tax-exempt under federal law, see I.R.C. § 103(a). With these considerations in mind, appellees retained the bonds in the trust portfolio throughout the trust accounting period.

Unfortunately, inflation and high interest rates drove bond prices down during this period. As a result, the trust suffered a $46,607.40 net principal loss when terminated in 1985, upon the death of Ira Orlick. Mr. Stern testified that although he and his co-trustee were aware of the decline in market value during the late 1970s and 1980s, they anticipated a revival of the sagging bond market and continued to view municipal bonds as more stable than “any other form of investment” available at the time. Mr. Stern further testified that Ira Orlick, whose wife died in 1976, complained on numerous occasions about the decline in his trust income. Because the Orlicks received a fixed percentage of all trust assets, as opposed to income only, the depreciation of trust principal reduced the amounts payable to them.

Upon termination of the trust, appellees filed their first and final account as trustees. The account revealed that a principal balance of $139,953.91 and an undistributed income balance of $33,310.88 remained for distribution to the Federation of Jewish Agencies. The Attorney General interceded and objected. Among other things, he argued that appellees had failed to administer the trust with the appropriate degree of prudence and that appellees had unduly favored the interests of the individual beneficiaries over those of the charitable beneficiary. He therefore sought to surcharge appellees for any resulting losses suffered by the charity. After a hearing, at which only appellee Mr. Stern testified, the trial court filed an adjudication in which it rejected the contentions of the Attorney General and confirmed the account. The trial court en banc confirmed the account absolutely by order of June 27, 1986.

On appeal, the Attorney General continues to maintain that appellees breached their duty of impartiality by retaining tax-exempt obligations as an asset of the trust. He contends that appellees sacrificed the growth of the remainder interest to provide tax-free income to the Orlicks. The Attorney General’s reasoning is, by his own admission, simple. The charitable remainder unitrust established by Ms. Feinstein differs from the traditional trust arrangement in which the life or interim beneficiary receives all income produced by trust assets during the life of the trust and the remainderman beneficiary takes any principal that remains upon termination. The unitrust gives the charitable remain-derman an interest in income production. In addition to principal, the charity is entitled to any income that has accumulated over the trust period in excess of the fixed percentage payments to the life or interim beneficiary. See I.R.C. § 664(d)(2)(C). The parties to this action agree that tax-exempt obligations uniformly produce lower income than taxable ones. Although the Orlicks benefited from the receipt of tax-free income, the charity, which is not subject to federal income tax, see I.R.C. § 501(a), did not benefit. The investment strategy of appellees, according to the Attorney General, only hurt the remainderman by reducing the income that would otherwise have accumulated for final distribution. The Attorney General in effect argues that tax-exempt obligations are per se improper investments for a charitable remainder unitrust because they invariably favor the interest of the life or interim beneficiary over those of the charitable remainderman. We disagree.

We recognize that the charitable remainder uni-trust is entirely a creature of federal tax law. If the settlor or testator wishes to take advantage of the tax benefits offered by the unitrust, he or she must comply with a bevy of technical requirements in the Internal Revenue Code and accompanying Treasury Regulations. See I.R.C. § 664(d)(2); 26 C.F.R. § 1.664-1 et seq. Neither the Code nor the Regulations, however, preempt the fiduciary law of this Commonwealth. Although federal law governs the taxability of the various interests involved, Pennsylvania law governs the interpretation and administration of the trust itself. See Miller v. U.S., 387 F.2d 866, 867 (3rd Cir.1968). Generally, we will not interfere with the exercise of a discretionary power by a trustee unless “the trustee in exercising or failing to exercise the power acts dishonestly, or with an improper even though not a dishonest motive, or fails to use his judgment, or acts beyond the bounds of a reasonable judgment.” Restatement (Second) of Trusts § 187 comment e (1957). See also Abarbanel v. Weber, 340 Pa.Super. 473, 481, 490 A.2d 877, 881 (1985). Subject to the specific language of the trust instrument, a trustee under Pennsylvania law must exercise discretion in preserving the balance of interests between successive beneficiaries. See In re Estate of Hamill, 487 Pa. 592, 598, 410 A.2d 770, 773 (1980); In re Estate of Weiss, 454 Pa. 114, 126, 309 A.2d 793, 799 (1973). Professor Scott characterizes this discretion as “considerable” and as not subject to any “absolute rule.” 3 A. Scott, Law of Trusts § 232 (3rd ed. 1967). Our supreme court, moreover, has disapproved of presumptive or per se rules governing investments by trustees and executors, in the absence of legislation to the contrary. See Estate of Knipp, 489 Pa. 509, 513, 414 A.2d 1007, 1009 (1980); Saeger’s Estate, 340 Pa. 73, 76-77, 16 A.2d 19, 21-22 (1940). The court in Estate of Knipp, supra at 513, 414 A.2d at 1009, cautioned that presumptive rules could “arbitrarily foreclose executors and trustees from opportunities to retain beneficial holdings.” Each case therefore must hinge on its particular circumstances.

This case does not present the usual confrontation between income beneficiary and principal beneficiary. The most salient characteristic of the unitrust, for our purposes here, is the lack of conflict between income and principal. The Orlicks and the charity shared similar interests. Both would have benefited from high income production, and both would have benefited from a stable principal. The Orlicks received, in accord with the requirements of the Internal Revenue Code, see I.R.C. § 664(d)(2)(A), a fixed percentage of the annual net fair market value of both the accumulated income and the principal. Thus, as Mr. Stern testified, the decline in the market value of the trust principal prompted numerous complaints from Mr. Orlick, even though income production remained relatively constant throughout the trust period. Of course, the lower income yield on the tax-exempt bonds contributed to the unexpectedly low annual payments. The lower income also diminished the ultimate payout to the charity. The Orlicks and the charity therefore suffered alike in terms of the amounts they received from the trust.

The Attorney General, however, argues that the Orlicks received their payments tax-free while the charity received no offsetting benefit. This argument assumes that the benefits and burdens of an investment decision must balance perfectly between trust beneficiaries. We cannot agree. Absolute evenhandedness is impracticable and, in most cases, impossible. We can only expect our fiduciaries to act with sound judgment and proper motives under the particular circumstances of each case. Appellees in the present case met this expectation. The Attorney General does not challenge on appeal the prudence of investing in bonds during the period in question. Mr. Stern testified that other forms of investment, particularly in the then-depressed stock market, were too risky. The parties agree, moreover, that appellees could not have opted for a “compromise” solution by investing half of the trust in tax-exempt bonds at a lower interest rate and half in taxable bonds at a higher rate. Federal tax law treats payments to the life or interim beneficiaries of the unitrust first as taxable income, to the extent that the trust has earned taxable income. See I.R.C. § 664(b)(1); 26 C.F.R. § 1.664-1(d). If the distribution exhausts the taxable income of the trust, the balance is treated as capital gain, to the extent that the trust has acquired such gain. See I.R.C. § 664(b)(2). Only once the distribution exhausts both taxable income and capital gain does federal tax law treat payments to life or interim beneficiaries as tax-exempt income. See I.R.C. § 664(b)(2). A split investment scheme would have yielded taxable income for the Orlicks while useless tax-exempt income accumulated for the already tax-exempt charity. Appellees therefore faced a hard choice. They opted for the tax-exempt obligations because, according to Mr. Stern, they believed that the tax burden for the Orlicks would have outweighed the benefits, to either the Orlicks or the charity, of a higher income. The Orlicks were elderly, Charlotte Orlick was dying of cancer and appellees knew that the couple hoped to receive $10,000 of tax-free income yearly from the trust. Moreover, Mr. Stern testified that neither he nor his co-trustee anticipated any detriment to the charity’s remainder interest other than the slower rate of growth in those funds which the charity would ultimately receive. In balancing the benefits and burdens of their investment decision, appellees exercised the discretion that Ms. Feinstein bestowed upon them as trustees. The evidence sufficiently demonstrates that appellees acted with a proper motive and within the bounds of reasonable judgment. The orphans’ court cannot second-guess a judgment that properly belongs in other hands, and we will not disturb a refusal to surcharge absent an error of law or an abuse of discretion. See In re Estate of Hamill, supra; Quinlan Estate, 441 Pa. 266, 273 A.2d 340 (1971).

The burden of proving a surchargeable breach of duty rests with the party seeking the surcharge. See Estate of Stetson, 463 Pa. 64, 345 A.2d 679 (1975); In re Estate of Killey, 457 Pa. 474, 326 A.2d 372 (1974). The Attorney General in this case offered nothing more than the direct and cross examinations of Mr. Stern. That testimony supports the decision of the trial court to confirm absolutely the first and final account of appellees. We therefore affirm.

Order affirmed.

      . Mr. Stern and Mr. Freedman also chose to retain the tax-exempt bonds to fund several additional testamentary trusts, some of which Ms. Feinstein had established for Mr. Freedman’s own children. Ms. Feinstein empowered appellees to retain any of the assets of her estate, including the bonds here in question, for as long as appellees deemed retention “advisable.” The estate contained enough bonds to fund almost the entire amount allotted to each trust. Appellees used cash to round off the balance of the $200,000 trust for the Orlicks.

      . The unitrust, as such, is not subject to any federal income tax. See I.R.C. § 664(c). The charitable remainderman, moreover, is equally exempt from tax liability on amounts received upon termination of the trust. See I.R.C. §§ 664(d)(2)(A), 170(c), 501(a), (c). Thus, tax liability, if any, falls exclusively on the life or interim beneficiary in the usual case.

      . Although the charity itself has not objected to the account, this neither limits the authority of the Attorney General to object nor vitiates the force of the Attorney General’s arguments. The Attorney General represents a broader interest than that of the charity alone. He must protect the interests of the public at large "to whom the social and economic benefits of [charitable] trusts accrue.” In re Pruner's Estate, 390 Pa. 529, 531, 136 A.2d 107, 109 (1957).

      . The Attorney General has abandoned his claim that appellees failed to administer the trust prudently. He appears also to have abandoned his claim that appellees improperly used trust assets to pay a third party for preparing tax returns on behalf of the trust and for providing custodial services.

      . The Internal Revenue Code required that the trustees treat all payments to the Orlicks as payments from income, to the extent that the trust had income. See I.R.C. § 664(b)(1). Any income remaining at the close of the taxable year, together with any principal, served as the basis for computing the amount of the payment in the succeeding year.

      . Mr. Stem testified that the Orlicks were "the primary objects of the bounty of Rosaline B. Feinstein” and that appellees could favor the interests of the Orlicks to the extent that they did because such favoritism was “inherent” in the terms of the Will. Although these conclusions appear to lack a foundation in either the text of the Will or extrinsic evidence, the testimony of Mr. Stern shows that appellees had adequate other reasons for the investment decisions.


author: CERCONE, Judge:

text:
    527 A.2d 1039
    STATE AUTOMOBILE INSURANCE ASSOCIATION, Appellant, v. Warren C. KUHFAHL and Dorothy Kuhfahl and St. Luke’s Hospital, R.D. Hernandez, M.D., Ivan Perez, M.D., Jan E. Wemple, M.D., James L. Costan and Elizabeth Mae Costan, Benjamin Bidlack, a Minor by and Through Jerry Bidlack, His Parent and Natural Guardian, and Jerry Bidlack and Nancy Bidlack, Individually.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1987.
    Filed June 19, 1987.

      Michael Saltzburg, Philadelphia, for appellant.
    William W. Matz, Jr., Bethlehem, for Kuhfahl, appellees. Jerry A. Snyder, Allentown, for Bidlacks, appellees.
    Before CIRILLO, President Judge, and TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This declaratory judgment comes to us on appeal by the plaintiff, State Automobile Insurance Association (State Auto) from the lower court’s denial of its motion for summary judgment and the question to be resolved is whether or not a certain accident comes within the terms of an automobile insurance policy which the appellees, the Kuh-fahls had with State Auto at the time of the accident. State Auto sought a determination by the trial court that the facts and circumstances of the underlying incident infra, are such that the Kuhfahls, the insureds, are not entitled to a legal defense or liability insurance coverage from State Auto under the provisions of the insurance policy. The pertinent issue is whether or not injuries, sustained by a child, who after disembarking from the Kuhfahls’ parked automobile and while proceeding across the street was struck by another vehicle, were causally connected with the use of the Kuhfahl automobile, thus triggering the participation of State Auto in the underlying lawsuit.

The lower court, in reviewing the depositions consisting solely of testimony of Mr. and Mrs. Kuhfahl, set forth the following facts in its opinion:

Defendants, Warren C. Kuhfahl and Dorothy Kuhfahl, used to transport Benjamin Bidlack home from Lincoln Elementary School, where Benjamin attended kindergarten and where Mrs. Kuhfahl works. On October 26, 1982, Mr. Kuhfahl drove his car to Lincoln School to pick up his wife and three children: Benjamin Bidlack, the Kuhfahl’s grandson, Charles, and a neighbor, Jonah Levi. Mrs. Kuhfahl was seated in the front passenger seat of the vehicle, a two-door Ford Pinto. The three children were seated in the back. Mr. Kuhfahl then proceeded home to Sycamore Street in Bethlehem, and parked his vehicle in front of his home. Mr. Kuhfahl stated on deposition that he pulled over to the curb and turned off the ignition. However, Mr. Kuhfahl did not get out of the car for the reason that after dropping off the children, the Kuhfahls intended to proceed to a gas station where Mrs. Kuhfahl’s vehicle was being inspected. Mrs. Kuhfahl then exited the vehicle on her side in order to push her seat forward and let the children out. At this point, Benjamin Bidlack began to run across the street towards his home, whereupon Mr. Kuhfahl shouted “Wait Benji.” However, Benjamin did not wait, and was struck and injured by an oncoming vehicle.

The Kuhfahls as we have said, supra, have been named as defendants in an action filed by the Bidlacks on behalf of their* son. (The Bidlacks have also sued the owner and driver of the automobile that struck their son and also the doctors and hospital involved in this case.) This will be referred to as the underlying action in which the Kuhfahls ask State Auto to defend them.

As the learned court, Judge Richard D. Grifo, in setting forth the principles of law governing the granting or denying motions for summary judgment said:

Summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, show that there exists no issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035; Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 452 A.2d 269 (1982). The moving party has the burden of proving that there is no material issue of fact, and the court must accept as true all well-pleaded facts in the light most favorable to the nonmoving party. Nash v. Chemetron Corp., 246 Pa.Super. 595, 371 A.2d 992 (1977).

Here there is no dispute as to any substantiated fact. The issue in this case concerns the proper construction of the Kuhfahls’ State Auto insurance policy which is properly resolved by the court as a matter of law in a declaratory judgment proceeding. Pa.P.U.C. Bar Assoc. v. Thornburgh, 62 Pa.Commonwealth Ct. 88, 434 A.2d 1327 (1981). Granting or denying a petition for a declaratory judgment is a matter lying within the sound discretion of the lower court. Greenberg v. Blumberg, 416 Pa. 226, 228, 206 A.2d 16, 17 (1965). We find that the trial court did not abuse its discretion when it granted summary judgment in favor of appellees, the Kuhfahls, on July 15, 1986.

In analyzing whether the insurer has a duty to defend, we must first look to the complaint filed against the insureds. D’Auria v. Zurich Ins. Co., 352 Pa.Superior Ct. 231, 507 A.2d 857 (1986), and determine whether the insurer is required to defend. Vale Chemical Company v. Hartford Accident and Indemnity, 340 Pa.Superior Ct. 510, 490 A.2d 896 (1985), reversed on other grounds, 512 Pa. 290, 516 A.2d 684 (1986).

After discerning the facts alleged in the complaint, we must then decide whether, if those facts were found to be true, the policy would provide coverage. If it would, then there is a duty to defend. Id.

In Cadwallader v. New Amsterdam Casualty Company, 396 Pa. 582, 152 A.2d 484 (1959), our Supreme Court referred to this principle as explained by Judge Learned Hand in Lee v. Aetna Casualty and Surety Company, 178 F.2d 750 (2d Cir.1919). In Lee, an insured brought suit on a policy of liability insurance in two counts, seeking both relief from a judgment against the insured and costs in defense of the suit. Our Supreme Court in Cadwallader stated that the Lee Court found

that the insurer was not obligated to pay the amount of the judgment recovered against the insured as the recovery was not one within the coverage of the policy. However, the Court went on to grant the insured his costs of defending that suit. The insurance policy in that case, as in this one, required the insurance company to defend only those claims covered by the policy. The court said, that so long as the complaint filed by the injured party covered an injury which “might or might not” fall within the coverage of the policy the insurance company was obliged to defend. In the course of the opinion they said “... the injured party might conceivably recover on a claim, which, as he had alleged it, was outside the policy; but which, as it turned out, the insurer was bound to pay. Such is the plasticity of modern pleading that no one can be positive that that could not happen. In such a case of course the insurer would not have to defend; yet, even then, as soon as, during the course of the trial, the changed character of the claim appeared, we need not say that the insured might not insist that the insurer take over the defense. When, however, as here, the complaint comprehends an injury which may be within the policy, we hold that the promise to defend includes it.
“It follows that, if the plaintiffs complaint against the insured alleged facts which would have supported a recovery covered by the policy, it was the duty of the defendant to undertake the defense, until it could confine the claim to a recovery that the policy did not cover ...”. (Emphasis supplied).

Cadwallader, supra 396 Pa. at 589-90, 152 A.2d at 488. The Court in Cadwallader affirmed the judgment of the trial court which granted plaintiff the costs of defending an underlying malpractice suit against his insurance company which refused to defend him in a suit premised both on negligence and fraud. The former was covered in his policy, while the latter was excluded. The Court found the complaint to be sufficient to trigger a defense by the insurance company. Thus, the obligation to defend arises whenever the complaint filed by the injured party may potentially come within the coverage of the policy. Gedeon v. State Farm Automobile Insurance Company, 410 Pa. 55, 58, 188 A.2d 320, 321 (1963) in Seaboard Industries, Inc. v. Monaco, 258 Pa.Superior Ct. 170, 392 A.2d 738 (1978).

In the instant case, the Bidlacks’ Complaint against Dorothy Kuhfahl in the underlying action alleges negligence on her part consisting of, inter alia:

(a) Having voluntarily assumed the care, custody and control over the minor plaintiff, Benjamin Bidlack on the date, time and place aforesaid, said defendant did fail to exercise appropriate control over his person under circumstances in which she knew or should have known presented a danger to his person;
(b) Failure to ascertain that said minor plaintiff could be disembarked from the motor vehicle being operated by the defendant, Warren C. Kuhfahl under circumstances which would safeguard his safety;
(c) Failure to maintain an appropriate lookout for the safety and well being of the minor plaintiff after allowing said minor plaintiff to disembark the motor vehicle being operated by the defendant, Warren C. Kuhfahl;
(d) Failing to exercise due care under all the circumstances.

The count of the Complaint alleging negligence of Warren Kuhfahl is set forth as follows:

(a) Having voluntarily assumed the care, custody and control over the minor plaintiff, Benjamin Bidlack on the date, time and place aforesaid, said defendant did fail to exercise appropriate control over his person under circumstances in which he knew or should have known presented a danger to his person;
(b) Failure to ascertain that said minor plaintiff could be disembarked from the motor vehicle being operated by the defendant, Warren C. Kuhfahl under circumstances which would safeguard his safety;
(c) Failure to maintain an appropriate lookout for the safety and well being of the minor plaintiff after allowing said minor plaintiff to disembark the motor vehicle being operated by the defendant, Warren C. Kuhfahl;
(d) Failure to select an appropriate location for the disembarking of the minor children passengers of the vehicle being operated by him;
(e) Failing to exercise due care under all the circumstances.

Thus, both Mr. and Mrs. Kuhfahl are alleged to have been negligent in failing to exercise due care in Benjamin’s disembarkation from their vehicle and that such negligence arose out of the use of their car to which Benjamin’s severe injuries were causally connected.

The relevant section of the insurance policy reads as follows:

We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident ... 'covered person’ as used in this part means (1) you or any family member for the ownership, maintenance or use of any auto or trailer.

The instant trial court set about determining whether the testimony produced at the depositions established a causal connection between Benjamin’s injuries and the use of the Kuhfahls’ car as to effectuate the pertinent insurance policy provision and thus requiring State Auto to defend the Kuhfahls. Paramount in the trial court’s decision that the instant accident fell within the terms of the Kuhfahls’ policy was the principle that where the provisions of an insurance policy are vague or ambiguous, they must be construed strictly against the insurer and liberally in favor of the insured, citing Manufacturers Casualty Insurance Co. v. Goodville Mutual Casualty Co., 403 Pa. 603, 170 A.2d 571 (1961). The trial court found the phrase “for the ownership, maintenance or use” to be such a phrase. The court then summarized what occurred in relation to the Kuhfahl vehicle, i.e., that Mr. Kuhfahl remained in the driver’s seat while his wife assisted the children in exiting the car, that the accident occurred immediately after Benjamin left the vehicle, and that the Kuhfahls were intending to resume their travel. The trial court was unwilling to rule that the occurrence was not a result of the use of the automobile. We agree with the trial court.

In this case we are not persuaded that appellant State Auto has not as yet confined the within claim against the Kuhfahls, the insureds to a recovery that their policy did not cover. We, and the court below, are being urged by State Auto to rule as a matter of law that Benjamin Bidlack’s injuries are so removed from the Kuhfahls’ ownership, maintenance, or use of their insured automobile that under no interpretation of the facts in this case is State Auto obliged to defend or provide potential coverage for the Kuhfahls.

The issue confronting us is not whether Benjamin’s injuries were proximately caused by the Kuhfahls. On the contrary, our Supreme Court explained in Manufacturers Casualty Insurance Co. v. Goodville Mutual Casualty Co., supra, 403 Pa. at 607-8, 170 A.2d at 573, a case in which liability of the insurer rested on the interpretation of “arising out of the ownership, maintenance or use of” a horse trailer,

When the provisions of an insurance policy are vague or ambiguous, they must be construed strictly against the insurer and liberally in favor of the insured. Had the insurer desired to limit its liability to accidents with such a close causal connection to the ownership, maintenance or use of the trailer as to be emcompassed within the scope of proximate causation, it could have and should have so stated in its policy. Construed strictly against the insurer, “arising out of” means causally connected with, not proximately caused by. “But for” causation, i.e., a cause and result relationship, is enough to satisfy this provision of the policy.

Thus, our inquiry, is whether Benjamin’s injuries are causally connected with the Kuhfahls’ ownership, maintenance or use of their car.

A number of cases have considered the interpretation of similar, if not identical, phrases in insurance policies in varying contexts. State Auto offers the case of Presbyterian University of Pennsylvania Medical Center v. Keystone Insurance Co., 251 Pa.Superior Ct. 71, 380 A.2d 381 (1977) in support of its contention that the facts as alleged in the instant case are not within the “ownership, maintenance, or use” of any auto or trailer. In Presbyterian, a Mr. Bass was driven to the hospital by his wife in the family automobile. The wife parked the car at the curbside and then went into the hospital to summon a hospital orderly to go to the car to assist in removing her husband from the car and place him in a wheelchair. In attempting to assist Mr. Bass, the orderly mishandled Mr. Bass who fell to the ground and sustained serious injuries as the result of the fall. He brought suit against the hospital which then sought coverage under the “loading and unloading” provisions of Mr. Bass’ automobile coverage. We found that the “loading and unloading” clause of the policy was an extension of the “arising out of the ownership, maintenance or use” clause in the policy, and held that the hospital was not entitled to coverage under the Bass policy because there was “no connection between Bass’ fall and the use of the insured’s automobile.” We found, additionally, that the automobile “was sitting passively at the curb” when the accident occurred. Thus, the hospital was not entitled to a defense by the insured party’s car insurer. As appellants characterize it, the automobile in Presbyterian, supra, was merely incidental to the injuries incurred.

Appellant refers us to numerous other cases in which the role of a vehicle and the insurer thereof was found to be merely incidental to the injuries sustained. In Day v. State Farm Mutual Insurance Co., 261 Pa.Superior Ct. 216, 396 A.2d 3 (1978), this court reversed a judgment on the merits for a plaintiff who sought Uninsured Motorist coverage in an assumpsit action against his own insurer for injuries incurred in a fist fight with another driver. The two cars had just collided and the plaintiff sustained a broken ankle as a result of the altercation that followed it. The question was whether Day could successfully seek recovery for his broken ankle from his car insurer under the “arising out of the ownership, maintenance or use” provision. This court found the Day’s injury was not within the scope and terms of the policy.

In an action under the Pennsylvania No-Fault Motor Vehicle Insurance Act, (repealed), Camacho v. Nationwide Insurance Co., 314 Pa.Superior Ct. 21, 460 A.2d 353 (1983), affirmed 504 Pa. 351, 473 A.2d 1017 (1984) this court was faced with an interpretation of legislative intent of an injury suffered from the “maintenance and use of a motor vehicle” for purposes of recovery for a person into whose car an exploding bottle was thrown. The driver was injured as he attempted to throw it out of the car. This court affirmed the denial of recovery on the basis that the no-fault legislation was intended to cover motor vehicle accidents. In Camacho, the motor vehicle was incidental to the injury in an intentional tort action. See also Ohio Casualty Group Insurance Companies v. Bakaric, et al., 355 Pa.Superior Ct. 345, 513 A.2d 462 (1986) (Passenger-wife being shot by driver-husband as they sat in husband’s car not “resulting from the use” of the car.); Erie Insurance Exchange v. Eisenhuth, 305 Pa.Superior Ct. 571, 451 A.2d 1024 (1982) (Gunshot wound received by passenger in police-pursued vehicle did not arise out of the use of the car.)

Turning our focus to the instant case, we cannot find that the Kuhfahl car was merely incidental to Benjamin’s injuries. His location at the time the colliding car struck him was directly linked to where Mr. Kuhfahl stopped his car. Mr. Kuhfahl’s “use” of his vehicle involved the transportation of Benjamin from school back to his street, much as a school bus would. The only reason Benjamin was where he was when he was struck includes the Kuhfahl vehicle which at that time was deliberately used for the transporting of children. Benjamin’s injuries are capable of being regarded by a jury as causally related to the use which the Kuhfahls chose to make of their car, with the degree of relation depending on the jury’s resolution of how the other parties’ actions, including Benjamin’s, enter into their decision-making process. However, that part of this action is not our concern. So long as the complaint covers an injury which might or might not fall within the coverage of the policy, the insurance company is obliged to defend.

The causal connection in this case is no more remote than that in Eichelberger v. Warner, 290 Pa.Superior Ct. 269, 434 A.2d 747 (1981). In that case we were asked inter alia, to construe the provisions of Dava Rice’s insurance policy for purposes of coverage. We found her untoward death by a passing vehicle as she stood on a highway watching another person fill the empty gas tank of her car as arising out of the maintenance and use of her car, in a policy similar to the instant policy. We said,

... had not the Rice vehicle run out of fuel, Dava Rice would not have been standing on the highway waiting while Herby Eichelberger poured gasoline into her car. It cannot be said the Dava Rice’s negligent act of stepping in front of an oncoming car was so remote from the ownership, maintenance or use of her vehicle as to be unconnected with them.

Id., 290 Pa.Superior Ct. at 274, 434 A.2d at 750.

In a case similar to this one, National Indemnity Co. v. Farmers Home Mutual Insurance Co., 95 Cal. App.3d 102, 157 Cal.Rptr. 98 (1979), the California Court of Appeals held that where a five year old child whom the insured was babysitting was struck by another car immediately after alighting from the insured’s automobile and running into the street the injury arose out of the “use” of the automobile. The car insurer argued that the car had nothing to do with the injury. The court disagreed.

An automobile can be in “use” even though at rest. (United Services Automobile Assn. v. United States Fire Ins. Co., 36 Cal.App.3d 765, 111 Cal.Rptr. 595.) Further, National’s policy specifically provides that “use” of an automobile includes loading and unloading. Case law is to the same effect. (Argonaut Ins. Co. v. Transport Indemn. Co., 6 Cal.3d 496, 99 Cal.Rptr. 617, 492 P.2d 673; also see Black’s Law Dict. (4th ed.) “Unloading”.)
The presence of small children in an automobile imposes a particular duty of care and alertness upon the driver in selecting the place for and supervising the manner of discharging the children from the vehicle. The conduct of an ambulatory child of tender years is often impulsive and unpredictable. (Hilyar v. Union Ice Co., 45 Cal.2d 30, 286 P.2d 21.) The process of unloading a child from a motor vehicle does not end the moment that the child’s feet touch the ground or when his or her body is entirely outside the vehicle.

Id. at 106, 157 Cal.Rptr. at 100-101.

Thus, in National Indemnity Co. the injury was found to be within the car insurance policy and excluded by the homeowner’s policy which was also at issue. The conduct of the insured which contributed to the injury was found incapable of being disassociated from the use of the vehicle. So also in this case.

We hold, therefore, that a potential nexus exists between the injuries sustained by Benjamin Bidlack and the use of the Kuhfahl automobile so that State Auto is obliged to defend the Kuhfahls in the underlying action.

However, we agree with State Auto that all that has been decided in this declaratory judgment action is that State Auto owes the Kuhfahls a defense. Whether or not State Auto must provide coverage is yet to be determined in the underlying action.

Judgment affirmed.

      . The court granted summary judgment in favor of the Kuhfahls, although they did not file the motion. We deem the order appealed from as a denial of the motion for summary judgment which was filed by State Auto, and therefore, a denial of the petition for declaratory judgment.

      . In this case, unlike the National Indemnity Co. case, "use” of the automobile is not defined in the State Auto policy, so it could be argued that unloading and loading of the insured vehicle was not included in the meaning of "use”. However, we refuse to interpret “use" in such a narrow fashion since we construe the term liberally in favor of the insured. See Couch on Insurance 2d, § 45:74 (Rev. ed. 1981). Moreover, the decision in National Indemnity Co., supra, did not rest on the "loading and unloading” definition alone. It is likely the Court would have reached the same conclusion without it.


author: WIEAND, Judge:

text:
    527 A.2d 1045
    Irwin R. AUMAN, Appellant, v. Roger E. GRIMES, Jr. and Valerie S. Grimes, his wife, Appellees.
    Superior Court of Pennsylvania.
    Argued April 1, 1987.
    Filed June 23, 1987.

      John D. Enck, Lebanon, for appellant.
    Christopher J. Coyle, Lebanon, for appellees.
    Before WIEAND, BECK and CERCONE, JJ.
   WIEAND, Judge:

In this equitable action to enforce rights of way over undedicated lanes adjoining a tract of farmland, the trial court entered judgment on the pleadings in favor of the defendants. Because the record discloses the existence of private easements, as asserted by the plaintiff-appellant, we reverse.

R. Hart Beaver and Joan Beaver, husband and wife, were the owners of a tract of land in the Borough of Cornwall, Lebanon County, which contained approximately 145 acres. Irwin R. Auman, the appellant herein, owned an adjoining tract of land on which was located a residence and barn. Auman leased the Beaver tract on a year-to-year basis and farmed the same. The Beaver tract was divided by two lanes. The one, known as Tice Lane, lay in a north-south direction. The other, which the trial court referred to as South Lane, ran in an east-west direction. Auman used both lanes in farming the land.

By agreement dated May 5, 1975, Auman agreed to buy and the Beavers agreed to sell a parcel of 23 acres from the larger tract. The agreement provided that Auman should have a right of way over Tice Lane as follows:

Until such time as Grantors dedicate the unimproved lane (to the East) to the Borough of Conrwall [sic] as a public road and same is accepted, Grantor hereby grants to Grantee, their heirs and assigns a right-to-way over said lane and Grantors property which borders said lane on the East for ingress and egress to Grantees’ present farm proparty [sic].

By deed dated October 6, 1975, the Beavers conveyed to Auman a tract of farmland which, by actual survey, contained 21.71 acres. The deed did not contain an express grant of an easement over Tice Lane. It also did not contain an express easement over South Lane. However, the tract carved from the larger Beaver lands was described in the deed as being bounded on the south by a fifty feet wide lane, which provided access to Highway Route 72, and on the east by Tice Lane, which provided access to Township Road T-428. Following this conveyance, Auman continued to farm the balance of the Beaver tract. By deed dated March 1, 1984, the remaining Beaver tract, including the beds of Tice Lane and South Lane, was conveyed to Roger E. Grimes, Jr. and Valerie S. Grimes, husband and wife, who, on August 14, 1985, recorded a proposed subdivision plan for the tract. Auman continued to farm the Beaver land until December 31, 1985.

Thereafter, Auman commenced an action in equity to prevent the proposed development from eliminating Tice Lane and South Lane and preventing his use thereof. He alleged in his complaint that he had acquired easements by implication over the two lanes. The Grimes filed an answer containing averments that easements in favor of Auman had not been intended and alleging further that any easement which might otherwise have arisen by implication was extinguished by Auman’s continuing lease of the entire Beaver tract. Both parties filed motions for judgment on the pleadings. The trial court entered judgment on the pleadings finding that the Grimes’ title was free and clear of any easement. The court concluded (1) that an easement by implication had been rebutted by the farm lease which permitted Auman to use the lanes adjacent to his land and (2) that any right of way by implication was intended to continue only so long as Auman continued to farm the entire Beaver tract. Auman appealed.

The trial court relied upon the general law of implied easements that “[wjhere an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant, the surroundings of the property and the other res gestae of the transaction.” Taylor v. Gross, 195 Pa.Super. 225, 232, 171 A.2d 613, 617 (1961). In the instant case, however, the issue does not involve an application of the general rule alone. Here we are concerned with a specific application of the rule which holds that “ ‘where descriptions in a deed refer to a driveway as a boundary, which is not a highway or dedicated to public use, the grantee does not take title in fee to the center of it but by implication acquires an easement or right of way over the lands.’ ” McAndrews v. Spencer, 447 Pa. 268, 270-271, 290 A.2d 258, 259 (1972), quoting Taylor v. Gross, supra 195 Pa.Super. at 231, 171 A.2d at 617. In such cases, the easement is created by implication by application of this specific rule. It is from the specific rule that the intent of the parties is inferred. McAndrews v. Spencer, supra; Jones v. Sedwick, 383 Pa. 120, 117 A.2d 709 (1955). See also: Beechwood v. Reed, 438 Pa. 178, 181, 265 A.2d 624, 626 (1970); Cannon Bros., Inc. v. D’Agostino, 356 Pa.Super. 286, 291-92, 514 A.2d 614, 617 (1986); Hoover v. Frickanisce, 169 Pa.Super. 443, 446, 82 A.2d 570, 572 (1951). Thus in the instant case, it is clear that Auman acquired an easement by implication over the two private lanes which Beaver, the common grantor, referred to as boundaries of the tract conveyed to Auman. That this was the intent of the parties, at least with respect to Tice Lane, is confirmed by the terms of their agreement of sale.

The application of the rule creating an easement by implication was not altered, nor was the implied easement extinguished, by virtue of the fact that Auman continued to lease the balance of the farmland retained by the common grantor. The easement by implication came into existence when Beaver conveyed the 21 acre tract to Auman. It was not thereafter extinguished merely because Auman continued to lease other Beaver lands on a year-to-year basis. The easement which arose by implication on October 6,1975 could not be extinguished by Auman’s subsequent use of his grantor’s remaining land.

It is correct, as the trial court recognized, that an easement is, by definition, an interest in land which is in the possession of another person. Restatement, Property § 450. “One may have, however, an easement in land of which he is presently in possession when the use authorized by the easement is to occur after that possession ceases. Though, as to his own possessory interest, one may not have an easement in land in his own possession, he may, while in possession, have, as to possessory interests subsequent to his own, a right of future use properly designated as an easement.” Restatement, Property § 450, comment d. This is illustrated by the Restatement of Property as follows:

A, as the possessor of Blackacre, has an easement in Whiteacre, adjacent land in the possession of B. A leases Whiteacre from B for a period of ten years. As to his own ten-year possessory interest in Whiteacre, A’s easement no longer exists. However, as against possessory interests subsequent to his own, he still has an easement.

Although an easement may be deemed suspended in cases where the owner of the dominant tenement acquires possession of the servient tenement by lease, the lease does not cause the easement to be extinguished. An easement will be extinguished by merger only where there is unity of title as well as unity of possession. See: Schwoyer v. Smith, 388 Pa. 637, 641, 131 A.2d 385, 387 (1957); 12A P.L.E. Easements § 53.

In the instant case, the law is clear that appellant acquired an easement of passage over the lanes which formed the designated boundaries of the tract conveyed to him by Beaver. That right of way was not thereafter extinguished by merger, for appellant, the owner of the dominant tenement, did not acquire both title and possession of the servient tenement. The fact that he obtained possession of the servient tenement by lease from the owner did not extinguish his future rights in the easements.

Reversed and remanded for the entry of a decree which, consistently with the foregoing opinion, enjoins interference with the easements owned by appellant.


author: POPOVICH, Judge:

text:
    527 A.2d 1048
    S. Alfreda WEBSTER, Appellant, v. TRANSPORT WORKERS UNION LOCAL 234 and Roger Tauss.
    Superior Court of Pennsylvania.
    Argued April 22, 1987.
    Filed June 26, 1987.

      Daniel D. Radich, Philadelphia, for appellant.
    Joseph Venditti, Taylor, for appellees.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal of an order of the Court of Common Pleas of Philadelphia County denying reconsideration of an order entering a judgment of non pros against the appellant, S. Alfreda Webster. We quash.

The record indicates that on the 5th of July, 1984, the appellant instituted a two-count complaint claiming that, upon her voluntary leave of employment as Southeastern Transportation Authority’s (SEPTA) physician, the Transport Workers Union (TWU) and Roger Tauss published a newsletter distributed to some 5,000 employees of SEPTA containing a paragraph entitled “Witch Doctor Retires”.

The appellant contended in her complaint that the article was libelous and depicted her as an “uncivilized, uneducated and superstitious ... black woman” who was “forced” from her job at SEPTA and “covered her pitiful lack of knowledge of medicine by harassing and firing [the] members [of TWU].” (Paragraphs 9, 13 & 16)

Further, the appellant asserted that the article was defamatory and false and demanded compensatory and punitive damages to right the wrong allegedly committed upon her person.

In response, the defendants (Tauss and TWU) filed an answer denying, in relevant part, the allegations pleaded in the complaint, and in new matter they claimed the publication was privileged communication protected by the First and Fourteenth Amendments to the United States Constitution.

On September 24, 1985, counsel for the defendants filed a motion to compel answers to interrogatories and production of the appellant’s employment records.

The appellant neither signed nor verified the answers she gave, and interrogatories 68, 70 and 71 were answered incompletely and/or objected to. A release to secure the appellant’s employment records was not signed, and the appellant’s statement, through her counsel, that she would secure the records and forward them to the defendants never occurred. Thus, the need for the discovery motion followed on the heels of a letter and phone call to counsel for the appellant, which, as is evident, accomplished nothing in the way of ameliorating the matter.

The defendants considered the responses to the interrogatories and the appellant’s employment record “highly relevant to the issues of [the appellant’s] experience and reputation in the field”, the former of which the appellant claimed rebutted the defendants’ libelous remarks of “inexperience” and the latter related to the damage to her reputation purportedly sustained by her in the community because of the article.

The appellant’s counsel filed a reply and memorandum to the defendants’ motion on October 15, 1985. Thereafter, a brief was submitted by counsel for the defendants in response to the appellant’s October 15th reply and memorandum.

By order dated October 31, 1985, the court directed that the appellant respond to interrogatories 68 and 71 and produce the documents requested or face “appropriate sanctions.”

On December 2, 1985, the defendants filed a motion for “appropriate” sanctions (pursuant to Pa.R.Civ.P. 4019) to be entered against the appellant for her failure to comply with the court’s directive of October 31st compelling discovery.

On January 8,1986, an order that a judgment of non pros be entered against the appellant for failure to comply with the court’s order was issued and reduced to judgment January 14th.

On January 29, 1986, a motion for reconsideration and/or to strike off the judgment of non pros was filed by counsel for the appellant. Therein, the appellant’s counsel offered the excuses of: (1) “an inability to communicate or breakdown of communication between” the appellant and her counsel; and (2) the “inability” of counsel to contact the appellant to file a response to the defendants’ motion for sanctions.

An answer to the appellant’s motion for reconsideration was filed by the defendants’ counsel on February 13, 1986. On April 3, 1986, the court below denied the appellant’s motion for reconsideration and this appeal ensued.

We address none of the issues raised by counsel for the appellant since we find the appeal to be untimely and subject to being quashed.

In doing so, we look to this Court’s en banc decision in Simpson v. Allstate Insurance Co., 350 Pa.Super. 239, 504 A.2d 335 (1986).

Simpson dealt in part with the appellant’s appeal of an order of court granting the appellee’s petition to open a judgment on the claim. This order was entered initially in favor of the appellant as a sanction under Rule 4019 for the appellee’s failure to comply with the court’s discovery order.

The en banc court, in striking the lower court’s order granting what this Court termed as either the appellee’s petition to open or a petition to reconsider judgment, specifically noted:

... a judgment entered in an adverse proceeding ordinarily cannot be disturbed after [it has become final.] A judgment entered in adverse proceedings becomes final if no appeal therefrom is filed within thirty days.
A party may always request a court to reconsider a judgment entered in adverse proceedings. However, such a request must be made within thirty days. “Absent a stay, the [trial] court must grant the petition for reconsideration within the thirty day appeal period to toll the appeal period.... If the [trial] court does not expressly grant reconsideration or enter an appropriate stay within the thirty day appeal period, its ‘power ... to act on the application for reconsideration ... is lost.’ ”

350 Pa.Super. at 244-45, 504 A.2d at 337 (Citations omitted).

We see no reason for not extending Simpson to the facts at bar to embrace the judgment of non pros entered in response to a litigant’s refusal to comply with a discovery order as a final order.

Here, the lower court’s order disposed of the appellant’s two count complaint covering allegations of “liability” and claims for “damages”. As such, we find the order to have been final and appealable, absent the entry of a stay or the grant of the appellant’s reconsideration motion within thirty days of the January 14th judgment by the lower court. See Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523 A.2d 399 (1987)(en banc); Simpson, supra; Livolsi v. Crosby, 334 Pa.Super. 34, 495 A.2d 1384 (1985).

Since the appellant’s appeal was not perfected until some three months after the order entering judgment of non pros was reduced to judgment, we cannot, under a logical extension of Simpson, hold otherwise than that the merits of the appellant’s appeal cannot be reached since it is untimely. Livolsi, supra.

Appeal quashed.


author: HESTER, Judge:

text:
    527 A.2d 1050
    Michael FLITTER & Joanna, h/w, Appellants, v. Christopher CHANDOR & Whitney, h/w.
    Superior Court of Pennsylvania.
    Argued April 23, 1987.
    Filed June 30, 1987.

      Julia B. Passyn, Philadelphia, for appellants.
    Lisa M. Barkee, Doylestown and Edward C. Connolly, Warminster, for appellees.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an order striking a lis pendens and enjoining appellants from filing any future lis pendens without order of court in an equity suit affecting title to real estate. The sole issue is whether the court erred in granting the injunction. We hold that the injunction was properly entered, and affirm.

Appellees are owners of a tract of rural real estate in Bucks County originally consisting of more than one hundred acres. They intended to establish their permanent residence on the property and to sell peripheral parcels of the property to parties who would be compatible neighbors. They advertised a twenty acre plot for sale, and entered negotiations with parties who responded to the advertisement. Their procedure was to provide an unsigned agreement of sale to each prospective purchaser which could be used by the potential buyer to make an offer.

Appellants were among those interested in buying the land. In April, 1986, appellants met with Mr. Chandor, appellee, and offered to purchase the property, tendering an agreement of sale signed by both appellants together with a deposit. The offer was not accepted at that time, due in part to the absence of Mrs. Chandor. Negotiations between appellants and appellees continued during April, but the proposed agreement of sale was never signed by appellees. Appellees continued to negotiate with other parties interested in buying the land.

Appellees subsequently informed appellants that they would not convey the land to appellants. In May, 1986, appellants filed a lis pendens and a complaint in equity alleging breach of a contract to convey real estate and seeking specific performance. Appellees moved to strike the lis pendens and to. enjoin further use of a lis pendens in this proceeding. On June 3, 1986, the court entered an interlocutory order granting the relief requested by appellees.

The order in question accomplished two things: it struck the lis pendens, and it granted an injunction. The first is not appealable; the second is.

In United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 627-28, 487 A.2d 809, 812 (1985) (italics deleted), the supreme court stated:

An order lifting the lis pendens during the course of an equity action fixes neither rights, duties, nor liabilities between the parties, puts no one out of court, and does not terminate the underlying litigation by prohibiting parties from proceeding with the action. Accordingly, the requisite “finality” is not present when a lis pendens is lifted and the order, therefore, is interlocutory.

Pa.R.A.P. 311(a)(4), on the other hand, provides that “an appeal may be taken as of right from ... [a]n order granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.”

As Johnson, supra, held that an order lifting a lis pen-dens is nonappealable, we can review only the portion of the order which enjoined further use of a lis pendens in the proceeding without order of court.

The substance of appellant’s argument on this issue is that the injunction hearing was an inappropriate forum to determine the propriety of a lis pendens, because it required the determination of ultimate issues at a premature state of the proceedings. The injunction hearing was held only seven days after the complaint was filed and prior to any responsive pleading. The court nevertheless held a lengthy hearing and took substantial testimony going to the merits of the case, and issued the order in question following the hearing. The order stated in part that

the Court finds that the above-captioned action is not one in which title to Defendant's property is subject to determination by this Court. Equitable relief is not available to plaintiffs under the evidence presented to the Court. Specific performance is not even colorably available to plaintiffs on the current state of the record (although money damages may be at issue).

Order, 5/30/86. Appellant asserts that such conclusions were unwarranted and inappropriate at such an incipient stage of the proceedings.

In order to evaluate appellant’s argument, it is helpful to consider the following review of the doctrine of lis pendens.

The first point in controversy centers around the effect of the doctrine of Lis pendens on judicial powers. Lis pendens literally means a pending suit: Black’s Law Dictionary (4th ed. 1951), and Rose Valley Borough v. Rose Valley Acres, 31 Pa.D. & C. 261 (1937). The use of the doctrine was applied in Pennsylvania as early as 1831, when it was held in Lodge v. Simonton, 2 P. & W. 439 (Pa.1831), that the rights of a party in real estate cannot be defeated by a conveyance thereof to a third party pending the adjudication of litigation, which has been properly filed and indexed, involving those rights.
Lis pendens is construed to be “... ‘the jurisdiction, power or control which courts acquire over property involved in a suit, pending the continuance of the action, and until its final judgment therein.’ Bungar v. St. Michael’s Greek Catholic Ch., 272 Pa. 402, 404, 116 A. 389 (1922). The initial basis of the application of the doctrine was one of constructive notice to all the world of the pending litigation: Diamond v. Lawrence County, 37 Pa. 353 (1861). In later years, the courts determined that the doctrine was one of policy only, i.e., it would be unfair and an insult to the courts to permit the severance of rights in a property which they were then in the process of deciding: Dovey’s Appeal, 97 Pa. 153 (1881). Having determined that the doctrine was founded on a policy, rather than conceptual basis, the next logical step was to decree the use of equitable principles in the application of the rule. This point was reached in Dice v. Bender, 383 Pa. 94, 117 A.2d 725 (1955), wherein we held that the doctrine does not establish an actual lien on the affected property, but rather merely gives notice to third parties that any interest that may be acquired in the property pending the litigation will be subject to the result of the action. Further, in Dice, we laid to rest the argument that lis pendens is a statutory right and that the court lacks power to rescind its operation. Therein, we decided that the court may cancel lis pendens if the equities indicate such action.

McCahill v. Roberts, 421 Pa. 233, 237-38, 219 A.2d 306, 308-09 (1966). The doctrine may be invoked by praecipe to the prothonotary, as was done in this case.

Within this context, we are asked to review the injunction granted by the trial court. The order concluded: “Therefore, it is hereby ordered that plaintiffs be hereby enjoined and restrained from filing any future lis pendens in this case without order of the Court and the lis pendens indexed on May 8, 1986 is stricken and cancelled from the record.” Order, 5/30/86 (emphasis added). Inasmuch as Johnson, supra, prohibits us from reviewing the interlocutory portion of the order which struck the lis pendens, we find no error in the emphasized portion of the order which granted an injunction. Indeed, the injunctive language in the order appears to be mere surplusage, as the order would have had precisely the same effect if the emphasized words had been omitted.

Although lis pendens may be invoked by praecipe, it is clear that a party would not be free to file a second praecipe for lis pendens without order of court after the first was stricken by court order, whether or not the order included an explicit prohibition. With or without the injunction, appellants would have been free to seek reconsideration and reinstatement of the lis pendens at any stage of the litigation in the trial court if the equities so indicated. We therefore affirm the order of May 30, 1986.

       While it has not been stated in so many words, it is apparent from a reading of the Pennsylvania cases that the doctrine is strictly construed, and will not be extended without grave necessity.


author: CIRILLO, President Judge:

text:
    527 A.2d 1052
    In re ADOPTION OF S.C.P. Appeal of R.L.L. and M.A.L. In re ADOPTION OF S.C.P. Appeal of D.N.P., Guardian ad litem.
    Superior Court of Pennsylvania.
    Argued April 29, 1987.
    Filed June 22, 1987.

      Dennis B. Rafferty, Latrobe, for appellant (at 1348).
    Dorean N. Petonie, Johnstown, for appellant (at 1639).
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   CIRILLO, President Judge:

This is an appeal from trial court orders which essentially rebuffed the efforts of the former foster parents of S.C.P. to adopt him. This appeal is pursued by both the former foster parents, R.L.L. and M.A.L., as well as S.C.P.’s guardian ad litem, D.N.P.

The basic issue presented for our review is whether foster parents have standing to seek the adoption of their former foster child when the legal custodian, a child welfare agency, does not consent to the adoption.

The child in question, S.C.P., was born in December 1984. In September 1985, the Family Court Division of the West-moreland County Court of Common Pleas granted custody of S.C.P. to appellee Westmoreland County Children’s Bureau and the Bureau placed S.C.P. with his former foster parents, R.L.L. and M.A.L. Shortly thereafter, the parental rights of S.C.P.’s natural parents were terminated.

R.L.L. and M.A.L. were informed that their status as foster parents was temporary in nature and would end when a suitable adoptive home could be found for S.C.P. The Bureau formally demanded that the foster parents return S.C.P. in order to effectuate his placement with adoptive parents. The foster parents refused to return S.C.P. to the Bureau.

R.L.L. and M.A.L. filed a petition for injunction, a “report of intent to adopt” and a petition for custody. The Bureau filed a motion to strike the report of intent to adopt, and a petition for writ of habeas corpus.

The trial court denied the petitions of R.L.L. and M.A.L. and granted the Bureau’s motion to strike and its habeas corpus petition. That is, the trial court ordered the foster parents to deliver physical custody of S.C.P. to the Bureau. S.C.P. now resides with his prospective adoptive parents.

This Court previously denied expedited injunctive relief from that order. The trial court also denied a separate attempt by the guardian ad litem to block the removal of S.C.P. from his foster home. Before us now is an appeal by R.L.L. and M.A.L., as well as the guardian ad litem, from two orders which essentially prohibit interference with the Bureau’s attempt to find an adoptive home for S.C.P.

In Priester v. Fayette County Children and Youth Services, 354 Pa.Super. 562, 512 A.2d 683 (1986) (Cirillo, P.J.), we considered whether foster parents had standing to pursue an action for custody. We reasoned that they did not. The trial court, in a well-researched and well-reasoned opinion, relied in part on Priester for its determination.

We had occasion in Priester to discuss the nature of foster care. We recognized that “[f]oster care has been defined as a ‘child welfare service which provides substitute family care for a planned period for a child when his own family cannot care for him for a temporary or extended period, and when adoption is neither desirable nor possible.’” Id., 354 Pa.Superior Ct. at 564, 512 A.2d at 683 (citing Smith v. Organization of Foster Families, 431 U.S. 816, 823, 97 S.Ct. 2094, 2098-99, 53 L.Ed.2d 14 (1977)).

Our reliance on the United States Supreme Court’s decision in Smith further revealed that “[t]he distinctive features of foster care are first, ‘that it is care in a family, it is noninstitutional substitute care,’ and second, ‘that it is for a planned period — either temporary or extended. This is unlike adoptive placement, which implies a permanent substitution of one home for another.’ ” Id. 354 Pa.Super. at 564, 512 A.2d at 683 (citing Smith, 431 U.S. at 824, 97 S.Ct. at 2099) (emphasis in original).

Our decision in Priester was influenced by the reasoning of the Montgomery County Court of Common Pleas which had resolved a dispute by ruling that “ ‘foster parents have no standing to adopt a child placed in their custody until the absolute, unequivocal, written consent of the children’s legal custodian or other person whose consent was necessary was given.’ ” Priester, 354 Pa.Super. at 566, 512 A.2d at 684 (citation omitted). Application of this holding from Priester to the facts of this case effectively resolves this appeal.

The Bureau has had legal custody of S.C.P. at all times relevant to this appeal. It has unequivocally refused to grant its written consent to the adoption of S.C.P. by his foster parents. Therefore, application of Priester compels us to conclude that the former foster parents have no legal standing to pursue the adoption of S.C.P.

Our conclusion necessarily means that 23 Pa.C.S. § 2531(a), which describes who may file a report of intention to adopt, does not encompass foster parents. As we observed in the case of In re Adoption of Crystal D.R., 331 Pa.Super. 501, 512, 480 A.2d 1146, 1152 (1984), it remains the responsibility of government agencies, such as the Bureau involved here, to seek a permanent home for foster children. It is not the responsibility of foster parents. In Crystal, we determined that foster parents had no standing to pursue the termination of the parental rights of a child’s natural parents. We reasoned that “the Legislature has provided that the relationship between the foster parents and the child is by its very nature subordinate ... to the relationship between the agency [in charge of foster children] and the child____” Id., 331 Pa.Superior Ct. at 509, 480 A.2d at 1151.

As we stated in Priester, the “issues that influence a child’s development are among the most important matters that we consider.” 354 Pa.Super. at 566, 512 A.2d at 685. R.L.L. and M.A.L., as experienced foster parents, knew that they were embarking on a temporary relationship. They should not be permitted to circumvent the ephemeral expectations upon which the foster parent concept was designed. Our thorough consideration of the facts and equities of this case leads us to conclude that S.C.P.’s best interests are served by allowing the Bureau, his legal custodian, to steward his adoption proceedings without interference from his former foster parents.

Affirmed.

      . Although the guardian ad litem filed a separate appeal from an order denying her request for an injunction, she basically argues the same position as the foster parents. We do not regard her standing as a real issue here. Indeed, when the trial court denied the guardian’s requested injunction, it noted that "the issue in question has been decided by this court in its opinion” following the order which denied the relief requested by the foster parents. See generally Annotation, Required Parties in Adoption Proceedings, 48 A.L.R. 4th 860 (1986) (cases collected); Annotation, Status and Rights of Foster Children and Foster Parents under Federal Constitution, 53 L.Ed.2d 1116 (1978) (same).

      . See 23 Pa.C.S. § 2711(a)(5) (consent to an adoption is required of the person or persons having custody of the adoptee, whenever the adoptee has no parent whose consent is required).

      . We are aware of the possible problems recognized in the Crystal case, where it was observed that "If the number of parents wishing to adopt children exceeds the number of children available for adoption, people may become foster parents in the hope of adopting the child.” Crystal, 331 Pa.Super. at 511, 480 A.2d at 1152 (quoting Wald, State Intervention on Behalf of "Neglected Children": Standards for Removal of Children in Foster Care, and Termination of Parental Rights, 28 Stan.L.Rev. 623, 685 (1976)).