text:
    459 A. 2d 1233
    David W. KNAUER, Appellant, v. Edward SALTER.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1982.
    Filed March 25, 1983.
    Reargument Denied June 7, 1983.
    Petition for Allowance of Appeal Denied Oct. 18, 1983.

      David W. Knauer, Stroudsburg, appellant, in propria persona.
    Mark Garber, Jr., Carlisle, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

Appellant, David Knauer, was injured on July 10, 1977, while on active training duty with the Pennsylvania National Guard. At the time of the events in question, appellant was assisting appellee, Major Edward Salter, in unloading a truck. As a result of Salter’s alleged negligence, appellant sustained injuries to his left knee. He thereupon initiated legal action against appellee. Contending that appellant’s action was barred as a matter of law, appellee filed a Motion for Summary Judgment. Said motion was granted by Order of Court on November 9, 1981. This appeal ensued.

A Motion for Summary Judgment should only be granted in those cases which present no genuine issues of material fact. Dippold v. Amherst Insurance Co., 290 Pa.Super. 206, 434 A.2d 203 (1981); Giannini v. Carden, 286 Pa.Super. 450, 429 A.2d 24 (1981); Dunn v. Teti, 280 Pa.Super. 399, 421 A.2d 782 (1980). If there are no genuine issues as to any material fact, and the applicable law entitles the moving party to a judgment, then the motion is properly granted. See Pa.R.C.P. No. 1035(b).

Herein, an examination of the law reveals that summary judgment was appropriately entered. No dispute existed as to any of the material facts. The trial judge held that, as a matter of law, appellant was barred from suing appellee, a fellow member of the Pennsylvania National Guard, for damages allegedly caused by appellee’s negligence. The trial judge ruled that state compensation benefits as provided in the Military Code of August 1, 1975, and as supplemented by federal compensation pursuant to 32 U.S.C.A. §318 established an exclusive remedy for appellant. Since the state benefits are determined by the Pennsylvania Workmen’s Compensation Act, the trial court declared that appellant was bound by the restrictions included in that Act. Finally, the waiver of sovereign immunity embodied in 42 Pa.C.S.A. § 8522(b)(8) for National Guard activities was deemed to be inapplicable to the case at bar.

The relevant federal statute provides:

Compensation for disablement during training
A member of the National Guard is entitled to the hospital benefits, pay and allowances, law or regulation for a member of the Regular Army or the Regular Air Force ... of corresponding grade and length of service, whenever he is called or ordered to perform training under, sections 502, 503, 504, or 505 of this title—
(1) For a period of more than 30 days, and is disabled in line of duty from disease while so employed; or
(2) For any period of time, and is disabled in line of duty from injury while so employed.

32 U.S.C.A. § 318. When appellant was injured, he was on active duty for the Pennsylvania National Guard, performing field maneuvers in summer incampment. This activity falls within the ambit of 32 U.S.C.A. § 502(a), Required Drills and Field Exercises; consequently, appellant is eligible to receive § 318 benefits. These benefits have been construed as supplemental in nature, payable after any state emoluments have been received by members of the National Guard who are disabled in the line of duty. Maryland v. United States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965).

Pennsylvania National guardsmen who are injured during active service are furnished state compensation pursuant to the Military Code, 51 Pa.C.S.A. § 3501. This section states in pertinent part:

General rule: If any member of the Pennsylvania National Guard is injured or otherwise disabled ... .while performing duty in active service of the Commonwealth or in the performance of other State military duty under competent order ... he or his dependents, if not compensated therefor by the government of the United States, shall receive from the Commonwealth just and reasonable relief, the amount of compensation to be determined in accordance with the Workmen’s Compensation Law of Pennsylvania.

The trial judge reasoned that since the amount of compensation was to be determined in accordance with the Workmen’s Compensation Law of Pennsylvania, the restrictions of the Workmen’s Compensation Act were also applicable to appellant’s recovery under 51 Pa.C.S.A. § 3501. The Workmen’s Compensation Act explicitly bars an employee’s common law right to sue a co-employee for damages resulting from the co-employee’s negligence. See 77 Pa.S.A. § 72. Moreover, this Act defines the liability of the employer within the scope of the Act as “exclusive and in place of any and all other liability to such employees.... ” 77 Pa.S.A. § 481(a). The trial judge opined that the Commonwealth, as the “employer,” was solely liable to appellant for compensation for his injuries. Since the Commonwealth supplied an adequate remedy in 51 Pa.C.S.A. § 3501, appellant was prohibited from also pursuing his claim against appellee.

Appellant directs our attention to a recent Commonwealth Court opinion, Commonwealth, Pennsylvania National Guard v. Workmen’s Compensation Appeal Board, 63 Pa.Cmwlth.Ct. 1, 437 A.2d 494 (1981). In that case, a member of the Pennsylvania National Guard was awarded benefits by the Workmen’s Compensation Appeal Board for an injury he sustained while engaged in training for the Guard. Although the Workmen’s Compensation Act is the standard to be applied in determining the amount of compensation due to the injured guardsman under 51 Pa.C.S.A. § 3501, the court noted that the actual authority to grant relief lies with the Department of Military Affairs pursuant to 51 Pa.C.S.A. § 702. Consequently, the court resolved, compensation is exclusively provided under the state’s Military Code. To permit recovery under the Workmen’s Compensation Act would sanction double recovery. The Commonwealth Court therefore reversed, ruling that “a member of the Pennsylvania National Guard is not an employee within the intendment of the Workmen’s Compensation Act.” Id., 63 Pa.Cmwlth.Ct. at 4, 437 A.2d at 491.

Appellant is correct that this case has abrogated portions of the trial court’s rationale for ruling that appellant’s action is barred. However, the trial judge did not rely on that basis alone in reaching his decision. He properly observed that “[s]ection 3501 of the Pennsylvania Military Code (51 Pa.C.S.A.) provides simple, certain, and uniform compensation for guardsmen injured while performing duty in active service of the Commonwealth.” (Emphasis added).

Appellant does not deny his right to receive compensation under the state and federal National Guard relief provisions. It is his theory that he is also entitled to sue appellee for damages pursuant to 42 Pa.C.S.A. § 8522(b)(8). This statute waives the defense of sovereign immunity as a bar to an action against a Commonwealth party for “[ajcts of a member of the Pennsylvania military forces.” Thus, appellant contends that this waiver permits injured guardsmen to institute negligence actions against fellow guardsmen for injuries sustained during service.

The United States Supreme Court was confronted with a similar situation in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Therein, servicemen injured while on active duty sought recovery for their damages through the Federal Tort Claims Procedure Act, 28 U.S.C. §§ 2671-2680 (1970). Section 2674 of that Act states:

“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”

Similar to the argument which appellant advances herein, the federal servicemen demanded a remedy in addition to the statutory compensation scheme provided for injured or disabled servicemen.

In denying them relief under the Federal Tort Claims Act, the Supreme Court construed the aforementioned act to fit “as far as will comport with its words, into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole.” Id. at 139, 71 S.Ct. at 156. That Court observed that the purpose of the aforementioned act was to provide a remedy to those who had been without, rather than to extend additional protection to those who already enjoyed coverage. The Supreme Court carefully considered the existence of a statutory scheme of compensation for injuries or death of those in the armed services in reaching its decision that servicemen could not recover under the Federal Tort Claims Act. The following exerpt aptly illustrates the high court’s rationale:

“This Court, in deciding claims for wrongs incident to service under the Tort Claims Act, cannot escape attributing some bearing upon it to enactments by Congress which provide systems of simple, certain, and uniform compensation for injuries or death of those in armed services. We might say that the claimant may (a) enjoy both types of recovery, or (b) elect which to pursue, thereby waiving the other, or (c) pursue both, crediting the larger liability with the proceeds of the smaller, or (d) that the compensation and pension remedy excludes the tort remedy. There is as much statutory authority for one as for another of these conclusions. If Congress has contemplated that this Tort Act would be held to apply in cases of this kind, it is difficult to see why it should have omitted any provision to adjust these two types of remedy to each other. The absence of any such adjustment is persuasive that there was no awareness that the Act might be interpreted to permit recovery for injuries incident to military service.” (footnote omitted).

Id. at 144, 71 S.Ct. at 158.

The above-cited reasons, while not an exhaustive list of those considered by the Supreme Court, do serve to support our decision here. We do not think it overreaching of our judicial function to attribute to the legislature the desire to construct an integrated, cohesive plan of remedies. Although the Military Code does not contain the broad language of exclusivity which is found in the Workmen’s Compensation Act, we will not presume that the legislative intent was to allow full recovery by a guardsman for his injuries and also permit him double recovery in an action against his fellow militiaman for damages. This very result was struck down in Pennsylvania National Guard v. Workmen’s Compensation Appeal Board, supra, the case upon which appellant relies.

At the time our state legislature promulated 51 Pa.C.S.A. § 3501, the Commonwealth was immune from lawsuits resulting from the actions of National Guardsmen. Brown v. Commonwealth of Pennsylvania, 453 Pa. 566, 305 A.2d 868 (1973). The Commonwealth, pursuant to 51 Pa.C.S.A § 3501, extended a remedy to those who had previously been without recourse. The legislative reference to the Workmen’s Compensation Act in determining the amount of recovery comports with our view that said remedy be the exclusive avenue of recovery. While we recognize that compensation must be paid through the Department of Military Affairs, it is nonetheless instructive that the legislature ordered compensation to be dispensed “in accordance with” an Act which abrogates the common law right to sue an employer or co-employee for damages incurred in the course of employment. Finally, just as the Supreme Court of the United States found the absence of any adjustment in the types of recovery persuasive, we too believe that the silence of our legislature with respect to reconciling § 3501 to the waiver provision speaks the loudest.

Clearly, 42 Pa.C.S.A. § 8522(b)(8) evinces an awareness by the legislature of the possibility of lawsuits resulting from the actions of National Guardsmen. However, the trial court held, and we agree, that this waiver is directed toward those situations in which third party plaintiffs receive injuries through the acts of National Guard members. Consistent with this exposure to liability, the Commonwealth will provide legal assistance to any Pennsylvania military personnel charged with criminal or civil liability arising in the course of their duty. 51 Pa.C.S.A. § 4107. In addition, the Commonwealth will assume the responsibility for the payment of all judgments and costs secured against a member of the Pennsylvania militia. 51 Pa.C.S.A. § 4108.

For the foregoing reasons, we are convinced that § 3501 is the exclusive remedy of a Pennsylvania National Guardsman who is injured or disabled through the negligence of a fellow guardsman. Summary judgment was properly entered in light of our above decision.

Order affirmed.

      . It is unclear from the record whether appellant received any state or federal compensation for his physical injuries.

      . In researching this issue, we found no legislative history, committee reports, or floor debates to disclose the effect of the waiver of governmental immunity for the acts of National Guard on the right to receive "just and reasonable relief" under 51 Pa.C.S.A. § 3501. In such a situation, every judicial interpretation of legislative intent is subject to scrutiny and challenge by the legislature. If our statutory construction has led us the wrong conclusion, the legislature possesses the ready ability to cure our error.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    459 A.2d 1237
    ESTATE OF Joseph Henry ZERBEY, Deceased. APPEAL OF Joseph Henry ZERBEY, IV and Harry Zerbey, Exceptants.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1982.
    Filed March 25, 1983.
    Reargument Denied June 7, 1983.
    Petition for Allowance of Appeal Denied Sept. 30, 1983.

      David Pittinsky, Philadelphia, for appellants.
    J. Brooke Aker, Norristown, for participating parties.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This is an appeal from a final decree of the Orphans’ Court Division of the Court of Common Pleas of Schuylkill County dismissing exceptions to the court’s adjudication which confirmed the trustees’ accounts. The court also dismissed the exceptants’ petitions for allowance of counsel fee filed by various family members but these exceptions are not part of this appeal.

On August 19, 1932, Joseph Henry Zerbey (hereinafter referred to as testator) who was then seventy-four years of age and possessed of a substantial estate, executed his will. At that time his heirs consisted of three daughters, Frances Zerbey Braun, Elizabeth Zerbey Martz and Mildred Zerbey Lazarus, one son, Joseph Henry Zerbey, Jr., and one grandchild, Joseph Henry Zerbey, III, the son of Joseph Henry Zerbey, Jr. On January 1, 1933, another grandchild of testator was born, Johanna Zerbey Martz, the daughter of Elizabeth Zerbey Martz. The family tree as to issue was thus constituted when testator died on February 2, 1933. After testator’s death two more grandchildren were born, Uzal Martz, Jr. (the son of Elizabeth Zerbey Martz) born on October 20, 1934, and Margareta Lazarus (now Margareta Lazarus Paduch) who was the daughter of Mildred Zerbey Lazarus, born on August 12, 1935.

The testator’s will under paragraph NINTH(c) and (d) established two trusts referred to in his will as the “Newspaper Trust” and the “Union Hall Trust”. The income from the two trusts was to be divided into five shares, one share for each of his four children whom he identified by name and one share for his grandchildren “said share to be subdivided among all of my grandchildren in equal shares, including any grandchildren born after my death”. Testator also provided that upon the death of any of his children the income from the two trusts was to be divided into equal shares with one share for each of his then living children and one share for his grandchildren. The trusts are to terminate at the death of his last surviving child and the principal is then to be distributed to his living grandchildren in equal shares. The will also provided that if at the death of his last surviving child there were no grandchildren then surviving that the trust should be distributed in accordance with the intestate laws of Pennsylvania.

At testator’s death he was survived by his four children and two grandchildren. Joseph Henry Zerbey, Jr., testator’s only son died on February 16, 1945 and his son (testator’s grandchild) Joseph Henry Zerbey, III died on July 3, 1958. The children of Joseph Henry Zerbey, III, namely testator’s great-grandchildren, Joseph Henry Zerbey, IV, and Henry Zerbey are the appellants herein. Testator’s daughter, Frances Zerbey Braun, died on October 27, 1975, leaving no issue surviving. Testator’s other two children, Elizabeth Zerbey Martz and Mildred Zerbey Lazarus, still survive.

Upon the death of Joseph Henry Zerbey, III, in 1958 at the age of 41 the trustees did not distribute any income among the testator’s great-grandchildren but rather continued income distribution with one equal share for each living child and one equal share for grandchildren. In July, 1980, the appellants presented their claim to the Orphan’s Court Division for the first time that they are entitled to their deceased father’s share of income.

In this appeal we are involved with the narrow question of whether testator intended to use the term “grandchildren” when referring to income to include issue of a deceased grandchild. Our Supreme Court stated in Blough Estate, 474 Pa. 177, 185, 378 A.2d 276, 280 (1977):

The primary consideration in the construction and interpretation of wills is that the intent of the testator be followed... Absent ambiguity, that intent is to be determined from “the four corners of his will,” ... The duty of the court is not to determine what the testator might or should have said in light of subsequent events but, rather, the actual meaning of the words used... Only if the language- employed by the testator is ambiguous should the court resort to canons of construction.

See also Toland Estate, 495 Pa. 482, 434 A.2d 1192 (1981).

In the instant case there is no difficulty with respect to the term “children”. The parties agree that testator intended the term “children” to include only his children and not the issue of his children. The dispute revolves around the term “grandchildren” and whether testator intended to include the issue of deceased grandchildren in the term “grandchildren.” In Ball v. Weightman, 273 Pa. 120, 123, 116 A. 653, 654 (1922) the Supreme Court stated:

The term “grandchildren” may or may not embrace great-grandchildren according to the meaning of the testator to be ascertained from an examination of the entire will. Standing alone it is restricted to children’s children, but it may be enlarged by the context so as to embrace great-grandchildren or even more remote descendants. Where there is something to extend the natural signification of the term “grandchildren” it may include great-grandchildren: Horn v. Van Schaick, 3 Barbour’s Chancery Reports 488, 508; see also the opinion of the late Judge HAWKINS, In re Estate of Andrew Morton, 32 Pitts. L.J. (N.S.) 406. In the language of YEATES, J., in the leading case of Pemberton v. Parke et al., 5 Binney 601, 609, “Grandchildren are words of equivocal import, and may or may not include great-grandchildren, according to the sense in which they may have been used by a testator, collected from the whole of his will.” (Emphasis added).

See also Joyce Estate, 273 Pa. 404, 408, 117 A. 90, 91 (1922), wherein it is stated:

It has often been held that a gift to children will include grandchildren, if from other words in the will it appears there was an intention to use the term in a more extensive sense (Steinmetz’s Est., 194 Pa. 611 [45 A. 663]; Puterbaugh’s Est., 261 Pa. 235 [104 A. 601]); a fortiori, a gift to grandchildren, under such circumstances, will include great-grandchildren, since the former is a word of equivocal import: Pemberton v. Parke, 5 Binn. 601, 610. (Emphasis added).

In Disston Estate, 349 Pa. 129, 131, 36 A.2d 458 (1944) the court awarded a portion of principal to a great-grandchild under a will which provided for distribution to “grandchildren then living, per stirpes and not per capita.” The Supreme Court affirmed the Orphans’ Court which determined that this provision, considered with all the residuary provisions, indicated the testator’s intent that great-grandchildren who were children of a deceased grandchild should share per stirpes with grandchildren.

The court has authority to give a broader meaning to the word grandchildren than ordinarily given if the testator’s intent is not clear. Grimm Estate, 442 Pa. 127, 275 A.2d 349 (1971). If a testator’s intent cannot be ascertained with reasonable certainty rules of construction are applicable to attribute a reasonable intention to the testator in the circumstances. See Chambers Estate, 438 Pa. 22, 263 A.2d 746 (1970); Houston Estate, 491 Pa. 339, 421 A.2d 166 (1980); Farmers Trust Company v. Bashore, 498 Pa. 146, 445 A.2d 492 (1982). In the ascertainment of a testator’s intent, a clause in a will must not be read in isolation but rather in the context in which it appears. See Clark Estate, 359 Pa. 411, 59 A.2d 109 (1948); Hill Estate, 432 Pa. 269, 247 A.2d 606 (1968).

In the will under consideration it is clear that the testator intended to primarily benefit his children with respect to distribution of income from the two trusts. When he drew his will, and at his death, he had four children living, a son and three daughters. His will provided that at his death the income from both trusts was to be divided into five equal shares, one for each child whom he designated by name in his will, and one share for all his grandchildren. He further provided that upon the death of each child the income was to be divided into equal shares, one for each living child, and one share “for my grandchildren.” This scheme of distribution obviously favored his surviving children who receive a larger share of income as each of testator’s children dies, than would a per stirpital distribution of income, whereby the share of income of the deceased child would go to his surviving issue, as each child of testator dies. When testator’s son, Joseph Henry Zerbey, Jr. died in 1945 his three remaining daughters then received one fourth of the income each, with one-fourth share going to the class designated as “grandchildren”. When Frances Zerbey Braun died in 1975, his two surviving daughters each received one-third of the income, with a third for “grandchildren”. When testator drafted his will he knew that his class of children would not increase, and he designated each child by name in his will. He, of course, did not know how large the class designated as “grandchildren” would be. He knew he had one grandchild when he made his will and he provided for a share of income “to be subdivided among all of my grandchildren in equal shares, including any grandchildren born after my death.” While each child would never receive less than one-fifth of the income, and as each child died the remaining children would receive larger shares of income, the share for “grandchildren” would be divided among an unknown number, of persons in that class.

The testator’s focus was clearly on his children when he wrote his will in 1932, as far as income from the two trusts was concerned. He was an elderly man and we know that he did not live long after he put his estate in order. All of us tend to believe that in the usual order of events parents die, then children and then grandchildren. We are predisposed to think in terms of the usual order of deaths, and testator as far as income was concerned was primarily thinking of providing for his children who were to receive eighty per cent of the income while all of his children lived. He then looked to the day when all of his children would be deceased and provided that his “grandchildren” would then receive the principal in equal shares, under Paragraph NINTH(g). When testator’s son, Joseph Henry Zerbey, Jr. died in 1945 his grandson, Joseph Henry Zerbey, III, then entered the class of grandchildren and participated in the distribution of income to be awarded to the class of “grandchildren.” When Mr. Zerbey, III, died in 1958, at the relatively young age of 41, at a time when testator’s three daughters were still living, the usual order of deaths did not occur. It would hardly have been testator’s intent that Mr. Zerbey, Ill’s, share of income would not continue to his children who were also grandchildren of testator, albeit great-grandchildren. It must be kept in mind that to allow the appellants to take their father’s share of income would in no way decrease the share of income for testator’s children.

The expressed intention in testator’s will is to secondarily benefit the class known as “grandchildren” and we are of the opinion that in the context of testator’s will that the term grandchildren also included the children of deceased grandchildren who would take their deceased parent’s share as far as income distribution is involved. Appellants’ herein are grandchildren of the testator notwithstanding that they are great-grandchildren and testator’s will does not manifest an intention to exclude them from the class of grandchildren. We will not rewrite the testator's will, but as pointed out in Clark Estate, 359 Pa. 411, 420, 59 A.2d 109, 113 (1948):

It is a well recognized canon that where language is equivocal a construction enuring to the benefit of remote lineal descendants is preferred to one which favors immediate issue exclusively.

While no two wills are alike, the courts through the years have been confronted with the term “grandchildren” and the problems have been difficult to resolve. In Carnegie Estate, 397 Pa. 308, 155 A.2d 349, 350 (1959) which affirmed on the opinion of the court below, the testatrix’s will in Item Two directed the trustees:

to pay the surplus of said income, if any, yearly during the life of the trust as to said Island property to my said children then living, and to the children of such of my named children as are then dead, the children of every deceased child taking their parent’s share.

One of the children of a deceased child, being a grandchild of testatrix, died without issue, leaving to survive him children of a deceased brother who were great-grandchildren of testatrix. The issue was whether the testatrix intended that the great-grandchildren should participate in income distribution to the exclusion of the estate of the grandchild dying without issue. The Supreme Court affirming on the opinion of the court below held that in the context of the will and codicils when testatrix used the word “children” she intended “issue”. The court based its decision on Clark Estate, supra, and stated at 155 A.2d 352:

The only substantial difference between Clark Estate and the matter before us, is in the Clark Estate the Court was concerned with a distribution of corpus and in our case we are concerned with the distribution of income. We believe that this difference is of no significance. It is this writer’s opinion that the analysis of the Lucy C. Carnegie will and codicils will indicate the case before us is much stronger than the Clark Estate.

The court further stated at 155 A.2d 352:

The words that testatrix used in Item Two are exactly what the expression “per stirpes” mean. They denote a class of distributees taking the share of their deceased ancestor by right of representation. These words are: “the children of every deceased child taking their parent’s share.” The Clark Estate will uses a similar expression after per stirpes, to-wit: “they shall take by representation of their parents”. [359 Pa. 411, 59 A.2d 110]

In the instant case the testator did not expressly state that if a “grandchild” died while his own children, or one of them still lived that the deceased child’s share of income should then be distributed to his living children. However, as noted in Greenfield Estate, 457 Pa. 114, 121, 321 A.2d 922, 926 (1974):

It is, of course, a truism that “[w]ills are not to be interpreted in a vacuum. A testator’s intent must be taken from the meaning of his words, but his will and a dictionary cannot always solve problems of interpretation.” Gibson v. McBurney, 399 Pa. 195, 200, 159 A.2d 912, 915 (1960). In ascertaining the meaning of the words used by the testator, courts may, if necessary, look beyond the language of the will itself to the circumstances surrounding him up to the time of its execution. (Emphasis added)

A letter written by testator on December 9, 1932, indicates that he was thinking in terms of his descendants rather than the limiting concept of first and second generations in dealing with income distribution. Testator wrote as follows:

And, at all times, I want it distinctly understood as my desire that my married children keep their affairs in their own names, and the same applies to their children so that our Estate bequests and compensation stay within the family and not pass over to outsiders through marriage.
I want the persons who are married into our family to be taken well care of in the best judgment of the executors-trustees, but I don’t want them to have the right and the privilege to pass on to their relatives and their friends outside of our family any specially valuable consideration. It is the Zerbey Estate and I want it to remain as such for the benefit of my Zerbey descendants. (Emphasis added).

Testator also wrote in the same letter:

I have endeavored to make plain my desires, but I give the Executors-Trustees full power to act for themselves and as near as possible as they can in conformity with my desires as expressed in the body of the Will.

In interpreting wills the law will impute to the testator’s words such meaning “as under all the circumstances will conform to his probable intention and be most agreeable to reason and justice.” Umberger Estate, 369 Pa. 587, 592-3, 87 A.2d 290, 293 (1959). Further, construction of a will which leads to an unnatural or absurd result should be avoided. Gangwisch Estate, 454 Pa. 476, 311 A.2d 925 (1973). Appellants have a contingent interest in principal in this estate and it appears to us unreasonable to exclude them from participating in their deceased father’s share of income, which is a relatively small share and does not in any way diminish the share of income for testator’s children, the income beneficiaries in whom he was primarily interested. With respect to the appellants receiving distribution of their deceased father’s share of income see Wood Estate, 321 Pa. 497, 500, 501, 184 A. 13, 15, 16 (1936) which states:

In a gift of income, distributees are to be ascertained at each periodic distribution by the formula provided by testator: Rowland’s Est, supra; Rowland’s Est., 151 Pa. 25 [24 A. 1091]. This is necessarily true even though testator does not specifically direct a periodic payment; for, from the nature of a gift of income, there must be periodic distribution, whether annually, semiannually, or otherwise, and the distributees must be determined anew at each such period. It follows that, where income is given to a class, the distributees entitled to take at any period of distribution are the members of the class who are alive at that time, or, where representation by issue is provided, the living issue of deceased members. (Emphasis added).

We believe that it was testator’s intention that if any grandchild died leaving children surviving while the trusts continued that the share of income of such deceased grandchild should be distributed to his children living at the time of income distribution. Testator’s intent is best carried out by giving a per stirpital share to the living children of his deceased grandson, Joseph Henry Zerbey III, rather than a per capita share with testator’s other grandchildren.

We are faced with the final problem as to when, in the matter before us, the appellants should commence receiving a distributive share of income. After appellants’ father died in 1958 the trustees distributed income to the testator’s remaining children, and there is no dispute concerning this, and to testator’s grandchildren. This has continued until the present. The trustees acted in good faith, and on what was a reasonable, although mistaken, interpretation of testator’s will. It would be manifestly unjust to allow the appellants to participate in the “grandchildren’s” share of income from 1958 to the present. Several accounts have been filed during this time and confirmed by the Orphan’s Court. It is only with respect to the present account that appellants have filed exceptions and an appeal is now before this court. We therefore direct that appellants shall receive that share of income received on or after the date of adjudication of the court below of October 1, 1980, which their father would have received if he were still living. Appellants shall not receive any part of the income received by the trustees from July 3rd, 1958 until October 1, 1980. See Dulles Estate, 494 Pa. 180, 431 A.2d 208 (1981).

Order reversed and case remanded for further proceedings consistent with this opinion.

      . Paragraph NINTH(c) and (d) provides as follows:

        (c) The income derived from the said "Newspaper Trust" over and above that necessary for the proper maintenance and improvement of the buildings and payment of taxes thereon, the cost of operation of the said trust, and other necessary and proper expenses, shall be divided into five (5) equal shares and the said income shall be distributed at such times as the trustees may deem it advisable, as follows:
      To my son, Joseph Henry Zerbey, Jr., one share.
      To my daughter, Frances Zerbey Braun, one share.
      To my daughter, Elizabeth Zerbey Martz, one share.
      To my daughter, Mildred Zerbey Lazarus, one share.
      To my grandchildren, one share; said share to be subdivided among all of my grandchildren in equal shares, including any grandchildren born after my death.
      (d) The income from the said "Union Hall Trust" over and above that necessary for the proper maintenance and improvement of the buildings and payment of taxes thereon, the cost of operation of the trust, shall be divided into five (5) equal shares and shall be distributed at such times as the said trustees may deem it advisable, as follows:
      To my son, Joseph Henry Zerbey, Jr., one share.
      To my daughter, Frances Zerbey Braun, one share.
      To my daughter, Elizabeth Zerbey Martz, one share.
      To my daughter, Mildred Zerbey Lazarus, one share.
      To my grandchildren, one share; said one share to be subdivided among all of my grandchildren in equal shares, including any grandchildren born after my death.

      . Paragraph NINTH (g) provides in part:
      (g) In the event of the death of one or more of my children hereinbefore named, the number of shares into which the income under clauses “C” and "D" of item nine shall be divided for the purpose of distribution, shall be equal to the number of my then living children at the time of each of said distribution of income and one share for my grandchildren.

      . Paragraph NINTH (g) further provided:

        In the event of the death of all of my grandchildren before the death of the last of my children, then in that event the number of shares at the time of each distribution of income shall be equal to the number of my then living children.
      In the event that one or more of my grandchildren survive all of my hereinbefore named children, then in that event the trustees, upon the death of my last child, shall deliver the said property in the trust, being the principal, interest, income and property free of the said trust, to the living grandchild absolutely or to the said living grandchildren absolutely in equal shares as the case may be.
      In the event that all of my grandchildren shall die before the death of all of my children, then, after the death of my last child, the trustees, shall sell and dispose of the property, being the principal of the said trust, at any time within the time permitted by law as the life of a trust and subject to their discretion, and for that purpose I hereby empower and direct my said trustees to sell and dispose of the whole or any part of the real or personal property included in the said trust, either at public or private sale or sales, in such manner and for such price and upon such terms, as to credit or otherwise, as they in their discretion may deem best, without any obligation on the part of the purchasers thereof to see to or be responsible for the purchase money. And when the whole of the property in said trust has been converted into money as aforesaid, the trust fund shall be divided among and be paid to my legal heirs in accordance with the intestate laws of the Commonwealth of Pennsylvania.

      . Joseph H. Zerbey, IV, became suri juris in September, 1963, and Henry Zerbey in January, 1967.

      . We are not persuaded that the appellants are barred from filing exceptions to the present account by the Probate, Estates and Fiduciaries Code, Act of June 30, 1972, P.L. 508, No. 164, 20 Pa.C.S. § 3521 which provides in part:
      If any party in interest shall, within five years after the final confirmation of any account of a personal representative, file a petition to review any part of the account or of an auditor’s report, or of the adjudication, or of any decree of distribution, setting forth specifically alleged errors therein, the court shall give such relief as equity and justice shall require: Provided, That no such review shall impose liability on the personal representative as to any property which was distributed by him in accordance with a decree of court before the filing of the petition....
      Appellants timely filed exceptions to the trustees’ present account, and the adjudication in the court below was limited to that account.
      Likewise, although appellees have raised the defense of laches, it is not applicable in this case. Appellants timely filed exceptions to the adjudication of October 1, 1980, and our opinion limits their sharing in income to that received after October 1, 1980. The estate was on notice from the time of exceptions that if appellants succeeded that income would be due them.


author: PER CURIAM:

text:
    459 A.2d 1244
    COMMONWEALTH of Pennsylvania v. Charles AZIM, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1983.
    Filed March 25, 1983.
    Reargument En Banc Denied June 7, 1983.
    Petition for Allowance of Appeal Denied Oct. 3, 1983.

      Spaeth, J., concurred in result.
    Marilyn J. Gelb, Philadelphia, for appellant.
    David L. DaCosta, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   PER CURIAM:

Appellant Charles Azim appeals nunc pro tunc from judgments of sentence imposed for criminal conspiracy and robbery. He seeks dismissal of all the charges brought against him. In the alternative, he requests a new trial on a lesser charge of robbery and a vacating of the conspiracy sentence, for resentencing following the outcome of the new robbery trial.

Appellant was arrested, along with Mylice James and Thomas Robinson, on September 18, 1977 for simple assault, robbery, and conspiracy. The victim of the robbery was Jerry Tennenbaum, a Temple University student. Appellant drove a car in which the other two men were passengers. Appellant stopped the car, Robinson called Tennenbaum over to the curb, the two passengers got out of the car, inflicted bodily injury on Tennenbaum, took his wallet which had fallen to the ground, and immediately left the scene in the same car driven by appellant. Robinson and appellant were tried to a jury and convicted as co-defendants in April 1978. After denial of post-trial motions, appellant was sentenced to five to ten years for robbery and five to ten years for conspiracy, the sentences to run concurrently. He received a suspended sentence for assault.

Appellant’s trial counsel did not file a timely appeal on his behalf and on January 25, 1979 he filed a pro se Petition under the Post Conviction Hearing Act, 19 P.S. 1180-1 et seq. claiming ineffective assistance of counsel on the grounds, inter alia, of failure to file an appeal of the conviction. New counsel was appointed, and on October 9, 1980, appellant was granted the right to appeal, nunc pro tunc. The PCHA Petition raised other issues relating to ineffectiveness of counsel which were denied at the PCHA hearing. The direct appeal and the appeal under PCHA are here consolidated.

Appellant’s co-defendant Robinson also appealed from the judgment of sentence. In January 1980 this Court vacated judgment of sentence and remanded for a new trial on the charges of simple assault and robbery; affirmed judgment of sentence on the charge of conspiracy, and remanded for resentencing on conspiracy. Commonwealth v. Robinson, 284 Pa.Super. 152, 425 A.2d 748 (1980). On July 29, 1981, the trial judge ordered similar relief for appellant.

In this appeal, appellant presents two issues: (1) that he was convicted upon insufficient evidence; and (2) that his trial counsel was ineffective in the course of the trial. The claim of insufficiency of the evidence relates to the charge of criminal conspiracy. He argues that because his conspiracy conviction was not supported by sufficient evidence against him, the charges of assault and robbery must also fail.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) holds that an essential of due process guaranteed by the Fourteenth Amendment is that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof, which is defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. In Commonwealth v. Volk, 298 Pa.Super. 294, 444 A.2d 1182 (1982) (also reviewing the sufficiency of the evidence in a conspiracy charge) our Court maintained that the test to be applied in appraising the sufficiency of the evidence is a two-step inquiry:

First, we must regard all the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could have based the verdict and then we must ask whether that evidence, along with all reasonable inferences to be drawn therefrom, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Anderson, 265 Pa.Superior Ct. 494, 402 A.2d 546 (1979); Commonwealth v. Eddington, 255 Pa.Superior Ct. 25, 386 A.2d 117 (1978); Com monwealth v. Luther, 266 Pa.Superior Ct. 240, 403 A.2d 1329 (1979). Criminal conspiracy is defined as:
(a) Definition of conspiracy — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903 (1973).

“The essence of criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished.” Commonwealth v. Carter, 272 Pa.Superior Ct. 411, 416 A.2d 523 (1979); Commonwealth v. Anderson, supra. By its very nature, the crime of conspiracy is frequently not susceptible of proof except by circumstantial evidence. Commonwealth v. Carter, supra. Commonwealth v. Kwatkoski, 267 Pa.Superior Ct. 401, 406 A.2d 1102 (1979). And although a conspiracy cannot be based upon mere suspicion or conjecture, Commonwealth v. Anderson, supra, a conspiracy “may be inferentially established by showing the relationship, conduct or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed.” Commonwealth v. Carter, supra, quoting Commonwealth v. Horvath, 187 Pa.Superior Ct. 206, 211, 144 A.2d 489, 492 (1958) (Volk, at 1184-5).

At trial, the prosecution presented evidence that established that appellant was the driver of the car in which James and Robinson (the men who demanded money from Tennenbaum and beat and choked him) rode. Robinson was seated on the front seat, next to appellant. Robinson rolled down the car window, twice beckoned to the victim to come close to the car, and when Tennenbaum refused, the two passengers got out, assaulted Tennenbaum, and took his wallet. Appellant sat at the wheel, with the engine running and lights on, and the car doors open, while the acts were committed in the vicinity of the car. He then drove James and Robinson from the scene (Suppression Hearing T. 77-88; N.T. 4-8).

Among those circumstances relevant to proving conspiracy are association with alleged conspirators, knowledge of the commission of the crime, presence at the scene of the crime, and, at times, participation in the object of the conspiracy. Commonwealth v. Anderson, supra. Conspiracy to commit burglary has been found where the defendant drove codefendants to the scene of a crime and then later picked them up. Commonwealth v. Wright, 235 Pa.Super. 601, 344 A.2d 512 (1975). “Thus, the driver of a ‘get away’ car can be found guilty as an accomplice if it is reasonable to infer that he was aware of the actual perpetrator’s intention. His agreement to effectuate the escape aids the perpetrator in the planning and commission of the actual crime” (Wright, at 515). Commonwealth v. Esposito, 236 Pa.Super. 127, 344 A.2d 655 (1975) upheld the conviction for conspiracy of the driver of a get away car. We find no merit in appellant’s claim that he was merely a hired driver, with no knowledge of his passengers’ criminal activity.

We hold that a rational factfinder could find, beyond a reasonable doubt, that appellant conspired with James and Robinson to commit assault and robbery. Applying the test mandated by Volk, supra, we decline to dismiss appellant’s conviction for criminal conspiracy on the basis of insufficiency of the evidence.

Once conspiracy is established and upheld, a member of the conspiracy is also guilty of the criminal acts of his co-conspirators, even if he is not present at the time the acts are committed. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976), Commonwealth v. Tumminello, 292 Pa.Super. 381, 437 A.2d 435 (1981). In the instant case, co-conspirator Robinson’s direct appeal resulted in the grant of a new trial on the assault and robbery charges, and we agree with the trial court that it is appropriate for appellant to be afforded the same relief. We therefore find it unnecessary to reach appellant’s additional charges on his trial counsel’s ineffectiveness.

Judgment of sentence is vacated. The case is remanded for a new trial on the charges of assault and robbery, and for resentencing on the conviction for conspiracy, following the outcome of the new trial. Jurisdiction is relinquished.

SPAETH, J., concurs in the result.

      . The basis for the grant of a new trial was the trial court’s inadequate instruction on the elements of simple assault and robbery.

      . The claim of ineffectiveness rests on trial counsel’s failure to request (1) an immediate submission of the case to the jury before the testimony of Robinson; (2) cautionary instructions limiting the jury’s consideration of Robinson’s testimony to Robinson’s case only; and (3) an instruction on robbery as a felony of the third degree as a lesser included offense.


text:
    459 A.2d 1247
    In re ADOPTION OF M.E.T. Appeal of M.E.T.G.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1982.
    Filed April 22, 1983.

      Donald Gary Keyser, Uniontown, for appellant.
    Lawrence D. McDaniel, Uniontown, for appellee.
    Before CERCONE, P.J, and SPAETH, CAVANAUGH, WICKERSHAM, BROSKY, BECK and JOHNSON, JJ.
   CAVANAUGH, Judge:

The issues raised in this appeal relate to the application of the United States Supreme Court’s recent holding in Santosky v. Kramer, Commissioner, Ulster County Dept. of Social Services, et al., 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), to Pennsylvania cases. The effect of the Santosky decision was to raise the burden of proof required in involuntary termination of parental rights cases from a “preponderance of the evidence” to “clear and convincing evidence.” We now hold that the higher burden of proof required by Santosky must be applied to all cases which had not been finally decided on appeal at the time the Santosky opinion was filed, and that cases pending on appeal at the time Santosky was filed must be remanded to the trial court for further proceedings.

This appeal was taken from an order involuntarily terminating the parental rights of M.E.T.G. with regard to her daughter M.E.T. under section 311(1) of the Adoption Act of 1970. 1 P.S. § 311CL). The case arose pursuant to a petition for adoption of M.E.T. filed by her foster parents, G.M. and P.M., appellees herein. The child’s natural father consented to the adoption and he is not a party to this appeal. Appellant mother, however, opposed the termination of her parental rights. We need not discuss in detail the factual background of the case. Suffice it to state that the lower court found that the appellees had established, by a preponderance of the evidence, that the requirements of section 311(1) had been met in that appellant “by conduct continuing for a period of at least six months ... [had] refused or failed to perform parental duties.” The court therefore entered an order on March 6, 1981, involuntarily terminating appellant’s parental rights and granting the appellees’ adoption petition. Appellant filed an appeal to this court. We filed an order and opinion on June 25, 1982, affirming the termination order of the lower court. In re: Adoption of M.E.T., (slip opinion, Pa.Super.Ct., filed June 25, 1982).

Subsequent to the entry of the lower court’s order but prior to the disposition of the appeal by this court, the United States Supreme Court struck down a New York law permitting the state to terminate the rights of parents in their natural child upon showing by a “fair preponderance of the evidence” that the child was “permanently neglected.” Santosky v. Kramer, supra. The Supreme Court held that “the Due Process Clause of the Fourteenth Amendment requires that the State support its allegations by at least clear and convincing evidence.” 455 U.S. at 747-48, 102 S.Ct. at 1391, 71 L.Ed.2d at 603 (emphasis added). In our prior opinion affirming the termination order in the instant case, we “assumed without deciding” that Santosky applied where the matter was tried before the Santosky opinion was filed, but where appellate review was not completed until after the Supreme Court had rendered the decision. We concluded, however, that even under the new stringent federal constitutional standard, appellees had met their burden of proof and that the termination order was therefore proper. Appellant subsequently filed an application for reargument. We granted the application and directed that the case be reargued before this court sitting en banc.

The first issue which must be addressed is whether the clear and convincing evidence standard need be applied to cases in which an order of termination had been entered by a lower court prior to the issuance of the Supreme Court’s decision in Santosky but which had not yet been finally decided on appeal, or whether the new standard need only be applied to cases begun subsequent to the March 24, 1982 Santosky decision. We have little difficulty concluding that the clear and convincing standard must be applied to all cases in which appeals had not been exhausted at the time the Santosky decision was rendered.

The Pennsylvania Supreme Court discussed at length in a recent opinion the issue of whether a new rule of law must be applied to cases pending on direct appeal at the time the new rule is announced. Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982). The Geschwendt majority-pointed out that neither the Federal nor the Pennsylvania Constitution requires that new rules of law be given retrospective effect. The majority then expressly disavowed the recent holding in Commonwealth v. Brown, 494 Pa. 380, 383, 431 A.2d 905, 906-07 (1981), where the court stated that “a party whose case is pending on direct appeal is entitled to the benefit of changes in the law which occur before the judgment becomes final,” in favor of a “balancing approach” in which “[t]he litigant’s interest in securing the benefit of the change must be considered in conjunction with the purposes intended to be accomplished by the change and the impact of a retrospective application on the system.” Geschwendt, 500 Pa. at 134, 454 A.2d at 999.

The Geschwendt majority seems to concede that a litigant whose case was pending on direct appeal would definitely be entitled to retrospective application if the new rule of law was constitutionally compelled and affected the truth-finding function of the trial court. This is in accord with the holding in Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (1977). As the Supreme Court pointed out in Santosky, the standard of proof in a given case is related to “the risk of error inherent in the truth finding process,” 455 U.S. at 757, 102 S.Ct. at 1396, 71 L.Ed.2d at 609. Therefore, we feel that the clear and convincing evidence requirement established in Santosky must necessarily be applied to all Pennsylvania cases in which appellate review has not been completed. Even were we to apply the Geschwendt balancing approach, we would reach the same result, since we feel that the necessity of protecting parents’ due process rights far outweighs any negative impact of retrospective application on the system of justice.

Having decided that the clear and convincing evidence standard must be applied to cases pending on appeal, we must now determine whether cases in which a lower court order involuntarily terminating parental rights was based on the preponderance of the evidence standard must be remanded for further proceedings at the trial level, or whether this court can review the record in light of the new standard and make its own determination as to whether the evidence presented meets the clear and convincing standard. We believe that a remand is necessary in such cases. Indeed, there is language in the Santosky opinion which seems to mandate additional proceedings at the fact finding level when a prior determination was entered following a proceeding at which an improper burden of proof was applied. As the Supreme Court stated:

Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.

455 U.S. at 757, 102 S.Ct. at 1396, 71 L.Ed.2d at 609. (footnote omitted).

As was pointed out by the Court of Appeals of Oregon, “The principal — if not the sole — concern of the Santosky majority was with the way in which evidence is weighed by the factfinder____” Matter of Farrell, 58 Or.App. 258, 648 P.2d 401, 404 (1982). The Court stated in Santosky that “The standard of proof ‘instructs] the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions’ he draws from that information.” 455 U.S. at 757-58, n. 9, 102 S.Ct. at 1396, n. 9, 71 L.Ed.2d at 609, n. 9 (emphasis added), quoting In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). This court does not sit as a factfinder. The trial court is in a better position to assess the credibility of witnesses and make findings of fact and thus, even in cases in which our scope of review is of the broadest type, we will not usurp the factfinding function of the trial court. In re Custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982); Robert H.H. v. May L.H., 293 Pa.Super. 431, 439 A.2d 187 (1981). Only by remanding this case and other cases similarly situated to the trial court can we assure parents whose rights have been involuntarily terminated of a factfinding procedure which satisfies the constitutionally required standard of proof.

We therefore hold that any case in which a party’s parental rights were terminated based on a preponderance of the evidence standard should be remanded to the trial court for further proceedings at which the constitutionally mandated clear and convincing evidence standard shall be applied. We do not, however, feel that the lower court must, in all cases, hold new evidentiary hearings. Rather, we adopt the procedure advocated by The Appeals Court of Massachusetts in Custody of A Minor (No. 1), 13 Mass. App. 1088, 436 N.E.2d 172, app. den., — Mass. —, 438 N.E.2d 75 (1982) and Custody of A Minor (No. 3), 14 Mass.App. 1013, 441 N.E.2d 768 (1982). Thus, we hold that cases shall be remanded with a direction to the trial court that it determine, after hearing arguments of counsel, whether new evidentiary hearings are required. If the court is convinced that counsel would have tried the case differently had it known that a clear and convincing evidence standard would be applied, or if the court concludes that the evidence should be expanded and/or brought up to date, then it should schedule new evidentiary hearings. If, on the other hand, the court is convinced that new evidentiary hearings are not required, the court need only reconsider its prior findings in light of the clear and convincing standard and modify those findings as necessary. We feel that this procedure adequately protects the parents’ right to ensure that findings of parental unfitness are made on the basis of clear and convincing evidence.

We realize that our decision today will cause further delay in the resolution of some adoption cases, subjecting well-meaning petitioners to additional proceedings and prolonging a state of uncertainty in lives of children, but we feel that any hardship imposed by our decision is far outweighed by the need to protect the due process rights of parents who may be forever deprived of their “fundamental liberty interest ... in the care, custody, and management of their child.” Santosky, 455 U.S. at 753, 102 S.Ct. at 1394, 71 L.Ed.2d at 606.

Order vacated. Case remanded for further proceedings not inconsistent with this opinion.

      . Act of July 24, 1970, P.L. 620, No. 208, Art. III, § 311(1). The Adoption Act of 1970 has been superceded by The Adoption Act of 1980, Act of October 15, 1980, P.L. 934, No. 163. 23 Pa.C.S.A. § 2101 et seq. The grounds for termination provided by § 311 of the 1970 Adoption Act are now found at 23 Pa.C.S.A. § 2511.

      . Section 311(1) states that:
      The rights of a parent in regard to a child may be terminated ... on the ground that:
      (1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child, or has refused or failed to perform parental duties.

      . At the time the Santosky decision was rendered, 31 states required, either by statute or by court decision, at least clear and convincing evidence or its equivalent in termination of parental rights cases. See Santosky, 455 U.S. at 749-50, n. 3, 102 S.Ct. at 1392, n. 3, 71 L.Ed.2d at 604, n. 3. Of the 19 states which did not require clear and convincing evidence prior to the Santosky decision, ten, other than Pennsylvania, have had occasion to address the application of the Santosky requirement. Only one of those states, Colorado, has decided that Santosky does not need to be applied to cases pending on appeal as of March 24, 1982, and that it need apply only to cases commenced subsequent to the filing of the Santosky opinion. See People in Interest of C.A.K. (Colorado Supreme Court), 652 P.2d 603 (1982).

      . As stated in footnote 3, supra, ten states, other than Pennsylvania, have had occasion to address the application of the new requirement established in Santosky. Only Colorado determined that it need not apply to cases pending on appeal. Of the remaining nine states, two, New York and South Carolina, have not remanded cases to the trial court but have instead applied the clear and convincing standard at the appellate level. See In the Matter of John A.A., et al, 89 App. Div.2d 738, 453 N.Y.S.2d 942 (1982); Ginn v. Ginn, (Supreme Court of South Carolina), 294 S.E.2d 42 (1982). Five states, Arizona, Delaware, Massachusetts, Mississippi, and South Dakota have remanded for further proceedings at the trial level. See Matter of Appeal in Pima County, Etc., 132 Ariz. 377, 646 P.2d 262 (1982); Matter of Appeal in Maricopa County, Etc., (Court of Appeals of Arizona), 133 Ariz. 582, 653 P.2d 39 (1982); Patricia A.F. v. James R.F. (Supreme Court of Delaware), 451 A.2d 830 (1982); Custody of a Minor (No. 1), 13 Mass.App. 1088, 436 N.E.2d 172 (1982), app. den.,-Mass.-, 438 N.E.2d 75 (1982); Custody of A Minor (No. 3), 14 Mass.App. 1013, 441 N.E.2d 768 (1982); Natural Father v. United Methodist Children’s Home, (Supreme Court of Mississippi), 418 So.2d 807 (1982); People in The Interest of S.H. (Supreme Court of S.D.), 323 N.W.2d 851 (1982); In the Matter of S.S., T.D., D.D. and S.D. (Supreme Court of S.D.), 323 N.W.2d 852 (1982). The Oregon Court of Appeals held that remand was not necessary, but only because the Oregon Appellate Courts engage in de novo factual review in such cases. See In The Matter of Farrell, 58 Or.App. 258, 648 P.2d 401 (1982). Appellate decisions in Indiana are inconsistent, with one district of the Court of Appeals reviewing the evidence itself under the clear and convincing standard, Matter of Jones, (Court of Appeals of Indiana, Fourth District), 436 N.E.2d 849 (1982), and another district of the Court of Appeals remanding for further proceedings at the trial level, Ellis v. Knox

        County Department of Public Welfare, (Court of Appeals of Indiana, First District), 433 N.E.2d 847 (1982).

      . We will not, of course, remand those cases in which our review of the record convinces us that even the lower standard of preponderance of the evidence had not been satisfied. Orders of termination in those cases will be reversed outright. The instant case is not such a case. We are convinced that grounds for terminating appellant’s parental rights were established by a preponderance of the evidence.

      . The parties in the instant case were also directed to address the issue of whether, in light of Santosky, due process mandates an appellate scope of review in parental termination cases broader than the abuse of discretion standard. However, since we have determined that this case must be remanded to the trial court for further proceedings, any discussion at this point regarding our scope of review would be dictum. We therefore decline to address the issue and reserve it, instead, for discussion at a more appropriate time. We note, in fact, that the issue is already slated to be addressed by this court en banc in the case of In re Adoption of James J., Nos. 2776 and 2793 Philadelphia, 1981.


author: WICKERSHAM, Judge:

text:
    459 A.2d 1251
    Blanche M. GUITON v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 2, 1982.
    Filed April 22, 1983.
    Petition for Allowance of Appeal Granted Sept. 8, 1983.

      Charles A. Shaffer, Wilkes-Barre, for appellant.
    Edward Pope Little, Montrose, for appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   WICKERSHAM, Judge:

This case comes to us after our original decision in Guiton v. Pennsylvania National Mutual Casualty Insurance Company, 301 Pa.Super. 146, 447 A.2d 284 (1982) was reviewed by the Pennsylvania Supreme Court, 500 Pa. 179, 455 A.2d 108. Our supreme court directs us to reconsider the issue involved in this appeal in light of its recent decision in Sachritz v. Pennsylvania National Mutual Insurance Company, 500 Pa. 167, 455 A.2d 101 (1982). With the guidance provided by Sachritz, supra, we consider again the statute of limitations provisions contained in section 106(c) of the Pennsylvania No-fault Motor Vehicle Insurance Act.

The facts of this case may be summarized as follows. On March 4, 1977, appellee’s spouse, James W. Guitón, was killed in an automobile accident. At the time of thq accident, James Guitón was covered by a no-fault insurance policy issued by appellant, Pennsylvania National Mutual Casualty Insurance Company. Following the accident, appellee, Blanche M. Guitón submitted a claim to appellant for no-fault benefits. On August 4, 1977, appellant paid Blanche Guitón $1,500.00 for funeral expenses, and $10.00 for ambulance expenses, and in October of 1977, appellant made a final payment to Blanche Guitón of $5,000.00 for survivor’s loss benefits.

On November 26, 1979, Blanche Guitón instituted suit against appellant by filing a praecipe for writ of summons and, on January 7, 1980, she filed a complaint in assumpsit against appellant seeking work loss benefits under her deceased spouse’s no-fault insurance policy. Appellant filed an answer and new matter to Blanche Guiton’s complaint in which it raised the defense of the statute of limitations provisions contained in section 106(c)(2) of the No-fault Act. After the pleadings were closed, appellant filed a motion for judgment on the pleadings in which it again raised the defense of the statute of limitations. The lower court denied appellant’s motion for judgment on the pleadings by order dated May 17, 1981, but certified the order for immediate appeal to our court in accordance with 42 Pa.C.S. § 702(b). Thereafter, appellant petitioned our court for permission to take an immediate appeal from the lower court’s order in accordance with Pa.R.A.P. 1311, and we granted the petition by order dated July 9, 1981.

Section 106(c)(2) of the No-fault Act provides in pertinent part: “If survivor’s benefits have been paid to any survivor, an action for further survivor’s benefits by either the same or another claimant may be commenced not later than two years after the last payment of benefits.” In the instant case, appellant made a final payment to Blanche Guitón of $5,000.00 for survivor’s loss benefits in October of 1977, and Blanche Guitón commenced the instant action for work loss benefits on November 26, 1979 — more than two years later.

The lower court found that the limitation contained in section 106(c)(2) on actions for further survivor’s benefits applied only to actions for further survivor’s loss benefits and did not apply to subsequent actions for work loss benefits. The lower court found no limitation in the No-fault Act on actions for work loss benefits applicable here and, consequently, held that the six year limitation period applicable to general contract actions governed this action for work loss benefits.

The decision of the supreme court in Sachritz, supra, compels a different result. William Sachritz suffered injuries in an automobile accident on August 16, 1976 and died as a result of those injuries on September 5, 1976. His widow, Ann Sachritz, was paid funeral expense, survivor’s benefit, medical expense and work loss benefits for the time between her husband’s accident and his death; she received these payments on February 28, 1977. After we filed our opinion in Heffner v. Allstate Insurance Company, 265 Pa.Super. 181, 401 A.2d 1160 (1979), Ann Sachritz filed a claim for the post-mortem work loss benefits approved in Heffner. Her claim was denied by the insurer and she filed suit against Allstate on July 23, 1979. We ruled that the suit was barred by the two year statute of limitations found in the second sentence of section 106(c)(1) of the No-fault Act.

The supreme court affirmed. The court noted that the work loss benefits paid after a victim’s death are not survivor’s benefits meant to compensate certain persons for the loss they suffer by the insured’s death, but rather are “simply continuing work loss benefits, designed to compensate the decedent’s estate for the loss the insured himself suffered by having his earning power cut off by death ....” Sachritz, supra 500 Pa. at 168-69, 455 A.2d 101. Because some work loss benefits had been paid on February 28, 1977, any action for further work loss benefits had to be filed within two years of that date in order to be timely.

In the case sub judice Blanche Guitón received a payment for funeral expenses and ambulance expenses in August 1977, and received survivor’s loss benefits in October 1977. She now seeks post-mortem work loss benefits.

In Sachritz the court held “ ‘post-mortem’ [work loss] benefits are ... governed in no-fault by the limitations of Section 106(c)(1).” 500 Pa. at 170-71, 455 A.2d at 101.

Section 106(c)(1) states:

If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than surviv- or’s benefits, by either the same or another claimant^] may be commenced not later than two years after the last payment of benefits.

Unquestionably neither the funeral expenses nor the surviv- or’s loss benefits paid here arose otherwise than from death. There is, similarly, no allegation that the ten dollar “ambulance expense” arose otherwise than from death or was a medical expense as defined by the Act. Moreover, the complete absence of any expenses for treatment, emergency room care or other obvious medical services indicates that the ambulance expense arose out of James Guiton’s death. The relevant statute of limitations in this action is, therefore, found in the first sentence of section 106(c)(1).

In that sentence, it is provided that an action for benefits arising otherwise than from death “may be commenced not later than two years after the victim suffers the loss____” (Emphasis added.) “Victim” is defined in the Act as “an individual who suffers injury arising out of the maintenance or use of a motor vehicle.” “Injury” is defined as “accidentally sustained bodily harm to an individual and that individual’s illness, disease or death resulting therefrom.” “Loss,” in the Act, means “accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to allowable expense, work loss, replacement services loss, and survivor’s loss.” See 40 P.S. § 1009.103. In Myers v. USAA Casualty Insurance Company, 298 Pa.Super. 366, 373, 444 A.2d 1217, 1221 (1982) we held:

It is clear by reading the language of section 106(c) that the legislature did not intend the limitations period to begin to run on the date of the injury as appellee suggests.
Having decided that the limitations period is not triggered by the occurrence of the injury, the task remains to determine at what point the limitations period does begin to run.
We believe that “loss” as that term is defined in the No-Fault Act must be equated with the common law concept of breach of contract because until such breach occurs, the claimant does not know that he has incurred any economic detriment. Moreover, until a breach has occurred, no cause of action based on contract exists and, as we concluded in Bond [v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981)], to hold that the limitations period begins to run prior to the existence of a cause of action would be unjust and unnecessary.

We also note that: “The recovery of work loss benefits by survivors of deceased victims best fulfills the legislature’s express intention to provide ‘compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents’____” Allstate Insurance Company v. Heffner, 491 Pa. 447, 460, 421 A.2d 629, 636 (1980).

Instantly, the victim, James W. Guitón, died before any request for no-fault benefits was made of his insurer. It was, therefore, not possible for James W. Guitón to have personally suffered the loss under the circumstances of this case. As section 106(c)(1) makes no reference to the applicable time limitations for commencing an action (if no-fault benefits have not been paid for loss arising otherwise than from death) when that action is commenced by survivors of the victim, one might assume that such an omission would indicate that survivors are not permitted to pursue such an action, or that the applicable time limitations for such a suit are specified elsewhere; neither situation is the case, however, as those portions of the Pennsylvania Supreme Court opinions in Allstate Insurance Company v. Heffner, supra, and Sachritz v. Pennsylvania National Mutual Casualty Insurance Company, supra, quoted earlier in this opinion, indicate.

The survivors of James W. Guitón unquestionably do have the right to recover his work loss benefits in a timely commenced action (such timeliness to be determined under the standards set forth in section 106(c)(1)). Here, we must interpret the first sentence of section 106(c)(1) so as to permit the commencement of an action for post-mortem work loss benefits, when no-fault benefits have not previously been paid for loss arising otherwise than from death, not later than two years after the breach of the contract to pay a survivor of the deceased victim. If we were to hold otherwise there would be no statute of limitations in section 106(c)(1) applicable to this case that would comport with the definition of terms presented in the No-fault Act and with the Pennsylvania Supreme Court’s decisions as quoted herein. Based on the record before us, we cannot say when loss (breach of contract) occurred.

The order of the lower court denying appellant’s motion for judgment on the pleadings is affirmed and the case is remanded for further proceedings consistent with this opinion. We relinquish jurisdiction.

      . Act of July 19, 1974, P.L. 489, No. 176, §§ 101 et seq., 40 P.S. §§ 1009.101 et seq.

      . We agreed and affirmed in Guiton v. Pennsylvania National Mutual Casualty Co., 301 Pa.Super. 146, 447 A.2d 284 (1982).

      . "Medical and vocational rehabilitation services” means services necessary to reduce disability and to restore the physical, psychological, social and vocational functioning of a victim. Such services may include, but are not limited to, medical care, diagnostic and evaluation procedures, physical and occupational therapy, other necessary therapies, speech pathology and audiology, optometric services, nursing care under the supervision of a registered nurse, medical social services, vocational rehabilitation and training services, occupational licenses and tools, and transportation where necessary to secure medical and vocational rehabilitation services. A basic loss obligor is not obligated to provide basic loss benefits for allowable expense for medical and vocational rehabilitation services unless the facility in which or through which such services are provided has been accredited by the Department of Health, the equivalent governmental agency responsible for health programs, or the accrediting designee of such department or agency of the state in which such services are provided, as being in accordance with applicable requirements and regulations.
      40 P.S. § 1009.103.

      . We note that in no event may an action for no-fault benefits arising otherwise than from death be commenced later than four years after the accident when no such benefits have been previously paid. 40 P.S. 1009.106(c)(1).

      . The lower court, in response to the insurance company's motion for judgment on the pleadings, held that the applicable statute of limitations was the six year limitation for contract actions; we now know that this is wrong under Sachritz. There may well be a valid statute of limitations defense to this claim; however, that will depend on the date that loss occurred and, based on the pleadings, neither the lower court nor we can say when that was. The parties may decide to develop this issue further after remand.