author: CERCONE, Judge.

text:
    631 A.2d 176
    APPEAL of James Francis GANNON, Esquire, Exceptant (Two Cases). ESTATE OF Margaret Sevier MORAN, Deceased. ESTATE OF Margaret Sevier MORAN. Appeal of James Francis GANNON, Esquire and Regina C. Bauer, Executrix of the Estate of Harold J. Conner, Deceased.
    Superior Court of Pennsylvania.
    Argued March 31, 1993.
    Filed Aug. 2, 1993.
    Reargument Denied Oct. 6, 1993.

      Joseph J. Carlin, Huntingdon Valley, for appellant.
    Robert F. Blanck, Philadelphia, for Sevier, participating party.
    Arthur S. Klein, King of Prussia, for Reice, participating party.
    James J. Jandrisitz, Philadelphia, for Meyers, participating party.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   CERCONE, Judge.

This matter comprises two companion cases consisting of consolidated appeals taken by exceptant/appellant James Francis Gannon, Esquire from a decree entered by the Orphans’ Court on February 19, 1992 and an additional appeal taken by exeeptants/appellants James Gannon and Regina C. Bauer, from a decree entered by the Orphans’ Court on June 30,1992 confirming absolutely the Final Account and adjudication of February 24, 1992. For the reasons set forth below, we affirm the final decree confirming the account.

The factual and procedural history underlying the instant appeal is complex. Margaret Sevier Moran died testate on February 17, 1989. Her will, executed September 16, 1980, contained codicils dated November 13, 1980 and April 5, 1987. All were admitted to probate by the Orphans’ Court and Harold J. Conner, Esquire was appointed executor pursuant to the testatrix’ nomination.

Mrs. Moran, a widow on the date of her death, was survived by her only child, Margaret Sevier, identified in her mother’s testamentary writings as “Sister Margaret Celine Sevier, S.S.J.” The holographic April 5th codicil gives certain items of intangible personalty to Mrs. Moran’s trustee to manage and distribute for the benefit of the daughter. The codicil specifically states that the purpose of the testamentary trust thereby created is to provide Mrs. Moran’s daughter with financial resources in the event she should leave the sisterhood and return to secular life. Mrs. Moran also provided in the codicil that any remainder in the trust upon Ms. Sevier’s death was to be distributed to the beneficiaries named in the September 16, 1980 document.

A testamentary writing dated November 22, 1987 was discovered after the previous will and its codicils had been admitted to probate. Under the November 1987 document, Mrs. Moran: (1) revoked all prior wills and codicils; (2) left the residue of her estate in trust for the benefit of Ms. Sevier; and (3) created a power in Ms. Sevier to designate the recipients for the trust corpus upon her own demise. The November 1987 writing explicitly stated that the purpose of the trust thereby created was to provide support for Ms. Sevier should she return to secular life. This writing also nominated Mr. Conner as executor and trustee, and indicated Mrs. Moran’s wish that appellant Gannon would serve as successor personal representative if this should ever become necessary.

Seeking to have the November 22,1987 writing admitted for probate, Ms. Sevier filed a caveat with the Orphans’ Court from the Register of Wills’ probate decree. This action was contested by both Mr. Conner and by Frances Reice Meyers, the decedent’s niece and a beneficiary under the writings which the Register had already admitted to probate. On February 19, 1990, the first in what was to become a long series of meetings and hearings occurred before the Honorable Edmund S. Pawelec, Administrative Judge of the Philadelphia County Orphans’ Court Division. Prior to the February 19th meeting, counsel for the various beneficiaries had held lengthy discussions on certain heavily disputed issues concerning Mrs. Moran’s testamentary documents. In an effort to resolve these conflicts, and to conserve estate assets by settling questions of title, in late 1990 all of the ascertained beneficiaries, or their heirs-at-law, signified their willingness to enter into a family settlement agreement.

For reasons not clear in the certified record, certain pressing estate business remained unfinished. Consequently, Ms. Sevier filed a petition on October 19, 1990 to compel the filing of an account. Judge Pawelec ordered the executor to comply with this request, and a First and Final Account was filed. However, Ms. Sevier lodged several objections to the executor’s account. An Amended First and Final Account was duly filed on April 26, 1991. Unfortunately, the executor died on July 23 of that year leaving numerous estate matters unsettled. These questions were discussed at several meetings and hearings before Judge Pawelec, the auditing judge. The record indicates that it was understood among the parties in interest that counsel for Ms. Sevier, the principal residuary beneficiary and testatrix’ only surviving child, would handle all open matters if the family settlement agreement were to be approved.

The parties in interest ultimately reached an agreement providing, inter alia, that: 7.05% of Mrs. Moran’s estate should be paid to the Estate of Walter R. Reice; Frances Reice Meyers, decedent’s niece, should receive 8.33% of the total; decedent’s daughter, Ms. Sevier, should receive the remainder of the estate, outright and free of trust; and Ms. Sevier would withdraw her appeal concerning the grant of probate. The auditing judge thereafter appointed Charles A. Fitzpatrick, Esquire, as guardian ad litem to represent all minors having a possible interest in Mrs. Moran’s estate and as trustee ad litem for unborn and unascertained persons. The report eventually filed by Mr. Fitzpatrick recommended that the auditing judge approve the proposed agreement.

Judge Pawelec accepted this recommendation and ruled that the family settlement agreement calling for the termination of the trust should be approved, and that the Sevier Trust created by the April 5,1987 codicil should be terminated if no purpose of the testatrix would be served by requiring its continuance. A hearing was conducted on the question of Ms. Sevier’s vocational status. The auditing judge ultimately concluded that,- whatever her precise status under canon law at the time of her mother’s death, Ms. Sevier had definitely withdrawn from the Congregation of the Sisters of Saint Joseph and had returned to the secular world by the end of 1991. The auditing judge determined that the wishes of the testatrix would not be furthered by continuing the trust. He therefore approved the family settlement agreement and ordered distribution of the estate assets pursuant to its terms.

Shortly after Mr. Conner’s death, the testatrix’ designated successor personal representative, appellant Gannon, had presented a petition to the Register of Wills requesting appointment as administrator d.b.n.e.t.a. for the Estate of Moran. In his brief, Mr. Gannon alleges that the Register of Wills declined to issue letters of administration upon the oral instructions of Judge Pawelec. Mr. Gannon also avers that Judge Pawelec directed the Register of Wills to refuse appeal papers on the matter. The certified record shows that appellant Gannon pursued the issue by filing a formal petition with the Orphans’ Court seeking letters of administration.

According to Mr. Gannon, Judge Pawelec denied his petition for letters of administration d.b.n.c.t.a. on November 19,1991. The certified record clearly indicates that the converse is true: Judge Pawelec granted appellant Gannon’s request. See Orphans’ Court Decree of 11/19/91. However, this decree does contain a proviso directing the Register of Wills to act on the matter only after notice of the proposed appointment was given to counsel of record for Mrs. Moran’s beneficiaries. It appears that Mr. Gannon interpreted this notice requirement as an adverse determination since he filed exceptions to the decree. These exceptions were dismissed as moot by a decree docketed February 19, 1992.

The auditing judge subsequently acted on February 24, 1992 to confirm the First and Final Account previously filed by the deceased executor, Harold J. Conner. Exceptions to the adjudication confirming the audit were lodged on March 12,1992 by Mr. Gannon and by Regina C. Bauer, the executrix of Mr. Conner’s estate. On that same date, a praecipe was filed to place the exceptions to the February 24th decree on the argument list for April 15, 1992.

On March 18th of 1992, appellant Gannon lodged two notices of appeal with the Superior Court from the decree of February 19th dismissing his exceptions. For the purpose of maintaining the status quo and preserving the estate, Judge Pawelec subsequently entered various orders permitting certain of decedent’s assets to be used to satisfy pressing estate debts, such as the federal estate tax deficiency. On June 30, 1992, the exceptions filed by appellant and by Ms. Bauer to the February 24th decree were dismissed by a four judge en banc panel of the Orphans’ Court. The same en banc panel, with one member dissenting, confirmed absolutely the February 24th adjudication by Judge Pawelec. See Opinion sur Exceptions to Adjudication docketed June 30, 1992. Reconsideration was requested, but was denied on July 28, 1992 by an en banc panel of the Orphans’ Court. A notice of appeal to the Superior Court from the final confirmation of account was filed July 29, 1992 by James Francis Gannon and Regina C. Bauer.

Before addressing the claims of the parties, we must first determine whether we may exercise jurisdiction over all three appeals. See Estate of Meininger, 367 Pa.Super. 105, 107, 532 A.2d 475, 476 (1987) (Superior Court may raise propriety of jurisdiction sua sponte). It is axiomatic that an appeal will lie only from a final order unless otherwise permitted by statute or rule. Fried v. Fried, 509 Pa. 89, 93, 501 A.2d 211, 213 (1985). When the case concerns a decedent’s estate, finality is not conferred until confirmation of the Final Account. Estate of Meininger, 367 Pa.Super. at 107, 532 A.2d at 477. But see Pa.R.A.P., Rule 342, 42 Pa.C.S.A. (appeals as of right from orders of distribution upon certification by the Orphans’ Court). Although the appeals lodged with this court at 1146 and 1147 Philadelphia 1992 were docketed before the Orphans’ Court en banc had confirmed absolutely the First and Final Account, they were filed after confirmation of the account by the auditing judge. Since a final decree has actually been entered in the case, we shall treat all the appeals as perfected. See id., Rules 301 (Requisites for an Appealable Order), 905 (Filing of Notice of Appeal), and Notes thereto. In the interests of both justice and judicial economy, we shall “regard as done that which ought to have been done” procedurally and shall review the merits of all issues presented. See McCormick by McCormick v. Northeastern Bank, 522 Pa. 251, 254 n. 1, 561 A.2d 328, 330 n. 1 (1989).

As a second preliminary to resolution of the substantive claims raised by the appellants, we must determine whether the appellants possess standing to appeal from the Orphans’ Court decree. Both appellee and the en banc panel below have raised this question. Pennsylvania law is well settled that, merely by virtue of his or her official capacity, an executor cannot appeal from a decree of distribution entered by the court to which he or she must account so long as that decree does not surcharge the executor or make distribution of an amount larger than the total of the estate’s assets. In re Hand’s Estate, 288 Pa. 569, 570, 136 A. 864, 864 (1927); In re Wick’s Estate, 50 Pa.Super. 614 (1912). An executor who has not been surcharged has no standing to except to an adjudication of the auditing judge regarding payment of claims against an estate unless the executor is also a residuary beneficiary of the estate. In re Follansbee’s Estate, 161 Pa.Super. 31, 40, 53 A.2d 864, 869 (1947). No allegation has been raised that either appellant was surcharged or has a beneficial interest in Mrs. Moran’s estate. Furthermore, the certified record contains no indication that the Orphans’ Court has ordered a distribution of an amount larger than the total of the estate assets. We therefore conclude that neither Mr. Gannon’s capacity as unconfirmed contingent executor nor Ms. Bauer’s status as executor for Mr. Conner confers standing to pursue these appeals. However, this answer does not end our inquiry because Mr. Gannon also claims to act as unconfirmed contin- ■ gent trustee for the “Sevier Trust” discussed infra.

A trustee may only challenge a ruling of the Orphans’ Court if he or she is an “aggrieved party” within the meaning of Pennsylvania law. In re Musser’s Estate, 341 Pa. 1, 6, 17 A.2d 411, 414 (1941). A trustee’s interest in fees to be earned is not an interest protected by our law in an action against the beneficiaries of the trust. Id. at 6-7, 17 A.2d at 14. Thus, loss of future compensation upon termination of a trust provides no standing to the trustee. Id. Contrary to the assertions made to the Orphans’ Court by counsel for Mr. Gannon, in the absence of some special trust purpose, neither “the trustee’s abstract interest in seeing the testator’s intent carried out, nor his concrete interest in his fees” can confer the status of “aggrieved party.” Id. A fiduciary does have standing to prosecute an appeal from a decree construing the relative rights of beneficiaries if any are either unascertained or incompetent to act sui juris. Id. These appeals facially purport to determine the rights of residuary beneficiaries and remaindermen who are minors, or unascertained or unborn persons. We therefore conclude that Mr. Gannon, as unconfirmed contingent trustee, arguably has at least colorable standing in the instant case to pursue an appeal.

Consolidated Appeals filed at 1146 and 1146 Philadelphia 1992

These appeals raise two questions: (1) whether an auditing judge has jurisdiction to require that a contingent personal representative nominated by a testatrix must provide actual notice of his proposed appointment as successor executor and trustee to counsel of record for the beneficiaries of a decedent’s estate when the primary executor/trustee dies during estate administration; and (2) whether an auditing judge, after the death of the primary personal representative, but before appointment of his successor, has jurisdiction to enter orders directing partial distribution of estate assets to settle pressing estate debts. We must consider these claims in light of the standard governing review of an Orphans’ Court decree which requires us to accord the findings of an Orphans’ Court judge the same weight and effect as a jury verdict. In re Benson, 419 Pa.Super. 582, 585, 615 A.2d 792, 793 (1992). We will not disturb those findings absent manifest error. Id. As an appellate court we can modify an Orphans’ Court decree only if the findings upon which the decree rests are unsupported by competent or adequate evidence or if there has been an error of law, an abuse of discretion or a capricious disbelief of competent evidence. Id. “The test to be applied is not whether we, the reviewing court, would have reached the same result, but whether a judicial mind, after considering the evidence as a whole, could reasonably have reached the same conclusion.” In re Estate of Kessler, 419 Pa.Super. 142, 146, 615 A.2d 65, 67 (1992), allocatur denied, 533 Pa. 660, 625 A.2d 1193 (1993).

The first issue before us is Mr. Gannon’s contention that the auditing judge erred by requiring him to provide actual notice to counsel of record for Mrs. Moran’s beneficiaries concerning the pending appointment of a successor personal representative in the case. The grant of letters of administration to a successor personal representative is controlled by section 3159 of the Probate Estates and Fiduciaries Code (the “PEF Code”):

When an entire vacancy occurs in the office of personal representative before administration is completed, the register shall grant ..., in the case of testacy, letters de bonis non cum testamento annexo, to the person or persons entitled thereto.

20 Pa.C.S.A. § 3159 (emphasis added). This provision does not stand alone, however, but must be construed in pari materia with the definition of “persons entitled” as set forth in section 3155 of the PEF Code. See id., Official Comment— 1949.

Letters of administration shall be granted by the register, in such form as the case shall require, to one or more of those hereinafter mentioned and, except for good cause, in the following order:
(1) Those entitled to the residuary estate under the will.
(2) The surviving spouse.
(3) Those entitled under the intestate law as the register, in his discretion, shall judge will best administer the estate, giving preference, however, according to the sizes of the shares of those in this class.
(4) The principal creditors of the decedent at the time of his death.
(5) Other fit persons____

Id. § 3155(b). Nothing in these statutory provisions addresses the question of whether actual notice should be provided to a decedent’s beneficiaries. However, in December of 1989, this court handed down a decision on an estate matter intended to alert the Legislature, the Pennsylvania Supreme Court and all local rules committees to the inappropriate ease with which letters of administration were obtainable in Philadelphia County. See Brokans v. Melnick, 391 Pa.Super. 21, 30 n. 11, 569 A.2d 1373, 1377 n. 11 (1989), allocatur denied, 526 Pa. 626, 584 A.2d 310 (1990). Brokans explicitly criticized the Register of Wills of Philadelphia County for granting letters of administration to an attorney purporting to represent a decedent’s estate without requiring actual notice of the appointment to the decedent’s next of kin. Id. at 31, 569 A.3d at 1377-78. In light of Brokans, it is entirely understandable that both the Register of Wills and the Administrative Judge of the Orphans Court Division of Philadelphia County chose to pursue a cautious approach to Mr. Gannon’s appointment as administrator d.b.n.c.t.a. in the instant case.

Appellant Gannon cannot fairly be characterized as either a “complete stranger” or an “officious intermeddler,” as was the case with the attorney appointed to administer the estate in Brokans. We nevertheless find no basis in our law which supports Mr. Gannon’s unwarranted belief that he was imbued with an absolute and incontrovertible right to be automatically appointed administrator d.b.n.c.t.a. to the estate of Mrs. Moran. The record indicates that the Register of Wills and the auditing judge each possessed actual knowledge that this particular estate was the subject of a complex will contest and that Mrs. Moran’s beneficiaries had retained counsel who were of record in the case. Furthermore, although the beneficiaries disagreed on the question of asset distribution, all were deeply aggrieved that the administration of the estate had descended into chaos during the latter part of Mr. Conner’s tenure as executor. Under these circumstances, we decline to find either abuse of discretion or error of law in Judge Pawelec’s sensible requirement that appellant Gannon must provide Mrs. Moran’s beneficiaries with actual notice of his pending appointment as her successor personal representative.

As to Mr. Gannon’s claim that the auditing judge erred in directing a “partial distribution” of estate assets prior to the appointment of a successor personal representative, we find that the en banc panel of the Orphans’ Court properly resolved this question in a memorandum opinion, penned by the Honorable Joseph C. Bruno, which held as follows:

This matter is before the Court en banc upon exceptions filed by James Francis Gannon to a Decree by Pawelec, A.J., dated November 21, 1991, in which Janney Montgomery Scott, Inc., was directed to issue, from funds it holds in the name of the estate, a check in the amount of $7,263.28 payable to G.M.A.C. and deliver the check to Robert F. Blanck, Esquire, for transmittal. The purpose of the Decree was to enable the late mortgage payments to be made on a condominium, known as Unit 9B West, 210 Locust Street, and thereby prevent the mortgagee from bringing a foreclosure proceeding.
We are hard-pressed to understand Mr. Gannon’s reasons for filing exceptions to a Decree the effect of which is to preserve an asset of this estate.

Memorandum Opinion sur Exceptions to Decree of Pawelec, A.J., dated November 21, 1991 filed February 19, 1992.

After carefully scrutinizing the certified record as well as the parties’ briefs, we find ourselves unable to disagree with the sentiments expressed by decedent’s daughter, appellee Margaret Sevier, who complains that Mr. Gannon’s actions in refusing to provide notice to counsel of record in this case and in appealing an order calculated to preserve estate assets has unfairly and unjustifiably complicated an already complex matter. As Ms. Sevier correctly notes, appellant Gannon is a stakeholder and not a party in interest to this matter. Yet his appeals have successfully prevented the natural recipients of Mrs. Moran’s bounty from receiving the benefits the decedent ardently desired to confer. The beneficiaries are faced with a myriad of unresolved estate problems, including both unpaid taxes accruing interest and penalties and overpaid taxes for which refunds were never timely requested. In view of his avowed interest in effectuating the wishes of the decedent, we find it anomalous that appellant Gannon balked at complying with a simple and proper ruling by the Orphans’ Court that Mrs. Moran’s beneficiaries were entitled to actual notice that a new administrator was about to be appointed to handle the estate. However, we are completely mystified by appellant Gannon’s objection to the auditing judge’s timely intervention to prevent a costly mortgage foreclosure action.

Appeal at 2668 Philadelphia 1992

This appeal was jointly initiated by Mr. Gannon and by Regina C. Bauer in her capacity as executrix of the estate of Harold J. Conner, the deceased executor for Mrs. Moran’s estate. The appeal raises two issues: (1) whether the Orphans’ Court acted properly in approving the family settlement agreement; and (2) whether the auditing judge erred by requiring the executrix for Mrs. Moran’s deceased executor to perform certain actions on behalf of Mrs. Moran’s estate. We see no justification whatsoever for Ms. Bauer’s participation in this appeal as she is not an “aggrieved party” within the meaning of our law. See In re Musser’s Estate, supra. Ms. Bauer’s only duty to Mrs. Moran’s estate is to protect its assets pending delivery to the persons entitled to receive them. 20 Pa.C.S.A. § 3324. The statute compels her to obey the orders of the Orphans’ Court concerning distribution and transfers of estate assets and thus relieves her of liability for compliance with such orders. See id. However, in light of the fact that Mr. Gannon is a party to this appeal, we shall address the substantive claims raised in order to promote a speedy and just resolution of this litigation, insofar as that goal is possible at this stage of the proceedings.

The thrust of appellants’ first claim of error is that Pennsylvania law will not permit the Orphans’ Court to accept a family settlement agreement which effectively destroys a testamentary discretionary income trust. In Estate of Weeks, 485 Pa. 329, 332, 402 A.2d 657, 658 (1979), the Pennsylvania Supreme Court endorsed the view expressed by the Restatement (Second) of Trusts on the question of whether a trust may be terminated without the consent of the settlor. Although not explicitly cited by the Orphans’ Court, the rationale espoused in this case by both the auditing judge and by the en banc panel adheres to the following Restatement provisions:

§ 337. Consent of Beneficiaries
(1) Except as stated in Subsection (2), if all of the beneficiaries of a trust consent and none of them is under an incapacity, they can compel the termination of the trust.
(2) If the continuance of the trust is necessary to carry out a material purpose of the trust, the beneficiaries cannot compel its termination.

Restatement (Second) of Trusts § 337 (1959). Certain of the Comments following section 337 are particularly instructive in the instant case.

a. General rule. The beneficiaries of a trust, if all consent and none is under an incapacity, can compel its termination if the continuance of the trust is not necessary to carry out a material purpose of the trust, although the period fixed by the terms of the trust for its duration has not expired. On the other hand, even though they all consent, they cannot compel the termination of the trust if its continuance is necessary to carry out a material purpose of the trust.
b. Interest of trustee. If all of the beneficiaries of a trust wish to terminate it, the trust will not be continued merely in order to enable the trustee to obtain further compensation. The trustee as such is not a beneficiary of the trust....
e. Evidence as to the purposes of the trust. If the purposes for which the trust is created are expressed in the instrument by which the trust is created, a different purpose cannot be shown by extrinsic evidence. If, however, the purposes are not expressed in the instrument, extrinsic evidence of the surrounding circumstances to aid in the construction of the instrument is admissible in order to determine the purposes of the trust.
f Successive beneficiaries — Purposes accomplished. The mere fact that the settlor has created a trust for successive beneficiaries does not of itself indicate that it was a material purpose of the trust to deprive the beneficiaries of the management of the trust property for the period of the trust----

Id., comments a, b, e and f. Plainly, the problem here is to ascertain whether the Sevier Trust must continue in order to carry out a “material purpose of the trust” and then determine whether all beneficiaries have consented to the trust’s termination. We shall first address the question of whether continuance of the trust was necessary in order to carry out a material purpose of Mrs. Moran.

The Supreme Court of Pennsylvania has indicated that courts may not infer that it was a material purpose of the settlor to deprive the beneficiaries of the management of the trust property in the absence of evidence supporting such a conclusion. Estate of Weeks, 485 Pa. at 333, 402 A.2d at 658-59. Accord Restatement (Second) of Trusts § 337, comment f, supra. Moreover, our Supreme Court has ruled that termination of a testamentary trust is proper when it appears that the trustee has no function except merely to apply all the proceeds of the trust corpus to the personal use of the beneficiary as she might require it. In re Wood’s Estate, 261 Pa. 480, 482-83, 104 A. 673, 673 (1918). A spendthrift trust clearly cannot be terminated simply by obtaining the consent of the beneficiary whom the settlor thereby sought to protect. See Bosler’s Estate, 378 Pa. 333, 107 A.2d 443 (1954). However, continuance of a trust is not required for the mere payment of income where there is no limitation over either the income or the principal of the estate to any person, where there are no other estates or interests to be preserved, and where no spendthrift trust has been established. In re Wood’s Estate, 261 Pa. at 482-83, 104 A. at 673. The consent of the trustees is not required to terminate a trust. In re Musser’s Estate, 341 Pa. at 7, 17 A.2d at 414.

The testamentary document admitted to probate in the instant case contains the following pertinent provisions:

Sevier Trust — I give and bequeath all stocks, Bonds, certificates of deposit and all other intangible personal property to my daughter Sister Margaret Celine Sevier S.S.J. — My trustee shall hold, manage and invest the principal and any accumulation of income and in his discretion he may distrubet [sic] the income to Sr. Margaret Celine Sevier, S.S.J. The Trustee is authorized in his own discretion to invade principal of trust for her schooling travel and personal use.
The purpose of the trust is to provide her with resources in the event she should return to secular life style either voluntarily or involuntarily.
If the trust beneficiary dies the remaining funds shall pass to the beneficiaries named in the September 16, 1980 Codicil.[]
If my brother, Walter F. Reice, dies his share shall pass to my nephew, Donald F. Reice and his wife Joan Reice & my niece Agnes Reice Burgess BURGESS [sic] and my sister Sr. Marie Denise S.S.J.
s/Margaret Sevier Moran

Codicil dated April 5, 1987.

The polestar in construing every trust is the settlor’s intent. In re Benson, 419 Pa.Super. at 588-89, 615 A.2d at 794-95. It is well established that the writing itself must be considered the best and controlling evidence of that question. Id. The testamentary writing actually admitted to probate clearly expresses Mrs. Moran’s intent: the trustee is to husband the trust property and expend it, in his discretion, on behalf of the settlor’s daughter while she remains in the religious life; in the event of the daughter’s return to secular life, the trust property is to “provide her with resources.” See Codicil dated April 5, 1987, supra. Although remaindermen have been designated to receive any trust corpus which happens to be in existence at the time of Ms. Sevier’s demise, the settlor has provided no directive that the trustee is to conserve assets in favor of the remaindermen’s interest.

Notably absent from the codicil is any language which can be deemed to create either a spendthrift trust or a traditional support trust. Indeed, there is no limitation over either the income or the principal of the estate should Mrs. Moran’s daughter leave the Congregation of the Sisters of Saint Joseph. There is simply no indication that the settlor intended to deprive Ms. Sevier of management of the trust property should she leave the religious life. According to the clear and unambiguous language of the instrument creating the trust, once Mrs. Moran’s daughter has returned to secular life, the only purpose of the trust is to “provide resources,” ie., pay funds to the beneficiary.

Although Mr. Gannon vociferously protests the point, the certified record in this case unequivocally demonstrates that Ms. Sevier has returned to secular life. Under the explicit terms of the testamentary trust document admitted to probate, the trustee now has no function except to apply the proceeds of the trust on behalf of the settlor’s daughter. We therefore agree with the Orphans’ Court en banc that there is no material purpose of the settlor to be served by continuing this trust.

However, we must still resolve the question of whether all the beneficiaries of the trust consented to its termination. Mrs. Moran was preceded in death by her brother, Walter F. Reice. His interest, if any, in Mrs. Moran’s estate was represented by his heirs-at-law as defined by the PEF Code. At the time the family settlement agreement was executed, the vested remaindermen were all adults acting sui juris as were the heirs-at-law to Walter F. Reice. These remainder-men and possible beneficiaries all signed the family settlement agreement.

As we previously explained, Judge Pawelec appointed Charles Fitzpatrick as guardian ad litem to represent any minor who might have a possible interest in Mrs. Moran’s estate. Mr. Fitzpatrick was also appointed trustee ad litem to represent all unborn and unascertained persons having such an interest. The report filed by the Ad Litem on August 6, 1991 is a comprehensive document which thoughtfully addresses the problems raised by the instant case. Mr. Fitzpatrick concluded that under the totality of the circumstances presented by this case, the proposed family settlement agreement would not compromise the actual or potential interests of the minors or of any unborn or unascertained persons. The Ad Litem therefore recommended approval of the agreement.

Although appellants have specifically challenged the validity of the beneficiaries’ consent on the grounds that the Ad Litem never affixed his signature to the family settlement agreement, we do not view this fact as a fatal flaw. The auditing judge explicitly adopted the Ad Litem’s report and annexed it to the adjudication of February 24,1992 which was confirmed absolutely by the Orphans’ Court en banc. We find this sufficient to overcome any technical defect of form which might otherwise result from the Ad Litem’s failure to actually sign the agreement.

Appellants also contend that termination of the trust was improper because the minors and unascertained remaindermen were under an incapacity and therefore could not validly consent to the proposed family settlement agreement nor could the Ad Litem consent on their behalf. Although we agree with the legal premise underlying this conclusion, we cannot agree that it applies in this case because there were no remaindermen under an incapacity when the Orphans’ Court actually construed the testamentary trust document and accepted the family settlement agreement. At that time, the plain terms of the Sevier Trust created neither a class gift nor a remainder interest subject to a condition precedent. It therefore provided no possibility of unborn or unascertained remainder interests. By definition, all the remaindermen named in the testamentary writing creating the Sevier Trust are indefeasibly vested because they are certain to acquire the right to present possession at some time in the future (i.e., upon the demise of the lifetime beneficiary). See generally 2 Restatement of Property §§ 156-157 (1936) (cited with approval by Riverside Trust Co. v. Twitchell, 342 Pa. 558, 564, 20 A.2d 768, 771 (1941) and Overbrook Heights Building and Loan Association v. Wilson, 333 Pa. 449, 456, 5 A.2d 529, 531 (1939)). If an indefeasibly vested remainderman dies before his future interest can become a present possessory entitlement, that interest passes to his or her grantees, distributees or devisees and not by operation of the trust document which created the interest. Id. § 157(a), comment f. The logical conclusion from this fact is that an indefeasibly vested remainderman who is sui juris may enter into contracts which bind his or her successors in interest. Thus, our concern is solely with the legal capacity of the indefeasibly vested remaindermen, and not with the legal status of their grantees, distributees, devisees and heirs-at-law. In the instant case, as we have reiterated several times, the remainder-men are all adults acting sui juris.

However, even if this were not the case, appellants still have no grounds to prevent the termination of the Sevier trust. The Orphans’ Court is empowered to direct or permit a trustee to deviate from any trust term if, owing to circumstances not known to the settlor and not anticipated by him or her, compliance would defeat or substantially impair the accomplishment of the purposes of the trust. Restatement (Second) of Trusts § 167, supra. Accord In re Essig’s Estate, 167 Pa.Super. 66, 69 n. 3, 74 A.2d 787, 789 n. 3 (1950) (citing § 167 with approval); Lehigh University v. Hower, 159 Pa.Super. 84, 93, 46 A.2d 516, 521 (1946) (relying on § 167). More specifically, the court may direct or permit complete termination of a trust if, owing to circumstances not known and anticipated by the settlor, continuance of that trust would defeat or substantially impair the accomplishment of the purposes for which it was established. Id. § 336 (cited with approval by Estate of Day, 455 Pa. 610, 614, 317 A.2d 648, 650 (1974)). Section 336 applies even to situations where one or more of the beneficiaries is under an incapacity or does not consent to the termination of the trust. Id. comment c.

In Pennsylvania, the Legislature has considered the effect of trust termination on the interests of unascertained heirs.

§ 6102. Termination of trusts

(a) Failure of original purpose. — The court having jurisdiction of a trust heretofore or hereafter created, regardless of any spendthrift or similar provision therein, in its discretion may terminate such trust in whole or in part, or make an allowance from principal to one or more beneficiaries provided the court after hearing is satisfied that the original purpose of the conveyor cannot be carried out or is impractical of fulfillment and that the termination, partial termination, or allowance more nearly approximates the intention of the conveyor, and notice is given to all parties in interest or to their duly appointed fiduciaries.

20 Pa.C.S.A. § 6102(a). Consent of all parties in interest is not a pre-requisite to termination under this provision; the Orphans’ Court may terminate a trust upon notice and a hearing. See Estate of Day, 455 Pa. at 615, 317 A.2d at 651.

In the instant case, a guardian ad litem was appointed to represent the interests of beneficiaries under an incapacity and notice was unquestionably provided to all parties. Indeed, the auditing judge appointed the Ad Litem at Mr. Gannon’s request solely to determine whether termination of the trust was proper. Several hearings were held which touched on the question of whether continuance of the trust would defeat or substantially impair the purpose of the settlor in creating that trust.

In particular, this issue was debated before Judge Pawelec on September 9,1991 in the presence of the Ad Litem as well as counsel for all parties. At this time, counsel for appellee informed the court that his client was nearly destitute. Evidence was presented at this hearing that Ms. Sevier, a woman now in her early seventies, is attempting to support herself through a part-time job with the City of Philadelphia. However, because of the manner in which the City functions, she receives no income from this labor between the months of June and December. Owing to the bona fide family dispute and to Mr. Gannon’s appeals, the settlor’s daughter lives in near poverty, subject to the constant fear that her domicile will be lost to her through foreclosure. It is inconceivable that the testatrix intended this result for her daughter or even considered it to be a possibility in light of the extensive resources left for Ms. Sevier’s use.

Testimony was presented at the September 9th hearing that the deceased executor and his counsel had already collected in excess of $114,000 in fees and commissions from Mrs. Moran’s estate. By way of contrast, the primary estate beneficiary had received less than $35,000 during the entire four years since her mother’s death. After remarking that he suspected the true reason Mr. Gannon wished to continue the trust was to maintain payment of commission fees, the auditing judge took the matter under advisement. See Statement from September 1991 Audit List at 1-10. Judge Pawelec subsequently concluded that no purpose of the settlor could be served by continuing the trust. Opinion of February 24, 1992 at 9.

Mrs. Moran’s assets were substantial but not limitless. We cannot believe that she either anticipated or intended that the corpus of the Sevier Trust should be eaten up by lawyers’ fees, trustee’s commissions and other costs associated with the protracted litigation guaranteed to ensue should the beneficiaries under the multiple testamentary documents be prevented from amicably settling the will contest. Termination of the Sevier Trust is an essential condition for resolution of these bona fide disputes since resources are otherwise unavailable to satisfy the competing claims. The staggering expenses heretofore incurred, as well as the excessive delay in settling this estate, have already worked a substantial detriment to all of Mrs. Moran’s beneficiaries. It was the clear intent of the settlor that upon leaving the religious life, her daughter should enjoy the resources of the trust corpus untrammeled by restrictions. Contrary to appellants’ assertions, this is not a spendthrift trust. Continuation of the trust under these conditions does not promote the settlor’s expressed purpose; it actively frustrates her intent. Under the specific facts presented by this case, we agree with the auditing judge and with the Orphans’ Court en banc that termination of the Sevier Trust was proper.

The final claim raised by appellants has been phrased in the following manner:

May the Auditing Judge impose the obligation to receive, collect and distribute the assets of the Estate of Margaret Sevier Moran on the personal representative of the deceased executor’s estate, Regina C. Bauer, based on an Adjudication that does not determine the interest of the federal or state government for death taxes, nor the interest of the City of Philadelphia for predeath taxes nor the interest of the City, State or Federal governments for tax on fiduciary income received by the estate.

The auditing judge ruled in the affirmative, and we agree. The answer to this challenge has been provided by our Legislature and is set forth, in meticulous detail, in the PEF Code:

The personal representative of the estate of a deceased fiduciary or the guardian of an adjudged incompetent fiduciary by reason of his position shall not succeed to the administration of, or have the right to possess, any asset of an estate which was being administered by the deceased or incompetent fiduciary, except to protect it pending its delivery to the person entitled to it. The account of the deceased or incompetent fiduciary may be filed by the fiduciary of his estate and it shall be filed if the court shall so direct. The court may direct the fiduciary of a deceased or incompetent fiduciary to make the distribution and to make the transfers and assignments necessary to carry into effect a decree of distribution.

20 Pa.C.S.A. § 3324 (emphasis added). Since the law of Pennsylvania is so clear, we see no need to provide additional commentary to this statute.

As a final point, we must consider a generalized complaint made by appellee in her briefs concerning all the above appeals: that appellants possess no right to stall the settlement of this estate. We agree with appellee that litigants are not permitted to behave in a dilatory, obdurate or vexatious manner. See Pa.R.A.P., Rule 2744, 42 Pa.C.S.A. This court has previously explained that multiple appeals taken for the purpose of delay, which focus on issues that have already been resolved, or which present arguments running counter to well settled rules of law will be deemed “frivolous” and thus may provide a basis for the imposition of sanctions. See Murphy v. Murphy, 410 Pa.Super. 146, 158-59, 599 A.2d 647, 653-54 (1991), allocatur denied, 530 Pa. 633, 606 A.2d 902 (1992), cert. denied, — U.S.-, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992) (discussing remedies available to a victim of unduly protracted litigation). However, as appellee has only impliedly requested the courts to impose sanctions, resolution of this issue must await future events. We cannot address the question further at this time.

The final decree of the Orphans’ Court is affirmed.

      . The testatrix’ signature on the November 13, 1980 codicil was witnessed by appellant Regina C. Bauer, now personal representative for the deceased Mr. Conner, and by Joseph J. Carlin, present counsel for appellant Gannon. The holographic April 5, 1987 codicil was not witnessed.

      . Among other problems, the federal estate taxes, Pennsylvania inheritance tax, and Mrs. Moran’s final income taxes remained open and unpaid at the time of Mr. Conner’s demise.

      . These appeals were docketed at Nos. 1146 and 1147 Philadelphia 1992.

      . The appeal from the final adjudication was docketed at No. 2668 Philadelphia 1992 and has not been consolidated with Mr. Gannon’s appeals at 1146 and 1147 Philadelphia 1992.

      . See, e.g., Statement from May 1991 Audit List; Statement from September 1991 Audit List.

      . The settlor's purpose is discussed infra in conjunction with our resolution of the appeal raised at 2668 Philadelphia 1992. To repeat that material here is unnecessary. However, for the sake of factual clarification at this point, we note our agreement with the conclusion reached by both the auditing judge and the Orphans' Court en banc that no special trust purpose of the settlor remains to be carried out.

      . "The executor is merely a holder of the estate’s assets for the purposes of administration and distribution and is not adversely affected by a decision of the orphans' court directing the distribution of those assets.” Estate of Karahuta, 481 Pa. 512, 514, 393 A.2d 22, 23 (1978) (quoting In re Estate of Hain, 464 Pa. 349, 353, 346 A.2d 774, 776 (1975)).

      . This testamentary document names Walter F. Reice, Agnes Reice Burgess, Frances Reice Meyers, Sr. Marie Denise, S.S.J., and Sr. Margaret Celine Sevier as potential beneficiaries. Although Mrs. Moran’s husband was designated as residuary beneficiary, Mr. Moran predeceased his wife.

      . An unsigned codicil dated April 6, 1987 follows the April 5th codicil. The latter writing names Sr. Marie Denise, S.S.J., Donald F. Reice and his wife, Joan Reice as residuary beneficiaries upon the demise of Mrs. Moran's daughter. The April 6, 1987 document was not admitted to probate.

      . Judge Pawelec premised his factual finding in this matter upon his review of an Indult of Definitive Departure issued at the Vatican on November 14, 1991 by His Holiness Pope John Paul II. The indult was signed and accepted in the United States by Ms. Sevier on December 7, 1991. See Adjudication of Pawelec, A.J. filed February 24, 1992 at 10. The certified record contains a Latin copy of the indult, an English translation of it, and a copy of Ms. Sevier’s acceptance. We conclude that the certified record adequately supports Judge Pawelec’s factual finding.

      . The auditing judge noted that no personal representative had been appointed or qualified to act on behalf of the estate of Mr. Reice. See Adjudication of February 24, 1992 by Pawelec, J.

      . The certified record shows that the signatories to this agreement consisted of Margaret Sevier, Barbara Anderson, Joan Hadry, Elizabeth Gibson, Agnes Reice Burgess, Frances Reice Myers, Sr. Marie Denise, S.S.J., Donald F. Reice and Joan Reice.

      . Inter alia, the Ad Litem determined that under the will and codicils probated, his wards had only remote and contingent interests with little likelihood of vesting. Moreover, he determined that if the November 22, 1987 testamentary document were to be accepted for probate, his wards would have no interest in the matter whatsoever. See Ad Litem's Report docketed August 6, 1991 at 7. After thoroughly analyzing the probable factual scenarios and their possible results, the Ad Litem concluded that prolonging litigation would not serve the best interests of his wards. See id. at 11.
      We are cognizant of the fact that the November 22, 1987 writing which forms part of the basis of the Ad Litem’s recommendation is considered by the appellants to be a forgery. We are also aware that Ms. Sevier deeply resents this allegation. However, the question of whether this document actually constitutes Mrs. Moran’s last will and testament is not presently before us. Our concern is limited solely to whether the Ad Litem’s Report serves as a proper basis for the Orphans’ Court’s conclusions regarding termination of the trust. The Ad Litem properly considered the potential import of the November 22, 1987 writing as well as the probable impact of the litigation which would certainly ensue if appellee refused to withdraw her caveat to the decree granting probate to the prior writings. Thus we find neither error of law or abuse of discretion by the Orphans’ Court in relying upon the Ad Litem's Report. See In re Benson, supra.

      . For a specific discussion concerning the present identification of remaindermen even when the limitation is in the form of a class gift, see id. § 157(a), comment i.

      . The certified record contains "Appearance of Counsel” forms for this hearing bearing the signatures of record counsel for all parties, including the Ad Litem and a representative of the Commonwealth of Pennsylvania who appeared to claim unpaid inheritance taxes.

      . The record does not explicitly address the sums, if any, collected by Mr. Gannon.

      . A simple mathematical calculation discloses that although the estate of Mrs. Moran has provided the primary beneficiary with an income of only $8,750 per year, the attorneys have collected approximately $28,-500 per year while neglecting such obvious necessities as the timely filing of tax returns.

      . See also Annot., 29 A.L.R.3d § 8 (1970) (discussing general validity of family settlement agreements which effectively set aside or remove from probate otherwise valid wills thereby preventing the intended testamentary disposition and permitting the estate to pass under the laws of intestacy or by agreement of the parties).

      . For purposes of factual clarification, however, we note that the auditing judge did not leave open any questions concerning tax liability for the estate of Mrs. Moran. The tax issues were fully resolved by the final adjudication and impose no liability on the estate of the deceased executor.

      . No surcharge had been requested at the time these appeals were filed, nor had appellee sought other sanctions before the Orphans’ Court.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    631 A.2d 191
    Curtis OLSON and Donna Olson, His Wife and John Pfeiffer and Autumn Pfeiffer, His Wife, Appellants, v. John M. GRUTZA, T/A John M. Grutza Rentals, v. NATIONAL INDUSTRIAL CONTRACTORS, INC.; Harnischfeger Corporation; C.C. & F.F. Kessler, Inc. and Wheelabrator Frackville Energy Company, v. RUST INTERNATIONAL CORPORATION, Raymond Hayes, Edward S. Chandler and Robert McDonald, Appellees. Curtis OLSON and Donna Olson, His Wife and John Pfeiffer and Autumn Pfeiffer, His Wife, Appellees, v. John M. GRUTZA, T/A John M. Grutza Rentals, v. NATIONAL INDUSTRIAL CONTRACTORS, INC.; Harnischfeger Corporation; C.C. & F.F. Kessler, Inc. and Wheelabrator Frackville Energy Company, Rust International Corporation and Raymond Hayes, Edward S. Chandler and Robert McDonald. Appeal of HARNISCHFEGER CORPORATION.
    Superior Court of Pennsylvania.
    Argued May 13, 1993.
    Filed Aug. 31, 1993.

      James J. Riley, III, Pottsville, for Olson and Pfeiffer.
    James Joseph Bee, Philadelphia, for Harnischfeger.
    Chester C. Corse, Jr., Pottsville, for National Indus., appellee.
    Before BECK, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from the order entered in the Court of Common Pleas of Schuylkill County sustaining appellees’ preliminary objections to appellants’ request to amend a joinder complaint for claims of spoliation of evidence and for claims sounding in negligence. We are asked to determine whether the lower court committed an error of law or abused its discretion in sustaining appellees’ preliminary objections. We affirm.

The standard of review of an appellate court in passing on a challenge to sustaining of a preliminary objection in the nature of a demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985).

The record reveals the following: On June 19, 1989, plaintiffs, Curtis Olson and John Pfeiffer were injured during the course of employment when the cable of a crane snapped while Olson and Pfeiffer were being lifted by the crane in a man-cage. The man-cage fell to the ground approximately thirty feet resulting in their injuries.

On January 11, 1990, Olson and his wife, and Pfeiffer and his wife, filed their complaint against the lessor of the crane, John M. Grutza. On March 12, 1990, an amended complaint was filed against Grutza.

On August 8, 1990, Grutza filed a writ to join additional defendants, National Industrial Contractors, Inc. (“NIC”), the alleged employer of Olson and Pfeiffer, Century II, Inc. (hereinafter referred to as appellant, “Harnischfeger”), the alleged manufacturer of the crane, C.C. & F.F. Kessler, Inc. (“Kessler”), the alleged seller of the crane to Grutza, and Wheelabrator Frackville Energy Co. (“Wheelabrator”), the alleged owner of the construction site. On November 2, 1990, Grutza filed his complaint joining the said additional defendants.

On June 5, 1991, the lower court approved a stipulation of the parties dated May 28, 1991, whereby the time to join additional defendants was extended to August 4, 1991. On June 18,1991, appellant, Harnischfeger filed a praecipe to join six (6) new additional defendants, including Rust International Corporation and Raymond Hayes (hereinafter referred to as appellees). On September 25, 1991, Harnischfeger filed its joinder complaint against appellees and the other new additional defendants. In that joinder complaint, Harnischfeger incorporated as exhibits the following pleadings: the 01-son/Pfeiffer original complaint, the Olson/Pfeiffer amended complaint, Grutza’s joinder complaint and Harnischfeger’s answer to Grutza’s joinder complaint. In addition, Harnischfeger averred as follows:

10. At all times relevant hereto, Rust International Corporation was responsible for managing, overseeing, and/or otherwise supervising the construction activities at the site of the Wheelabrator Frackville Co-Generation Plant near Frackville, Pennsylvania, including, but not limited to, on-site safety and the erection and operation of construction equipment and related equipment at the aforementioned site, including the crane and manbasket alleged to have been involved in the incident giving rise to this action, which equipment may also have been owned, controlled and/or maintained by Rust International Corporation.
* * * * * *
13. Raymond Hayes is an individual who at all times relevant hereto was employed by Rust International Corporation and was engaged in activities at the site of the construction of the Wheelabrator Frackville Energy Plant near Frackville, Pennsylvania and relating to the incident which forms the basis of this action, on or about June 19, 1989.
* * * * * *
17. Rust International Corporation ... [and] Raymond Hayes ... acting individually and through their respective agents ... knowingly, intentionally and/or through their negligence, carelessness and/or recklessness, engaged in the spoliation of evidence, by inter alia, altering, losing and/or otherwise destroying evidence relevant to what they believed would be the subject of future litigation.
18. The aforementioned alteration, loss and/or destruction of evidence relevant to the subject litigation has severely prejudiced the ability of the litigants to defend against claims or present claims in this litigation.
19. If it is proved at the trial of this action that Plaintiffs sustained injuries and/or damages as alleged and for the reasons set forth in Plaintiffs’ Amended Complaint, which averments and allegations are incorporated herein by reference and which said averments and allegations as they be directed against [Harnischfeger] being herein expressly denied, then said incident and/or damages would have been caused, individually, jointly and/or severally, by the negligence, carelessness, and/or other liability producing conduct of the aforesaid Additional Defendants, as well as under such other theories as may be developed through discovery and/or at trial.
sfc sfc sj: * sfc *
21. If it is proved at the trial of this action that Rust International Corporation ... [and] Raymond Hayes ... acting individually and through their respective agents ... engaged in the spoliation of evidence as more fully described herein above, then Rust International Corporation ... [and] Raymond Hayes ... are directly liable, individually, jointly and/or severally to [Harnischfeger] for any and all damages sustained by [Harnischfeger] as a result thereof.
22. If it is proved at the trial of this action that Rust International Corporation ... [and] Raymond Hayes ... acting individually and through their respective agents ... engaged in the spoliation of evidence as more fully described herein above, then Rust International Corporation ... [and] Raymond Hayes ... are jointly and severally liable and/or liable over to [Harnischfeger] for all sums which [Harnischfeger] may be found to owe to any party in this litigation, plus interest, cost and attorneys’ fees incurred in the defense of this action.
WHEREFORE, [Harnischfeger] denies liability, demands judgment in its favor on all issues and demands that if Plaintiffs and any other parties to this action are found to be entitled to any sum, the liability of [Harnischfeger] being herein expressly denied, then Rust International Corporation ... [and] Raymond Hayes ... are solely liable to Plaintiffs or such other parties, and/or jointly and severally liable and/or liable over to [Harnischfeger] by means of contribution and/or indemnity for all sums, plus interest, costs and attorneys’ fees incurred in the defense of the subject action, and, further, if it is proved at the .trial of this action that Rust international Corporation ... [and] Raymond Hayes ... engaged in the spoliation of evidence as more fully described herein above, then Rust International Corporation ... [and] Raymond Hayes ... are directly liable, individually, jointly and/or severally to [Harnischfeger] for any and all damages sustained by [Harnischfeger] as a result thereof.

Harnischfeger’s Complaint Against Additional Defendants, pp. 3-7.

Appellees filed preliminary objections to Harnischfeger’s joinder complaint. The first preliminary objection was in the nature of a demurrer and contended that the joinder complaint did not set forth a recognizable cause of action against appellees. The second preliminary objection consisted of a motion to dismiss Harnischfeger’s claim that appellees engaged in the spoliation of evidence. Appellees maintained that the spoliation of evidence claim did not arise out of the series of transactions or occurrences upon which plaintiffs’ cause of action is based as required by Pa.R.Civ.P. 2252(a)(1). Thereafter, Harnischfeger filed a supplemental brief opposing the preliminary objections and sought leave of the court to amend its joinder complaint. Appellees filed a memorandum in opposition to the contemplated amendment.

In its order dated July 17, 1992, the lower court ruled upon appellees’ preliminary objections as follows:

1. The Preliminary Objection to the attempted joinder of a spoliation of evidence claim in the complaint of [Harnischfeger] is SUSTAINED and said claim is DISMISSED.
2. Additional Defendant [Harnischfeger] is granted leave to file an amended complaint within thirty (30) days hereof setting forth a claim for contribution and/or indemnity against the other additional defendants, but the objection against any attempted joinder by [Harnischfeger] of the other Additional Defendants on the basis that they are solely liable to the plaintiff is SUSTAINED.

Trial Court Order 7/17/92, p. 2 (emphasis added).

The lower court found that no Pennsylvania court has recognized a cause of action for spoliation of evidence. The court below determined that even if such a claim was recognized in Pennsylvania, that claim was improperly joined in this case because it did not arise out of the transaction or occurrence upon which plaintiffs’ cause of action is based. The lower court also concluded that a jury would be totally confused if a cause of action for spoliation of evidence was joined with plaintiffs’ underlying claims. Trial Court Opinion 7/20/92, pp. 5-7.

Further, the lower court found that Harnischfeger’s joinder complaint with its incorporation of plaintiffs’ amended complaint failed to set forth facts to assert a cause of action for negligence. The court determined that Harnischfeger’s praecipe to join additional defendants filed on June 18, 1991 tolled the statute of limitations but did not excuse Harnischfeger of the duty to plead properly its cause of action for negligence against appellees in its complaint. The court concluded as follows:

[I]f Harnischfeger was uncertain of the facts available to support its theories of liability against [appellees], it could have availed itself of the procedures permitting discovery in aid of preparation of a complaint. However, since it failed to do so and further failed to adequately plead a cause of action sounded in negligence, its attempts to do so through amendment now that the statute of limitations have [sic] expired is prohibited....

Trial Court 1925 Opinion 9/25/92, p. 9. On August 14, 1992, Harnischfeger and plaintiffs each filed a notice of appeal to our Court from the order dated July 17, 1992.

We are presented with two questions. First, whether the lower court committed an error of law in sustaining appellees’ preliminary objection to appellants’ cause of action for spoliation of evidence, thereby dismissing that claim. Second, whether the lower court abused its discretion in sustaining appellees’ preliminary objection to appellants’ request to amend the joinder complaint for the claim that appellees are solely liable to plaintiffs under a theory in negligence.

Addressing the first issue, we find that the court below properly sustained appellees’ preliminary objection to appellants’ claim of spoliation of evidence. Our research reveals that no Pennsylvania court has recognized a cause of action for spoliation of evidence. Appellants direct our Court’s attention to cases of other jurisdictions where courts have recognized a cause of action for spoliation of evidence and other related claims. Harnischfeger’s Brief, pp. 21-23. Appellants cite, Continental Insurance Co. v. Herman, 576 So.2d 313 (Fla.Dist.Ct.App.1991) wherein the Florida District Court of Appeals set forth the following elements of the tort of negligent spoliation of evidence:

(1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages.

Additionally, appellants assert that Pennsylvania courts have addressed spoliation of evidence under related theories. Harnischfeger’s Brief, pp. 24-25. Appellants refer to decisions where our courts have been guided by public policy concerns when a party to a lawsuit engages in the destruction of evidence. See Roselli v. General Electric Co., 410 Pa.Super. 223, 599 A.2d 685, 688 (1991), alloc. granted, 530 Pa. 645, 607 A.2d 255 (1992) (summary judgment entered for defendant because plaintiffs had “lost” glass fragments of the carafe which allegedly caused the injury, and thus defendant manufacturer was precluded from examining the product which was a necessary step in the preparation of its defense).

Without deciding whether spoliation of evidence is a viable cause of action in Pennsylvania, we find a claim of this nature fails to satisfy the joinder conditions of Pa.R.Civ.P. 2252. Pennsylvania Rule of Civil Procedure 2252(a) provides:

RULE 2252. RIGHT TO JOIN ADDITIONAL DEFENDANTS
(a) Except as provided by Rule 1706.1, any defendant or additional defendant may join as an additional defendant any person, whether or not a party to the action, who may be
(1) solely liable on the plaintiffs cause of action, or
(2) liable over to the joining party on the plaintiffs cause of action, or
(3) jointly or severally liable with the joining party on the plaintiffs cause of action, or
(4) liable to the joining party on any cause of action arising out of the transaction or occurrence of series of transactions or occurrences upon which the plaintiffs cause of action is based.

Our courts have construed the phrase “cause of action”, as used in Rule 2252, to mean that the “additional defendant’s liability [be] related to the original claim which plaintiff asserts against the original defendant ...” Somers v. Gross, 393 Pa.Super. 509, 514, 574 A.2d 1056, 1058 (1990), quoting, Incollingo v. Ewing, 444 Pa. 263, 290, 282 A.2d 206, 220 (1971). Rule 2252(a) does not permit joinder where the allegations of the original complaint and the allegations of the joinder complaint “relate to different harms to be proven with different evidence as to different occurrences happening at different times.” Somers, 393 Pa.Super. at 518, 574 A.2d at 1060-61.

In Somers, plaintiffs filed a professional negligence action against their accountants. The complaint alleged that the accountant defendants had given improper tax advice to plaintiffs and negligently miscalculated certain estimated income tax liabilities of plaintiffs to the Internal Revenue Service. The accountant defendants then filed a joinder complaint against plaintiffs’ attorney as an additional defendant. The joinder complaint alleged that plaintiffs had relied on the tax advice of their attorney, not of the accountant defendants, and thus, any loss plaintiffs incurred was the result of the attorney’s professional negligence. Id. at 511, 574 A.2d at 1057. In Somers, our Court was presented with the question of whether the joinder complaint complied with Rule 2252(a). In addressing that issue, we carefully evaluated cases where our courts found joinders proper, see, e.g., Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971), and in relationship to cases where our courts found joinders improper, see, e.g., Garrett Electronics Corp. v. Kampel Enterprises, Inc., 382 Pa.Super. 352, 555 A.2d 216 (1989); Austin J. Richards, Inc. v. McClafferty, 371 Pa.Super. 269, 538 A.2d 11 (1988), alloc. denied, 520 Pa. 570, 549 A.2d 131 (1988). In Somers, supra, we found that the allegation in the joinder complaint was the selfsame cause of action pleaded by plaintiffs, reasoning as follows:

There was one course of events leading to plaintiffs’ alleged harm. Evidence of that course of events will necessarily include both evidence of the accountants’ involvement and the attorney’s involvement in the handling of plaintiffs’ 1984 taxes and evidence as to which of these professionals plaintiffs relied upon in deciding how to estimate those taxes. Just as in Incollingo v. Ewing, where the central common question raised by the plaintiffs complaint and the joinder compliant was who was responsible for the decedent’s ingesting a drug which caused her death, here the central common question is who is responsible for giving the plaintiffs improper tax advice on which they relied and which caused their liability for penalties and fees.

Somers, 393 Pa.Super. at 514-15, 574 A.2d at 1058-59. Our Court concluded that the facts presented in Somers were clearly distinguishable from cases where joinders were found to be improper. In those cases, the plaintiffs action and the joinder complaint involved transactions which were entirely different in time and nature. Consequently, in Somers, we held that accountant defendants’ joinder complaint was permitted under Pa.R.Civ.P. 2252(a). Id. at 514-16, 574 A.2d at 1059-61.

Here, the allegation of destruetion/spoliation of evidence contained in the joinder complaint is different in time and nature than plaintiffs’ action averred in the complaint and the amended complaint against original defendant, John M. Grutza. In the complaints against Grutza, plaintiffs contend that their injuries were solely caused as a result of the negligence of Grutza. On the other hand, in the joinder complaint, Harnischfeger maintains that appellees engaged in the spoliation of evidence and are liable to Harnischfeger for any damages sustained by Harnischfeger as a result thereof. Unlike the facts in Somers, here, the joinder complaint under the theory of spoliation of evidence does not share a central common question with the original complaints. The joinder complaint under the theory of spoliation of evidence focuses on the alleged injuries sustained by Harnischfeger, not plaintiffs. The harm alleged by Harnischfeger occurred subsequent to the harm alleged by plaintiffs. The evidence needed to establish a cause of action for destruetion/spoliation of evidence is different from the evidence needed to establish negligence for plaintiffs’ injuries.

We are cognizant that Rule 2252(a) is to be broadly construed to effectuate its purpose of avoiding multiple lawsuits by settling in one action all claims arising out of transactions or occurrences which give rise to the plaintiffs complaint. Svetz v. Land Tool Co., 355 Pa.Super. 230, 513 A.2d 403 (1986), alloc. denied, 515 Pa. 584, 527 A.2d 544 (1987). However, “[j]oinder is permitted only as long as the additional defendant’s alleged liability is related to the claim which the plaintiff asserts against the original defendant.” Semango v. Pileggi, 363 Pa.Super. 423, 526 A.2d 417 (1987), appeal denied, 517 Pa. 624, 538 A.2d 877, quoting, DiLauro v. One Bala Avenue Associates, 357 Pa.Super. 209, 219, 515 A.2d 939, 945 (1986). See Brown Boveri Bldg. Automation Inc. v. Midland-Ross Corp., 333 Pa.Super. 261, 482 A.2d 557 (1984) (third-party complaint did not arise out of the same transaction as original complaint where claims alleged in each involved different legal questions, thus joinder improper); American Metal Fabricators Company v. Goldman, 227 Pa.Super. 284, 323 A.2d 891 (1974) (same). Because we find that Harnisehfeger’s claim of spoliation of evidence is unrelated to plaintiffs’ claim of negligence asserted against Grutza, the original defendant, we conclude that the lower court properly sustained appellees’ preliminary objection to appellants’ attempted joinder of the spoliation of evidence claim and dismissed this cause of action.

Addressing the second issue, we find that the lower court did not abuse its discretion in sustaining appellees’ preliminary objection to appellants’ request for leave to amend the joinder complaint to add language setting forth a claim that appellees are solely liable to plaintiffs under a negligence cause of action. The lower court determined that Harnischfeger’s joinder complaint failed to satisfy the pleading requirements of Pa.R.Civ.P. 2252(b)(2). Rule 2252(b)(2) provides, “[t]he complaint, in the manner and form required of the initial pleading of the plaintiff in the action, shall set forth the facts relied upon to establish the liability of the joined party and the relief demanded.” Pennsylvania courts have construed the language of Rule 2252(b)(2) as follows:

“Of the requirements relating to the complaint, the most important is that the facts asserted as a basis of the liability of the additional defendant be set forth, for it is the allegation of fact and not statements of legal conclusion which governs the determination whether the complaint alleges the requisite liability____
If the complaint fails to state facts sufficient to establish liability of the additional defendant, the joinder will be refused.” (footnotes omitted.) 2 Stan.Pa.Prac. 414-15 (1956 Ed.)
“While the ... [amended Rule 2252] enlarges the kinds of causes of action which may be joined, it certainly does not eliminate the necessity of pleading a valid cause of action.” American Metal Fabricators v. Goldman, 227 Pa.Super. 284, 289, 323 A.2d 891, 894 (1974).

General State Authority v. Sutter Corp., 44 Pa.Comwth. 156, 160-61, 403 A.2d 1022, 1025 (1979). “Rule [Pa.R.Civ.P.] 1019 governs the complaint of the plaintiff in an action and, through Rule 2252(b), applies also to complaints by the original defendant joining additional defendants, in making a determination of whether such a complaint sets forth sufficient material facts to constitute a viable cause of action.” Id. at 160, 403 A.2d at 1025 n. 2.

Upon close examination of Harnischfeger’s joinder complaint with its incorporation of plaintiffs’ amended complaint, we find that Harnischfeger failed to set forth facts to assert a cause of action in negligence against appellees. Thus, we conclude that appellants have failed to comply with Rule 2252(b)(2).

The court below determined that Harnischfeger’s praecipe to join additional defendants filed on June 18, 1991 tolled the statute of limitations. However, because the lower court found that Harnischfeger did not plead a cause of action for negligence against appellees in its joinder complaint, it concluded that the statute of limitations had expired with respect to that claim and denied Harnischfeger leave to amend its joinder complaint.

Appellants maintain an amendment of the joinder complaint should be permissible even though the statute of limitations has run. “It has long been held in this Commonwealth that parties are liberally granted leave to amend their pleadings.” Frey v. Pennsylvania Elec. Co., 414 Pa.Super. 535, 538, 607 A.2d 796, 797 (1992), appeal denied, 532 Pa. 645, 614 A.2d 1142 (1992); MacGregor v. Mediq Inc., 395 Pa.Super. 221, 227, 576 A.2d 1123, 1126 (1990); Biglan v. Biglan, 330 Pa.Super. 512, 519-20, 479 A.2d 1021, 1025 (1984). “Although the determination of whether to grant leave to amend is within the sound discretion of the trial court, leave should be granted at any stage of the proceedings, unless such amendment violates the law or unfairly prejudices the rights of the opposing party.” Frey, 414 Pa.Super. at 538, 607 A.2d at 797. Our court has applied the following analysis in determining whether leave to amend is warranted:

Although Rule 1033 of the Pennsylvania Rules of Civil Procedure generally permits the amendment of a complaint to include new causes of action, the Rule does not change the well-established principle that an amendment which introduces a new cause of action which is barred by the statute of limitations will not be allowed. This principle is based on the broad proposition that the courts, while disposed to be liberal in the allowance of amendments, and to construe the amendment rules liberally so as to prevent the defeat of justice through mere mistake, do not allow amendments which will prejudice the defendant by depriving him of some substantial right. The criterion for determining whether or not an amendment may be made after the statute of limitations has run is whether the defendant will be prejudiced by the amendment or whether the cause of action is changed thereby. The general principle that amendments which will deprive the opposite party of any valuable right [will not be allowed precludes the allowance of amendments which would deprive the defendant of his right to assert the bar of the statute of limitations, or otherwise deprive him of any substantial or valuable right.] Thus, after the statute of limitations has run, the plaintiff cannot, by an amendment, shift the ground of complaint set forth originally, or enlarge its surface by introducing a new and different cause of action, or cure a material, vital, or fatal defect in his complaint; an amendment to a complaint in an action instituted within the statutory period is not permissible after the expiration of that period where, in reality, the purpose is to introduce a new cause of action, (footnotes omitted).

Hodgen v. Summers, 382 Pa.Super. 348, 350-51, 555 A.2d 214, 215 (1989), alloc. denied, 522 Pa. 619, 563 A.2d 888 (1989), quoting, 5 Std.Pa.Prac. § 24:41 (emphasis added).

As concluded above, we find that the joinder complaint concerning the claim sounded in negligence fails to satisfy the pleading requirements of Pa.R.Civ.P. 2252(b)(2). By amending the joinder complaint, appellants are providing facts, which were initially absent in the joinder complaint, to formulate a cause of action in negligence. Essentially, appellants want leave to amend in order to cure a material defect in the joinder complaint. Because the statute of limitations has run, we are of the opinion that appellees would be prejudiced if leave were granted to allow appellants to amend the joinder complaint to assert a cause of action in negligence against appellees. Hence, we hold that the lower court did not abuse its discretion in sustaining appellees’ preliminary objection to appellants’ request for leave to amend the joinder complaint to add language setting forth a claim that appellees are solely liable to plaintiffs under a cause of action sounded in negligence.

Having scrutinized the issues presented, we hold that the lower court did not commit an error of law nor abuse its discretion in sustaining appellees’ preliminary objections. Accordingly, we affirm.

Appellees’ motion to quash is hereby denied. Order affirmed.

BECK, J., concurs in the result.

      . Harnischfeger Corporation is the latest of three names by which this particular party has been designated in the pleadings. The original joinder complaint named P & H Omega as an additional defendant. By stipulation of the parties, the name of that party was changed to Century II, Inc., and by subsequent stipulation has been again changed to the currently named party, Harnischfeger Corporation.

      . Appellees have filed a motion to quash the appeal from the appellants/plaintiffs contending that the plaintiffs lack standing. Herein, we deny that motion. See Pa.R.A.P. 501; Knudsen v. Delaware County Regional Water Quality Control Authority, 84 Pa.Commw. 36, 478 A.2d 533 (1984) (since statute of limitations had expired, plaintiffs were unable to amend their complaints to join school district as an additional defendant at the time trial court entered its orders sustaining school district’s preliminary objections and dismissing the third-party complaint against the school district; thus, plaintiffs had a direct interest in the court’s orders dismissing the third-party complaints against the school district and, thus were able to appeal such orders); see also Pa.R.Civ.P. 2255(d).

      . Moreover, until completion of the present case, we cannot decide whether Harnischfeger was damaged by the alleged conduct of appellees. The lower court might find Harnischfeger not liable for the injuries sustained by plaintiffs.

      . Appellants direct our attention to the following decisions where our courts granted leave to amend: Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974); General State Authority v. Sutter Corp., 44 Pa.Commw. 156, 403 A.2d 1022 (1979). We find the facts presented in those cases are distinguishable from the facts in the instant case. In Connor, supra, and Kuisis, supra, our supreme court found that the averments in the complaint adequately stated a cause of action and that the amended complaint did not change the original cause of action but merely amplified it. Here, however, we are not convinced that the joinder complaint states a cause of action in negligence. In Sutter, supra, our commonwealth court found that the complaint did not contain allegations of material facts to set forth a cause of action. The court, nevertheless, allowed leave to amend after concluding, "a review of the factual situation outlined by all the pleadings in this case prevents us from saying that as a matter of law it would be impossible for Sutter to plead a valid [cause of action].” Sutter, 44 Pa.Commw. at 161, 403 A.2d at 1025. Although we find an examination of pleadings outside the joinder complaint thwarts the purpose behind Pa.R.Civ.P. 1019(a) and Pa.R.Civ.P. 2252(b)(2), see Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 622 A.2d 355 (1993), nevertheless, upon reviewing the record, we conclude that the pleadings are devoid of material facts to set forth a cause of action against appellees in negligence.


author: KELLY, Judge:

text:
    631 A.2d 199
    GUISTRA DEVELOPMENT CO., INC., Appellant, v. Richard LEE and Mei Chow Lee, his Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued April 20, 1993.
    Filed Sept. 20, 1993.

      W. Boyd Hughes, Dunmore, for appellant.
    Francis Giordano, Philadelphia, for appellees.
    Before CIRILLO, KELLY and CERCONE, JJ.
   KELLY, Judge:

In this opinion, we are asked to determine whether the imposition of a mechanics’ lien against commercial property owned as tenants by the entireties may be defeated on preliminary objection where the mechanics’ lien arises from a construction contract which one spouse did not sign but allegedly knew of its existence and received its benefits. Under the circumstances of this case, we hold that preliminary objections may not be sustained where a married couple seeks to evade the imposition of a mechanics’ lien on property held as tenants by the entireties when one spouse fails to sign the contract if there are averments that the non-signing spouse was both aware of the existence of the contract and freely accepted the benefits accruing from the contract. Thus, we reverse the order entered on December 1,1992 sustaining the preliminary objections of appellees, Richard Lee and Mei Chow Lee, his wife, and dismissing appellant’s mechanics’ lien.

Appellant, Guistra Development Company, Incorporated, is a general contracting company which performed agreed-upon construction services on appellees’ real estate. The property was held by appellees as tenants by the entireties. The work performed thereon by appellant included: site preparation, demolition, excavation, foundation work, framing, electrical work and various other services necessary to the construction of a restaurant. It is alleged that there was an oral agreement between appellant and appellees regarding the performance of these construction services. On January 2, 1988, appellant began the work which had been discussed. Appellant and appellees reduced the terms of their oral agreement to a written contract on March 11, 1988. However, Richard Lee was the only owner-signator. During performance of the contract, “extras and change orders” (Appellant’s Brief at 6) were issued, necessitating the performance of additional work with additional materials, thereby increasing the amount owed by appellees to appellant. After the services were completed on September 22, 1988, appellant demanded that appellees provide payment for the additional costs in the amount of $160,022.65. Appellees refused to pay. On January 10, 1989, appellant filed a statement of mechanics’ lien claim against appellees’ property on which the construction services had been performed. On August 27, 1990 appellees filed a joint Chapter 11 Bankruptcy petition, which included as a jointly owned asset the real estate upon which appellant had performed the construction services. On December 6, 1990, appellant filed a Chapter 7 Liquidation Bankruptcy petition. Appellant’s mechanics’ lien claim was transferred to the Lee Bankruptcy proceeding as a property claim. Appellant was subsequently granted leave by the United States Bankruptcy Court of the Middle District of Pennsylvania to pursue its rights on a mechanics’ lien claim in the Court of Common Pleas, Monroe County. On January 9, 1992, appellees filed preliminary objections to the lien complaint stating, among other things, that George Clark, Esquire, was not named a party plaintiff and that the entire contract, referred to in the complaint, had not been attached. Appellant filed an amended complaint which corrected these oversights, and a brief in support of his reply to the preliminary objections of appellees. On December 1, 1992, the trial court sustained appellees’ preliminary objections. This timely appeal followed.

Appellant raises the following questions for our review:

I. WHETHER THE LOWER COURT HAD BEFORE IT INSUFFICIENT EVIDENCE OF RECORD TO DISPOSE OF APPELLANT’S MECHANICS’ LIEN COMPLIANT [sic] BY PRELIMINARY OBJECTION WHERE THE MECHANICS’ LIEN COMPLAINT ALLEGED A CONSTRUCTION CONTRACT BETWEEN APPELLANT AND APPELLEES, HUSBAND AND WIFE, WHERE THE REAL ESTATE WAS JOINTLY OWNED BY AP-PELLEES WHO EXECUTED A MORTGAGE TO FINANCE THE CONSTRUCTION CONTRACT BETWEEN APPELLANT AND APPELLEES, AND
' THAT THE CONTRACT WAS BREACHED BY AP-PELLEES, ALL OF WHICH ARE MATTERS OF FACT AND PROOF TO BE DEVELOPED AT TRIAL AND ARE NOT PROPER SUBJECT OF DISPOSAL AT PRELIMINARY OBJECTION STAGE?
II. WHETHER THE LOWER COURT ERRED IN SUMMARILY GRANTING APPELLEES’ PRELIMINARY OBJECTION TO APPELLANT’S PERFECTED MECHANICS’ LIEN COMPLAINT FILED AGAINST APPELLEES’ JOINTLY OWNED REAL ESTATE, WHERE APPELLANT ALLEGED IT AND THE APPELLEES ENTERED INTO AN ORAL CONTRACT FOR SERVICES AND MATERIALS, THE AGREEMENT WAS SUBSEQUENTLY REDUCED TO WRITING AND SIGNED BY ONE OF THE APPELLEES, THAT IMPROVEMENTS TO THE REAL ESTATE WERE FINANCED BY A CONSTRUCTION MORTGAGE ISSUED TO AP-PELLEES JOINTLY AS HUSBAND AND WIFE, THAT BOTH APPELLEES HAD EQUAL INPUT AND CONTROL OVER THE PROJECT AS CONSTRUCTED BY APPELLANT, THAT BOTH AP-PELLEES FILED A JOINT CHAPTER 11 BANKRUPTCY PETITION LISTING THE PROPERTY SUBJECT TO THE MECHANICS’ LIEN CLAIM AS A JOINTLY OWNED ASSET, AND WHERE THE NON-SIGNATORY APPELLEE FAILED TO REPUDIATE THE CONSTRUCTION CONTRACT?

Appellant’s Brief at 3-4.

In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, Witmer v. Exxon Corp., 260 Pa.Super. 537, 394 A.2d 1276 (1978), affirmed, 495 Pa. 540, 434 A.2d 1222 (1981), in order to evaluate the sufficiency of the facts averred. Mar Ray, Inc. v. Schroeder, 242 Pa.Super. 14, 363 A.2d 1136 (1976). See Lisk Plumbing and Heating Co., Inc. v. Schons, 283 Pa.Super. 344, 423 A.2d 1288 (1981) (agreements accompanying complaint are part of record).

Our inquiry goes only to determining the legal sufficiency of appellant’s complaint and we may only decide whether sufficient facts have been pleaded which would permit recovery if ultimately proven. Gordon v. Lancaster Osteopathic Hosp. Ass’n., 340 Pa.Super. 253, 489 A.2d 1364 (1985). We must be able to state with certainty that “upon the facts averred, the law will not permit recovery by the plaintiff.” Berger v. Ackerman, 293 Pa.Super. 457, 459, 439 A.2d 200, 201 (1981).

Fizz v. Kurtz, Dowd & Nuss, Inc., 360 Pa.Super. 151, 153, 519 A.2d 1037, 1038 (1987). See also Valley Forge Towers South Condominium v. Ron-Ike Foam Insulators, Inc., 393 Pa.Super. 339, 345, 574 A.2d 641, 644 (1990), affirmed, 529 Pa. 512, 605 A.2d 798 (1992).

For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); March v. Banus, 395 Pa. 629, 151 A.2d 612 (1959), and every inference fairly deducible from those facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Troop v. Franklin Savings Trust, 291 Pa. 18, 139 A. 492 (1927). The pleader’s conclusions or averments of law are not considered to be admitted as true by a demurrer. Savitz v. Weinstein, supra.

Morehall Contracting Co., Inc. v. Brittany Estates Limited Partnership, 396 Pa.Super. 265, 267, 578 A.2d 508, 509 (1990), allocatur denied, 527 Pa. 635, 592 A.2d 1303 (1991). Moreover, in reviewing the sustaining of a demurrer, we are not bound to defer to the trial court’s inferences nor to its conclusions of law. Valley Forge Towers South Condominium v. Ron-Ike Foam Insulators, Inc., supra; Neff v. Lasso, 382 Pa.Super. 487, 555 A.2d 1304 (1989). We will sustain the demurrer if, upon our review, the complaint fails to set forth a cause of action. Abadie v. Riddle Memorial Hospital, 404 Pa.Super. 8, 589 A.2d 1143 (1991). Finally, when the sustaining of preliminary objections results in the denial of a claim or the dismissal of a suit in a mechanics’ lien proceeding, preliminary objections should be sustained only where the case is clear and doubtless. Castle Pre-Cast Superior Walls of Delaware, Inc. v. Strauss-Hammer, 416 Pa.Super. 53, 56, 610 A.2d 503, 504 (1992); Valley Forge Towers South Condominium v. Ron-Ike Foam Insulators, Inc., supra.

Appellant asserts that the trial court erred when it sustained appellees’ preliminary objections to its perfected mechanics’ lien complaint. Appellant argues that there was insufficient evidence of record to dispose of its complaint by preliminary objection. After a careful review of the record, we conclude that this case is neither clear nor free from doubt, and therefore, we agree that the trial court improperly dismissed appellant’s complaint.

Well-settled law in Pennsylvania recognizes that:

Where real estate is ... held [as tenants by the entireties], neither spouse, acting independently, may create or terminate any legal interest in the land to the prejudice of the other spouse. Schweitzer v. Evans, 360 Pa. 552, 63 A.2d 39 [ (1949) ]. There is, however, with respect to entireties property, a well established presumption that during the term of the marriage, either spouse has the power to act for both, without specific authorization, so long as the benefits of such action inure to both. Schweitzer v. Evans, supra; Madden [et al.J v. Gosztonyi Savings and Trust Company, 331 Pa. 476, 200 A. 624 [ (1938) ], 117 A.L.R. 904. This presumption may be rebutted by evidence that the spouse acting was not in fact authorized by the other spouse.

J.R. Christ Construction Company v. Olevsky, 426 Pa. 343, 348-49, 232 A.2d 196, 199 (1967). However, “the presumption ... stands unless and until the other spouse establishes by a preponderance of the evidence that at the time the contract was made and the services were performed under it, the contracting spouse was, in fact, not authorized to act for and to bind [the other spouse] in contracting for improvement of the entireties property, the benefits of which ran in favor of both tenants by the entireties.” Id. Accord Miller v. Benjamin Coal Company, 425 Pa.Super. 316, 625 A.2d 66 (1993); Bradney v. Sakelson, 325 Pa.Super. 519, 473 A.2d 189 (1984). It is presumed that the construction contract is ratified when a non-contracting spouse accepts by affirmation, because the non-contracting spouse must have had knowledge not only that work was being done on the property, but also that a contract had been made by someone acting as if he was the [sole] owner. See Gingrich v. Dissinger, 184 Pa.Super. 307, 134 A.2d 362 (1957) (in mechanics’ lien action by contractor against husband and wife based upon oral contract with husband only, evidence was sufficient to justify jury’s finding that wife had knowledge of contract and failed to repudiate it; thus her interest in property will be subject to the lien).

It is not clear and doubtless from the record before us whether Mrs. Lee lacked knowledge of the construction work performed on her land. On the contrary, there are strong averments indicating she must have had notice. It is averred that she signed, as a joint owner, the construction mortgage with which she and her husband financed the bulk of the construction work. It is also averred that Mrs. Lee was present during and took part in all the preliminary arrangements and oral agreements with appellant-contractors. See National Supply and Construction Company v. Fitch, 55 Pa.Super. 212 (1913) (contract was in name of husband only, but wife was about premises from time to time, had notice that plaintiff-contractor was at work, and no notice of repudiation of contract was given to plaintiff, therefore inference of ratification on part of wife). It is also averred that appellant conducted all transactions with both appellees, and that all payments to appellant were made by both appellees. In addition, the property, as improved, was listed as a jointly-owned asset, valued at $1.1 million, when appellees filed their bankruptcy petition. One may infer that Mrs. Lee affirmed the written contract by acceptance of its benefits having failed to repudiate them. Gingrich v. Dissinger, supra; Hoffman v. Misericordia Hospital of Philadelphia, supra; Miller v. Benjamin Coal Co., supra. See also Constitution Bank v. Olson, 423 Pa.Super. 134, 148, 620 A.2d 1146, 1154 (1993) (Cirillo, J., dissenting) (tenancy by the entireties should not apply to prevent a creditor “from collecting on a debt to which it is legally entitled”); Howard Savings Bank v. Cohen, 414 Pa.Super. 555, 556-57, 607 A.2d 1077, 1083 (1992) (Cirillo, J., dissenting) (attributes of tenancy by entireties should not be allowed to serve an inequity).

Having examined the averments in the complaint, together with the documents and exhibits attached thereto, we cannot state with certainty that, upon the facts averred, the law will not permit the imposition of a mechanics’ lien upon appellees’ property. See Valley Forge Towers v. Ron-Ike Foam Insula tors, Inc., supra. We also cannot conclude that the case is clear and free from doubt. Castle Pre-Cast Superior Walls of Delaware, Inc. v. Strauss-Hammer, supra; Valley Forge Towers v. Ron-Ike, Foam Insulators, Inc., supra. There exist certain issues of fact which may not be resolved properly through preliminary objections in the nature of a demurrer and must be explored through evidentiary presentation.

Thus, we hold that the imposition of a mechanics’ lien on property held by a married couple as tenants by the entireties may not be defeated by the married couple’s preliminary objections asserting that one of the spouses failed to sign the construction contract, where the construction contractor has alleged that the non-signing spouse was fully aware of both the construction contract and all subject change orders pertaining to this contract, signed the construction mortgage, made payments to the construction contractor and enjoyed the benefits of the improvements made to the entireties property. Therefore, we reverse the order of the trial court which sustained appellees’ preliminary objections and dismissed appellant’s mechanics’ lien, and remand the case for proceedings in conformance with this opinion.

Order reversed; case remanded; jurisdiction relinquished.

      . Appellees filed preliminary objections in the nature of a motion to strike the lien. The trial court granted the motion. On appeal, this Court reversed the trial court order and remanded the case, holding: "(1) appellees have made the release of liens a part of their preliminary objections, (2) appellant does not question the existence and authenticity of the release of liens, and (3) the release of liens reveals on its face a basic issue of fact which must be the subject of evidentiary presentation. As a result, the trial court is precluded from granting the motion of appellees to strike the mechanics' lien without first proceeding to resolve the disputed factual issues.” Guistra Development Co., Inc. v. Lee (No. 2026 Philadelphia 1989, filed May 11, 1990, at 5) [402 Pa.Super. 661, 578 A.2d 43 (table)].

        . The written contract price plus addendum in consideration for the ' construction of a restaurant on appellees’ property was $295,952.00. The "extras and change orders” which accrued during the construction project, in the amount of $158,919.65, resulted in an increase in the total benefit to appellees from $295,952.00 to $454,871.65. Appellees paid appellant $294,849.00, leaving a balance due and owing of $160,-022.65.