author: CAVANAUGH, Judge:

text:
    447 A.2d 963
    COMMONWEALTH of Pennsylvania v. Steven WILLIAMS a/k/a Kenneth Coleman, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1980.
    Filed July 2, 1982.
    Petition for Allowance of Appeal Denied Oct. 8, 1982.

      Ronald F. O’Driscoll, Assistant Public Defender, Lansdale, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order of the Court of Common Pleas of Montgomery County denying appellant relief under the Post Conviction Hearing Act (PCHA).

Appellant pleaded to various counts of robbery, theft, weapons offenses and criminal conspiracy before the Honorable Benjamin Sciriea on July 16, 1975. Under a plea agreement, the Commonwealth nolle prossed charges of prohibited offensive weapons, receiving stolen property and other charges. Appellant was sentenced pursuant to the plea agreement to not less than five (5) nor more than fifteen (15) years imprisonment and ordered to pay the costs of prosecution. No motion to withdraw the guilty plea was filed and no direct appeal was taken.

Appellant filed a pro se PCHA petition claiming the ineffectiveness of counsel for failure to object to the imposition of costs. The lower court appointed counsel but denied the petition the following day. On appeal, this court found that though the petition was patently frivolous, the lower court should have afforded the appellant and his appointed counsel an opportunity to amend his uncounseled petition. Commonwealth v. Williams, 266 Pa.Super. 118, 403 A.2d 122 (1979). Appellant filed an amended petition which the lower court denied and this appeal followed.

Appellant contends that trial counsel was ineffective for failing to object to the defective guilty plea colloquy which failed to adequately inform the appellant of his right to a jury trial. Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). The Commonwealth contends that the guilty plea colloquy was adequate under the state of the law at the time of the appellant’s guilty plea. Commonwealth v. Brewer, 479 Pa. 558, 388 A.2d 1071 (1978). We agree with the appellant and accordingly, reverse the order of the court below.

The pertinent portion of the guilty plea colloquy of July 16, 1975 was as follows:

You understand that you have the right to trial by court or trial before a jury, and if you went to trial before a jury, you could assist your attorney in selecting that jury. Do you understand that? (N.T. p. 9).

The question of whether counsel was ineffective for failing to object to the defective guilty plea is controlled by Commonwealth v. Dello Buono, 271 Pa.Super. 572, 414 A.2d 631 (1979). In that case the defendant pled guilty to various charges in May, 1975. During the guilty plea colloquy the defendant was not advised that the verdict of the jury must be unanimous. This Court held that the guilty plea was therefore defective and counsel ineffective since the record established no reasonable basis for failing to challenge the defect.

Moreover, in Commonwealth v. Williams, supra, decided two years prior to appellant’s guilty plea, the Supreme Court held that the basic ingredients of a jury trial which are necessary to a knowing and intelligent waiver are the “requirements that the jury be chosen from the community (a jury of one’s peers), that the verdict be unanimous, and that the accused be allowed to participate.” See Pa.R. Crim.P. 319. Comment.; Pa.R.Crim.P. 1101.

In Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978), our Supreme Court stated that an inquiry into these elements of a jury trial was necessary to ensure a valid guilty plea colloquy. This case was decided after appellant’s guilty plea in 1977. However, in Commonwealth v. Ward, id., the court cited its decision in Commonwealth v. Williams, (citation omitted) in support of their position, stating:

Williams held that before a purported waiver of the right to trial by jury may be said to be valid, the record must show that the defendant understood that the jurors would be chosen from members of the community, that the accused would be able to participate in their selection, and that any verdict which the jury might render would have to be unanimous. Supra, 483 Pa. at 56, 394 A.2d at 536.

The clear implication of Commonwealth v. Ward, supra, is that the inquiry into these rights was necessary since the decision in Commonwealth v. Williams, supra.

Moreover, in Commonwealth v. Dello Buono, (citation omitted), the court, citing Commonwealth v. Ward, supra, found a 1975 guilty plea colloquy invalid for a similar defect. Commonwealth v. Dello Buono, supra, in effect, construes Commonwealth v. Ward, supra, retroactively. Commonwealth v. Troop, 295 Pa.Super. 485, 486-87, 441 A.2d 1336, 1337 (1982).

Thus contrary to the Commonwealth’s argument, the guilty plea colloquy was inadequate in 1975. “[A] colloquy must indicate, at a minimum, that the defendant knew the essential protections inherent in jury trial.. ..” Commonwealth v. Fortune, 289 Pa.Super. 278, 282-83, 433 A.2d 65, 67 (1981), quoting Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). Since the guilty plea colloquy failed to inform the appellant of his right to a jury trial and the record establishes no reasonable basis for trial counsel’s failure to challenge the inadequate colloquy, the order of the lower court is reversed and a new trial is ordered.

Reversed.

      . Act of January 25, 1966, P.L. 1580 (1965), § 1 et seq., 19 P.S. 1180-1 et seq., repealed § 2(a) [1397] of Act 1978, April 28, P.L. 202, No. 53, to take effect June 27, 1980, reinstated Act of June 26, 1981, No. 41 § 1, to June 27, 1982.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 3901.

      . 18 Pa.C.S.A. § 6101 et seq.

      . 18 Pa.C.S.A. § 903.

      . These charges arose out of the holdup of a hardware store in the English Village Shopping Center in North Wales on July 24, 1974.

      . Appellant also argues that he was not fully informed of the elements of the crimes with which he was charged. Because of our disposition of this case, we need not address that argument.

      . It is difficult to formulate a comprehensive list of questions a judge must ask of a defendant in determining whether the judge should accept the plea of guilty. Court decisions constantly add areas to be encompassed in determining whether the defendant understands the full impact and consequences of his plea, but is nevertheless willing to enter that plea. However, at a minimum the judge should ask questions to elicit the following information:
      (1) Does the defendant understand the nature of the charges to which he is pleading guilty?
      (2) Is there a factual basis for the plea?
      (3) Does the defendant understand that he has the right to trial by jury?
      (4) Does the defendant understand that he is presumed innocent until he is found guilty?
      (5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
      (6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?
      Inquiry into the above six areas is mandatory during a guilty plea colloquy, under Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977), and Commonwealth v. Dilbeck, 466 Pa. 543, 353 A.2d 824 (1976).


source: Caselaw Access Project

author: WICKERSHAM, Judge: BECK, Judge, POPOVICH, Judge,

license: Public Domain

text:
    447 A.2d 965
    Patricia A. HUMMEL, Appellant, v. James C. SMITH.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1981.
    Filed July 2, 1982.

      David J. Brightbill, District Attorney, Lebanon, for appellant.
    Kenneth Sandoe, Myerstown, for appellee.

      Before WICKERSHAM, BECK and POPOVICH, JJ.
   WICKERSHAM, Judge:

On October 8, 1980 Patricia A. Hummel filed an action in the Court of Common Pleas of Lebanon County against James C. Smith, alleging that they were the parents of Jason Michael Hummel, age six, born July 4, 1974, which child was born out of wedlock at the Good Samaritan Hospital in Lebanon. Patricia alleged also that James C. Smith had broken off the relationship between them when she was five months pregnant with Jason. She alleged further that she had received support in March of 1980 when Smith gave $30.00 toward the purchase of a bike for Jason and finally she alleged he had also given her $3.00 for Jason in July of 1980 on his birthday. She sought support for the child.

James C. Smith filed an answer in which he denied paternity. In new matter, he alleged that the action was barred by the statute of limitations. Thereafter, James C. Smith, defendant, filed a motion for judgment on the pleadings pursuant to Pa.R.C.P. No. 1034.

At the time Jason was born, on July 4, 1974, the then appropriate procedure was to file a criminal action under and pursuant to the Act of 1972. This act provided in part:

§ 4323. Neglect to support bastard
(a) Offense defined.—A person is guilty of a misdemeanor of the third degree if he, being a parent, willfully neglects or refuses to contribute reasonably to the support and maintenance of a child born out of lawful wedlock, whether within or without this Commonwealth.
(b) Limitation of action.—All prosecutions under this section must be brought within two years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child, or shall have acknowledged in writing his paternity, in which case a prosecution may be brought at any time within two years of any such contribution or acknowledgment by the reputed father.

18 Pa.C.S. § 4323.

The criminal statute was repealed by the Act of April 28, 1978, P.L. 106, No. 46, § 3 and replaced by section 6701 et seq. of Title 42, Judiciary and Judicial Procedure, of the Pennsylvania Consolidated Statutes, enacted by the Act of July 9, 1976, P.L. 586, No. 142, generally effective June 27, 1978.

When Patricia A. Hummel filed her complaint for support on October 8, 1980 Jason Michael Hummel was more than six years of age and the appropriate procedure for determination of paternity was the procedure set forth in 42 Pa.C.S. § 6701 et seq. The new statute of limitations embodied in 42 Pa.C.S. § 6704(e) provides as follows:

(e) Limitation of actions.—All actions to establish the paternity of a child born out of wedlock brought under this section must be commenced within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action may be commenced at any time within two years of any such contribution or acknowledgement by the reputed father.

By order of court dated February 9, 1981, the Honorable G. Thomas Gates, President Judge of Lebanon County, granted defendant’s motion and directed the clerk of court to enter judgment in favor of defendant, James C. Smith, and against plaintiff, Patricia A. Hummel. This order was issued without having granted a hearing of any nature to the plaintiff. We reverse and remand.

President Judge Gates decided this case before this court announced its decision in Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982) (Dissenting Opinion by Wickersham, J.). In Williams this court held that failure to file an action under the now repealed criminal statute, 18 Pa. C.S. § 4823, does not preclude filing a complaint under 42 Pa.C.S. § 6701 et seq. Because the Williams court decided that the new statute created an independent remedy with a six year statute of limitation it is of no significance that Patricia A. Hummel did not file a criminal action under the repealed law.

Yet Hummel’s complaint was filed more than six years after the birth of her child and even under the new statute of limitation her complaint would be categorically barred but for her allegation that she received contributions towards the child’s support within two years of the date of the filing of her civil complaint. This allegation triggers application of the provisions of 42 Pa.C.S. § 6704(e) which states “an action may be commenced at any time within two years of any such contribution or acknowledgment by the reputed father.”

Again after Judge Gates heard this case we handed down the case of Jordan v. Gore, 288 Pa.Super. 86, 431 A.2d 300 (1981), which involved similar circumstances. Appellant, Merlene Jordan, sought support for a child born to her on March 18, 1967 and instituted a criminal action against appellee, Joseph Gore, charging him with failure to support a bastard child. A trial on the charge was scheduled February 15, 1968, and a jury empaneled; however, the criminal charge was dismissed as appellant did not appear. More than ten years later, on August 15,1978, appellant instituted a civil action against appellee for support of the same child, alleging, inter alia, contributions by the appellee to the child's support within the two years immediately preceding the commencement of the action. The lower court granted appellee’s petition to dismiss, deciding that appellant’s civil action created a situation of double jeopardy for the appellee. We held that the dismissal of the criminal action had no bearing on the subsequent civil proceeding and provided no basis for the appellee’s attempt to avoid civil liability. We concluded:

Finally, we cannot affirm the lower court’s dismissal of this action based upon Appellee’s citation of part of the support statute which states that such actions may only be brought within six years of the birth of the child for whom support is sought. The remainder of that statute further permits such suits to be brought‘. . , at any time within two years of any such contribution [of support to the child] or acknowledgment [of paternity] by the reputed father.’ As noted earlier, the Appellant’s Petition for Support alleged contributions by the Appellee to the child’s support within a two year period immediately preceding the institution of her action. Thus, the dismissal of her Petition, without any examination of the evidence, on the specific basis apparently argued by Appellee in his memorandum, was not correct.

Id., 288 Pa.Superior Ct. at 92-93, 431 A.2d at 303.

Therefore, Patricia A. Hummel should be allowed to prove her allegations of contribution. In Atkins v. Singleton, 282 Pa.Super. 390, 422 A.2d 1347 (1980) (opinion by Spaeth, J.), we said that the Commonwealth bears the burden of proving that the prosecution is within the statute of limitations. We pointed out, accordingly, that the Commonwealth (here Patricia A. Hummel) bore the burden of proving the alleged father had made some contribution to the child’s support within two years of the complaint. We said:

However, while we reject appellant’s argument concerning the necessity of evidence of a pattern of payments, we are persuaded that he is correct in maintaining that where only a single payment or contribution has been made, the evidence must show that it was made in circumstances from which it may reasonably be inferred that in making it, the father was recognizing the child as his own.
Section 4323(b) provides but two exceptions to the limitation period of two years from the birth of the child. These are either where the alleged father has ‘voluntarily contributed to the support of the child,’ or where he has ‘acknowledged in writing his paternity.’ Thus, voluntary contribution and acknowledgment of paternity are assimilated to each other. The plain implication is that the legislature regarded the one as essentially the same as the other, and thus provided that proof of either would have the same effect of extending the period of limitations. It follows that if the evidence of the circumstances surrounding a voluntary contribution is insufficient to support a finding that the contribution amounted to an acknowledgment of paternity, it may not be held that the contribution extended the period of limitations. Thus, in Commonwealth v. Young [288 Pa.Super. 588, 419 A.2d 57], supra, the evidence of the circumstances surrounding the voluntary contribution of twenty dollars was held to have extended the period of limitations because it was sufficient to support a finding that the contribution amounted to an acknowledgment of paternity; the only reason the mother asked for the money, and the only reason the father paid it, was for the support of the child. See Commonwealth v. Teeter, [163 Pa.Super. 211, 60 A.2d 416] supra (letters of father indicated that payments were for child support). Similarly, in Commonwealth v. Boyer, supra [168 Pa.Super. 16, 76 A.2d 230], the evidence of the circumstances of the defendant’s visit to the hospital and his payment there to the mother was sufficient to support the finding that the defendant was acting in compliance with a parental obligation and therefore was acknowledging paternity.

Id., 282 Pa.Superior Ct. at 395-96, 422 A.2d at 1349-50.

Instantly, no hearing has been held in order to examine the evidence of Patricia A. Hummel as to the circumstances surrounding the two payments she alleges were made in 1980 towards the support of her child. Evidence of a single contribution of $10.00 has been held sufficient by cases interpreting the criminal statute of limitation. Commonwealth v. Teeter, 163 Pa.Super. 211, 60 A.2d 416 (1948). The evidence must show that the payments alleged by Patricia A. Hummel were made in circumstances from which it may reasonably be inferred that in making them, the father was recognizing the child as his own. Under the present posture of the record, Patricia A. Hummel has not yet had her day in court on that issue and we remand to give her such opportunity to prove her case.

Reversed and remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

BECK, J., files a concurring opinion.

POPOVICH, J., files a concurring statement.

BECK, Judge,

concurring:

I concur in the majority’s holding that the failure of Patricia A. Hummel to file an action under the now repealed criminal statute, Section 4323 of the Crimes Code, 18 Pa.C.S. § 4323, does not preclude her filing a civil complaint pursuant to Sections 6701-13 of the Judicial Code, 42 Pa.C.S. §§ 6701-13. Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982).

However, careful consideration of the Equal Protection Clause of the United States Constitution, as well as the Pa.Const. art. I, § 26, compels me to adopt the position suggested by Justice Sandra Day O’Connor in Mills v. Habluetzel, - U.S. -, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982) (O’Connor, J., concurring, with three justices joining the entire concurrence and with Powell, J., joining all but the last paragraph of the concurrence and concurring separately) and espoused by Judges Brosky and Popovich in Wolfe (reiterated by Judge Popovich in the instant case), that where a paternity suit stems from a support action on behalf of an illegitimate child, the paternity suit may not be barred during the child’s minority by a statute of limitations.

In paternity suits the court must reconcile three distinct, and often competing, interests—the interests of the illegitimate child, the interests of the alleged father, and the interests of the state.

The private interests implicated here are substantial. Apart from the putative father’s pecuniary interest in avoiding a substantial support obligation and liberty interest threatened by the possible sanctions for noncompliance, at issue is the creation of a parent-child relationship. This Court frequently has stressed the importance of familial bonds, whether or not legitimized by marriage, and accorded them constitutional protection. See Stanley v. Illinois, 405 U.S. 645, 651-52 [92 S.Ct., 1208, 1212-13, 31 L.Ed.2d 551] . . . (1972) .... Through the judicial process, the State properly endeavors to identify the father of a child born out of wedlock and to make him responsible for the child’s maintenance. Obviously, both the child and the defendant in a paternity action have a compelling interest in the accuracy of such a determination.
The State admittedly has a legitimate interest in the welfare of a child born out of wedlock who is receiving public assistance, as well as in securing support for the child from those legally responsible. In addition, it shares the interest of the child and the defendant in an accurate and just determination of paternity ....

Little v. Streater, 452 U.S. 1, 14, 101 S.Ct. 2202, 2209, 68 L.Ed.2d 627, 637 (1981) (unanimous decision) (footnote deleted).

Historically, a statute of limitations has been invoked in paternity suits to promote “an accurate and just determination of paternity,” id., by “preventing the prosecution of stale and fraudulent claims . ...” Habluetzel at -, 102 S.Ct. at 1556, 71 L.Ed.2d at 780 (O’Connor, J., concurring). Consequently, the arguments favoring a statute of limitations have been that with the passage of time evidence either becomes unreliable as witnesses’ memories fade or becomes unavailable as witnesses move to foreign jurisdictions and photographs or documents are misplaced or destroyed. Id. at - n.9, 102 S.Ct. at 1556 n.9, 71 L.Ed.2d at 779 n.9.

But as the United States Supreme Court observed in Streater, the strength of these arguments has been dramatically attenuated by recent technological advances in ascertaining parentage through comparisons of gene frequencies in blood group tests.

The ability of blood grouping tests to exonerate innocent putative fathers was confirmed by a 1976 report developed jointly by the American Bar Association and the American Medical Association. Miale, Jennings, Rettberg, Sell & Krause, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247 (1976). The joint report recommended the use of seven blood test ‘systems’—ABO, Rh, MNS, Kell [K, k], Duffy [Fya, Fyb], Kidd [Jka, Jkb], and HLA [Human Leucocyte Antigen]—when investigating questions of paternity. Id. at 257-58. These systems were found to be ‘reasonable’ in cost and to provide a 91% cumulative probability of negating paternity for erroneously accused Negro men and 93% for white men. Id. at 254, 257-58.
. . . The importance of that scientific evidence is heightened because ‘[t]here are seldom accurate or reliable eye witnesses since the sexual activities usually take place in intimate and private surroundings, and the self-serving testimony of a party is of questionable reliability .. .. ’
. . . [B]ecause of its recognized capacity to definitively exclude a high percentage of putative fathers, the availability of scientific blood test evidence clearly [is] a valuable procedural safeguard .... Unlike other evidence that may be susceptible to varying interpretation or disparagement, blood test results, if obtained under proper conditions by qualified experts, are difficult to refute

Id. at 633-37 (footnotes deleted) (citations omitted).,

Pennsylvania has long accepted the utility and accuracy of blood group tests as a means of establishing non-paternity.

[T]he first of the many thousands of reported cases in America on this subject (according to 163 A.L.R. 940) is Commonwealth v. Zammarelli, 17 Pa.D. & C. 229 (1931), in which the late Judge Morrow, of Fayette County, granted the defendant a new trial in a bastardy case because the uncontradicted evidence of a medical expert called by the defendant was that blood tests showed the defendant could not have been the father of the child.

Commonwealth v. Coyle, 190 Pa.Super.Ct. 509, 512, 154 A.2d 412, 413 (1959), allocatur refused, November 24, 1959; Commonwealth v. Gromo, 190 Pa.Super.Ct. 519, 154 A.2d 417 (1959) (validity of A-B-O, M-N, Rh-Hr blood tests).

Modern Pennsylvania paternity suits are governed by the Uniform Act on Blood Tests to Determine Paternity (“Act”), 42 Pa.C.S. §§ 6131-37, which was enacted “in the belief that such [blood] tests, which make possible a scientifically reliable determination excluding paternity, may be helpful in those actions ‘in which paternity ... is a relevant fact . . .’” Adoption of Young, 469 Pa. 141, 147, 364 A.2d 1307, 1310 (1976) (footnote deleted). Pursuant to Section 6136 of the Act,

[i]f the court finds that the conclusions of all the experts as disclosed by the evidence based upon the [blood] tests are that the alleged father is not the father of the child, the question of paternity, parentage or identity of a child shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence.

Nevertheless, Section 6704(e) [“Limitation of actions”] of the Judicial Code, 42 Pa.C.S. § 6704(e), as construed by the majority, ignores the heightened predictability of current blood testing and fosters disparate treatment of illegitimate and legitimate children whereby an illegitimate child’s right to receive support from his natural father may be foreclosed by (1) the failure to institute a paternity suit on the child’s behalf within six years of the child’s birth, (2) the failure of the father thereafter to acknowledge (in writing) the child or to contribute to the child’s support (although the father’s inaction may have resulted from the mother’s failure to notify the father of his parenthood), and (3) the failure to bring a paternity suit on the child’s behalf within two years of a written acknowledgement or support contribution from the father. Thus, while the child may be too young to understand his status and potential rights as an illegitimate, the child’s claim to support from his natural father may be defeated by inaction which the child can neither protest nor influence.

As Judge Brosky stated in his Wolfe concurrence,

[t]here can be no doubt that both the mother and father of a child born out of wedlock have the duty to support such child. Commonwealth v. Rebovich, 267 Pa.Super.Ct. 254, 406 A.2d 791 (1979). To subject a child born out of wedlock to a limitation period, however reasonable, is to limit that child’s unqualified right to receive support from his father. As other jurisdictions have found, such limitation upon an illegitimate child’s right to receive support violates the Equal Protection clause of the United States Constitution.

Wolfe, 297 Pa.Super.Ct. at 280, 443 A.2d at 836; Norris v. Beck, 282 Pa.Super.Ct. 420, 422 A.2d 1363 (1980).

Addressing the issue of disparate treatment of illegitimates, the United States Supreme Court has repeatedly

found unconstitutional several state statutes which discriminate against illegitimates. For example, the rights of illegitimates became coextensive with those of legitimates in recovering damages in wrongful death actions [Weber v. Aetna Casualty and Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) ], in collecting insurance proceeds as a beneficiary under a state’s workman’s compensation system [Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973) ], and in asserting the right to support from the natural father [Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978)].

Beck, Nontraditional Lifestyles and the Law, 17 J.Fam.L. 685, 694 (1978-79); see also Commonwealth ex rel. Atkins v. Singleton, 282 Pa.Super.Ct. 390, 405-06, 422 A.2d 1347, 1355 (1980) (Brosky, J., dissenting).

Since the statute of limitations controlling a paternity suit effectively bars the right of an illegitimate child to have a support action against his natural father initiated throughout the child’s minority and since the support claims of a legitimate child can be raised throughout the child’s minority, Section 6704(e) of the Judicial Code unconstitutionally abridges an illegitimate child’s right to parental support. Id., 282 Pa.Superior Ct. at 404, 422 A.2d at 1354 (Brosky, J., dissenting). Accordingly, I concur.

POPOVICH, Judge,

concurring:

I agree with the result reached by the majority today. As this writer has stated previously in Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982) (Popovich, J. Concurring Statement), no statute of limitations constitutionally can preclude a child from asserting parenthood during his minority.

      . In Mills v. Habluetzel, - U.S. -, 102 S.Ct. 1549, 71 L.Ed.2d 770, 780 (1982) (O’Connor, J., concurring) the putative father “set forth a number of ‘state of interests’ to justify the one-year [Texas] statute of limitation, but the Court accepts only one of these as permissible—the interest in preventing stale or fraudulent claims.”

      . In the 1930’s ABO blood testing which produced a probability of exclusion from paternity of merely 13.4% was introduced into evidence in paternity suits. Ellman & Kaye, Probabilities and Proof: Can HLA and Blood Group Testing Prove Paternity?, 54 N.Y.U.L.Rev. 1131, 1136 (1979). Today gene frequency statistics are available for 25 blood groups, and use of seven blood group tests yields a cumulative probability of exclusion greater than 90%. Lee, Current Status of Paternity Testing, 14 Fam.L.Q. 615, 627 (1975).

      . Each blood group yields a particular probability of exclusion from paternity. “The cumulative chance of exclusion is not equal to the sum of individual chances .... Since a person cannot be excluded more than once, the cumulative chance of exclusion ... is the sum of the exclusions in [the blood groups tested] minus their product .... ” Lee, supra at 628-29. Thus, the cumulative probability of exclusion varies with the type and number of blood groups tested. For example, whereas the joint AMA-ABA guidelines reported a cumulative probability of exclusion of 93% for white men based upon testing seven blood groups, testing a different combination of seven blood groups [21 HLA genetic markers; MNS; D,C,Cw,c,E,e; AcP (A,B,C); Ai,A2,B,0; Glma,Glmx,G3mb; Jka,Jkb (Kidd)], as reported by Lee, yielded a cumulative probability of exclusion of 95.5%. Id. at 627.

      . The HLA (Human Leucocyte Antigen) system is among the most sophisticated and valuable parentage research tools.
      The HLA system is the most complex genetic system known in man. It consists of, at a minimum, hundreds of closely linked genes that function in determining the susceptibility to certain diseases, the immune response, and the rejection of transplanted tissue .... [T]he factors expressed by the HLA genes are present in most cells, and HLA testing can be thought of as tissue typing rather than blood group typing.
      Since many combinations of the numerous antigens, or genetic markers, in the HLA system .. . occur very infrequently in the population at large, HLA typing excludes a high proportion of falsely accused defendants. A man is excluded if he and the mother both lack an antigen which the child has, or if the child lacks an antigen which any offspring of the defendant and the mother would necessarily possess ....
      Ellman & Kaye, supra at 1138-39 (footnotes deleted). Lee states that by itself the HLA system yields a 76% chance of exclusion from paternity. Lee, supra at 627. “|T]he introduction of the HLA blood test serves to minimize the effect of the passage of time on paternity determinations by shifting the weight of the evidence to one side.” Commonwealth ex rel. Atkins v. Singleton, 282 Pa.Super.Ct. 390, 405, 422 A.2d 1347, 1355 (1980) (Brosky, J„ dissenting).

      . Section 6704(b) of the Judicial Code provides that
      [a] complaint may be filed by any person ... to whom a duty of support is owing. It shall be filed on behalf of a minor child by a person having custody of the minor .... It may be filed by any public body or public or private agency having any interest in the care, maintenance or assistance of any person to whom a duty of support is owing.

      . See footnote 5, supra.


author: BECK, Judge:

text:
    447 A.2d 972
    Joseph D. HOFFER, Sr. v. Christine M. HOFFER.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1981.
    Filed July 2, 1982.

      Joseph D. Hoffer, Sr., appellant, in pro. per.
    Christine M. Hoffer, appellee, in pro. per.
    Before BECK, JOHNSON and POPOVICH, JJ.
   BECK, Judge:

This appeal arises from a dispute between the natural parents of Joseph D. Hoffer, Jr. over custody of their son. Joseph and Christine M. Hoffer were married on March 13, 1976. Their only child, Joseph, Jr., was born on August 17, 1977. A decree of divorce was granted to them on December 6, 1979.

On January 28, 1980, the lower court awarded custody of Joseph to appellant-father, with visitation rights to appelleemother. Appellee filed a timely notice of appeal which appeal was discontinued by praecipe. Appellee then filed a motion for reconsideration of visitation and the lower court entered an order on December 9,1980 which is the subject of this appeal.

The court order at issue states:

AND NOW, to-wit, this 9th day of December, 1980, after due consideration of the requests of the parties, we make the following order of court.
1. That the custody of the minor child, Joseph D. Hoffer, Jr., shall remain with his father, Joseph D. Hoffer, until further [sic] of court.
2. That the natural mother, Christine M. Hoffer, shall have visitation as follows:
(a) Beginning the weekend of December 12th and every other weekend thereafter from Friday at 5:30 p. m. until Sunday at 6:00 p. m.
On the occasion where the visitation begins on Friday, Mrs. Hoffer shall pick the minor child up at the day care center where he is in attendance.
(b) On alternate weekends from 9:00 a. m. on Saturday until 6:00 p. m. the same day.
(c) On Christmas of each year from 3:00 p. m. on December 25th until 12:00 noon on December 27th.
(d) On Thanksgiving from 10:00 a. m. Friday to 6:00 p. m. on Sunday.
(e) On all other major holidays that do not fall on Saturday or Sunday from 3:00 p. m. to 8:00 p. m.
3. Furthermore, both parties shall share all information relative to the child’s welfare. Each party, when the child is in their custody, shall immediately notify the other party of any illness or accident of any consequence the child may suffer.

Appellant thereafter filed a timely appeal to this Court. Appellant filed his appeal pro se and appellee filed a letter with this Court stating that she was precluded from filing a brief due to the expense involved.

Appellant raises one issue. He alleges that the lower court judge abused his discretion in ordering visitation to appellee on alternate weekends from Friday evening to Sunday evening and from Saturday morning until Saturday evening on the other weekends. He contends that this arrangement leaves him too little weekend time to spend with his son. He seeks an alteration of the visitation schedule so that appellee-mother shall spend no time with her son two weekends out of every four. He proposes that two and one-half hours on alternate Monday evenings be substituted for the nine hours on alternate Saturdays that were awarded to appellee.

We note that this case presents an unusual setting in that it is not the party deprived of custody who is appealing. Rather, the custodial parent is contending that he was not awarded enough time with his son.

The importance of protecting the visitation rights of a non-custodial parent is well-settled in this Commonwealth. “[W]hen parents are separated and custody is placed in one of the parents, there exists a danger that the parent having custody of the child may use his or her advantageous position to alienate the other parent from the affections of the child.” Commonwealth ex rel. Lotz v. Lotz, 188 Pa.Super. 241, 246, 146 A.2d 362, 364 (1958), aff’d, 396 Pa. 287, 152 A.2d 663 (1959). “Visitation . . . has been limited or denied only where a parent has been shown to suffer from severe mental or moral deficiencies that constituted a grave threat to the child.” Scarlett v. Scarlett, 257 Pa.Super. 468, 472, 390 A.2d 1331, 1333 (1978). See, e.g., Pamela J. K. v. Roger D. J., 277 Pa.Super. 579, 419 A.2d 1301 (1980). Even where the child refuses to see the non-custodial parent, the court may order the custodial parent to compel compliance with the visitation component of the custody order. Commonwealth ex rel. Stoyko v. Stoyko, 267 Pa.Super. 24, 405 A.2d 1284 (1979).

The standards by which we will evaluate the lower court’s order were clearly set out by this Court in Scarlett v. Scarlett. That case also involved an award of custody to the father with visitation rights to the mother. But in Scarlett, the mother appealed because the order too severely limited her time with her daughter.

In Scarlett, the lower court awarded the mother visitation on alternate weekends, alternate Monday afternoons and on Christmas day. She sought to increase her visitation rights to include each weekend and afternoon, alternate holidays, and a one month period during the summer.

The Scarlett court in enunciating its broad scope of review in custody matters accorded great weight to the lower court’s findings:

[I]n matters such as the hours of a visitation, great deference should be given to the hearing judge, who is in a better position than we to assess the particular circumstances. However, we must also recognize that to fulfill our own responsibility, we should not accept a finding that is not supported, or is contradicted, by the record.

Id. 257 Pa.Super. at 473, 390 A.2d at 1334.

In that case the lower court found that the father would have more time during the weekend than during the week to spend with his daughter. This Court found that not to be supported by the record and in fact found that the father sent his daughter to her grandparents on weekends. This Court therefore remanded for the imposition of an order providing the mother visitation every weekend.

The instant case presents a different situation. We find that the record supports the lower court’s finding that the father is able to spend time with his son during the week.

We find that the visitation component of the custody order was well-suited to the needs of father, mother and son. The child has ample contact with his father during the week and on alternate Saturday evenings and Sundays. The mother spends time with her son on weekends, excluding alternate Saturday evenings and Sundays. Thus, the son spends time regularly with both parents and we commend the lower court for arriving at a schedule that suits the needs of all three.

Appellant contends that “[t]he only extended, uninterrupted, and therefore ‘meaningful’ time the Appellant can spend with his son, for the benefit of the Appellant and the child, is weekends.” (Appellant’s Brief at 7). We reject this claim as the order clearly calls for extended periods of time with his son. We regard as spurious his argument that the weekdays, during which he has sole custody, are somehow “meaningless.” Appellant is in a most enviable position. He, not appellee, is in the best position to help his son with his everyday concerns. We are somewhat surprised in fact that it is appellant who brings this appeal. We are more accustomed to hearing that the non-custodial parent has been deprived of meaningful time with the child—that he or she has been relegated to the role of a “Disneyland parent.” Appellant, it seems, has the best of both worlds—weekdays and partial weekends with his son.

Order of the lower court is affirmed.


author: JOHNSON, Judge:

text:
    447 A.2d 974
    William A. GIALLORENZO and Lucy Ann Horchak, Appellants, v. AMERICAN DRUGGISTS’ INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued May 19, 1982.
    Filed July 2, 1982.

      Joseph M. Stanichak, Aliquippa, for appellants.
    Terry C. Cavanaugh, Pittsburgh, submitted a brief on behalf of appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from an order striking a default judgment in an assumpsit action seeking recovery under a policy of fire insurance. Finding no abuse of discretion by the lower court, we affirm.

In June, 1981, the Plaintiffs filed their complaint against the American Druggists’ Insurance Company (Defendant) for property losses alleged to have occurred in October 1980 to certain premises in Aliquippa, Beaver County. One month later, counsel for the Defendant entered an appearance on its behalf by mailing his praecipe to the Beaver County Prothonotary from his law office in Pittsburgh. A copy of the letter forwarding the praecipe to the Prothonotary was mailed to Plaintiffs’ counsel and contained a blind post script requesting twenty additional days in which to review the Complaint just received by defense counsel from the Defendant.

The very day (July 15, 1981) that Plaintiffs’ counsel received the copy of the letter by which the praecipe for appearance had been mailed to the Prothonotary, he responded acknowledging receipt of the copy and indicating, on behalf of his clients, that “[w]e need money immediately for demolition and that’s why we will have to press as rapidly as possible.”

On September 9, 1981, nearly three months after the Complaint had been filed, and nearly two months after defense counsel had requested twenty days in which to review the Complaint, Plaintiffs’ counsel again wrote to defense counsel, stating:

“In your letter of July 14, 1981, you requested an additional 20 days to file an answer to the Complaint, which have long since passed. Because of the pressing nature of this matter, you are hereby requested to file an appropriate answer within ten (10) days from the date of this letter before I enter a default judgment I am sorry that I have to do this, but I am in jeopardy of losing my client at this moment.” [Emphasis added.]

Thereafter, on September 22,1981, Plaintiffs’ counsel filed his Praecipe for Judgment for Want of an Answer and Assessment of Damages. Accompanying the Praecipe was an Affidavit of Notice to which were attached copies of the letter of Defendant’s counsel (containing the blind post script requesting twenty additional days) and the letters of Plaintiffs’ counsel mailed to defendant’s counsel in July and September.

On September 23, 1981, an Answer and New Matter were filed in Beaver County on behalf of the Defendant. On October 9,1981, Defendant’s counsel filed a Motion to Strike Judgment. The Motion was without any verification as required by Pa.R.C.P. 1024(a) but contained an averment that the notice of default judgment was received in the offices of the defense counsel on September 28, 1981. Following the Plaintiffs’ filing of an Answer to Petition to Strike [sic], a hearing was held on the Motion to Strike Judgment, and the lower court entered its Order granting the motion. Plaintiffs appeal from the order striking the judgment.

Whether to strike a default judgment in an assumpsit action is left to the sound discretion of the trial court, whose decision will not be disturbed absent a manifest abuse of discretion or an error of law. Paules v. Sminkey, 290 Pa.Super.Ct. 223, 227, 434 A.2d 724, 726 (1981). Pennsylvania Rule of Civil Procedure 237.1, effective February 1,1980, now requires an affidavit of prior written notice of intent to enter a default judgment, or a written agreement for an extension of time, before the prothonotary may properly enter judgment. Rule 237.1 provides in pertinent part:

Rule 237.1 Notice of Praecipe for Entry of Default Judgment
(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a timé within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe. [Emphasis added.]

In his argument before the lower court on the Motion to Strike, and again both in his brief and at oral argument before this court, Plaintiffs’ counsel conceded that the September 9, 1981 letter requesting Defendant’s counsel to file an answer within ten days or suffer a default judgment did not constitute the notice required under Rule 237.1(a). This would be so on the basis that the letter was only mailed to the Defendant’s attorney of record and not also to the Defendant itself, as required by the Rule. Nor is it clear that a default had occurred at the time the September 9, 1981 letter was sent, given the contents of the prior correspondence.

Plaintiffs seek to argue, however, that the second half of Rule 237.1(a) contemplated “informal agreements” requiring a “written extension of time.” While we can accept the suggestion that the blind post script contained at the bottom of defense counsel’s letter to the Prothonotary in July 1981 constituted a request for an extension of time, we cannot conclude that the second letter of Plaintiffs’ counsel dated September 9, 1981 perfected the kind of written agreement intended by the Rule. Prior to the letter of September 9, 1981, no “agreement” between counsel existed. We agree with the argument advanced on behalf of the DefendantAppellee that the Plaintiffs attempted to do by counsel’s letter of September 9th that which Rule 237.1 was precisely formulated to prevent. The record discloses that there was simply no “written agreement” reached between counsel specifying a time within which the answer was to have been filed, with a default occurring thereafter.

If the Plaintiffs had desired to place the matter in a posture to permit a proper praecipe for default judgment, they need merely to have issued the notice required by Rule 237.1(a), in a form substantially as set forth in Rule 237.1(c), and either mailed or delivered it to both the Defendant and its counsel of record. Plaintiffs chose not to do so, however, and sent the letter of September 9, 1981 which simply follows the practice prior to the new rule.

We are unable to understand any reason why the Defendant did not file its responsive pleading at any time prior to September 23, 1981. Our careful reading of the averments contained in the Answer and New Matter do not reveal any facts which would not have been available to the Defendant within the normal twenty-day period provided in Pa.R.C.P. 1026. The fire loss occurred in October 1980, and the Defendant admits to having received notice, “of sorts,” of the fire loss and damage.

While we may sympathize with Plaintiffs’ counsel concerning the apparent needless delay in the filing of a responsive pleading, we nevertheless are constrained to apply the clear mandatory requirements of Rule 237.1, and in so doing, find that the lower court was free from any manifest abuse of discretion in striking the default judgment. We express no opinion as to the merits of the case or as to any rights which the insured may have under the policy of fire insurance.

The order striking the judgment is affirmed.

      . The Answer and New Matter contained the affidavit of defense counsel, but did not set forth the source of the affiant’s information as to matters not stated upon his own knowledge, if any, nor did it set forth the reason why the verification was not made by the party filing the pleading, in apparent violation of Pa.R.C.P. 1024(c). A “Corrected Affidavit” was subsequently filed on November 2, 1981, with the verification of the authorized agent of the Defendant.


text:
    447 A.2d 977
    Trust Under the WILL OF Harry T. PORTER, Deceased. Appeal of R. Porter SMITH.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1982.
    Filed July 2, 1982.

      Robert L. Freedman, Philadelphia, for appellant.
    Alfred J. Tagliaferri, Philadelphia, for The Right Worshipful Grand Lodge, et al., participating party.
    Lawrence Barth, Deputy Attorney General, Philadelphia, for Commonwealth, participating party.
    Mary Gleeson Lawler, Philadelphia, for Provident Nat. Bank, participating party.
    Before CAVANAUGH, JOHNSON and MONTEMURO, JJ.
   JOHNSON, Judge:

This is an appeal from the award by the lower court of a fund of two hundred thousand dollars to The Right Worshipful Grand Lodge of Free and Accepted Masons of Pennsylvania [hereinafter Grand Lodge] under the will of Harry T. Porter [hereinafter testator].

Testator died in 1929. In his will, executed in 1925, he created a trust for his wife as life beneficiary. After her death, certain gifts were to be made to charities from the trust and the income from the trust was to be shared among the testator’s niece and nephews for their lives, with a power of appointment in each of them. Clause ll(q) of the will then provided:

(q) Upon the expiration of said trust, and out of the balance remaining in the possession of my said executors and trustees, to pay unto the Right Worshipful Grand Lodge of Free and Accepted Masons of Pennsylvania, the sum of two hundred thousand dollars, to be by it used in the erection and construction of a suitable building upon its grounds at Elizabethtown, Pennsylvania, as a Home for Boys or Girls, whichever, in the judgment of said Grand Lodge or its Committee on Homes, may be more needed or desirable. Said building shall be of the same general style and character in keeping with the buildings now erected or which may then be erected on said grounds, but before any work shall be done thereon, or the moneys be paid to said Grand Lodge therefor, the plans and specifications for said building shall be first submitted to and receive the approval of my said executors and trustees or their successors in office. When completed said building shall be known as The Harry T. Porter Memorial Home for Boys or Girls, as the case may be, and a suitable tablet so inscribed shall be placed thereon.

Upon the death in 1979 of the last income beneficiary of the trust, the trust terminated. The surviving trustee filed its fourth and final account, and the Grand Lodge filed a petition requesting a modification of the trust, in which petition the Attorney General, as parens patriae for charities, joined. The reasons for requesting the modification were that the sum of $200,000.00 in 1979 was inadequate to build a home as described by the testator in 1925, and further that the number of children seeking admission to the Masonic Home in Elizabethtown had declined, and that such children as were there were adequately housed in the already existing buildings. The Grand Lodge accordingly proposed that the fund of $200,000.00 be awarded to the trustees of the Grand Lodge and that the income therefrom be used for maintenance of the existing buildings and for the benefit of the children housed therein, and for youth programs conducted there by the Elizabethtown Freemasons. The fund would be named after the testator and an appropriate plaque installed.

After a hearing the auditing judge decreed that under the doctrine of cy pres the will should be modified and the $200,000.00 awarded to the Grand Lodge. Appellant, who is the only one of five individual residuary beneficiaries to challenge this modification—the others all supporting the position of the Grand Lodge—filed exceptions to the decree which were dismissed by the Orphan’s Court en banc.

On appeal he asserts first that the lower court erred in finding a general charitable intent, and that therefore the cy pres doctrine does not apply, and second that a reverter clause in the will shows an intent that failed bequests, which appellant contends is the case here, should pass to the residuary beneficiaries.

The scope of our review of a decree giving effect to the cy pres doctrine is whether or not the lower court misunderstood or misapplied the law or committed a manifest abuse of discretion. In Re Women’s Homeopathic Hospital of Philadelphia, 393 Pa. 313, 142 A.2d 292 (1958).

The doctrine of cy pres is defined as follows by the Restatement (Second) of Trusts at Section 399:

If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor.

Our Supreme Court, over one hundred years ago, stated:

The meaning of the doctrine of cy pres, as received by us, is, that when a definite function or duty is to be performed, and it cannot be done in exact conformity with the scheme of the person or persons who have provided for it, it must be performed with as close approximation to that scheme as reasonably practicable; and so, of course, it must be enforced.

City of Philadelphia v. Heirs of Stephen Girard, 45 Pa. 9, 28 (1863).

One of the traditional prerequisites for the application of the doctrine of cy pres is that the will manifest a general charitable intent. In Pennsylvania this requirement has been eliminated by statute since 1947. See the Estates Act of 1947 and the Probate, Estates and Fiduciaries Code of 1972.

In Estate of McKee, 378 Pa. 607, 108 A.2d 214 (1954), in which the adjudication of the Orphan’s Court of Philadelphia County was affirmed by our supreme court, it is said, with respect to a will executed in 1899 by a testator who died in 1902 and whose last beneficiary died in 1948:

As to whether or not the Estates Act of 1947, . .. which became effective .. . prior to the date of death of [testator’s grandson], and which provides that the Court shall order a distribution of an estate . .. whether his charitable intent be general or specific, has an application to the claim of the heirs and next of kin is not decided. However, this legislation, it can be said, points in the direction to which the thinking of both the Legislature as well as the Courts was leading.

108 A.2d at 238, and 83 Pa.D. & C. 492, 512.

Similarly, in the case before us, there have been two statutes with this provision enacted since the execution of the will but before the death of the last income beneficiary. However, in view of the fact that the lower court had no difficulty finding a general charitable intent, we too do not need to decide whether the later statutes apply to this case, rather than the 1895 statute which contained no mention of the prerequisite.

In looking at the entire will, see In Re Pruner’s Estate, 400 Pa. 629, 635, 162 A.2d 626, 629 (1960), we see that testator first made sure that his widow was well provided for. He also provided generously for his sister and his in-laws, on condition that the trust for his widow be created and made certain beforehand. Out of the trust his first consideration was for a small legacy for certain servants. Testator then gave instructions for two trusts, amounting to fifteen thousand dollars, for the benefit of a church, and for about fifty-five thousand dollars’ worth of legacies to eight beneficiaries such as hospitals and orphanages. Some of these legacies were outright gifts, some were for the endowment of rooms in memory of himself, his mother or his wife. Next came the life-time income gifts to his niece and nephews, with a power of appointment in each. Then came the provision at issue in this case, where two hundred thousand dollars out of the balance of the terminated trust were to go to the Grand Lodge for the home for children.

Appellant asserts that testator only had a specific intent rather than the general charitable intent found by the lower court. As support for his proposition he cites In Re Pruner’s Estate, 400 Pa. 629, 162 A.2d 626 (1960). In Pruner, the testator bequeathed real estate to two boroughs for a home for orphans, with a reversionary gift over to his niece if the provisions in the will could not be carried out by the two boroughs, or if the purpose of the home became “invalidated from any cause.” 400 Pa. at 632, 162 A.2d at 628. In the next forty years there were altogether only eighteen children who ever lived there, and none at all in the eleven years preceding the lawsuit, despite notification by the boroughs to other agencies in the counties. Our supreme court (COHEN, J., dissenting) decided that, although even specific charitable gifts should be liberally construed, this was a specific gift for a specific charitable purpose, with a specific gift over should the purpose fail. 400 Pa. at 635, 162 A.2d at 629. The purpose having failed, cy pres was not applicable. (Ultimately, the gift over being in violation of the Rule against Perpetuities, the bequest passed by intestacy.)

The holding in Pruner is in line with the common law rule that “if property is given in trust to be applied to a particular charitable purpose, and it is provided by the terms of the trust that if the purpose should fail the trust should terminate, the property will not be applied cy pres on the failure of the particular purpose, since the terms of the trust negative the existence of a general charitable intention” (emphasis supplied). See Comment c to the Restatement (Second) of Trusts § 399. However, we disagree that it is applicable to the facts under the will of Harry T. Porter.

We find, by way of example, two cases where the precise request of the testator could not be carried out but where the gift was used for a closely-related purpose: In Re Wilkey’s Estate, 337 Pa. 129, 134, 10 A.2d 425, 427 (1940); and In Re Wanamaker’s Estate, 364 Pa. 248, 72 A.2d 106 (1950). In Wilkey’s Estate, the court found a general charitable intent where the testatrix’s will provided that the residue of her estate go to the trustees of the Presbyterian Church for the building on her land of a church to be named after her. The land was taken by eminent domain. The court therefore awarded her residuary estate to the Presbyterian church trustees for the building of a church on another plot of land. The court found that although it had doubtless been of great significance to testatrix that the church be built on land owned by her forefathers, she would rather that a church be built somewhere in the vicinity than not at all. In Wanamaker’s Estate, which was a dispute as to which charity most closely approximated testator’s purpose, the will provided for the building of a home for the temporary detention of boys in trouble with the law, so as to avoid their being sent to the House of Correction. As the fund was too small to build such a building, it was awarded to the City of Philadelphia for the purpose of the adding of a dormitory and dining room to an already existing institution for delinquent boys.

Appellant also cites In Re Randall’s Estate, 341 Pa. 501, 19 A.2d 272 (1941), as the case on point to show a lack of charitable intent in Harry T. Porter’s will. The Randall will gave certain real estate to a township to be used as the John Randall Memorial Home for the poor of the township. Testator specified who were to be the trustees, and included his wife as one of them. He provided for a trust the principal of which was not to be disturbed, and the income of which to be used for the home. The will stated, “upon the failure to use the said land for the said Home or should the purpose of this trust fail for any reason whatsoever, . . . the said property and trust . . . shall revert to my estate....”

Randall’s nieces and nephews claimed that the trust had terminated by non-user and non-compliance with the will and that the property should revert to the estate. The court agreed. But in Randall’s Estate the trustees never carried out any of the testator’s wishes. The property was let to tenants who agreed to house any indigents whom the trustees might send to them. But in seventeen years only one such person applied for and received such accommodation. The township was a small rural community where there was no apparent need for a home for the poor. To the court it was clear that Randall’s main purpose was to establish a Home for the poor of the township and to perpetuate his own memory. The supreme court found that the findings of the lower court that there was no general purpose to benefit the poor of the township generally was amply supported by the evidence and that this was not the “doubtful” case where the courts will not work a forfeiture. 341 Pa. at 507, 19 A.2d at 275.

Furthermore, in Randall's Estate there was the express provision for reverter upon failure of the trustees to use the land as a Home. On the particular facts of the Randall case, the trust had therefore failed, and the court was obliged to order the reversion to Randall’s estate. These facts are distinguishable from the facts of the Porter will, where the fund is only now available and the beneficiaries willing to use the funds in a way as close as possible to testator’s purpose.

Appellant’s second argument involves the reverter clause in item 15 of the Porter will, which provides:

IT IS my intention and desire that I shall not die intestate as to any part of my estate, and if for any reason or cause, any of the legacies hereinbefore given shall fail, then such legacies shall revert to and become part of my residuary estate and shall go and be disposed of as hereinbefore directed and provided.

We do not agree that the reverter clause is a specific alternate provision in the event the Grand Lodge does not build a building. A look at the entire will shows a combined concern to provide for his family and to give to certain charities, mostly for the young, the poor and the sick. Most of the charitable bequests have their own alternate beneficiaries. In clause 14 testator indicated that he wanted the individual legacies to be paid first, and then if the funds left over were insufficient to pay the charitable bequests in full that these abate proportionately.

There is nothing in the language of clause 15 which supports the argument that it is a gift over should the Grand Lodge not build a building as provided. It is a more general provision providing that any lapsed or otherwise failed gifts not pass by intestacy but into the residue into which they would become absorbed and from which they would be distributed according to the decedent’s testamentary plan.

The Freemasons are an ancient society which came to North America from England, Scotland and Ireland in the early decades of the eighteenth century. In 1734, incidentally, Benjamin Franklin was elected grand master of the Masons in Pennsylvania. By the mid-twentieth century there were forty-nine independent grand lodges in the United States. Belief in God, the presence of the Holy Bible on the altar, the forbidding of any political activity or discussion within the lodge, strict nonsectarianism in religion, and cognizance of moral law are among the fundamentals adhered to by all grand lodges. Freemasonry has been described as the joining together of men from all walks of life in an adherence to a moral code whose principles are largely conveyed through symbols and allegories connected with the art of building, emphasizing benevolence. It was written in the eighteenth century that a Mason is “to be a Man of Benevolence and Charity, not sitting down contented while his Fellow Creatures, but much more his Brethren, are in Want, when it is in his Power (without prejudicing himself or Family) to relieve them.” William Smith, A Pocket Companion for Free-Masons (London 1735).

It seems highly unlikely that testator envisaged that his gift to the Freemasons would ever fail. He possibly did not envisage that twentieth century social programs would alleviate the need for institutional homes for children. We are persuaded that his intention was to benefit children, through the offices of the Freemasons with their tradition for benevolence.

A further point we must make is that even were the reverter clause to be applicable here, the purpose of the gift to the Masons did not fail. The Grand Lodge is still in existence. The Homes at Elizabethtown are flourishing. Simply, a new building to house children there is not needed, and if it were, $200,000.00 would not build one.

At a hearing on the Petition for Modification, the Honorable Walter P. Wells, Grand Master of the Masons in Pennsylvania, testified as to the need for the requested modification of decedent’s will. The record establishes that three fine buildings were provided under prior bequests for the children at the Masonic Homes, and that all of the children are living in one of those buildings at the present time. As a member of the Committee on Masonic Homes, and of the Committee on Finance, Judge Wells testified that the sum of $200,000, if bequeathed to the Trustees of the Consolidated Fund of the Grand Lodge, could be segregated and held as a separate fund, the income from which could be used for the maintenance of children and for youth programs at the Masonic Home.

Based upon the uncontradicted testimony of the Grand Master and the averments contained in the Petition, the learned Auditing Judge found that there existed homes for boys and girls at Elizabethtown, Pennsylvania, and that the erection of additional buildings was both unnecessary and impractical. With this finding Appellant agrees. The Auditing Judge concluded that the closest approximation of testator’s intention would be to apply the income from the $200,000 fund to be used to benefit those children still in residence at the Homes and the youth programs that are being conducted there. After a careful review of the entire record and the applicable law, we have no difficulty in affirming these findings and conclusions of the learned Auditing Judge.

We believe that the doctrine of approximation set forth in City of Philadelphia v. Heirs of Stephen Girard, supra, applies to the facts of this case. The decree of the lower court approximates the testator's express intention as nearly as possible and does no violence thereto. Through the award of the trust corpus to the Grand Lodge, the income will be used for the maintenance of boys and girls at the Masonic Homes in Elizabethtown. The fund will be segregated and known as the Harry T. Porter Memorial Fund. A plaque, suitably inscribed, will be placed upon the wall of the building currently occupied by the children at the Masonic Homes. This is the classic situation for the application of the cy pres doctrine.

Appellant has not met his burden of showing a manifest abuse of discretion. See In Re Kensington Hospital for Women, 358 Pa. 458, 58 A.2d 154 (1948). The lower court correctly applied the doctrine of cy pres. The decree is therefore affirmed.

      . The decree provided specifically:

        That the bequest of $200,000.00 set forth in paragraph ll(q) of the Will of the said Harry T. Porter is hereby modified and an award of the said $200,000.00 is made to the Trustees of the Consolidated Fund of the Grand Lodge to be by said Trustees invested as a separate fund to be known as the Harry T. Porter Memorial Fund and the income therefrom used for the benefit of boys and girls resident at the Masonic Homes at Elizabethtown, Pennsylvania, which Homes are owned and operated by the said Grand Lodge, and for such youth programs as may be conducted at the said Masonic Homes at Elizabethtown, Pennsylvania; and That a plaque, suitably inscribed, be placed upon the wall of the building presently occupied by the children at the Masonic Homes.

      . Trust under the Will of Harry T. Porter, No. 3775 October Term 1929 (Orphans’ Ct. Philadelphia, April 22, 1981).

      . Act of April 24, 1947, P.L. 100, No. 39, § 10, 20 P.S. § 301.10. The other Pennsylvania statutes which dealt with the doctrine of cy pres were: Act of April 26, 1855, P.L. 328, No. 347, § 10; Act of May 26, 1876, P.L. 211, No. 205; Act of July 7, 1885, P.L. 259, No. 184; Act of May 9, 1889, P.L. 173, No. 193; Act of May 23, 1895, P.L. 114, No. 89, § 1. These were all repealed by the Estates Act of 1947.

      . Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 6110 (Purdon 1975). The Act was renamed Decedents, Estates and Fiduciaries Code by the Act of December 10, 1974, P.L. 816, No. 271, § 5.

      . The official Pennsylvania supreme court reporter did not reprint the lower court’s adjudication.

      . The statute in force at the time of the execution of the will in 1921, i.e., the Act of 1895, provided that if a charitable trust failed the funds should accrue to the public treasury for the public use.

      . Self-glorification, however, does not vitiate the charitable nature of a trust. Estate of McKee, 378 Pa. 607, 108 A.2d 214, 234 (1954) [83 Pa.D.&C. 492, 503]; Wilkey’s Estate, 337 Pa. 129, 134, 10 A.2d 425, 428 (1940).

      . See note 6, supra.

      . See 9 Encyclopaedia Britannica 732-737 (1963).

      . See Estate of McKee, 378 Pa. 607, 108 A.2d 214 (1954) (testamentary trust directed institution of naval college for orphan boys; institution impossible, yet no satisfactory alternative institution found; under cy pres, fund to be used for scholarships for orphan boys seeking an education similar to that which testator intended to provide); In Re Williams’ Estate, 353 Pa. 638, 46 A.2d 237 (1946) (testamentary trust for the establishment in testatrix’s home of a home for aged women of the county; failure for insufficient funds; under cy pres funds awarded to hospital which would use her home for ailing and convalescent aged women of the county); In Re Wilkey’s Estate, supra; Dunlap Trust, 29 Pa.Fiduc. 573 (1979) (trust to establish home for the orphans of printers of Philadelphia; funds insufficient, but cy pres applicable); Vaughn Estate, 69 Pa.D.&C.2d 32 (1974) (trust for establishment of home for aged and infirm women; funds insufficient; cy pres given effect and funds awarded to newly built nursing home for aging sick and infirm women, one wing of which to be named after testator). Contrast In Re White’s Estate, 340 Pa. 92, 16 A.2d 394 (1940), where settlor created a trust for the benefit of a certain Home for the care of her retarded daughter. The trust provided that after the daughter’s death the residue of the trust be given to the Home. After the settlor’s death the Home reneged, and declined to accept the trust or to care for the daughter. After the daughter’s death, the court found that the residuary gift to the Home was not a charitable gift but merely a contractual one, and therefore the cy pres doctrine could not be given effect to benefit another Home where the daughter lived for a little more than a year before she died.


author: MONTEMURO, Judge:

text:
    447 A.2d 983
    COMMONWEALTH of Pennsylvania v. Richard HOFFMAN, Appellant. COMMONWEALTH of Pennsylvania v. Joel SCHMIDT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed July 2, 1982.
    Petition for Allowance of Appeal Denied Oct. 1, 1982.

      John F. Meehan, Assistant Public Defender, Doylestown, for appellants.
    Michael Kane, District Attorney, Doylestown, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

After a jury trial, appellants, Hoffman and Schmidt, were found guilty of simple assault. Post-trial motions were denied, and they were sentenced to one (1) year probation and ordered to pay a fine of $250.00 and costs.

Appellants contend that the trial judge erred in not granting their motion for a mistrial after several prejudicial questions posed by the prosecutor on cross-examination. In order to understand the statements in the context of the proceedings, a summary of the facts is necessary.

On November 27, 1978, appellants were both members of the Morrisville Borough Police Department however on that day they were off duty and were engaged as deputy sheriffs for Bucks County to be stationed at the site of a strike at the United States Steel plant in Fairless Hills. They were to be picked up at approximately 8:00 a. m. at the Morris-ville Borough Police Headquarters. As they were waiting for their ride at the station, John Horlowski was being escorted from the Morrisville Borough Police Department lockup to the Bucks County Prison. He had been arrested earlier that morning in Morrisville and had been unable to post bail. It was the contention of the Commonwealth that as Horlowski was being escorted from the borough hall in handcuffs by a constable, he was beaten by the appellants. Hoffman allegedly punched Horlowski in the stomach and then Schmidt kneed him twice in the head. At trial, the Commonwealth introduced the testimony of Horlowski and the constable and various other witnesses who testified concerning admissions by appellants after the episode. Appellants admitted their presence at the scene but denied striking Horlowski.

During the cross examination of appellant Hoffman, the District Attorney asked, “Sir, isn’t it a fact that you and Officer Schmidt were very proud of the fact that the kids in Morrisville were very afraid of you?” Defense counsel’s objection was sustained, a motion for mistrial was denied, and a cautionary instruction given.

The District Attorney later questioned, “as a police officer, during the time when you were a police officer, wasn’t it your practice to brag generally about how tough you were and how the kids were so afraid of you?” Defense counsel’s objection was sustained but his motion for mistrial was denied with no cautionary instruction.

Appellant Schmidt testified on direct that he had a brown belt in karate and taught martial arts to young people in the community. He testified that he could not have struck Horlowski as alleged because if he had, Horlowski would have sustained serious injuries. The District Attorney asked Schmidt on cross, “Mr. Schmidt, you’ve told us that you’ve had . . . physical contact with your students. Is there a cemetery somewhere full of your karate students?” Defense counsel’s objection was sustained but his motion for mistrial was denied without any cautionary instruction.

The District Attorney later asked Schmidt, “As a result of your arrest on January 12 of this year 1978-79, you’ve been suspended, dismissed from the Morrisville Borough Police Department, haven’t you?” Defense counsel’s objection was sustained but his motion for mistrial was denied, with the following cautionary instruction: “I will say to the jury whether or not you have been suspended is immaterial. It is not to be considered by you in any respect.”

A motion for a mistrial rests within the sound discretion of the court and an abuse of that discretion will not readily be found when prompt curative actions are taken by the trial court. Commonwealth v. Tribblett, 242 Pa.Super. 164, 363 A.2d 1212 (1976). “But even when the language of the district attorney is intemperate, uncalled for, or improper, a new trial is not necessarily required.” Commonwealth v. Stoltzfus, 462 Pa. 43, 61, 337 A.2d 873, 882 (1975). To warrant the granting of a motion for a mistrial, “[t]he language must be such that the unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict. . . . [t]he effect of such remarks depends on the atmosphere of the trial.” Id., 462 Pa. at 61, 337 A.2d at 882.

Viewing the above question by the District Attorney, by these standards, we conclude that the trial judge did not err in denying the motion for a mistrial. The first two questions were relevant to show notions, intent, or frame of mind. As such they were clearly admissible. See Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972). The third question, dealing with appellant Schmidt’s lethal karate prowess was also relevant and proper and merely highlighted the obvious flaw in his defense. Schmidt stated on direct that he could not have struck Horlowski without fracturing Horlowski’s nose or skull. Since Schmidt testified that he taught karate and did make contact with his students, the inference is that he must have seriously injured every student he touched. The question was therefore probative.

The last question pertaining to Schmidt’s dismissal from the police force was clearly improper. However, because of the prompt objection, the sustaining of the objection, and the curative instruction, we hold that the court was correct in denying the motion for the mistrial, see Commonwealth v. Tribblett, supra. The unanswered question was not of a type that would unavoidably prejudice a jury considering the atmosphere of the trial. Commonwealth v. Stoltzfus, supra, contra Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977).

Appellants next contend that the trial court erred in not permitting defense counsel to have access to and cross-examination of John Horlowski and another Commonwealth witness, Dale Metrocavige, concerning their juvenile records. It should first be noted that John Horlowski apparently had no juvenile adjudications. The lower court in its opinion stated: “The record fails to reveal that Horlowski had any prior adjudications whatsoever in either Pennsylvania or New Jersey. At a conference on this matter, the District Attorney represented that she was aware of no such adjudications in any jurisdiction. Defense counsel asserted that he had heard that there were such adjudications but offered no further elaboration. Therefore, there was no basis upon which to determine that any prior adjudications on Horlowski would be admitted.” Slip Opinion at 5.

We agree that, in the absence of any proof in the record that Horlowski in fact did have a juvenile record, there is no basis upon which to make a ruling. The action of the lower court was therefore correct.

However, Dale Metrocavige did have an extensive juvenile record with several adjudications of delinquency. The trial judge ruled that his juvenile record could not be admitted to impair his credibility, noting that the adjudications were not offered by the defense to show bias.

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the United States Supreme Court held that the protection of the Confrontation Clause enabled a defendant in a criminal trial to cross-examine a prosecution witness on possible bias with the witnesses’ juvenile record even though such an impeachment conflicted with a State’s asserted interest in preserving the confidentiality of juvenile adjudications of delinquency. In that case, the witness’ testimony was crucial to the prosecution, and at that time, he was on probation from a juvenile adjudication. The court limited its holding to instances in which a defendant wished to show bias through cross-examination.

In Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978), the Pennsylvania Supreme Court, cognizant of the holding in Davis v. Alaska, supra, held that defense counsel was entitled to access to a prosecution witness’ juvenile record even though the offer of proof was a general one to impeach the witness’ credibility. The court reasoned that counsel could not frame an offer of proof to impeach on bias without first examining the juvenile record. The prosecution witness in that case was crucial to the Commonwealth’s case. The court remanded the case to allow defense counsel to examine the juvenile record.

In the case before us, the trial judge denied defense counsel access to Dale Metrocavige’s juvenile record. Therefore, defense counsel was precluded from establishing an argument based on possible bias. However, there are factual distinctions in this case sufficient to render any error harmless. Dale Metrocavige was not a crucial prosecution witness. He was not an eyewitness, and his testimony centered around a scenario in which he was actually in custody and participated in a conversation with Hoffman and Schmidt. He was also impeached by an offer of proof of a prior conviction in adult court for the crime of conspiracy to commit a burglary. There were numerous witnesses at the scene and at trial. Any further impeachment of Dale Metrocavige’s testimony could not reasonably have affected the verdict. We therefore hold that the exclusion of this evidence was harmless. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

For the foregoing reasons, Judgments of Sentence are affirmed.

CAVANAUGH, J., concurs in the result.

      . 18 Pa.C.S.A. 2701.

      . We note that counsel’s objections were sustained as to all three questions. This does not mean that none of the questions were relevant or admissible. The trial judge in controlling the examination of witnesses, may limit questioning for any number of reasons.

      . Appellants raise several other allegations of error. After a thorough examination of the record, we conclude that they are without merit.


text:
    447 A.2d 987
    Jay W. COLLINS and Lois S. Collins, his wife, Appellants, v. CEMENT EXPRESS, INC., and Harry E. Campbell.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1981.
    Filed July 2, 1982.

      Richard C. Angino, Harrisburg, for appellants.
    John B. Mancke, Harrisburg, for appellees.
    Before PRICE, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

This case is before the court on appeal from an Order denying appellant a new trial. The original trial resulted in a jury verdict of $7,134.00 for appellant. He asserts several trial errors as the reason for the inadequate verdict.

The action arose out of a traffic accident which occurred on May 6, 1971, when a truck operated by Harry Campbell and owned by Cement Express, Inc., struck the rear of the car driven by Jay Collins, appellant. At trial, the negligence of appellee was not seriously in doubt. Rather, the majority of the testimony focused on whether the automobile accident was the cause of appellant’s alleged damages. Appellee contended that appellant’s medical conditions were the result of disorders which existed prior to the accident.

To adequately analyze the issues in this case, we feel it is necessary to give the medical and work background of appellant.

Jay Collins was born in 1923 in Harrisburg. He enlisted in the Army Air Force in 1943, where he was a gunnery instructor and was eventually transferred to the Pacific Theatre of war. He flew forty combat missions and recorded five hundred and twenty six hours of flight time. Following discharge from the service, he had several jobs until he eventually secured a job with the Harrisburg Boys Club in 1948 as Program Director and counselor for boys, a job which he held for some twenty-five years.

In 1952, Mr. Collins was hospitalized. He was diagnosed as having hyperthyroidism. One of Mr. Collins’ complaints at that time was persisting anxiety. In 1956, he was diagnosed as having diabetes. In 1964, he was hospitalized for an episode of uncontrolled diabetes, and again at that time, anxiety was mentioned as a complaint. His condition was relatively unchanged up to the time of the accident.

Appellant’s position at trial was that the car accident in 1971 created a traumatic neurosis which subsequently manifested itself in severe organic abnormalities, none of which were consistent with previously diagnosed organic disorders. Appellant alleged that his earlier service in the Air Force made his predisposed to psychological problems, and the car accident was the triggering act which subsequently rendered him totally disabled. The portrayal of appellant at trial was one of the classic “eggshell skull” victim.

Appellee, on the other hand, contended that the organic difficulties which appellant was presently suffering from were the expected results of the physical deterioration of his pre-accident medical problems, specifically, the severe diabetes and hypoglycemia. Appellee contended that the previous medical conditions were the cause of appellant’s permanent disability, not the car accident. Along this line, appellee sought to portray appellant as a malingerer. At trial, testimony was introduced concerning appellant’s application for Social Security Disability Benefits in 1973. The doctor who completed the medical information for the application for appellant testified at trial as an expert for the appellant. At trial, he expressed his opinion that appellant’s disability was a result of the car accident. However, the information which he supplied two years after the accident to the Social Security Administration which provided the basis for appellant’s receipt of disability benefits made no mention of the car accident as the cause of appellant’s disability. In the application, no mention was made of mental or emotional problems. The doctor recited the organic difficulties as the basis for disability, the position that appellee has maintained as being the true cause of appellant’s disability.

Appellant contends that the introduction of this testimony regarding the appellant’s application for and receipt of Social Security disability benefits was violative of the collateral source rule. The collateral source rule prohibits a defendant in a personal injury action from introducing evidence of the plaintiff’s receipt of benefits from a collateral source for the same injuries which are alleged to have been caused by the defendant. Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963). However, we need not address this issue because, even though appellant vigorously argued against the introduction of this testimony pre-trial, he in fact first introduced the subject at the trial. Appellee, therefore, could properly probe into the subject matter in cross-examination.

Appellant next contends that the lower court erred in its charge to the jury on concurrent cause. He contends that the lower court did not use the approved charge in Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 103 A.2d 681 (1954).

In Albert v. Alter, 252 Pa.Super. 203, 381 A.2d 459 (1977), the court, in reviewing the charges of the lower court, stated

... in all cases questioning the accuracy of the charge to the jury, we must not take the challenged words or passage out of context of the whole charge, but must look at the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party .. . Id., 252 Pa.Super. at 217, 381 A.2d at 466 (Citation Omitted).

The court in Albert went on to say that there is no requirement that the lower court use only certain words: “The important consideration is that the explanation given by the trial court on the issue of causation be given in clear and understandable language.” Id., 252 Pa.Super. at 218, 381 A.2d at 467.

As stated earlier in our opinion, it is apparent that the crucial issue in this case is the cause of the injury in relation to the damages alleged. Appellant had pre-existing disorders, yet did not become totally disabled until after the accident. There was evidence in the record that in addition to the organic problems, he also evidenced mental problems before the accident. These previous mental problems, according to the allegations of the appellant, rendered him extremely susceptible to severe injuries from any future trauma.

In his charge to the jury, the judge first outlined the contention of the parties in relation to the causation of the alleged injuries:

. . . Where the dispute here is that of what was the result of that accident, what was the legal cause of plaintiff’s disability, his injuries. In that respect, members of the jury, the difference in their approach is that in their claim is that the plaintiff alleges he suffered from a functional illness, a functional disability which resulted in total and permanent disability to him meaning he claims that then to exist for the remainder of his life and there will be reference to the matter of tables and how these are arrived at by the court later in the instructions. On the other hand, the defendants place their position or claim upon the fact as they wish you to find that it resulted solely from an organic defect which existed and which the accident had no connection with in any respect. The plaintiff’s position actually is then that he had a predisposition to an anxiety, to the phobia and the matters that were related to him.
. . . Having had that predisposition that type accident ended with being the legal cause of his present disability which would include his organic problems that now exist. He is claiming the functional disease or disability which really is a mental matter as being the reason for the condition in which he finds himself today. The defendant on the other hand are saying that the conditions did exist, were not affected by the accident and therefore they are only liable to the extent of loss suffered from the accident. I will begin being that in the question of damages when I come to it , but that’s the position of the parties as the Court sees it.

The judge then charged on legal cause:

Now what is legal cause? The law says that the defendants negligent conduct which is admitted here must have been a substantial factor in bringing about the injury. A substantial factor is an actual, real factor although the result may be unusual or unexpected but it is not an imaginary or fanciful factor having no connection or only an insignificant connection with the accident. If the disability is related in that fashion to the accident there must be recovery of the losses which are attributable to that. If his condition would be unrelated to the accident then of course there would be only the matters which could be claimed as directly resulting or indirectly but related to that accident.

This instruction is the basic causation charge where there are no complicating factors such as concurring causes. The last statement in this portion of the charge evidently refers to the fact that appellees have admitted limited liability for damages resulting from the accident.

The judge then instructed on concurring causes:

Now, members of the jury, I told you we’re faced with a determination of damages, determination of what may be recovered. By the way, members of the jury, I would tell you this also, there may be concurring causes and even though there be another cause and an additional causation if you determine that the cause is that which I have already defined or described for you as being the position of the one party that calls for the application of the rules on damages as I will give them to you. If it be as claimed by the other party you’ll have another consideration to give as to the damages. . .

Following this instruction, the judge’s only mention of other causes was a statement of appellant’s theory of recovery. At the conclusion of the charge, the following discussion took place at side bar:

MR. ANGINO: The concurrent cause I’m going to request, Your Honor, to instruct on concurrent cause in keeping with point number 14,1 think that’s an important point and I don’t think you covered it.
THE COURT: I think I’d have them more confused that’s why I won’t read that.
MR. ANGINO: You didn’t tell them what concurrent causes are or anything.
THE COURT: I think I already did that. I already said to them defendant’s negligent conduct must have been a substantial factor, I don’t know that I should go further than that substantial factor. I read this, I believe, it’s an actual, real fact or although the result may be unusual or unexpected but it is not an imaginary or fanciful factor having no connection or only insignificant connection with the accident. That’s right out of the pattern of charges.
MR. ANGINO: But that’s not the parttem charge for concurrent cause. Concurrent cause requires—
THE COURT: Concurrent cause. Wait a minute until I give you that. I said he need not be the sole cause, it may be a legal cause even though other causes existed. If it is a substantial factor in bringing about an injury.
MR. ANGINO: Your Honor, when you’re dealing with an emotional problem like this where there’s an innerinvolved organic problem the Supreme Court has deemed that— that’s the type of charge to be given in this type of situation.
THE COURT: That’s so. I think I included it in here. I will accept the matter of making sure that they understand that this has to be that if they find that his present condition results from the accident in that it was a substantial factor then they will have found that the plaintiff has established his case.
MR. MANCKE: I thought that’s what you did say.
THE COURT: I thought I did but I’ll make sure of it.

When the trial reconvened, the judge again addressed the jury:

THE COURT: Members of the jury, I’ve been asked to make clear certain matters and I wish to do so now. You can understand that there are times when the Court may have overlooked something but I want to be sure that I’ve covered it. The plaintiff’s claim is not dependent upon a physical matter but he’s claiming his loss based on functional, the neurosis to which he testified and that is the base upon which he proceeds and that he is claiming that that proceeds from the accident. The accident according to him being the substantive sole factor that led to the condition even though there may have been a predisposition to what occurred to him as a result of prior matters that occurred in his lifetime. (Emphasis supplied)

This attempted clarification merely restated appellant’s contention as to his theory of liability. It did not instruct the jury on the legal effect of the previous disposition to neurosis or the effect of other contributing causes as to damages. The instruction on legal cause which occurred early in the charge relates only to the negligent causation of the accident, not to the damages. In this case, there was no dispute as to the negligent conduct of appellee. The question in the case was whether that negligent conduct caused the injuries which appellant asserted. In such a situation, a specific charge as to concurring causes was necessary. See Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980), Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). See also Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions, Pennsylvania Standard Jury Instructions 6.30.

We conclude, viewing the charge in its entirety, that this specific instruction was not adequately covered. We are therefore compelled to reverse.

We recognize that the trial judge, in devising instructions for a jury which set forth a clear exposition of the law, faces a difficult problem and carries a heavy burden. The problem is particularly difficult when as here the court is instructing laymen on the theory of concurrent causes. Recognizing that he is taking a jury on a journey completely alien to them, the trial judge must use extreme care in its use of words and phrases; otherwise, a journey which is supposed to be educational and enlightening will end in a sea of confusion. See Azzarello v. Black Bros., Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). The need for extreme care is particularly apt when as here the appellant had serious physical disorders prior to the accident, alleged serious mental disorders after the accident, and the ensuing medical problems could reasonably be consistent with either cause.

For the foregoing reasons we reverse and order a new trial.

VAN der VOORT, J., concurs in the result.

      . The notes of testimony totaled 697 pages.

      . His flight time was far in excess of amount of time necessary to be certified a war casualty.

      . This included epileptic seizures and unusual episodes of monoparesis (paralysis involving one leg).

      . Because of our disposition of this case, we will not address other issues raised by appellant.