text:
    467 A.2d 894
    John Frederick THILL and Louis J. Presenza, Executors of the Estate of Carmelita G. Thill Larner, Deceased v. Leroy LARNER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1982.
    Filed Nov. 10, 1983.

      Lawrence J. Arem, Philadelphia, for appellant.
    Abraham J. Golden, Philadelphia, for appellees.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   LIPEZ, Judge:

The appellant was the defendant in this divorce action, which was brought in 1978 on grounds of indignities. After protracted hearings, the master filed a report on June 18, 1980, recommending that a divorce be granted. On the following day, appellant filed exceptions to the report. On August 18, 1980 appellant filed an election that all further proceedings be under the Divorce Code of 1980. On November 24, 1980 the court below entered an order permitting the election and ordering that the case “proceed under the Divorce Code, effective July 1, 1980 and the applicable Rules of Civil Procedure.” On the same day, the court entered an order denying the exceptions, but also purporting to “retain jurisdiction of this matter pursuant to § 401(b) of the Divorce Code of 1980.” The order denying the exceptions was entered as a final decree of divorce, and on December 17, 1980, this appeal was taken.

Appellant contends the court erred in bifurcating the case, i.e., in granting an immediate divorce while setting “other matters” aside to be decided later. If this were an ordinary case, we would be inclined to agree, because the court below did not make any findings based on the record concerning the effect on the parties of separating the divorce issue from the issues of the parties’ other rights under section ■ 401(b) of the Divorce Code. Ordinarily, we would have to remand in such a case so that the lower court could build a record and exercise its discretion as a basis for review. See Wolk v. Wolk, 318 Pa.Super.Ct. 311, 464 A.2d 1359 (1983).

The reason there is no need for remand here is that when the lower court entered the decree of divorce, there were no other matters to be decided under section 401(b). Section 401(b) provides:

Any decree granting a divorce or an annulment, shall include after a full hearing, where these matters are raised in the complaint, the answer or other petition, an order or orders determining and disposing of existing property rights and interests between the parties, custody and visitation rights, child support, alimony and any other related matters including the enforcement of separation agreements voluntarily entered into between the parties. In the enforcement of the rights of any party to any such matters, the court shall have all necessary powers, including but not limited to, the power of contempt and the power to attach wages. In the event that the court is unable for any reason to determine and dispose of the matters provided for in this subsection within 30 days after the master’s report has been filed, it may enter a decree of divorce or annulment. The court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own costs, or may order that costs be divided equitably as it shall appear just and reasonable.

Act of April 2, 1980, P.L. 63, No. 26, § 401(b), 23 P.S. § 401(b) (Supp.1983-1984) (emphasis supplied). Appellant has never at any stage of the proceedings raised any matter provided for in section 401(b). Since there were no matters before the court other than whether or not to grant the divorce, it follows that there was no need for the court to exercise any discretion with respect to other matters, and the portion of the court’s order retaining jurisdiction under section 401(b) is a nullity. Therefore we shall affirm the lower court’s order insofar as it grants the divorce, and vacate it insofar as it retains jurisdiction.

Order affirmed insofar as it grants the divorce, but vacated insofar as it retains jurisdiction under section 401(b) of the Divorce Code of 1980.

      . There appears to be a great deal of confusion concerning what order was appealed. The notice of appeal simply stated that it was from the order of November 24, 1980, but the lower court entered two orders on that day. The cover of appellant's brief states that the appeal is from the order "entering a decree of divorce,” while the brief itself says the appeal is from both that order and the order that the case proceed under the Divorce Code of 1980. As appellee points out, the latter order, if appealed, must be quashed as interlocutory. Toll v. Toll, 293 Pa.Super.Ct. 549, 439 A.2d 712 (1981). In addition, appellant has no standing to appeal that order, since he is not "aggrieved” by it. See Pa.R.A.P. 501. We regard the properly appealable order (which was entered as a final decree of divorce) as the order from which this appeal was taken. The appeal from this order is sufficient to raise the bifurcation issue,' which is the only issue which the appellant wishes to present.

      . Appellees (executors of the estate of appellant’s former wife, for whom they were substituted as parties when she died while this appeal was pending) request that we also vacate the order granting appellant’s election to proceed under the Divorce Code of 1980. As discussed in note 1, supra, we do not regard that order as being one from which the appeal was taken, and it is not before us. However, our vacating the lower court’s retention of jurisdiction (which is part of the order which was appealed) has the effect sought by appellee, preventing the lower court from taking further action.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    467 A.2d 896
    COMMONWEALTH of Pennsylvania, v. Arthur HECK, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1983.
    Filed Nov. 10, 1983.

      Ronald J. Wydo, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

This appeal arises from the denial of appellant’s petition under the Post Conviction Hearing Act (hereinafter “PCHA”).

Appellant pled guilty to statutory rape on September 13, 1976, and was sentenced four months later to a term of imprisonment of five (5) to ten (10) years. The direct appeal filed in this court resulted in our remand of the matter to the trial court on July 12, 1978, permitting the nunc pro tunc filing of a petition to withdraw the guilty plea. Commonwealth v. Heck, 258 Pa.Super. 602, 391 A.2d 683 (1978). However, no such petition was filed.

Instead, a pro se PCHA petition was filed by appellant on November 21, 1978. Counsel was appointed and the petition was subsequently amended. The PCHA court dismissed the amended petition without a hearing on November 26, 1979. This court granted appellant’s petition for leave to file the instant appeal nunc pro tunc on April 28, 1980.

Appellant argues herein that (1) his guilty plea was involuntarily and unintelligently made as his counsel rendered ineffective assistance before and during his guilty plea hearing; (2) his guilty plea colloquy did not meet the requirements of Pa.R.Crim.P. 319(a); and, (3) counsel was ineffective for failing to file a petition to withdraw the guilty plea when this court permitted such filing nunc pro tunc.

A challenge to the validity of a guilty plea should be addressed in a motion before the sentencing court requesting permission to withdraw the plea. Commonwealth v. Dowling, 482 Pa. 608, 394 A.2d 488 (1978). However, if a guilty plea challenge is appended to an ineffective assistance of counsel allegation, the matter may properly be brought before the court in a PCHA petition. Commonwealth v. Herold, 246 Pa.Super. 170, 369 A.2d 866 (1977). We, therefore, need not reach appellant’s claim of ineffectiveness for failing to file a petition to withdraw his guilty plea as he has challenged that plea in his PCHA petition. Commonwealth v. Warren, 264 Pa.Super. 274, 399 A.2d 773 (1979).

Although the right to an evidentiary hearing is not an absolute one, a hearing should be held on any issue which the PCHA court is not certain lacks merit. Commonwealth v. Rhodes, 272 Pa.Super. 546, 416 A.2d 1031 (1979). We will only remand for an evidentiary hearing if it is not possible to determine from the record whether the petition is frivolous and without support. Commonwealth v. Payton, 253 Pa.Super. 422, 385 A.2d 410 (1978). Otherwise, we will affirm if our review of the record evinces that the claims are patently frivolous. Commonwealth v. Taylor, 491 Pa. 205, 420 A.2d 413 (1980).

The information gleaned from the record before us is insufficient to support a finding of patently frivolous claims. We must, therefore remand the matter for an evidentiary hearing on appellant’s claim that ineffective assistance of counsel before and during his guilty plea hearing rendered his plea involuntary and unintelligent.

Remanded for an evidentiary hearing consistent with this opinion, and for completion of the record. Jurisdiction relinquished.

      . 42 Pa.C.S.A. § 9541 et seq.

      . We note, however, that the certified record before us includes the amended PCHA petition, but not the original which the amended petition references and incorporates, but does not reiterate. The amended petition contains no reference to this claim, thereby necessitating the hereinafter remand for completion of the record, inter alia.


text:
    467 A.2d 898
    COMMONWEALTH of Pennsylvania v. Alan PRESBURY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 26, 1983.
    Filed Nov. 10, 1983.

      Harvey W. Robbins, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   PER CURIAM:

Alan Presbury was tried by jury and was found guilty of murder in the first degree as a result of the killing of Blair Lee in May, 1974, at 28th and Huntingdon Streets in Philadelphia. A sentence of life imprisonment was imposed, and, on direct appeal, the judgment of sentence was affirmed. See: Commonwealth v. Presbury, 475 Pa. 48, 49, 379 A.2d 569 (1977). Presbury subsequently filed a petition under the Post Conviction Hearing Act. Counsel was appointed, and evidentiary hearings were held. Appellant’s P.C.H.A. petition was thereafter dismissed, and this appeal followed.

Presbury contends, on appeal, that trial counsel was ineffective for the following reasons: (1) he failed to utilize a juvenile record to impeach an eyewitness who gave damaging testimony against appellant; (2) he failed to call character witnesses; (3) he failed to prove that appellant had no prior criminal record; (4) he failed to establish that the group to which appellant allegedly belonged was not a “gang”; (5) he pointed out to the jury inconsistencies in the defense case; and (6) he cross-examined a Commonwealth witness concerning the existence of evidence not produced at trial.

Unfortunately, the P.C.H.A. hearing court has made no findings of fact regarding these issues. Findings of fact are required by Pa.R.Crim.P. 1506(5) and by the decided cases. See: Commonwealth v. Elliott, 319 Pa.Super. 521, 466 A.2d 666 (1983); Commonwealth v. Whittman, 306 Pa.Super. 174, 452 A.2d 271 (1982); Commonwealth v. Reed, 298 Pa.Super. 480, 444 A.2d 1285 (1982). Without findings of fact by the trial court, this Court cannot conduct meaningful appellate review.

Remanded with directions to the P.C.H.A. hearing court to .make findings of fact within sixty days. Meanwhile, jurisdiction is retained.


author: WICKERSHAM, Judge:

text:
    467 A.2d 1133
    ARC MANUFACTURING COMPANY, INC. v. Josef KONRAD, Defendant and Third Party Plaintiff, Appellant, v. ARC MANUFACTURING COMPANY, INC. and Johan Industries, Inc. and Hans Trustorff and Emil Feuchter, Third Party Defendants, J. Howard Foote, Custodian. ARC MANUFACTURING COMPANY, INC. v. Josef KONRAD v. ARC MANUFACTURING COMPANY, INC. and Johan Industries, Inc. and Hans Trustorff and Emil Feuchter, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1982.
    Filed Sept. 30, 1983.
    Reargument Denied Dec. 9, 1983.
    Petition for Allowance of Appeal Denied March 12, 1983.

      John C. Fenningham, Warminster, for appellant (No. 381) and for appellee (No. 527).
    Marc J. Sonnenfeld, Philadelphia, for appellants (No. 527) and for appellees (No. 381).
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   WICKERSHAM, Judge:

This case comes to us on cross-appeals from a final decree in equity issued by the Honorable George T. Kelton of the Bucks County Court of Common Pleas. This complex and lengthy litigation between business associates began on April 6, 1979, when ARC Manufacturing Company, Inc. (hereinafter ARC) filed a complaint in equity against Josef Konrad, (hereinafter Konrad) a shareholder, director and officer of ARC. ARC’s complaint alleged that although Konrad had been removed from his post as president of ARC, Konrad refused to leave the corporation. ARC sought a permanent injunction barring Konrad from its premises or from interfering with the conduct of ARC’s business.

Konrad filed a counterclaim against ARC and a third party complaint against the other two shareholders of ARC, Hans Trustorff and Emil Feuchter. On his part, Konrad sought an injunction to restrain ARC from interfering with Konrad’s exercise of his responsibilities as president of ARC; Konrad contended that his removal from that office was improper.

Preliminary hearings were held before Judge Kelton in April of 1979; after these hearings Judge Kelton denied ARC’s request for a preliminary injunction. At Konrad’s request Judge Kelton issued a special injunction preserving the status quo, freezing compensation for Trustorff and Feuchter and appointing Donald L. Toner, Esq., special receiver to insure compliance with the injunction. Further hearings were held.

Judge Kelton made detailed findings of fact, discussed the applicable law, made conclusions of law and issued a decree nisi on November 10, 1980. The most salient points of the decree nisi were the appointment of a custodian for ARC, the direction of a payment from ARC to Konrad and a payment from Trustorff and Feuchter to ARC for counsel fees paid by ARC.

Konrad, as well as ARC, Trustorff and Feuchter filed exceptions to the decree nisi. On January 5, 1982, the lower court en banc dismissed the exceptions, confirmed the decree nisi and entered a final decree. All parties appealed to this court. Subsequent to the filing of appeals Konrad sought a supersedeas and stay pending appeal; Konrad’s application was denied by the lower court. A per curiam order of this court directed the lower court to hold a hearing and make factual findings with respect to Konrad’s application. The lower court’s findings were not disturbed by this court.

A paraphrase of the lower court’s findings of fact may be made as follows. ARC was formed in 1968 by Trustorff, Feuchter and Konrad. Trustorff and Konrad were the most active incorporators but Feuchter was included in the pre-incorporation discussions. All of the businessmen agreed that the enterprise would be constituted as a Pennsylvania business corporation, with each of them to have a one-third share of the business. The corporate officers were Konrad as President and Trustorff as Secretary-Treasurer; Konrad was to be employed as Sales Manager and Trustorff as Production Manager. There was a formal pre-incorporation agreement as well as corporate bylaws.

During the early years of the corporation’s life, Konrad was President-Sales Manager and Trustorff was Secretary-Treasurer-Production Manager. Between 1968 and 1979 Trustorff and Konrad received equal compensation and ARC prospered. During this period of time Feuchter, however, became dissatisfied because as outside shareholder he was not receiving as much benefit from his stock ownership as Konrad and Trustorff.

In February of 1979, Konrad, ARC’S president, summarily fired an important employee who had a good relationship with ARC’S most important customer. When Trustorff and Feuchter learned of Konrad’s action they called a directors’ meeting without notice to Konrad, fired Konrad and rehired the employee. After some negotiations between the three directors, Feuchter offered to buy Konrad’s share of the business but Konrad refused the offer. Feuchter and Trustorff then called another directors’ meeting to ratify their action in firing Konrad.

Konrad was present at this second board meeting yet Trustorff and Feuchter confirmed removing him as president, terminated his salary and eventually removed him as a director of both corporations. Another meeting was held in November 1979, ratifying the removal of Konrad from the presidency, amending corporate bylaws and increasing the compensation of Trustorff and Feuchter. The corporation also incurred large legal bills.

Both sides in this dispute submitted various proposals to the lower court. The judge below decided that a custodian would protect the interests of all the parties and allow an otherwise thriving business to continue.

Konrad phrases the issues involved in his appeal as follows:

Was there a binding agreement (i.e. “Arrangement”) between the three shareholders that Konrad would be active in the management of ARC as President and a member of the Board of Directors and would receive compensation equal to Trustorff, as long as Konrad was able to perform the duties of his office?

Brief for Konrad at 2.

Konrad argues that at issue is the Chancellor’s failure to infer or conclude from the overwhelming weight of the evidence that there was a binding and enforceable Arrangement between Konrad, Trustorff and Feuchter. According to Konrad, all three businessmen promised each other that Konrad and Trustorff would be officers and employees of ARC for the rest of their working lives and that Konrad and Trustorff would receive equal compensation. In Konrad’s view of the case, the written pre-incorporation agreement omitted certain fundamental promises between Konrad, Trustorff and Feuchter and, therefore, both the oral Arrangement and the written pre-incorporation agreement should have been enforced by the lower court.

The Chancellor and the lower court en banc rejected Konrad’s position. The Chancellor found that the pre-incorporation plans of the parties were not as broad as Konrad asserts. When we are called upon to review a chancellor’s findings we utilize the standard of review set forth by Judge Spaeth in Wright v. Buckeye Coal Company, 290 Pa.Super. 231, 236, 434 A.2d 728, 731 (1981), “[w]hen approved by a court en banc ... the findings of a chancellor have the effect of a jury verdict, and therefore, if supported by adequate evidence, will not be disturbed on appeal.” An appellate court is nevertheless able to review a chancellor’s conclusions of law or ultimate fact. Id., 290 Pa.Superior Ct. at 236, 434 A.2d at 731.

Here, we are satisfied that the Chancellor’s rejection of Konrad’s contentions about the breadth of the oral Arrangement is supported by adequate evidence. The written agreement between Konrad, Trustorff and Feuchter and the by-laws of ARC do not make any of the three incorporators, officers or employees of the corporation for life. The by-laws actually provide that each officer shall hold his office until the next annual meeting or until his death, removal or resignation. We agree with the Chancellor’s finding that the alleged Arrangement was not as sweeping as Konrad argued.

Konrad’s second issue is:

Whether judicial relief granted a minority shareholder from oppression by the majority shareholders/directors may be based upon the shareholders’ legitimate expectations in forming a closely-held corporation, and/or upon contract rights inter se, as well as the fiduciary relationship arising out of the majority shareholders/directors’ control?

Brief for Konrad at 2.

Again, Konrad argues that the Chancellor erred in failing to conclude from the evidence that relief should have been afforded Konrad on several other bases, including the Arrangement, and Konrad’s expectations. Konrad asserts that violation of the expectations of minority shareholders constitutes oppressive conduct and that oppressive conduct can be remedied by implementing the expectations of the minority shareholders. In this case, the relief sought is reinstatement pursuant to the Arrangement/Agreement.

For reasons explained in more detail above we believe that the Chancellor correctly decided that Konrad was not entitled to life long occupancy of the presidency of ARC. Therefore, the Chancellor did not err in refusing to return Konrad to his former position.

Konrad’s third issue is:

Whether the Court below erred in refusing to grant a mandatory injunction restoring Konrad to parity with Trustorff as to compensation, participation in management and, tenure in office.

Brief for Konrad at 2.

Konrad believes that although the Chancellor appointed a custodian for ARC, Konrad should be reinstated as part of ARC’s management. Because Konrad had no right to be president for life of ARC there was no error in refusing to bring Konrad back into ARC’s day to day operation. In its findings on Konrad’s application for a supersedeas order the lower court stated that the custodian’s investigation revealed “that the animosity between Konrad and the two other principals was so severe that it would not be in the best interest of the health of the company that Konrad be presently active in the business on a day to day basis. We concur totally with ... said finding and adopt it as our own.” Slip op. at 4. We agree with the Chancellor’s determination.

Konrad’s final issue is:

Whether the Court below erred in not providing adequate guidelines to the court-appointed custodian requiring Konrad to be maintained on a parity with Trustorff as to compensation, participation in management and, tenure in office.

Brief for Konrad at 2.

Konrad specifically complains that Trustorff and Feuchter received bonuses while his salary was reduced and that the Custodian improperly allowed the payment by ARC of approximately $7,000 of legal fees.

The Chancellor explained the actions of the custodian in his findings on Konrad’s supersedeas application. According to the Chancellor, Konrad’s salary was reduced because of a downturn in ARC’s business caused by generally poor economic conditions. The Chancellor also found that the legal fees paid by ARC amounting to $7,000 were reasonably related to ARC’s business. We will not disturb these findings.

Having disposed of Konrad’s issues, we will examine the questions raised by the cross-appeal of ARC. ARC’s first issue is:

Did the acts of the two majority shareholders of a solvent and profitable corporation in removing an unreasonable and obstreperous third shareholder as an officer and employee of the company, where there was no by-law or contractual restriction on their right to do so, constitute ‘illegal and oppressive conduct’ thereby warranting the appointment of a custodian pursuant to Section 513.1 of the Pennsylvania Business Corporation Law, P.L. 459, No. 216, § 30 (1968), Pa.Stat.Ann. tit. 15, § 1513.1 (Purdon Supp.1981)?

Brief for ARC at 3.

ARC asserts that this is a case of first impression under section 513.1 of the Pennsylvania Business Corporation law, 15 P.S. § 1513.1, which allows a court of common pleas to appoint a custodian for a business if those in charge of the corporation are behaving in an oppressive manner. ARC argues that there was no attempt to squeeze Konrad out of the business and that it was error to appoint a custodian.

The Chancellor found that Trustorff and Feuchter violated their fiduciary duties as shareholders and directors in the following ways:

(a) Calling a special directors’ meeting of ARC on February 7, 1979 without notice to Konrad and in violation of Section 2.04 of the corporate by-laws and attempting therein to remove Konrad as President;
(b) Changing the locks on the company premises in February 1979 and thereafter refusing to permit Konrad to have reasonable access to the premises leased by ARC corporation in Feasterville, Pa. while Konrad remained as legal President of ARC, legal and de facto President of Johan, director of both corporations and trustee of the real estate trust which owned the premises;
(c) Attempting to exclude Konrad entirely from access to the business records of the corporation and from participation in meaningful decisions involving the corporate affairs since February, 1979;
(d) Terminating Konrad’s salary and other compensation and engaging in conduct which prevented Konrad from remaining eligible for ARC’s profit sharing plan thereby reducing his compensation from the combined enterprises from $77,932.39 in 1976, $105,552.93 in 1977, and $112,118.72 in 1978, to $33,935.81 in 1979 and zero in 1980.
(e) Failing to make provision for reasonable dividends to the shareholders in proportion to their ownership interest in the two corporations;
(f) Attempting to increase their own salaries, bonuses and profit sharing after Konrad was ousted from office;
(g) Attempting to transfer the management functions of the board of directors to an executive committee in November 1979; and
(h) Wasting the assets of the corporation by the payment and accrual of obligations for legal expenses and related costs incurred for the purpose of depriving Konrad of his shareholder benefits, such expenses having been incurred without compliance with the indemnification provisions of Section 410D and E of the BCL (15 P.S. § 1410) as amended.

35 Bucks Co.L.Rep. 294, 300-01 (1981).

The Chancellor further found:

Throughout all of our hearings and observations of the respective parties, we have come to the conclusion that all three principals to this dispute are exceptionally competent businessmen who but for their inability to get along with each other would have been able to operate their businesses without any judicial interference whatsoever. It would therefore be totally inappropriate at this time to order the complete liquidation of the corporations pursuant to Section 1107 of the BCL (15 P.S. § 2107) or even to appoint a receiver or custodian to take complete charge of the operation.

Id. at 304.

Under these circumstances we believe the Chancellor properly appointed a custodian. The decision of the Chancellor reflects an effort to preserve a business which somehow prospered despite the conflicts among its owner/operators. There was no error.

ARC’s other issue is:

Did the acts of the two majority shareholders of a solvent and profitable corporation in causing the corporation to pay their counsel fees in litigation with an unreasonable and obstreperous third shareholder constitute a waste of corporate assets thereby warranting the appointment of a custodian pursuant to Section 513.1 of the Pennsylvania Business Corporation Law?

Brief for ARC at 3.

The Chancellor found that Trustorff and Feuchter incurred approximately $134,000 in legal costs and fees but that only approximately $27,000 of this sum was expended on activities which the two might reasonably believe to be in ARC’s best interests. The balance of the sum was used to defend Trustorff and Feuchter’s misconduct toward Konrad. It was not error to require Trustorff and Feuchter, rather than ARC, to pay these legal fees.

Decree affirmed.


author: HESTER, Judge: WICKERSHAM, Judge, POPOVICH, Judge,

text:
    467 A.2d 1139
    Mark ZUBRIS, Appellant, v. PENNSYLVANIA ASSIGNED CLAIMS PLAN.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1982.
    Filed Oct. 7, 1983.
    Reargument Denied Dec. 16, 1983.
    Petition for Allowance of Appeal Denied May 24, 1984.

      Stephen P. Ellwood, Pottsville, for appellant.
    David B. Glancey, Philadelphia, for appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   HESTER, Judge:

This is an appeal from an Order dated March 3, 1981, dismissing a complaint in assumpsit for no-fault benefits provided under the provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act (hereinafter the “No-Fault Act”) and the Pennsylvania Assigned Claims Plan. Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. Appellee’s request for a summary judgment was granted on the grounds that the complaint was filed beyond the two-year statute of limitations provided in the No-Fault Act.

Appellant, Mark Zubris, was injured on January 13, 1976, while a passenger in an automobile operated by Michael Wallace. Mr. Wallace’s vehicle was struck by another vehicle operated by Edward Stoudt. Two weeks following the accident, appellant retained counsel for the purpose of recovering compensation for his injuries.

Appellant and his attorney were advised by Mr. Wallace that his motor vehicle was covered by insurance purchased by his father from The Pflueger Agency in Schuylkill Haven, Pennsylvania. It was not until March, 1978 that appellant learned that Wallace’s insurance policy covered collision only; it did not cover the liability or basic loss benefits required under the No-Fault Act.

A notice of loss was filed with appellee, the Pennsylvania Assigned Claims Plan, on August 7, 1978. This notice of loss was followed by a notice of claim filed with appellee on August 18, 1978. When the claim was rejected, appellant filed an assumpsit complaint against appellee on September 26, 1978. Appellee responded with an answer and new matter containing an allegation that the complaint was untimely filed under the No-Fault Act.

Section 1009.106(c)(1) of the No-Fault Act sets forth the applicable limitations period for instituting this type of action:

“If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than the survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits. 40 P.S. § 1009.106(c)(1).

The limitations period, at the earliest, starts to run on the date the claimant suffers a “loss”. Section 1009.103 defines loss as an “accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor’s loss.” Appellant avers that the “loss” was not sustained until March, 1978, when he learned that The Pfueger Agency did not provide the mandatory no-fault coverage for Mr. Wallace. Conversely, appellee maintains that loss was sustained on January 13, 1976, the date of the accident.

The primary issue presented here is whether the “loss” occurred on the accident date (January 13, 1976), on the date of actual knowledge of no no-fault coverage for Mr. Wallace (March, 1978), or some other date falling between those advanced by the parties. This issue can be resolved only after a refinement of the definition of “loss” and a determination of when “loss” occurred here.

In refining the definition of “loss”, a review of recent decisions on limitations of actions under the No-Fault Act is in order. In Donnelly v. DeBourke, 280 Pa.Super. 486, 421 A.2d 826 (1980), the plaintiff was injured while riding as a passenger in a vehicle struck from behind. A complaint in trespass for damages in excess of the threshold amounts was not filed against the negligent motorist until two years and nine months had passed from the accident date. The defendant’s preliminary objection on grounds that the statute of limitations was not complied with was sustained and the action dismissed. In affirming, this Court rejected the plaintiff’s argument that the limitations period cannot begin to run before the threshold requirements are met. The Donnelly court held, in accordance with its view of tradition, that the limitations period begins to run on the date the injuries were sustained even though the nature and extent of the injuries are not yet certain. The Donnelly court especially noted that the threshold limits do not preclude the filing of a tort cause of action; they merely limit the amount of recovery. Its concern for an unwieldly court calendar may have led the Donnelly court to its holding.

The Donnelly decision did not remain precedential for long. This same court in Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981), under identical facts, overruled the Donnelly decision. In Bond, supra, the court viewed the No-Fault Act as a mechanism eliminating a cause of action and not merely limiting the amount of damages. In accordance with this premise, the Bond court held that the limitations period does not begin to run, and the cause of action does not accrue, until the claimant knows or should have known that one of the § 1009.301(a) thresholds had been reached. The Bond court recognized the discovery dangers of the threshold being reached only after many years; nevertheless, its fears were allayed when it also recognized the four-year statute of repose built into § 1009.106(c). No action may be filed beyond four years of the accident date irrespective of the threshold remaining unsatisfied.

In further interpretation of “loss”, Myers v. U.S.A.A. Casualty Ins. Co., 298 Pa.Super. 366, 444 A.2d 1217 (1982), held that the date of accident does not necessarily begin the running of the statute of limitations under the No-Fault Act; rather, the limitations period begins to run when the cause of action accrues. Two of the three plaintiffs in Myers, supra, were passengers in a motor vehicle operated by the third plaintiff, Lynn Wagner Myers. Miss Myers’ vehicle collided with another vehicle resulting in serious physical injury to the three plaintiffs. The defendant was the insurer of the vehicle operated by Miss Myers. When the defendant insurer refused to honor a claim for medical bills, lost wages, impairment of earning capacity and loss of ability to work, the plaintiffs filed a complaint in assumpsit and trespass against the defendant. The lower court agreed with the defendant insurer’s preliminary objections and ordered the complaint dismissed with prejudice for failure to file within the statutory period of limitations.

In holding that the accident date there did not begin the running of the two-year statute of limitations, the Myers court reasoned that the creation of a four-year statute of repose unequivocally suggests that the two-year limitations period could begin its run somewhere between the accident date and the ultimate four-year limitation from the accident date. Under the particular facts presented in Myers, supra, the cause of action arose from the alleged breach of the defendant’s contractual obligation to pay no-fault benefits; therefore, “loss” was construed to occur at the time of breach of contract. The underlying tort cause of action was immaterial.

We recognize that, unlike the instant matter, Bond, supra, and Myers, supra, involve complaints filed against parties other than an insurance carrier assigned the claim under the assigned claims plan; nevertheless, such a factual distinction is not determinative. Both decisions refused to consider the day of the accident for the purpose of commencing the limitations period; instead, they looked solely to the date when the cause of action accrued against the respective defendants.

Prior to discussing when “loss” occurred, we must note the special statute of limitations set forth in § 1009.-106(c)(4). Section 1009.106(c)(4) provides:

Except as 'paragraph (1), (2), or (3) prescribes a longer period, an action by a claimant on an assigned claim which has been timely presented in accordance with the provisions of section 108(c) of this act may not be commenced more than sixty days after the claimant receives written notice of rejection of the claim by the restoration obligor to which it was assigned.

Section 1009.106(c)(4) incorporates, by reference, the following language set forth in § 1009.108(c)(1):

(c) Time for presenting claims under assigned claims plan.—
(1) Except as provided in paragraph (2) of this subsection, an individual authorized to obtain basic loss benefits through the assigned claims plan shall notify the assigned claims bureau of his claim within the time that would have been allowed pursuant to section 106(c) of the act for commencing an action for basic loss benefits against any obligor, other than an assigned claims bureau, in any case in which identifiable no-fault insurance coverage was in effect and applicable to the claim.

We are mindful that appellant commenced the lower court action within sixty days following appellee’s notice of rejection of benefits. As alluded to above, appellant filed his assumpsit complaint within sixty days of the filing of both his notice of loss and notice of claim with appellee. Consequently, that action was necessarily commenced within sixty days of notice of rejection of his claim. As the following discussion will indicate however, appellant failed to notify appellee within two years of date of loss, the limitations period set forth in § 1009.108(c)(1) and § 1009.106(c)(1).

Having, then, defined “loss” as the time at which the cause of action accrues, we turn to a review of the particular facts to determine when “loss” occurred here. When the cause of action accrued is determined by the intensity of appellant’s efforts in discovering the extent of insurance coverage on the Wallace motor vehicle.

An evidentiary hearing was conducted on February 4, 1981 on the limitation of actions issue. It was elicited that counsel was retained by appellant in January, 1976, approximately two weeks following the accident. Upon learning from Michael Wallace that The Pflueger Agency was his insurer, appellant spent the remainder of 1976, all of 1977, and the first two months of 1978 telephoning the Agency for the precise coverage provided. In March, 1978, appellant finally learned that only collision coverage, no coverage under the No-Fault Act, was provided for Michael Wallace. Thereafter, on August 7, 1978, appellant notified the appellee of his loss and requested a personal injury protection form. He filed a claim for benefits on August 18, 1978; appellee’s denial of the claim compelled appellant to institute the lower court action in September, 1978, approximately two years and eight months following the accident date. The notice of loss was filed nearly two years and seven months following the accident.

We note that the vice president of The Pflueger Agency testified that appellee’s work files did not reflect any communication from appellant concerning insurance coverage until March 13, 1980; therefore, the implication follows that no reasonable diligence was exercised in an attempt to determine date of “loss”. We also note, however, the vice president’s admission that a record is not kept of all phone calls. Furthermore, he admitted that it was not unusual for an employee to disclose to a telephone inquirer the insurance coverage of a particular insured without creating a record.

The granting of preliminary objections for the dismissal of a complaint will be sustained on appeal only where the pre-trial hearing results in a clear and unequivocal portrayal of facts justifying a denial of the claim. Allstate Ins. Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973); Legman v. Scranton School District, 432 Pa. 342, 247 A.2d 566 (1968). The facts extracted below unambiguously reflect appellant’s failure to meet his burden of proof, a burden properly imposed upon him since he was denying that he knew or had reason to know that “loss” occurred prior to March, 1978. See O’Neill v. Metropolitan Life Ins. Co., 345 Pa. 232, 26 A.2d 898 (1942); Hillman Transp. Co. v. Home Ins. Co. of New York, 268 Pa. 547, 112 A. 108 (1920).

In light of the vice president’s admissions, we conclude that appellant did make several phone calls from the accident date through March, 1978 in an attempt to discover the extent of Michael Wallace’s coverage; however, these inquiries do not, without evidence to the contrary, amount to reasonable diligence. A twenty-six month period of nothing more than telephone calls is not a demonstration of intense effort. Investigation of insurance coverage by letter and personal visits to the insurer or by perusal of the actual policy would constitute “reasonable diligence”. The record does not indicate whether appellant performed any of these.

The notice of loss was filed on August 7, 1978; consequently, the cause of action must have accrued, i.e., the “loss” occurred, no earlier than August 7, 1976. In light of the accident date of January 13, 1976, we must decide whether a seven-month period (January 13, 1976 through August 7, 1976) was enough time for appellant to actually know or be charged with the knowledge of knowing that “loss” occurred. Such a determination does not depend entirely upon appellant’s actions. It similarly depends upon the representations of The Pflueger Agency when responding to appellant’s request for information relating to precise insurance coverage and whether appellant reasonably relied upon such representations. It depends also upon appellee’s insurer’s representations and whether appellant reasonably relied upon them as well. The record is devoid of such evidence; appellant offers no substantive justification for his rather meager efforts to discover the extent of insurance coverage. We find, therefore, that appellant could have discovered, through the exercise of reasonable diligence, the absence of no-fault insurance benefits before August 7, 1976; consequently, the filing of his notice of claim on August 7, 1978, was untimely.

Although it discussed the limitation of action issue, the lower court opined and appellee avers that any issues raised by appellant on appeal were waived due to his failure to file exceptions under Rule 1038 of the Pa.R.C.P. We disagree. Rule 1038 requires the filing of exceptions within 10 days after notice of the decision in a non jury trial. Rule 1038 does not extend the requirement for exceptions to orders dismissing a complaint following a pre-trial hearing on a motion for summary judgment.

Order affirmed.

WICKERSHAM and POPOVICH, JJ., filed concurring opinions.

WICKERSHAM, Judge,

concurring:

I concur in the result reached by the majority. I too would affirm the judgment entered by the Honorable Jojseph F. McClosky of the court below dismissing plaintiff | Zubris’s complaint. I do not concur in the reasoning adopted by the majority.

On January 13, 1976 appellant Mark Zubris was injured while riding as passenger in an automobile operated by one Michael Wallace. As a result of the accident Zubris sustained loss as defined in the Pennsylvania No-fault Motor Vehicle Insurance Act including work loss and various allowable expenses. Subsequent to the accident Zubris learned that the Wallace vehicle was insured only for collision loss.

As “an individual authorized to obtain basic loss benefits through the assigned claims plan” Zubris notified the assigned claims bureau on August 7, 1978, more than two and one half years following the date of the accident.

Section 108(c)(1) entitled: “Time for presenting claims under assigned claims plan” reads as follows:

(1) Except as provided in paragraph (2) of this subsection, an individual authorized to obtain basic loss benefits through the assigned claims plan shall notify the assigned claims bureau of his claim within the time that would have been allowed pursuant to section 106(c) of this act for commencing an action for basic loss benefits against any obligor, other than an assigned claims bureau, in any case in which identifiable no-fault insurance coverage was in effect and applicable to the claim.

40 P.S. § 1009.108(c)(1).

Section 106(c)(1) referred to hereinabove provides as follows:

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

40 P.S. § 1009.106(c)(1).

Taken together, notification to the assigned claims bureau by an individual authorized to obtain basic loss benefits through the assigned claims plan must be given in all events no later than four years after the accident, nor later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident. Instantly, Zubris sustained personal injuries on the date of the accident, January 13, 1976, and began from that date accruing allowable expenses and work loss.

‘Loss’ means accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement services loss, and surviv- or’s loss.

40 P.S. § 1009.103.

Under the foregoing circumstances Zubris had to notify the assigned claims bureau within two years after suffering loss, which loss in the case sub judice coincided with the date of the accident.

POPOVICH, Judge,

concurring:

I concur in Judge Hester’s affirmance of the lower court’s Order, but write separately to amplify on the question of whether appellant “actually kn[e]w or [could] be charged with the knowledge of knowing [when] the[e] ‘loss’ occurred.” (at 1143).

The record indicates that on February 4, 1981 an evidentiary hearing was conducted for the specific purpose of determining if and when the appellant was in possession of sufficient information to place him on notice that a “loss” had occurred, so as to trigger the running of the two-year statute of limitations under Pennsylvania’s No-Fault Motor Vehicle Insurance Act. 40 P.S. § 1009.106(c)(1).

Before examining what transpired at the February 4 hearing, it is necessary to set forth, initially, which party to the litigation had the burden of proof.

In civil cases, the burden of proof rests upon the party who asserts the affirmative of an issue. Also, if a negation or negative affirmation be so essential, the proof of such a negative lies on the party so affirming it. United States v. Gypsum Co. v. Birdsboro Steel Foundry & Machine Co., 160 Pa.Super. 548, 52 A.2d 344 (1947). In other words, one alleging a fact which is denied has the burden of establishing it. O’Neill v. Metropolitan Life Insurance Co., 345 Pa. 232, 26 A.2d 898 (1942); Hillman Transp. Co. v. Home Ins. Co. of New York, 268 Pa. 547, 112 A. 108 (1920).

Conversely, the phrase “burden of going forward with the evidence” is generally used to designate the obligation resting upon a party to meet with evidence a prima facie case created against him by the party who has the burden of proof. See Henes v. McGovern, 317 Pa. 302, 309-311, 176 A. 503 (1935). Although the burden of producing evidence may shift, the burden of proof, in the sense of establishing the truth of a given proposition or issue, never shifts during the course of the trial. Henes v. McGovern, supra; Kleiner, Jack and Rome, Edwin P., Trial Handbook for Pennsylvania Lawyers, § 81 (1980).

Thus, the burden of proof in the strict sense of the term, that is, the ultimate burden of establishing the truth of a given proposition of fact essential to a cause of action or defense, “ ‘rests upon the party who as determined by the pleadings or the nature of the case asserts the affirmative of an issue, * * *. One alleging a fact which is denied has the burden of establishing it. * * * The affirmative of an issue, as thus used, includes any negative proposition which the person asserting the affirmative may have to show.’ ” (Citations omitted) 0 ’Neill v. Metropolitan Life Insurance Co., supra, 345 Pa. at 237-239, 26 A.2d at 902.

Instantly, an examination of the pleadings evidences that appellant denied having knowledge or reason to know that he had incurred a “loss” compensable under the No-Fault Motor Vehicle Insurance Act until January or February of 1978, as compared to the date of the accident on January 13, 1976, for which he was attempting to recover “work-loss” benefits. On the other hand, the appellee averred that appellant’s claim was barred by the No-Fault Motor Vehicle Insurance Act’s two-year statute of limitations, inasmuch as the notice of a claim was filed more than two years after the appellant knew or had reason to know that he had sustained a “loss” as a result of the accident on January 13, 1976.

Therefore, we have a situation in which the party plaintiff asserted a “negative affirmation,” i.e., that he was unaware until some two years after the accident that the driver of the vehicle in which he was injured had only collision insurance and no coverage for “payment of basic loss benefits pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101, et seq.” (Appellant’s “Answer To Motion For Summary Judgment Or Partial Summary Judgment,” Point 1) Consequently, as stated earlier, the party, which is the appellant here, asserting a “negative affirmation,” has the burden of proving such a negative. See O’Neill v. Metropolitan Life Insurance Co., supra; United States Gypsum Co. v. Birdsboro Steel Foundry & Machine Co., supra. As a result, at the February 4 evidentiary hearing to resolve the statute of limitations question, appellant had the burden of proving that he lacked sufficient information to cause the two-year statute of limitations to commence running prior to January or February of 1978 — this is the time-frame within which appellant discovered that the driver’s insurance carrier (The Pflueger Agency), from which he anticipated the recoupment of his “work loss benefits and allowable (medical) expense benefits” (see appellant’s “Complaint,” Point 7), did not provide such coverage to the insured. Inextricably tied to the resolution of this question, given the particular facts here, is the determination of whether appellant failed to act with reasonable diligence in ascertaining the identity of the no-fault insurance carrier of the driver and the extent of coverage provided for under the policy of insurance.

I note with particular interest the following statement by appellant’s hearing counsel, who was different from counsel initially hired by appellant, as reflective of the fact that counsel was acutely aware of his burden of proof at the proceeding:

“Our position is this, that the statute in this instance does not begin to run against Mr. Zubris until the time when he knew or reasonable [sic] should have known, either himself or through his counsel, that the person in whose automobile he was riding did not have the no-fault insurance, the PIP benefits which it is assumed all drivers in Pennsylvania carry pursuant to the state statute. And that’s ... For purposes of this hearing I have Mr. Zubris here just to testify ...
My offer of proof is this, Judge: ... [Mr. Zubris] believed, I think you would hear, that Mr. Wallace[ — the driver of the vehicle in which Mr. Zubris was a passenger —] had the appropriate insurance, and he, Mr. Zubris, consulted Mr. Krasno [ — the attorney first hired by Mr. Zubris — ], as did Mr. Wallace subsequently, as a result of this accident, and Mr. Krasno would then testify as to his efforts concerning the determination whether there was insurance. And he would testify as to his contact with the Pflueger Agency. And it is our position for this case that not having been told until early 1978, January or February of ’78, that there was no no-fault insurance, so far as Mr. Wallace was concerned, the claim against the Pennsylvania Assigned Claim Plan begin [sic] to run at that moment in time, because of the Assigned Claims Plan’s function as a fall-back insurer for someone who does not have insurance.
# # * # * *
Under the law of Pennsylvania we’re all supposed to have insurance in order to operate an automobile. One kind of insurance we’re supposed to have is no-fault insurance, and, therefore, it seems to me that a person, be he lawyer or layman, is entitled to rely upon a driver’s compliance with the law; that is that the driver will have insurance. And it’s only when you know or reasonably should have known that that person is not complying with the law; that is, does not have insurance, that the statute then begins to run as against this fail-back insurer, this reserve, if you will, which is denominated the Pennsylvania Assigned Claims Plan. That’s the legal thesis I’m operating on in this case.” (Emphasis added) (RR. 8-10)

Having set forth some of the procedural matters relevant to the case at bar and appellant’s counsel’s awareness of his particular burden of proof, we can now turn to the evidentiary hearing to decide if appellant, in fact, met his burden.

The witnesses presented by counsel in his effort to establish when Mr. Zubris or original counsel “knew or reasonably] should have known ... that the person in whose automobile [appellant] was riding did not have the no-fault insurance,” consisted of Mr. Zubris, prior counsel (Mr. Krasno) and the vice-president of the driver’s insurance company (Mr. Gosch).

At the hearing, Mr. Zubris testified that after the accident he hired Attorney Krasno “around in January” of 1976. Shortly thereafter, the attorney had the appellant and the driver (Mr. Wallace) of the vehicle meet in his office to discuss the case. At this time, according to appellant, Mr. Wallace “said that he had insurance.” (RR. 36) Albeit appellant had no sound basis for believing that Mr. Wallace had complete insurance coverage, nevertheless, the preceding statement led appellant to “figure[] that he had it [ — i.e., insurance to pay appellant’s medical bills].” Ibid. Additionally, appellant made reference to the fact that he did not find it unusual that a year had elapsed and his hospital bills had yet to be paid by the driver’s insurance company.

Attorney Krasno’s version confirmed Zubris’ accounting that he was hired in late January of 1976, and, concerning the meeting with Mr. Wallace, the witness remarked, “He indicated to me that he had full insurance coverage.” (RR. 43) However, Krasno qualified his testimony by stating that Mr. Wallace was not asked “whether he had collision and liability and PIP____” Ibid. Next, we see that when appellant’s hearing counsel asked Attorney Krasno, “Please tell Judge McCloskey what you did and as best you’re able to tell us about when you did it?” the witness answered:

“There were a number of telephone calls through, well, the beginning of 1976, I don’t recall the exact date, to the Pflueger Agency. I advised him that I represented Mr. Wallace and Mr. Zubris, that Mr. Zubris, apparently, did not have insurance and he would need to know the nature of the insurance held by Mr. Wallace. On each occasion, until sometime in early 1978, I was told, ‘Yes, Mr. Wallace has insurance with us, we’re not sure of the nature of it, we’ll have to get it together for you and let you know what kind of insurance he has.’ ” (RR. 43-44)

Despite Krasno’s representation of both the claimant and the insured, he failed to ascertain that Mr. Wallace did not have complete no-fault insurance until “about March of 1978,” some two years after the accident. (RR. 45) The reasons given by Attorney Krasno for not securing such information sooner than he did was because he “relied on both the [Pfleuger Agency’s] representations and the representations of Mr. Wallace []” concerning the scope of the insurance coverage.

On cross-examination, Attorney Krasno reaffirmed the point that he had placed, personally, a series of phone calls to The Pflueger Agency and that on “more than one” occasion he had conversed with Mr. Wallace concerning the insurance in question. Notwithstanding the aforesaid, Krasno nowhere makes reference to any attempt on his part to secure either a copy of Wallace’s insurance policy or personally visiting the insurance agency to expedite the determination as to the exact nature and scope of Wallace’s insurance coverage. Rather, according to Attorney Krasno’s own version of what happened, his efforts to resolve the issue consisted of no more than conversing with Mr. Wallace and phoning the insurance agency on several occasions over the course of two years. This course of (inaction seems ill-advised in light of Krasno’s admission that he “d[idn’t] think Mr. Wallace understood his policy at anytime.” (RR. 52) Based on the course of events just recited, it is not unusual to find Attorney Krasno testifying that he was “surprised” to learn from The Pflueger Agency in March of 1978, which was after the two-year statute of limitations had run, that Mr. Wallace’s insurance 'did not encompass appellant’s claim for benefits.

The testimony of the insurance agency’s vice-president, Mr. Gosch, indicates that, as a regular course of business, records are made at the agency at about the same time as the incident they reflect. However, save for incoming and outgoing long distance calls, it was not the agency’s practice to document every phone call coming into the office. Therefore, the agency’s records (i.e., Mr. Wallace’s file folder produced at the hearing) did not reveal “any communications from Mr. Krasno with respect to the insurance coverage of Mr. Wallace[ ]” until March 13, 1980. (RR. 56 & 57) At that time, Mr. Gosch sent a letter to Attorney Krasno, in response to two phone calls he had with Krasno during the preceding week, telling “him about Mr. Wallace and his insurance coverage.” (RR. 57) In other words, the agency had no record of “Mr. Krasno’s telephone calls in 1976 or ’77 concerning whether Michael Wallace was an insured[.]” (RR. 59)

At the completion of Mr. Gosch’s testimony, the hearing was concluded.

Based on the aforementioned, I find that the court below was presented with sufficient evidence to grant appellee’s motion for summary judgment. See Pa.R.Civ.P. 1035.

I hasten to point out that I agree with Judge Hester that Krasno’s phone inquiries over the course of two years comes nowhere near to satisfying the “reasonable diligence standard,” thus we need not remand the instant case for the purpose of supplementing the record regarding what statements were made, if any, to Krasno by the agency’s employees and how he might have relied upon them to his detriment. As correctly noted by Judge Hester, the record is barren on this subject. However, it cannot be gainsaid that the presence of this void in the record is attributable to appellant’s failure to satisfy his burden of proof; a burden which did not shift during the course of the February I¡. hearing. See O’Neill v. Metropolitan Life Insurance Co., supra; Kleiner, Jack and Rome, Edwin P., Trial Handbook for Pennsylvania Lawyers, § 81 (1980). Thus, I am in accord with the ruling which will preclude, in effect, the appellant from having a “second chance” to prove his case. See Commonwealth v. Goldwire, 313 Pa. Super. 273, 278 n. 5, 459 A.2d 1225, 1228 n. 5 (1983).

Stated differently, since the record is sufficient to sustain the lower court’s ruling, I see no need to remand. This is not a case in which “[wjithout such evidence there is no way the lower court could have determined” the extent of Wallace’s insurance coverage. Compare Commonwealth ex rel. Novack v. Novack, 310 Pa.Super. 112, 117, 456 A.2d 208, 211 (1983). Quite the contrary, the record is supportive of the conclusion that appellant was lax in his efforts to resolve the insurance coverage question and fell prey to the two-year statute of limitations of Pennsylvania’s No-Fault Motor Vehicle Insurance Act.

Therefore, based on the aforesaid, I find no reason to take issue with this Court’s affirmance of the lower court’s Order.

      . The instant matter does not fall within the parameters established by this Court’s recent en banc decision in Warren v. Reliance Insurance Company, 318 Pa.Super. 1, 464 A.2d 487 (1983). Warren involved three separate cases and each plaintiff notified the Pennsylvania Assigned Claims Plan of its loss well within two years of the accident date. Therefore, the sixty-day limitations period in § 1009.-106(c)(4) was properly at issue.

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

      . Zubris testified that he was taken from the scene of the accident to a hospital and immediately began accruing loss. Reproduced Record at 34-42.

      . In Bond v. Gallen, 292 Pa.Super. 207, 437 A.2d 7 (1981) we considered the statute of limitations where an injured victim sued a third party tortfeasor; in Myers v. USAA Casualty Insurance Co., 298 Pa.Super. 366, 444 A.2d 1217 (1982), we considered the statute of limitations where an injured victim sued his own no-fault carrier; in Williams v. Keystone Insurance Co., 302 Pa.Super. 44, 448 A.2d 86 (1982), we considered the statute of limitations where an injured victim timely notified the assigned claims bureau, was assigned a participating insurer and thereafter sued that insurer. In Platts v. Government Employees Insurance Co., 301 Pa.Super. 379, 447 A.2d 1017 (1982), we considered the statute of limitations where an injured victim received no-fault benefits from her own insurance company and later brought suit against such company to recover further benefits.

      . In particular, the hearing was “limited to the question of the timeliness of the suit which was brought [by the plaintiff-appellant Mark Zubris] against the Pennsylvania Assigned Claims Plan." (RR. 23)

      . ' See, e.g., “Complaint," “Answer of Defendant Pennsylvania Assigned Claims Plan,” appellee’s "Motion For Summary Judgment or Partial Summary Judgment" and "Plaintiff’s Answer to Motion For Summary Judgment or Partial Summary Judgment.”


author:
CAVANAUGH, Judge:
      MONTEMURO, Judge,

text:
    467 A.2d 1148
    In re C.A. WHITE and Flo B. White, Deed of Trust Dated: December 13, 1965. Appeal of Kenneth K. KING, Sarah King, Thomas F.B. King, John King and Mary King, Juniata Valley Bank, Raymond E. White, J. Nevin White and Roy A. Wingate. In re C.A. WHITE and Flo B. White Deed of Trust Dated: December 13, 1965. Appeal of Kenneth K. KING, Sarah King, Thomas F.B. King, John King and Mary King, Juniata Valley Bank, Raymond E. White, J. Nevin White and Roy A. Wingate.
    Superior Court of Pennsylvania.
    Submitted Sept. 15, 1982.
    Filed Nov. 4, 1983.
    Petition for Allowance of Appeal Granted and Denied Feb. 23, 1984.

      Robert W. Costigan, Philadelphia, for appellants.
    James B. Kozloff, Philadelphia, for Juniata Bank, participating party.
    John C. Garner, Philadelphia, for White, et al., participating parties.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   CAVANAUGH, Judge:

The instant appeal is from an order of the court below dismissing exceptions to an order granting the petition of Juniata Valley Bank to resign as trustee and denying the petition of a beneficiary under the trust to remove Raymond White as an individual trustee. In order to put the two petitions in the court below in proper focus, the history of the trust must be reviewed. The inter vivos trust in question was established by C.A. White and his wife, Flo B. White, in 1965 for the benefit primarily of their thirteen grandchildren. The trustees named in the deed of trust were settlor, C.A. White (now deceased), his two sons, J. Nevin White and Raymond White, his son-in-law, Roy A. Wingate, and the Juniata National Valley Bank (now the Juniata Valley Bank). The principal assets of the trust were two tracts of timberland totalling over three thousand acres. The trust agreement provided for the establishment of separate trusts for each grandchild who was to receive income while the trust remained in existence. Principal distribution was to be made to each grandchild as follows: one-half when he reached the age of twenty-five and the balance of principal at age thirty. Appropriate provisions were made in the event of the death of a grandchild prior to complete distribution of principal.

Over the years a conflict developed in investment policies between Juniata Valley Bank and Raymond White which culminated in 1980 with Raymond’s threat to sue the bank unless it resigned. As a result of these disputes the Juniata Valley Bank and Roy A. Wingate petitioned the court to resign as trustees. Subsequently, a petition was filed by one of the beneficiaries under the trust requesting that Raymond White show cause why he should not be removed as trustee.

The Orphans’ Court may remove a trustee under the authority of the Probate, Estates and Fiduciaries Code, Act of June 30, 1972, P.L. 508, No. 164, 20 Pa.C.S.A. § 3182 when interests of the trust are likely to be jeopardized by the continuation of the trustee in office. Removal of a trustee is a drastic action and proof of the need of this remedy must be clear. Croessant Estate, 482 Pa. 188, 393 A.2d 443 (1978). Nevertheless, “[wjhile the removal of a trustee is a matter resting largely within the discretion of the court having jurisdiction over the trust, it is equally clear that an abuse of discretion renders its exercise subject to review.” Crawford’s Estate, 340 Pa. 187, 190, 16 A.2d 521, 523 (1940). See also Croessant Estate, supra; Scientific Living, Inc. v. Hohensee, 440 Pa. 280, 270 A.2d 216 (1970); La Rocca Trust, 419 Pa. 176, 213 A.2d 666 (1965). In our opinion a review of the history of the trust reveals that the court below abused its discretion in denying the petition to remove Raymond White as a trustee. In recent years Raymond was insistent that the trust engage in speculative investments notwithstanding that they would not produce income for the beneficiaries and involved substantial risks. His basis for investments such as gold, foreign coins and puts and calls was that he had made a great deal of money in speculating and saw no reason that the trust should not invest in like manner with trust assets. He apparently saw no difference between risking his own money in speculative ventures and risking the assets of the trust.

It is clear that a mere error of judgment is not grounds for removal of a trustee. “All that the courts require of a trustee is common skill, common prudence and common caution.” Barnes’ Estate, 339 Pa. 88, 94, 14 A.2d 274, 276 (1940). In this ease Raymond manifested lack of common caution and prudence and the Juniata Valley Bank alone acted as a restraining force on his desires to speculate. Raymond wanted to buy canned food as an investment and store it. He was interested in buying wheat, corn, oats and other commodities as well as livestock. He pressured the bank as trustee to invest in foreign currencies such as Swiss francs and German marks. His justification was “... I own Swiss francs and German marks today, and have for years. And I have broken no laws and see that I’m breaking no laws by owning them. And I’ve doubled my money in many of them. And I do not count it as a poor investment or risky investment.” (Emphasis added).

The court below correctly pointed out that “it is probably true the bank exerted the most influence in deterring improprieties” and the dissent accepts this assessment of the situation. In this regard, with respect to Raymond’s desires for the trust to go far beyond the range of what would be considered reasonable and proper trust investments, his counsel on appeal states in the appellate brief:

Finally, even if Raymond has not learned as much about trust law as might be hoped, he is nevertheless only one of three co-trustees. While it is clear that the Bank exerted the most control in overriding Raymond’s suggestions, there is no evidence in the record that Raymond was able to bully the remaining two co-trustees as alleged by the appellants. (Emphasis added). Based on past performance, Raymond’s continuation in

the role of trustee will likely be adverse to the best interest of the trust. His desire to involve the trust in unorthodox and speculative investments is undoubtedly based on his belief that the trustees were vested with almost unlimited and absolute power under the deed of trust to do what they wanted with trust property. One example is his stated belief that the trustees could value the timberland, the main asset in the trust, at any figure they wanted whether for sale or with respect to principal distribution. He was of the opinion that even if they valued the land at a dollar, although it might be a ridiculous valuation, they had the power to do so. His beliefs concerning speculative investments continued notwithstanding the objection of his co-trustee, Juniata Valley Bank, based on an opinion letter of its counsel. The opinion letter stated in part that: “[t]he governing instrument in this case gives the trustees a broad power to invest and reinvest in such investments as they deem best for the beneficiaries and the trust. Nevertheless, the provision does not go so far as specifically to permit speculative investments, especially when considered with the stated purpose of the trust which is to provide ‘regular income’ for the settlor’s grandchildren.” The law firm concluded that the proposed investments by Raymond for the trust in copper pennies and lumber would not be proper trust investments because they probably would be deemed speculative.

An example of proposed self dealing by the individual co-trustees, Raymond and Nevin White, is illustrated in Raymond’s desire to purchase lumber from Nevin for the trust. The bank would not agree to this as it believed it involved self dealing and a breach of trust. With respect to this transaction Raymond testified:

Q. Now you brought that proposition to bank?
A. We more than brought it to the bank; it was agreed on. The trustees all agreed on it in my recollection and the Trust Committee put a stop to it. They vetoed it, as they vetoed dozens and dozens of things on this trust.
Q. Did they tell you why they vetoed that particular—
A. Yes, the very same thing as Mr. Groninger was trying to explain to you.
Q. What is that?
A. That it wasn’t lawful. And I’d like to know under what laws and whose. You’re an attorney, you might tell me; I’ll listen.
Q. Was it ever explained to you that this is a form of self-dealing and it might be illegal on that basis?
A. The price was at the market price and was not considered illegal and I consider it not illegal, and the trust is so written. If you will get the trust out and read — Please read to the people here what it says about self-dealing. Would you get those paragraphs and read it?
Q. Mr. White, you can do your own reading—
A. That’s right, I can do my own reading but I can’t do my own thinking.

The record reflects that the two individual trustees would have gone along with Raymond concerning his intention to buy lumber from his brother, a co-trustee, and his desire to buy gold. Raymond testified:

Q. Are you saying that three of the four trustees would vote in favor of something and then the bank just would not do it?
A. That’s exactly right. The three trustees voted in favor of the lumber and there was no lumber bought; and they voted in favor of the gold and there was no gold bought.

It was incongruous for the court below to recognize that the bank acted very properly in not approving Raymond’s speculative investments and that it was most influential in “deterring improprieties” and then deny the petition to remove Raymond as a trustee and allow the bank to resign as trustee. The bank was in reality the only restraining influence on Raymond and it was his threat to sue the bank, if it did not resign, that triggered the bank’s resignation. Raymond’s conduct was directed more to obtaining the bank’s acquiescence in his demands then in furthering the interests of the trust. Further, while Raymond wanted the trust to invest in assets that he as an individual could very properly invest in, no matter what the risk, they were not suitable as trust investments. The court below erred in denying the petition to remove Raymond as a trustee.

The second aspect of this case that is very troubling is the order of March 19, 1981 approving the resignation of Juniata Valley Bank. This aspect of the case must be considered in light of the court’s permitting Raymond to continue as a trustee knowing full well that the corporate fiduciary was the only reason that Raymond did not invest in assets which were unsuitable for a trust. The primary reason for the bank’s resignation was Raymond’s threat to bring suit if it did not resign. In our opinion the court below abused its discretion in permitting the bank to resign in these circumstances. The bank’s presence as a trustee is clearly more beneficial to the trust than Raymond’s continuing as a trustee. The settlor, C.A. White, had been president of the Juniata Valley Bank and during his lifetime was insistent that the bank continue as corporate fiduciary. A meeting was held in May, 1980, between Raymond White and his brother Nevin White and the bank’s officers responsible for the administration of the trust. Mr. Groninger, a director of the bank and member of the trust committee, was present at the meeting and told Raymond and Nevin about their father’s wishes. Mr. Groninger testified as follows:

Q. And what was it you told them at that time?
A. Their father had come to me individually — and other bank directors, but he talked to us individually and made us commit to him that we would never resign, and stay in and represent the grandchildren in the future to the best of the bank’s ability under the laws of banking, and I made him that pledge some years ago.
Q. When you say their father, are you referring to C.A. White?
A. C.A. White, yes. (Emphasis added).

Mr. Groninger further testified:

Q. You mentioned that Mr. White was on the board—
A. He was president at the time.
Q. Of the Juniata Bank?
A. Right. When the bank had actually considered resigning some years back.
Q. Were you on the board of the bank at that time?
A. I was on the board of the bank at that time. And he talked to individual members of the bank to not vote in favor of getting rid of his trust.
Q. Did he explain to you why he did not want the bank to resign at that time?
A. No, anymore than he had a lot of faith in the bank; he was president of the bank—

The settlor had great confidence in the corporate fiduciary and his confidence was well placed until the bank resigned as a result of Raymond’s harassment and threats to sue. The court below erred in interpreting the deed of trust as expressly allowing any trustee to resign. The deed provided:

The Trustees shall have the power to appoint their Successor Trustees. If any of the Trustees named herein shall die, resign, become incapacitated, or refuse to act further as Trustee hereunder, without having appointed a Successor Trustee, the other Trustees named herein may, but shall not be required to, appoint a Successor Trustee. ..”

Juniata Valley Bank could not resign based solely on the terms of the trust, as the trust agreement did not give a trustee the absolute right to resign. The court below erroneously decided that the deed of trust gave the bank the right to resign. Therefore, it did not really exercise any discretion in permitting resignation since it felt that resignation was allowed by the terms of the deed of trust. Discretion cannot be exercised by a court unless it recognizes that it has discretion to act in a particular situation. See Louis v. Clark, 227 Pa.Super. 547, 323 A.2d 298 (1974). The court below indicated that the beneficiaries might well have cause for concern that the corporate fiduciary, the one trustee with no personal interest in the lumber business, was going to be out of the picture, but felt that this was not enough reason to deny the bank’s petition to resign. This conclusion is unwarranted especially ip view of the denial of the petition to remove Raymond White as trustee.

The court below and appellee, Juniata Valley Bank, relied on Nixon’s Estate, 235 Pa. 27, 83 A. 687 (1912) to support the contention that Juniata Valley Bank was properly allowed to resign. In Nixon’s Estate, supra, an individual trustee was permitted to resign over objections of an income beneficiary. The Supreme Court stated at 235 Pa. 30, 83 A. 688:

The general rule is that a trustee may relieve himself from the liabilities arising from a trust relation by submitting the administration of the trust to the jurisdiction of the court. In our State the right of a trustee to be discharged is recognized by statutes which provide the method of procedure. Appellant has complied with the statutory requirements and has done everything that the law requires to be done antecedently to the asking of a discharge. There may be, and no doubt there are, cases in which a court would be justified in refusing a discharge, as where there has not been an accounting, or where the trustee on account of benefits, accruing to himself had undertaken to do certain things, or for other sufficient reasons, the time had not arrived for. the termination of the trust relation. But we see nothing of this character in the present case.
There is nothing in this record to indicate that the remaining trustees are not fully competent to manage the trust estate, or that they are unwilling to do so. The trust estate will be as safe in their hands as it was in the hands of those who preceded them in its management. The argument that the cestuis que trustent will lose some advantage if the trustee be discharged is without merit. (Emphasis added).

Appellee, Juniata Valley Bank, also relies on Ortlip Trust, 24 Fid.Rep. 109 (Montgomery County 1973) in which the Orphans’ Court permitted the resignation of an eighty-five year old trustee who was in failing health, and appointed new trustees. Neither case is controlling in the matter before us. A corporate fiduciary was not involved in Nixon’s Estate or Ortlip Trust, and of more importance, there was nothing to indicate that the beneficiaries would be harmed by the discharge of the trustee.

The Probate, Estates and Fiduciaries Code provides that after the confirmation of the final account and distribution to the appropriate parties, a trustee may be discharged by the court from further liability. 20 Pa.C.S.A. § 3184, 20 Pa.C.S.A. § 7121(3). The Restatement (Second) of Trusts deals with the situation in which a trustee may resign and provides in Section 106:

§ 106 Resignation of Trustee.
A trustee who has accepted the trust cannot resign except,
(a) with permission of the proper court; or
(b) in accordance with the terms of the trust; or
(c) with the consent of all the beneficiaries, if they have the capacity to give such consent.

The corporate trustee was not entitled to resign on the basis of the Restatement (Second) of Trusts, Section 106(b) or (c) and we must determine if the court properly granted permission to resign. Comment (c) to Section 106 of the Restatement (Second) of Trusts states in part: “It is within the discretion of the court whether to allow a trustee to resign. Ordinarily a trustee will be allowed to resign if such resignation will not be unduly detrimental to the administration of the trust, particularly if it would be unduly burdensome to the trustee to compel him to act as a trustee.” (Emphasis added). As stated in A. W. Scott, II, The Law of Trusts § 106.1 (3rd Edition, 1967) page 838: “It is within the sound discretion of the court whether or not to permit [the Trustee] to resign ... [b]ut where it would be disadvantageous to the administration of the trust, the court may refuse the trustee permission to resign(Emphasis added). The resignation of Juniata Valley Bank as trustee cannot be other than detrimental to this trust. The bank made a commitment to the settlor to continue as trustee. While this standing alone would not preclude its resignation, it is a factor to be considered. In addition, the reluctance of the bank to serve as trustee should no longer exist upon the removal of Raymond as a trustee. In this case, it may well be disastrous to the trust to retain Raymond as a trustee and permit the Juniata Valley Bank to resign. We believe the court below manifestly abused its discretion in allowing this. The best interest of the beneficiaries of this trust require that Juniata Valley Bank continue as a trustee and that Raymond White be removed as a trustee.

An appeal was also taken from the order of the court below of March 9, 1981, directing the trustees to pay counsel fee to Arthur A. Kusic, Esq., attorney for Raymond E. White and J. Nevin White in the amount of $12,759.39. In view of our decision, this aspect of the case will be remanded to the court below for further consideration of the appropriateness of payment of counsel fee from principal of the trust in any amount, and to determine the proper amount, if any, to be awarded.

Order granting the petition of Juniata Valley Bank to resign reversed, and order denying petition to remove Raymond E. White as an individual trustee reversed. The order of March 9, 1981, directing payment of counsel fee is reversed and the matter remanded for determination of the proper amount of counsel fee, if any, to be paid.

MONTEMURO, J., files dissenting opinion.

MONTEMURO, Judge,

dissenting:

I must respectfully dissent.

We are confronted here with two questions: 1) whether Raymond White should have been removed as a co-trustee, and; 2) whether appellee bank’s petition to resign as co-trustee should have been granted. The majority holds that the trial court, in permitting both of the above, abused its discretion. On the basis of the record before us, and keeping ever mindful of our scope of review, I have concluded that the decision of the court below should be affirmed.

Before addressing either of the issues stated above, I should first reiterate, as a preliminary matter, our scope of review. As a reviewing court we are limited to reversing only if there was abuse of discretion or error of law on the part of the trial court. In Re: Croessant, 482 Pa. 188, 393 A.2d 443 (1978); Crawford’s Estate, 340 Pa. 187, 16 A.2d 521 (1940).

Title 20 Pa.C.S.A. § 3182(5) provides for the removal of a trustee “when the interests of the estate are likely to be jeopardized by his continuance in office.” Our Supreme Court has added the following refinements to the statutory scheme. It has long been held that the removal of a fiduciary is a drastic action and that proof of the need for that remedy must be clear. Estate of Croessant, supra; DiMarco Estate, 435 Pa. 428, 257 A.2d 849 (1969); Corr Estate, 358 Pa. 591, 58 A.2d 347 (1948). This is especially so where the trustee has been personally appointed by the settlor. Estate of Croessant, supra; Estate of Nassar, 467 Pa. 325, 356 A.2d 773 (1976). It has been held that where the trustee enjoyed the confidence of the settlor, the power to remove him should only be exercised when the estate is endangered and intervention is necessary to protect the trust property. Holmes’ Trust, 392 Pa. 17, 139 A.2d 548 (1958).

Appellants argue vigorously that Raymond White’s continued presence as a co-trustee severely jeopardizes the trust assets. In support of their argument they direct the court to testimony of instances where Raymond White has suggested investments in non-income producing property, and urged what appellants would characterize as self-dealing in the trust assets. These instances are thoroughly discussed in the majority opinion. There is no question however of the fact that none of these suggestions has been implemented. If they had been, my conclusion, and probably the conclusion of the trial court, would have been greatly influenced by this fact. I accept the trial court’s assessment that "... it is probably true the bank exerted the most influence in deterring improprieties ...” (R. 62a). Nevertheless, I would not require the very drastic remedy of removal for mere suggestions when: 1) there are two other co-trustees capable of resisting and preventing any improprieties, and; 2) the trial court, which had an opportunity to personally hear the testimony of Raymond White and observe his demeanor specifically found that, “Indeed, Raymond has indicated that he now understands the necessity of first securing court approval for the policies he formerly advocated.” (R. 62a)

I now turn to what I believe is the more difficult issue, whether the appellee bank should be permitted to resign as co-trustee. While there are statutes governing the procedure for resignation, e.g. 20 Pa.C.S.A. § 7121(3), 20 Pa.C. S.A. § 3184, there is none which specifically dictates circumstances in which a resignation may or may not be permitted.

The trial court’s decision on this issue was abased in large measure on the Restatement (Second) of Trusts. Specifically, section 106 states that:

§ 106 A trustee who has accepted the trust cannot resign except,
(a) with permission of the proper court; or
(b) in accordance with the terms of the trust; or
(c) with the consent of all the beneficiaries, if they have the capacity to give such consent.
Restatement (Second) of Trust § 106 (1959).

Contrary to the majority’s assertion that “the court below erroneously decided that the deed of trust gave the bank the right to resign. Therefore, it did not really exercise any discretion in permitting resignation ... ”, the court below actually decided that “both subsection a and b, we believe, apply to the instant situation.” (R. 62a). We agree with the majority’s assessment that the terms of the trust do not expressly allow any trustee to resign, as per subsection (b). In the absence of such a provision, subsection (a) of the restatement indicates that the permission of the proper court must be obtained. The question then becomes, on what basis does a court grant or withhold this permission?

Unfortunately, there is a dearth of case law, at least at the appellate level, on this question. Although I have looked to many of the same authorities as the majority, I would interpret these as suggesting the opposite result. The one appellate case which was cited by all of the parties on this issue, and which was relied on heavily by the trial court is the case of Nixon’s Estate, 235 Pa. 27, 83 A. 687 (1912). In the Nixon case, the appellant was one of three co-trustees appointed under the testator’s will. After filing a final accounting he applied to the court for a discharge. The lower court refused such application but was reversed on appeal. Specifically, the court stated:

The general rule is that a trustee may relieve himself from the liabilities arising from a trust relation by submitting the administration of the trust to the jurisdiction of the court. In our State the right of a trustee to be discharged is recognized by statutes which provide the method of procedure. Appellant has complied with the statutory requirements and has done everything that the law requires to be done antecedently to the asking of a discharge. There may be, and no doubt there are, cases in which a court would be justified in refusing a discharge, as where there has not been an accounting, or where the trustee on account of benefits accruing to himself had undertaken to do certain things, or for other sufficient reasons, the time had not arrived for the termination of the trust relation.
But we see nothing in this record to indicate that the remaining trustees are not fully competent to manage the trust estate, or that they are unwilling to do so. The trust estate will be as safe in their hands as it was in the hands of those who preceded them in its management. The argument that the cestui que trust will lose some advantage if the trustee be discharged is without merit. (Emphasis added).

Nixon, supra 235 Pa. at 30, 83 A. at 688.

Scott has this to say on the resignation of a trustee: It is within the sound discretion of the court whether or not to permit him [the trustee] to resign. Where the trustee has a good reason for wishing to resign, he will ordinarily be permitted to resign ...”
Even though the trustee has no special reason for resigning, other than his desire to be relieved of further responsibility in administering the trust, the court mil usually give him permission to resign. But where it was to be disadvantageous to the administration of the trust, the court may refuse the trustee permission to resign. (Emphasis added).

A.W. Scott, II The Law of Trusts § 106.1 (3rd ed. 1967) p. 838.

Much in the same spirit is the following from Handbook of the Law of Trusts.

Naturally, a trustee who has accepted a trust but finds that administration of it has become burdensome or not in the interest of the beneficiaries should be able to rid himself of the trust duties____ The predominant consideration is the welfare of the beneficiaries.
A reluctant trustee is not desirable.

G.G. Bogert, Handbook of the Law of Trusts, § 31 (1973) p. 103.

Appellants argue that the welfare of the beneficiaries requires the court to refuse appellee bank’s resignation. Their arguments on this issue are not lacking in appeal, and I might have been persuaded by them were I acting as a factfinder. This however is not my function here. As was explicitly stated by our court in E.I. duPont de Numours & Co. v. Berm Studios, Inc., 211 Pa.Super. 352, 236 A.2d 555 (1967):

Appellate review of the record of a trial before a judge without a jury is limited to a determination of whether the findings of fact of the court below are supported by competent evidence and whether or not the lower court committed error of law.

E.I. duPont v. Berm, supra, 211 Pa.Superior Ct. at 354, 236 A.2d at 556.

In view of the above standard, it is clear that although appellants’ arguments are appealing, they are misdirected. This will be demonstrated by the discussion below.

As is relevant to this issue the trial court specifically found that:

It is correctly pointed out that trustee Raymond White’s insistence on certain courses of action has deviated from what this Court would consider to be appropriate courses of action under the law and the instrument of trust. Clearly, the corporate fiduciary was correct in resisting Raymond’s forceful suggestions that the trust should invest in gold, silver, pennies to be stored underground until their value increases, puts and calls, canned foods and commodities. The bank was also correct in resisting what appeared to be on at least one occasion a suggestion of self-dealing occur with respect to certain lumber, just as the Bank was correct in taking a contrary position concerning the valuation that could be placed on the share of any given beneficiary.
The controversial investments would have been improper not only because they were speculative, but also because, while they very well may have appreciated in some case substantially in value, they would not have been income producing as such, but rather would have amounted to increase in capital.
However, Raymond could not act alone and still cannot act alone. While it is probably true the bank exerted the most influence in deterring improprieties there is no reason why the remaining individual trustees cannot in the future cause investment policies to remain within proper boundaries. Indeed, Raymond has indicated that he now understands the necessity of first securing Court approval for policies he formerly advocated. Certainly, there can be no excuse for the remaining trustees to conduct the investment policies of the trust inappropriately. For example, should a situation arise where the trustees deem some degree of self-dealing to be beneficial to the trust, there can be no excuse for failing to bring the plan before the Court for its review prior to implementing it. (R. 61a-62a)

Appellants make five specific assertions or subarguments in regard to this issue. Each will be set forth and disposed of briefly.

Appellants first assert that investments in gold, silver, pennies, puts and calls, foreign currencies, canned foods, commodities and lumber are not proper investments for the C.A. and Flo B. White Trust. Secondly, appellants assert that the trustees of the C.A. White and Flo B. White Trust may not arbitrarily determine valuation of shares for distribution or engage in self-dealing. Certainly these are legally correct statements. See 20 Pa.C.S.A. § 7302 et seq and Trust Agreement (R. 8a-17a). In addition, it cannot seriously be disputed that co-trustee Raymond White has suggested these measures in the past. There is no evidence however that such improprieties have in fact occurred. In the absence of any case law requiring that the suggestion of improprieties on the part of one co-trustee is a circumstance in which the court should refuse a petition for resignation on the part of another co-trustee, there is no misapplication of law here.

This being so, resolution of this issue then becomes a question of credibility. Appellants third, fourth and fifth assertions are that Raymond White would continue to suggest such improprieties, that the remaining individual co-trustee would not resist Raymond White’s improper suggestions, and that Raymond White would treat the beneficiaries unfairly. There is competent evidence to the contrary, as careful examination of the record has indicated. (See e.g. R. 186a, R 279a) The trial court had the opportunity to personally observe and examine each of the parties. As the included portions of the trial court’s opinion indicate, it decided that the testimony favoring appellee’s position was entitled to greater weight, and therefore ruled that the welfare of the beneficiaries was not endangered such that it should refuse appellee bank’s petition to resign. We are not in a position as an appellate court to re-determine questions of credibility.

For the above stated reasons, I would hold that appellants have not demonstrated an abuse of discretion as would justify a reversal of the trial court’s decision.

I would affirm.

      . While Section 3182 of the Probate, Estates and Fiduciaries Code refers specifically to grounds for removal of a personal representative of an estate, Section 7121 of the Code provides that the grounds for removal of a trustee shall be the same as those for removal of a personal representative.

      . With respect to the desired investments in gold, corn, food, commodities, livestock, puts and calls, etc. the lower court stated:
      The controversial investments would have been improper not only because they were speculative, but also because, while they very well may have appreciated in some case substantially in value, they would not have been income producing as such, but rather would have amounted to increase in capital.

      . The court below in its opinion also states:
      Raymond White’s insistence on certain courses of action has deviated from what this Court would consider to be appropriate courses of action under the law and the instrument of trust. Clearly, the corporate fiduciary was correct in resisting Raymond’s forceful suggestions that the trust should invest in gold, silver, pennies to be stored underground until their value increases, puts and calls, canned foods and commodities.

      . The record indicates that Raymond also had conflicts with his individual co-trustee and brother-in-law, Mr. Wingate, who petitioned to withdraw as co-trustee together with the Juniata Valley Bank. None of the individual co-trustees testified at the hearing except Raymond and the record clearly reflects that he was the moving force in the conflict with the bank.

      . With respect to the valuation of the timberland owned by the trust Raymond testified as follows:
      Well, of course they realized that that would be a case in which it’s very hard because nobody would be satisfied that if one of the beneficiaries bought a tract of timber that it would be fair. And there’s no way you're going to get thirteen people to agree. It was discussed there that they would write the trust, and it is my understanding that this trust is so written, that the trustees have the final say, and even if they sold the tract of timber for what would be a ridiculous price, and the most ridiculous price would be a dollar, that it would still be legal.
      Q. The important thing is, sir, did you believe it?
      A. Sure I believed it.
      Q. Do you believe it today?
      A. I believe that the trust is written that way, and until you can tell me where it is written different ... and explain to me, then I think the trustees have the power to decide. I’m not saying that the trustees are going to sell it for a dollar.
      Q. But you believe they have the power to do so?
      A. I believe they have quite a bit of power here and probably if they would do such a thing they would be called insane, foolish, and be in court — the same as I am here today.
      A. Collectively they have the power to sell the timber. At what price I cannot tell you. Now you want to make it a dollar, you make it a dollar. If you want to make it a hundred thousand, you do whatever figure you want; but in my judgment the trustees have the power to sell that timber at the price they decide. (Emphasis added).

      . Concerning the valuation of the land and self dealing concerning the purchase of lumber the court below stated:
      The bank was also correct in resisting what appeared to be on at least one occasion a suggestion that self dealing occur with respect to certain lumber, just as the Bank was correct in taking a contrary position concerning the valuation that could be placed on the share of any given beneficiary.

      . There appears to have been no formal ruling entered concerning the petition of Roy A. Wingate to resign. Apparently, it was in effect denied as in the opinion in the court below the court refers to the “three remaining co-trustees.”

      . We believe that a corporate fiduciary must show greater cause for resignation that an individual. Corporate fiduciaries represent that through their trust departments they have greater skill than individuals in managing financial matters and have an impartiality and perpetual existence that individuals do not. Because of this they are often selected to act as executor and/or trustee. Once having undertaken this duty a corporate fiduciary should continue, unless the court is convinced that its resignation will not adversely affect the beneficiaries and the circumstances are such that the corporate fiduciary justifies the termination of its duties.

      . It should be noted that Raymond has no interest in this trust except as trustee. He is not an income or principal beneficiary nor is he a vested or contingent remainderman.