author:
WIEAND, Judge:
      POPOVICH, Judge,

text:
    541 A.2d 368
    COMMONWEALTH of Pennsylvania v. Louis R. EDMUNDS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1987.
    Filed April 25, 1988.

      Kenneth B. Burkley, Greensburg, for appellant.
    William C. Gallishen, Assistant District Attorney, Greens-burg, for Com., appellee.
    Before WIEAND, MONTEMURO and POPOVICH, JJ.
   WIEAND, Judge:

The issue in this appeal is whether the decision of the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), is to be followed by the courts of this Commonwealth with respect to evidence seized pursuant to a search warrant which is subsequently invalidated under Article I, Section 8 of the Pennsylvania Constitution. The issue arises in an appeal by Louis R. Edmunds from a judgment of sentence imposed following a bench trial in which he was found guilty of possession of marijuana and related offenses after a substantial quantity of marijuana had been seized from his residence and an adjoining building.

The facts leading to the conviction are as follows. On August 4, 1985, in response to a telephone call, State Trooper Michael Deise met with two hunters who told him that while hunting in a wooded area they had come upon a white, corrugated building in which they saw growing marijuana plants. Trooper Deise questioned them about their familiarity with marijuana plants and satisfied himself that they were able to recognize marijuana plants. The men described the building to Trooper Deise and told him that Edmunds was the owner. On the following day, Deise flew over the area and spotted the building. He also drove past the property and by examining the mailbox confirmed the residency of Edmunds.

Trooper Deise then applied to District Justice Margaret Tlunac for a search warrant and offered in support thereof the following probable cause affidavit:

On the date of August 4, 1985, this affiant was in contact by telephone with two anonymous males who were and are members of the community where [appellant] resides. Both anonymous males advised the affiant that while checking out familiar hunting areas off Route 31, these men observed growing marijuana near a white corrugated building approximately 20 x 40 feet in a cleared off area. These men looked into the building and observed several plants that appeared to be marijuana. This affiant questioned both of these men as to their knowledge of marijuana. This affiant learned that one of these men saw growing marijuana numerous times while he was stationed in Viet Nam. The other male saw growing marijuana while at a police station. This affiant described a growing marijuana plant and its characteristics and they agreed that what they had viewed agreed with the description and also that it appeared to them to be marijuana as fully described by the affiant. The two males wish to remain anonymous for fear of retaliation or bodily harm. An anonymous male advised this affiant that [appellant] lived there. Edmund’s description being that of a white male in his middle thirties and he lived at the aforementioned location.
On the 5th day of August, 1985, this affiant with the use of a State Police helicopter, flew over the described location and observed the white corrugated building in the mountain area and located as described by the two males. Also on this date this affiant drove past the Route 31 entrance and observed a mail box with “Edmunds 228” printed on it.

The warrant issued upon presentation of this affidavit described the premises to be searched as follows: “Residence of Louis R. Edmunds ... A one story stone and frame residence and white corrugated building and curtilege.” With the intent of serving the warrant on the owner of the premises, Trooper Deise and other state policemen went to the residence, where they were met by Edmunds. When Edmunds went upstairs to find a written lease for the white, corrugated building, Deise accompanied him. At the top of the stairs, in plain view, Deise observed four bags of a green substance which he believed and which later was determined to be marijuana. A subsequent search of the white, corrugated building revealed marijuana plants.

Appellant filed a pre-trial motion to suppress the marijuana. He contended that the affidavit had been insufficient to establish probable cause for the issuance of a search warrant. More specifically, he argued that the affidavit had failed to show when the hunters had observed the marijuana plants and that there were insufficient facts from which it could be determined that the information given by the hunters was reliable. The suppression court held that the failure of the affidavit to state the date of the hunters’ observations rendered the affidavit inadequate to establish probable cause to believe that marijuana was growing in the building at the time when the warrant was issued. However, because the evidence established that the hunters had made their observations on August 4,1985 and because this information had been communicated to the issuing authority but had been omitted inadvertently from the affidavit when it had been prepared in the magistrate’s office, the court held that the police had exercised good faith. As such, the court held, suppression was not required.

In Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973), the Supreme Court of Pennsylvania held that a warrant issued without reference to the time when an informant had obtained his information was defective. The Court said:

“The search warrant is defective ... because the aider-man was not supplied a time-frame upon which to ascertain when the affiant gained his information from his informants, when the informants themselves obtained the information they allegedly had, and if probable cause presently existed to believe, that at the time the warrant was issued, appellant was keeping a firearm in his automobile. As this Court has recently stated:
‘Although the information supplied the magistrate “... must be tested with a commonsense, nontechnical, ungrudging, and positive attitude, ... ”, Rosencranz v. United States, 356 F.2d 310, 314 (1st Cir.1966); United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), the information must be sufficient “... to enable the magistrate independently to judge of the validity of the informant’s conclusion that the narcotics were where he said they were.” Spinelli [v. United States], supra at 393 U.S. [410,] 413, 89 S.Ct. [584,] 587 [21 L.Ed.2d 637] (emphasis added). See also Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Cf. [Commonwealth v.] McCants, [450 Pa. 245, 299 A.2d 283 (1973) ]. Probable cause must be established at the time the warrant is issued. See, e.g., Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); [U.S. v.] Bailey, supra, 458 F.2d 408, (9 Cir.1972); Durham v. United States, 403 F.2d 190, 193 (9th Cir.1968); Spinelli v. United States, 382 F.2d 871, 897 (8th Cir.1967) (Heaney, J., dissenting), rev’d, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Rosencranz, supra; Schoeneman v. United States, 115 U.S. App.D.C. 110, 317 F.2d 173 (1963); Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971); Commonwealth v. Bove, 221 Pa.Super. 345, 293 A.2d 67 (1972). Cf. McCants, supra. “... [I]t is manifest that the proof [necessary to establish probable cause] must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time." Sgro, supra, 287 U.S. at 210, 53 S.Ct. at 140.’ ”

Id., 452 Pa. at 339-340, 305 A.2d at 345 (emphasis in original). See also: Commonwealth v. Kalinowski, 303 Pa.Super. 354, 359-360, 449 A.2d 725, 727-728 (1982).

In this instant case, the affidavit did not contain facts from which the date of the hunters’ observations could be determined. Therefore, it. was insufficient to permit the issuing authority to make a determination that probable cause existed at the time the warrant was issued.

Did this defect compel the suppression of the contraband discovered by police when they executed the warrant if, as the suppression court found, the police acted reasonably in relying upon the warrant which had been issued by the magistrate? It is clear now, in view of the Supreme Court decision in United States v. Leon, supra, that suppression is not required by the Fourth Amendment of the United States Constitution. In creating a “good faith exception” to the judge-made exclusionary rule, the Supreme Court said:

We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. We do not suggest, however, that exclusion is always inappropriate in cases where an officer has obtained a warrant and abided by its terms. “[Searches pursuant to a warrant will rarely require any deep inquiry into reasonableness,” Illinois v. Gates, 462 US, [213], at 267, 76 L Ed 2d 527, 103 S Ct 2317 [at 2347 (1983) ] (White, J., concurring in judgment), for “a warrant issued by a magistrate normally suffices to establish” that a law enforcement officer has “acted in good faith in conducting the search.” United States v Ross, 456 US 798, 823, n 32, 72 L Ed 2d 572, 102 S Ct 2157 [2172, n. 32] (1982). Nevertheless, the officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, cf. Harlow v Fitzgerald, 457 US 800, 815-819, 73 L Ed 2d 396, 102 S Ct 2727 [2736-2739] (1982), and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.
Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v Delaware, 438 US 154, 57 L Ed 2d 667, 98 S Ct 2674 (1978). The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v New York 442 US 319, 60 L Ed 2d 920, 99 S Ct 2319 (1979); in such circumstances, no reasonably well-trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Brown v Illinois, 422 US [590], at 610-611, 45 L Ed 2d 416, 95 S Ct 2254 [at 2265 (1975)] (Powell, J., concurring in part); see Illinois v Gates, supra, at 263-264, 76 L Ed 2d 527, 103 S Ct 2317 [at 2346] (White, J., concurring in judgment). Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized— that the executing officers cannot reasonably presume it to be valid. Cf. Massachusetts v Sheppard, post [468 U.S. 981] at 988-991, 82 L Ed 2d 737, 104 S Ct. 3424 [at 3427-3429].

Id. 468 U.S. at 922-923, 104 S.Ct. at 3420-3421, 82 L.Ed.2d at 698-699 (footnotes omitted).

Article I, Section 8 of the Pennsylvania Constitution contains language which is the same as that of the Fourth Amendment. It contains no provision expressly precluding the use of evidence obtained in violation of its commands. Although the Pennsylvania courts may interpret the state constitution to afford greater protections than the federal constitution, see Commonwealth v. Sell, 504 Pa. 46, 63-64, 470 A.2d 457, 467 (1983), it is generally recognized that decisions of the United States Supreme Court interpreting an identically worded clause of the federal constitution must be carefully considered in interpreting the Pennsylvania Constitution. We may digress from such interpretations only when there is compelling reason to do so. Id., 504 Pa. at 49, 407 A.2d at 459, quoting Brennen, The Bill of Bights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U.L.Rev. 535 (1986). See also: Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979).

We perceive no compelling reason to deviate from the reasoning of Leon by excluding evidence under the Pennsylvania Constitution which is not subject to exclusion under the Fourth Amendment. The exclusionary rule in Pennsylvania has been the direct product of the exclusionary rule adopted by the federal courts in enforcing the guarantees afforded by the federal constitution. The Pennsylvania exclusionary rule is based on the same rationale, and it is no more firmly entrenched in Pennsylvania constitutional law than the exclusionary rule is embedded in federal constitutional law. A good faith exception, as articulated in Leon, is based on the premise that the exclusionary rule should not hinder prosecution in cases where the rule ceases to serve its intended purpose of deterring police misconduct. The cost of denying to the prosecution inherently trustworthy, tangible evidence obtained in reliance on a search warrant issued by a neutral magistrate is too great unless the exclusion of such evidence pays its way by deterring official unlawfulness. We discern no reason for rejecting this reasoning when called upon to apply the protections of Article I, Section 8 of the Pennsylvania Constitution. In the absence of a contrary holding by the Supreme Court of Pennsylvania, therefore, we elect to follow the holding of the Leon court and adopt it in applying Article I, Section 8 of the Pennsylvania Constitution.

In the instant case, the suppression court found, after hearing, that the hunters had made their observations on August 4, 1985, the same day on which they spoke with Trooper Deise. The court also found that this time-frame had been communicated to the magistrate. When the affidavit had been prepared in the magistrate’s office, however, the date of the hunters’ observations had been inadvertently omitted. Thus, neither police nor magistrate had reason to believe the information was stale. Because the police had acted reasonably and in good faith reliance upon the magistrate’s impartial finding of probable cause, the suppression court refused to suppress evidence of marijuana plants seized from the corrugated building pursuant to warrant.

The suppression court’s determination comported with the decision in Commonwealth v. Morris, 368 Pa.Super. 237, 533 A.2d 1042 (1987), where a panel of this Court held that a good faith exception would be applied to a situation in which facts sufficient to establish probable cause were known to the officer and issuing authority but were inadvertently omitted from the affidavit. The suppression court’s holding finds further support in Commonwealth v. Melilli, 361 Pa.Super. 429, 522 A.2d 1107 (1987), allocatur granted, where we held that suppression was not necessary when a neutral magistrate, acting on existing judicial authority, had authorized the use of pen registers in the belief that a showing of probable cause was unnecessary and where the law subsequently developed to require such a showing. The suppression court’s holding in the instant case, therefore, does not warrant a reversal of the conviction.

Appellant argues that it was improper for the suppression court to allow testimony regarding the date of the hunters’ observations. Such testimony, he argues, was violative of the Pennsylvania “four corners rule.” See: Commonwealth v. Simmons, 450 Pa. 624, 626, 301 A.2d 819, 820 (1973), codified at Pa.R.Crim.P. 2003. However, the “four corners rule,” which requires that probable cause be established by reference to the written affidavit, is of utility only in determining the validity of the warrant. The rule can have no application in determining the separate issue of whether the police acted in an objectively reasonable manner and, therefore, in good faith.

Appellant also challenged the Commonwealth’s use at trial of the four bags of manicured marijuana found in his residence. The suppression court determined that this marijuana was in “plain view” where it was observed by police who had entered appellant’s home with his permission after announcing that they had a warrant to search the white, corrugated building. It had been discovered inadvertently at the top of the stairs when Trooper Deise, with appellant’s consent, accompanied appellant to the second floor to obtain a copy of the lease for the white, corrugated building. Because Deise was lawfully in a position from which he was able to see the marijuana in plain view, the court held, the marijuana was not subject to suppression. See: Commonwealth v. Gabrielle, 269 Pa.Super. 338, 409 A.2d 1173 (1979); Commonwealth v. Adams, 234 Pa.Super. 475, 341 A.2d 206 (1975). These findings are supported by competent evidence and, therefore, will not be disturbed on appeal. Commonwealth v. Patterson, 488 Pa. 227, 412 A.2d 481 (1980); Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982). It is of no consequence that the police did not have separate probable cause to search the residence.

The suppression court properly denied appellant’s motion to suppress the marijuana which constituted the principal evidence against him at trial.

The judgment of sentence is affirmed.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I cannot join the Majority in the face of record evidence that the affidavit, upon which the warrant to search the defendant’s premises was based, lacked the specificity as to the point in time the alleged observations of drugs on the said premises were made by two anonymous informants. Also, contrary to the Majority, I find the suppression court’s receipt of testimony from the affiant/officer to fill this void, and, in effect, supplement the “four-corners” of the warrant to be violative of Pa.R.Crim.P. 2003’s prohibition against evaluating “evidence outside the warrant affidavit[] on the issue of probable cause____” Commonwealth v. Graham, 334 Pa.Super. 170, 178, 482 A.2d 1277, 1282 (1984), citing Commonwealth v. Swint, 256 Pa.Super. 169, 389 A.2d 654 (1978).

Surely, the absence of the time in the warrant, as to when the informants viewed the defendant’s premises and drugs, undermines a predicate for probable cause to believe that a crime is or was being committed and that the defendant was the guilty party. For the Majority to dismiss the lack of such a fact from the warrant, and condoning its inclusion into the warrant by the use of extraneous information/testimony as to what the officer supposedly told the magistrate at the moment the warrant was secured, is at odds with this writer’s understanding of the Fourth Amendment and its strictures. See, e.g., Commonwealth v. Kalinowski, 303 Pa.Super. 354, 449 A.2d 725 (1982) (POPOVICH, J.).

Moreover, there appears to be no indication from the Pennsylvania Supreme Court that it is receptive to United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See Commonwealth v. Weisenthal, 517 Pa. 241, 535 A.2d 600 (1988). As such, my reading of the facts does not disclose the mere non-compliance with a technical requirement under the law. Rather, we have a warrant which is facially defective in not meeting the requirements necessary to invade the defendant’s substantive rights to be free from unreasonable searches and seizures. Accordingly, I respectfully dissent to the Majority’s determination to the contrary.

      . There is no merit in the latter contention. The hunters were "disinterested observers” who had been eyewitnesses to the marijuana growing in appellant’s building. See: Commonwealth v. McCain, 275 Pa.Super. 192, 194, 418 A.2d 677, 678 (1980), allocatur denied. Moreover, the same information had emanated from two independent informants. "When two independent informants both supply the same information about a particular crime ... each source tends inherently to bolster the reliability of the other." Commonwealth v. Sudler, 496 Pa. 295, 306, 436 A.2d 1376, 1381 (1981), quoting Commonwealth v. Mamon, 449 Pa. 249, 259, 297 A.2d 471, 477 (1972).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    541 A.2d 374
    In re ESTATE OF Nicholas N. SONOVICK. Appeal of Norma RENFORS, Trustee of the Trust Created Under the Will of Nicholas N. Sonovick, Deceased.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1988.
    Filed May 4, 1988.

      Peter J. Verderame, Langhorn, for appellant.
    Before CAVANAUGH, ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Bucks County Court of Common Pleas which reduced the fees and commissions paid to an executrix/trustee and her counsel. The appellant, Norma Renfors, is both executrix of the decedent’s estate and trustee of a trust created under the provisions of the decedent’s will. Prior to adjudication by the lower court, the appellant and her counsel charged the estate and trust fees and commissions totalling $8,000.00. The court reduced the fees and commissions paid to the appellant and her counsel from the estate and trust to a total of $3,000.00. We affirm the order of court.

The appellant questions whether the lower court had a reasonable basis for finding that the fees and commissions were excessive. She argues that fees and commissions are not presumed to be excessive merely because an objector makes that assertion without presenting supporting evidence or testimony. She further contends that the executrix and/or trustee do not bear any burden to present testimony relevant to the reasonableness of the fees and commissions until the objector has proffered evidence pertinent to that issue.

The appellee, Sara Jane Sonovick, divorced spouse of the decedent and mother of the decedent’s children, Adam and Dayna Sonovick, filed objections to the accounts stated in the decedent’s estate and the trust created by his will. She filed the objections on behalf of her children, Adam and Dayna, who were the principal beneficiaries under the trust. The lower court resolved all but one objection raised by the appellee in favor of the appellant, Norma Renfors, executor and trustee under the will.

Reasoning that the fees and commissions paid out of the estate and trust were excessive, the court reduced the payments made to the appellant and her counsel. The fees and commissions charged on a gross estate of $34,907.54 and paid to the executrix and her counsel amounted to $1,500.00 each. In addition, the fees and commissions charged on a gross trust corpus of $141,850.88 and paid to the trustee and her counsel equalled $2,500.00 each. During the period of January 19, 1984 through March 31, 1985, the trust account accumulated over $8,000.00 in income, while disbursements to the beneficiaries totalled only $400.00. After reviewing the accounts, the court ordered the fees and commissions paid from the estate to the executrix and her counsel reduced to $750.00 each and the fees and commissions paid from the trust to the trustee and her counsel reduced to $750.00 each. The court then entered said order on June 25, 1987, and this appeal followed.

A fiduciary is entitled to “reasonable and just” compensation for the services he provides. In Re Ischy Trust, 490 Pa. 71, 82, 415 A.2d 37, 42 (1980); Williamson Estate, 368 Pa. 343, 349, 82 A.2d 49 (1951); 20 Pa.C.S.A. § 7185(a). Thus, the fiduciary’s entitlement to compensation should be based upon actual services rendered and not upon some arbitrary formula. In Re Estate of Breyer, 475 Pa. 108, 379 A.2d 1305, 1311 (1977); In Re Ischy Trust, 415 A.2d at 42; In Re Reed, 467 Pa. 371, 357 A.2d 138, 142 (1976).

Under Pennsylvania law, the determination of whether the compensation claimed by the fiduciary is “reasonable and just” is left to the sound discretion of the trial court. In Re Estate of Breyer, 379 A.2d at 1311; In Re Ischy Trust, 415 A.2d at 42-43; In Re Estate of Loutsion, 344 Pa.Super. 477, 496 A.2d 1205, 1206 (1985). Moreover, in the absence of a compensation provision in the governing trust document or an independent compensation agreement between the parties, the trial court is empowered to determine the value of the fiduciary’s services and award reasonable compensation. In Re Ischy Trust, 415 A.2d at 42; In Re Reed, 357 A.2d at 140-141; In Re Estate of Loutsion, 496 A.2d at 1207. Logically, the court also has the authority to reduce to a “reasonable and just” level those fees and commissions claimed by the fiduciary and her counsel. Thus, when reviewing the judgment of the Orphans’ Court regarding the allowance or disallowance of a fiduciary’s fees and commissions, we will not interfere with the lower court’s decision absent an abuse of discretion or a “palpable error”. Estate of Wanamaker, 314 Pa.Super. 177, 460 A.2d 824, 825 (1983); LaRocca Estate, 431 Pa. 542, 246 A.2d 337, 340 (1968); In Re Breyer, 379 A.2d at 1311.

Instantly, the underlying trust document did not contain an express compensation agreement nor was an independent agreement created by the decedent and the appellant. Consequently, the lower court was obligated, upon appellee’s request, to adjudicate the reasonableness of the appellant’s and her attorney’s compensation and adjust the fees and commissions accordingly.

“It is fundamental that an attorney seeking compensation from an estate has the burden of establishing facts which show that he or she is entitled to such compensation.” Estate of Wanamaker, 460 A.2d at 825, citing Hempstead v. Meadville Theological School, 286 Pa. 493, 134 A. 103 (1926). Likewise, a fiduciary bears the burden of proving the reasonableness of his or her commissions. In Re Ischy Trust, 415 A.2d at 42; In Re Estate of Breyer, 379 A.2d at 1311. In light of the sufficient countervailing evidence profferred through the trust and will accountings, we find that the appellant and her attorney failed to meet their burden of presenting evidence sufficient to establish that the fees and commissions charged to the estate and trust were reasonable. The record reveals that the appellant and her attorney offered no explanation as to how the fees and commissions were computed, what work was actually performed or whether the trust commission was a yearly or one time fee.

Furthermore, we hold that upon review of the trust and estate accountings, the trial court could reasonably determine the appropriate amount of compensation to be paid to the appellant and her attorney for their services. We affirm the lower court decision, and note the following passage from its opinion:

We are disturbed by the lack of substantiation of fees totalling $8,000.00 by the trustee/executrix and her attorney. We are especially concerned because the ultimate beneficiaries are minor children, and the estate and trust are not complex. In view of the fact that the trustee/executrix and her attorney have chosen not to present evidence regarding the reasonableness of their fees, we have, therefore, determined the amount of compensation to be $750.00 each to Mrs. Renfors as executrix, and to her attorney. This amount is based upon the amount of the probate estate and our estimation of the effort necessary to file the appropriate documents.
As to the trust, it appears that the insurance proceeds were collected and placed in trust, and a trust accounting was prepared and filed with the court. We find that the amount of $750.00 is a reasonable fee to be paid to Mrs. Renfors as the trustee, and an equal amount to her attorney for their efforts.

(Opinion and Adjudication, p. 10-11).

In light of the simplicity of the estate and trust, the monetary value of the estate and trust and the paucity of actual services rendered by the appellant and her counsel, the lower court’s determination that the appellant's commissions and her counsel’s fees totalling $8,000.00 were manifestly excessive was not erroneous. Consequently, we find that the lower court did not abuse its discretion by reducing the amount of the appellant’s and her counsel’s fees and commissions to a “reasonable and just” value. Accordingly, the order of court entered June 25, 1987 is affirmed.

Order affirmed.

      . 20 Pa.C.S.A. § 7185 Compensation, in pertinent part, reads:
      (a) When allowed. — The court shall allow such compensation to the trustee as shall in the circumstances be reasonable and just, and may take into account the market value of the trust at the time of the allowance, and calculate such compensation on a graduated percentage.

      . Moreover, the Orphans’ Court may raise the issue of the reasonableness of compensation sua sponte when the will or trust agreement is silent as to the amount of compensation. See In Re Estate of Loutsion, 496 A.2d at 1206; Thompson Estate, 426 Pa. 270, 232 A.2d 625 (1967).

      . The estate’s net receipts totalled 134,872.34. Over a three month period, the executrix made twenty-one disbursements totalling $16,-321.53 which included the following payments: decedent’s funeral expenses, outstanding medical bills, the family exemption, probate costs, her commission and her counsel’s fee. She then distributed a total of $18,000 in lump sum payments to the five beneficiaries of the estate. The principal balance of $550.81 plus an additional $1,500.00 in reduced fees and commissions remains undistributed. We parenthetically note that the executrix, the decedent’s sister, was a beneficiary of the estate in the amount of $4,250.00.
      The trust receipts totalled $141,850.88 which included $101,850.88 in proceeds from four insurance policies and $40,000.00 from the decedent’s half ownership interest in his home. The trustee has made two disbursements, her commission and her counsel’s fee, totalling $5,000.00. At the time of the most recent trust accounting, interest income on the trust account opened by the trustee totalled $8,066.32. Thus, the remaining balance of the trust totalled $144,917.20 plus the additional $3,500.00 derived from the reduction of the trustee’s commission and her counsel's fees. As of the date of this appeal, only $400.00 has been distributed to the trust beneficiaries, Adam and Dayna Sonovick.
      The trust document provided that the trustee was to use her “sole discretion” in applying the net income and principal of the trust as may be necessary for the "maintenance, support and well being” of the decedent’s two children. The trust directed that the trustee pay the expenses for the children’s education, including tuition, books, fees and living expenses during the minority and into the majority of the beneficiaries. The trustee, using her discretion, may make a partial distribution of the principal to the first child to reach majority. Once all beneficiaries attain the age of twenty-one, the trust provides that the trustee must distribute the balance of the income and principal to the beneficiaries "in equal share per stirpes.”


author: DEL SOLE, Judge:

text:
    541 A.2d 377
    Julie Ann BOWSER, Appellant, v. Charles GUTTENDORF and Lucille Guttendorf, Husband and Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1988.
    Filed May 2, 1988.

      Ahmed Aziz, Assistant District Attorney, Sewickley, for appellant.
    Gail L. Gratton, Assistant Public Defender, for appellees.
    Before McEWEN, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This appeal follows the trial court’s order granting Appellee, Lucille Guttendorf’s, Motion for Judgment on the Pleadings. The trial court’s decision was based upon its ruling that Appellant’s action against Mrs. Guttendorf was barred by the applicable statute of limitations.

The underlying action was commenced on May 7, 1986 when Appellant filed a Complaint against Charles and Lucille Guttendorf, husband and wife. The Complaint alleged that from March until June of 1980, Appellant, who was then 16 years old, was placed in the foster home of Mr. and Mrs. Guttendorf. Her claims against Charles Guttendorf included actions for assault, battery and intentional and/or negligent infliction of emotional distress. Appellant alleged that Charles Guttendorf sexually molested her during the period of time in which she was residing in the defendants’ home as a foster child. A related claim for negligent infliction of emotional distress was made against Appellee, Lucille Guttendorf. Appellant alleged that as a result of Mrs. Guttendorf’s carelessness, recklessness and negligence, Appellant suffered physical and psychological injuries.

An Answer and New Matter was subsequently filed by Appellee, Lucille Guttendorf. Therein, Mrs. Guttendorf denied the claims against her and raised the statute of limitations as a defense. Appellant’s Reply to New Matter averred that “the doctrine of ‘equitable tolling’ is applicable” in that “Lucille Guttendorf s negligence enabled defendant, Charles Guttendorf to conceal the sexual assault.” The Reply also stated that Appellant suffered from both a physical and legal disability. A Motion for Judgment on the Pleadings was later filed by Mrs. Guttendorf and granted by the trial court. In this timely appeal which followed, Appellant lists two issues which she contends would warrant a reversal of the trial court’s ruling:

I. Lower court erred in granting the judgment on the pleadings for material facts, as the pleadings indicate, remained in dispute.
II. Lower court erred in failing to consider the equitable principles of delayed discovery, which carves an exception to 42 Pa.C.S.A. § 5524.

In considering the propriety of an order awarding judgment on the pleadings this court must, as must the trial court, confine its review to the pleadings and documents attached thereto. The grant of such a motion will be affirmed when the moving party’s right to succeed is certain and the case is so free from doubt that a trial would be a fruitless exercise. In making this determination we must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted. Jones v. Travelers Ins. Co., 356 Pa.Super. 213, 514 A.2d 576, 578 (1986).

After conducting a review of the record in light of the above standard we find the trial court correctly granted Mrs. Guttendorf s Motion for Judgment on the Pleadings. The Complaint filed on May 7, 1986 indicates that the alleged negligence occurred during Appellant’s stay in Appellee’s home between the months of March and June of 1980. This action for negligent infliction of emotional distress is controlled by the two year statute of limitations found in 42 Pa.C.S.A. § 5524(2). As such Appellant’s cause of action expired in June 1982. The trial court correctly ruled that 42 Pa.C.S.A. § 5533(b), which delays the commencing of the statute of limitations because of minority, is inapplicable to this case. 42 Pa.C.S.A. § 5533 was amended to include a tolling period for minors on May 30, 1984, effective in 30 days. This court had occasion to consider the retroactivity of this section in Maycock v. Gravely Corp., 352 Pa.Super. 421, 508 A.2d 330 (1986). Therein this court concluded:

We hold that a minor injured prior to the effective date of 42 Pa.C.S.A. § 5533(b) who attained majority before the effective date, and whose claims are time barred by applicable statutes of limitations prior to the effective date of § 5533(b) cannot rely on this section to revive a barred claim.

Id., 352 Pa.Superior Ct. at 428, at 508 A.2d at 334.

As noted by the trial court, the pleadings in the instant action revealed that Appellant’s alleged injury occurred prior to the effective date of § 5533(b) and that Appellant attained majority before the effective date of the statute. Accordingly, the trial court correctly ruled that Appellant cannot rely on § 5533(b) to revive her claim which is barred under § 5524.

Likewise, Appellant’s contention that the statute of limitations is tolled due to her physical disability or due to Appellee’s acts of fraud, deception or concealment are likewise without merit. Although Appellant alleged that she was afflicted with a physical disability which diminished her capacity to communicate the events alleged in the complaint, such an allegation is not sufficient to toll the running of the statute of limitations. See: Hippensteel v. WCAB (H.M. Kelly Trucking), 72 Pa.Cmwlth. 261, 457 A.2d 137 (1983). Citing, Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967).

Furthermore, Appellant has not pled sufficient facts so as to warrant application of the doctrine of estoppel based on fraud, deception or concealment. Before the doctrine of estoppel may be invoked to extend the statute of limitations it must be alleged that Appellee through fraud or concealment, caused Appellant to relax her viligance or deviate from her right of inquiry. Wible v. Apanowicz, 306 Pa.Super. 262, 452 A.2d 545 (1982). No such allegation appears in Appellant’s pleadings. In her Reply to New Matter, Appellant does allege that husband, Charles Guttendorf, “engaged in fraud, deception and/or concealment in making representations to the minor plaintiff that she should not tell anyone of the sexual abuse.” With respect to Appellee, Lucille Guttendorf, Appellant averred only that her “negligence enabled defendant, Charles Guttendorf, to conceal the sexual abuse.”

Appellant submits in her remaining issue that the lower court erred in failing to consider the equitable principle of delayed discovery as an exception to the applicable statute of limitations. The discovery rule is an exception to the general rule that the statute of limitations begins to run as soon as the right to institute and maintain the suit occurs. The Rule arises from the inability of the injured, despite exercise of due diligence, to know of the injury or its cause, and does not arrive upon retrospective view of whether facts were actually ascertained within the prescribed period. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983). The discovery rule is to apply only if it is determined that a reasonable person in plaintiff’s position would have been unaware of the salient facts. Redenz by Redenz v. Rosenberg, 360 Pa.Super. 430, 520 A.2d 883 (1987). If the party has means of discovering the injury within its power but neglects to use them, the claim will still be barred. Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985).

Appellant in the instant case has not set forth allegations to demonstrate what facts rendered it unreasonable to expect her to discover her injury when it occurred. In her Complaint, Appellant asserts that the injury she suffered included “severe and continuous pain in her genital area in addition to experiencing bleeding in the genital area.” Appellant’s contention contained in her Reply to New Matter that the culpability of the responsible parties for her injury could not be determined because of her minority does not justify tolling the statutory period of limitations. In Redenz by Redenz v. Rosenberg, supra., this court stated:

It does not matter whether a plaintiff is aware that someone may be legally responsible for his injury. Once he knows or should know the cause of that injury he must investigate the situation and ascertain who might be legally culpable.

Id., 360 Pa.Superior Ct. at 435, 520 A.2d at 886.

Appellant’s infancy at the time of the injury does not alter this rule. Id.

Accordingly, we find the trial court properly ruled that Appellant’s claim against Appellee, Lucille Guttendorf, is barred by the statute of limitations.

      . The action filed against husband, Charles Guttendorf is not a subject of this appeal.


author: CAVANAUGH, Judge: HESTER, Judge,

text:
    541 A.2d 380
    Eleanor MORGAN, Guardian for Esther Weand, an Incompetent, Appellants, v. FIRST PENNSYLVANIA BANK, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1987.
    Filed May 11, 1988.

      John P. Yatsko, Norristown, for appellants.
    David R. DeStefano, Norristown, for appellee.
    Before CAVANAUGH, BECK and HESTER, JJ.
   CAVANAUGH, Judge:

The issues in this case are whether the court below erred (1) in permitting the appellee, First Pennsylvania Bank, to admit signature cards in evidence and (2) in permitting the bank to introduce evidence which explained the terms of the bank’s written regulations.

In 1966, Esther Weand opened a passbook savings account with the First Pennsylvania Bank. In 1971 she had the account changed to a joint account with her sister, Julia Bruce. Both Esther and Julia signed the signature card which specifically stated that the account was a joint account. The agreement with the bank provided that the account was subject to withdrawal by either party. On November 30, 1983, Mrs. Bruce wrote to the bank and requested that the joint account be closed and that all the funds in the account be sent to her. Gwendolyn Webster, who was the bank manager at the bank involved in this transaction, testified that she knew Mrs. Bruce’s signature from prior transactions and verified the signature on the letter comparing it with the signature on the signature card kept at the bank. A treasurer’s check in the amount of $5,180.22 was sent by the bank to Mrs. Bruce on December 14, 1983 and the account was closed.

On December 9, 1983, a few days before the funds were paid to Mrs. Bruce, Mrs. Weand was adjudicated incompetent and a guardian of her estate appointed. The appellant in this case is the guardian of Mrs. Weand’s estate.

The appellant commenced an action in the court below alleging that the appellee, First Pennsylvania Bank, was negligent and also breached its contract. The claims were partially based on the allegation that the bank transferred the funds in violation of its regulations as set forth on the passbook savings account. The case was initially heard before a panel of arbitrators who found for the appellee bank. An appeal was taken to the Court of Common Pleas. Following a two day trial without a jury, the court below, by Yohn, J., found for the bank. The plaintiff, who was the guardian of Mrs. Weand’s estate, filed post-trial motions which were denied and an appeal was filed with this court.

In order to put the issues in focus, we must examine the legal consequences of what Esther Weand did in 1971. In that year she established a joint bank account with her sister, Julia Bruce. Both sisters signed the signature card and either could withdraw the funds from the account. The survivor was to receive the balance in the account. As pointed out in Watson Estate, 290 Pa.Super. 384, 434 A.2d 805 (1981) an executed signature card establishes prima facie an inter vivos gift from the party funding the account to the other joint tenant. See also Krempasky Estate, 348 Pa.Super. 128, 501 A.2d 681 (1985); Dzierski Estate, 449 Pa. 285, 296 A.2d 716 (1972). The presumption of a valid inter vivos gift, in the circumstances of establishing a joint account, may be rebutted only by clear, precise and convincing evidence. Banko v. Malanecki, 499 Pa. 92, 451 A.2d 1008 (1982).

In the instant case, it appears that Esther Weand had contributed the whole amount in the savings account. However, when she made the account into a joint account, her sister, Julia Bruce, had equal rights to the account. “Even when one contributes the entire sum to a joint bank account, the rights of each of the tenants to the joint fund are the same, the one who made the contribution has by that act made an immediate gift to the other.” Cochrane Estate, 342 Pa. 108, 111, 20 A.2d 305, 307 (1941). See also Glessner v. Security-Peoples Trust Co., 166 Pa.Super. 566, 72 A.2d 817 (1950).

The facts before us are analogous to those in Beniger Estate, 449 Pa. 373, 296 A.2d 773 (1972). In that case, a joint tenant who had the right to withdraw funds, withdrew all of the funds from a savings account after a petition had been filed to have the other joint tenant declared incompetent. Three weeks after the joint account was closed, the alleged incompetent was declared incompetent and he died eight days later. The Supreme Court held that the funds withdrawn belonged to the joint tenant who withdrew them. The court stated at 449 Pa. 377, 296 A.2d 776, that the joint tenant's incapacities, “at the time the account was closed by appellee are irrelevant since the gift was presumptively made when the card was signed and not, as appellant contends, when the money was withdrawn.” (Emphasis added).

Bramble Estate, 4 Pa.Fid.2d 243 (Chester County 1984) is also instructive. The son of an incompetent was ordered to repay the guardian of the incompetent's estate $17,000.00 which the son withdrew from the bank account which was in the joint names of the father and son. At the time the father established the joint account, he had begun to slip mentally and there was evidence that the joint account was a mere “convenience” account for the father’s money so that the father would not have to go back and forth to the bank to transact business. Even though the court held that there was no gift, it stated at 4 Pa.Fid.2d 244: "... as between the bank and the joint owners of the account, either joint owner is free to withdraw the money from the account ...” (Emphasis added).

The evidence prima facie established an inter vivos gift by Mrs. Weand to her sister in 1971 when the account was made into a joint account. There was no evidence whatsoever introduced to rebut the presumption of a valid inter vivos gift and Mrs. Weand’s mental condition at the time of the withdrawal was irrelevant. See Beninger Estate, supra. However, we need not decide that a valid inter vivos gift was made, but only reach the issue that as between the appellee bank and Mrs. Weand, the bank acted properly in paying the funds to her sister, Mrs. Bruce.

We find no error in admitting the signature cards into evidence. To begin with, the appellant agrees that Mrs. Weand added her sister as a joint owner in 1971. It is also agreed that Mrs. Bruce sent a letter to the appellee bank on December 13, 1983 requesting withdrawal of all of the funds in the account. Finally, no evidence was introduced to attack the validity of Mrs. Bruce’s signature on the signature card or withdrawal letter, nor is it contended that anyone other than Mrs. Bruce received the proceeds in the account.

A bank manager at the branch where the account was handled testified that the signature on the letter withdrawing the funds was Mrs. Bruce’s signature. Her testimony was as follows:

A. And have you ever seen that — what is that signature?
A. It is the signature of Julia E. Bruce.
Q. And have you ever seen that signature before?
A. Yes.
Q. And under what circumstances have you seen that signature?
A. Through the years with me working at Mount Airy, any correspondence that would come in would normally come in from Mrs. Bruce. And when we got this letter, the first thing I do is verify the signature.

The trial court did not err in allowing the bank manager to testify concerning Mrs. Bruce’s signature on the signature card as she was acquainted with the signature. One can testify that he or she is familiar with a signature “from having conducted a correspondence with him.” Berkley v. Maurer, 34 Pa.Super. 363, 370 (1907). In addition, the bank manager, who had 18 years experience with the bank, and had corresponded with Mrs. Bruce over the years, could qualify as an expert witness with respect to the identity of Mrs. Bruce’s signature. Subsection (d) of 42 Pa.C.S. § 6111 leaves to the trier of fact, in this case the hearing judge, the determination of the genuineness of a signature. Of equal importance, there is no dispute in the matter before us that the person who closed out the account and to whom the bank sent the balance in the account was Julia Bruce, the joint tenant on the account. The appellee properly transmitted the funds to Julia Bruce as the person who was entitled to receive them as far as the appellee bank was concerned.

We also agree with the court below that the banking regulations which are set forth on the passbook are ambiguous and parol evidence was properly admitted, not to vary the terms of the agreement, but to assist in interpreting the regulations. The rules and regulations subject to interpretation are set forth in the savings passbook. The thrust of the appellant’s complaint is that the money was withdrawn without a passbook and without a 30-day waiting period. The applicable provisions of the regulations are:

2. All deposits into this account in First Pennsylvania Bank N.A. (“Bank”) are received subject to the following rules and regulations.
3. The passbook evidencing the account must be presented with each deposit and withdrawal. Deposits in the account may be made at any office of the Bank. Bank may, in its discretion, refuse any deposit to the account or limit the amount of any deposit therein. Bank is not responsible for any deposit unless it is entered in the passbook or an official receipt for the deposit is issued by the Bank. Bank may, at its discretion, pay account withdrawals in cash or by check.
4. Withdrawals from the account may be made at any office of the Bank upon presentation of identification satisfactory to the Bank. Bank reserves the right to close the account by payment of the balance and all interest accrued thereon to the depositor ...
8. No entries in the passbook will be valid unless made by an authorized representative of and at an office of the Bank. Prompt notice of change of address should be given to the Bank. Bank may at any time require the surrender of the passbook for examination and settlement, and in case of the improper use of the same, retain possession thereof. The passbook shall be surrendered to Bank when the account is closed.
9. In case the passbook is lost, destroyed, or stolen, immediate notice thereof must be given in writing to Bank. After the expiration of one month from the time the Bank receives such notice, a new passbook bearing a new number will be issued to replace the lost or destroyed passbook, provided Bank is furnished with a satisfactory bond of indemnity ... (Emphasis added).

A written contract must be interpreted as a whole. Stern v. Vic Snyder, Inc., 325 Pa.Super. 423, 473 A.2d 139 (1984). A contract is ambiguous when it is reasonably capable of different interpretations. Merriam v. Cedarbrook Realty, Inc., 266 Pa.Super. 252, 404 A.2d 398 (1978). Although the parol evidence rule bars such evidence that adds to or varies an agreement, it does not bar evidence introduced for the purpose of interpreting an ambiguous agreement. Trapuzzano v. Lorish, 467 Pa. 27, 354 A.2d 534 (1976). The court below found that sections 3 and 4 appear inconsistent, and we agree. Paragraph 3 states that the passbook must be presented with each deposit and withdrawal while Paragraph 4 indicates that a withdrawal may be made without the book if the bank is satisfied as to the identity of the party making the withdrawal. The ambiguities become even clearer when reading paragraphs 8 and 9 together with paragraph 4. When doing so it becomes questionable, at the very least, whether paragraph 9, on which the appellant relies, even applies to the closing of an account. While paragraph 8 relates to closing an account in the last sentence, paragraph 9 does not even mention closing an account. Indeed, paragraph 4 appears to deal more directly with closing an account than paragraph 9 which speaks in terms of a lost or stolen passbook. Based on these ambiguities in the regulations as set forth in the passbook, the court below properly admitted the testimony of the bank manager explaining the regulations and their applicability to the transaction involved in this case.

If the bank closed the account and paid the balance therein to the wrong person, it would clearly be responsible to make good the loss suffered by the depositor. In this case, however, Mrs. Bruce to whom the money was paid, was entitled to it as far as the appellee was concerned and had been since 1971 when her sister established a joint account. Mrs. Bruce was prima facie the donee of an inter vivos gift and no evidence whatsoever was introduced to indicate that her status had in any way been changed.

If it could be established that she was not entitled to the money, vis a’ vis her sister, Mrs. Weand, then the guardian of Julia Weand possibly could proceed against Mrs. Bruce. That case is not before us for decision. However, in the relationship between the bank and Mrs. Bruce, the First Pennsylvania Bank properly paid the balance in the account to her as under the agreement entered into with the bank she had “full power to draw against [the account]”.

Judgment affirmed.

HESTER, J., files a dissenting opinion.

HESTER, Judge,

dissenting:

I respectfully dissent both from the majority’s discussion of the legal consequences of Ms. Weand’s actions in 1971 and from its disposition of the issues presented for our review.

The case presented to us involves Ms. Weand’s rights in relation to the bank where she established a joint savings account. We are not deciding Ms. Weand’s rights in relation to her sister, whose name was placed on the account and who converted the funds in the account. The majority’s background discussion contains cases which solely discuss the latter relationship. Our focus should be on the standard of care owed by a bank to a depositor and not on whether Ms. Weand made an inter vivos gift to her sister. Here, the depositor alleges that the bank owes her money due to the fact that the bank acted negligently in handling her funds by violating its regulations. Since I agree with appellant that parol evidence was incorrectly admitted to vary the terms of the regulations, I believe appellant is entitled to a new trial.

Appellant, Ms. Weand’s guardian, instituted this action alleging that appellee was negligent in transferring an account balance due to the fact that it had violated its written regulations providing that: 1) the passbook evidencing the account must be presented with each withdrawal; and 2) if a passbook is lost, no withdrawals are permitted for thirty days and only after bond is posted.

Following the adverse decision at trial, appellant filed the following post-trial motions which were denied March 24, 1987:

Plaintiff hereby moves for a new trial and for judgment n.o.v. in the alternative for the following reasons:
1. The verdict was against the law, against the evidence and against the weight of the evidence.
2. The court erred in admitting the signature card offered in evidence by the defendant.
3. The court erred in permitting the defendant’s witness to offer evidence to vary the terms of the defendant’s written regulations.

Only points two and three are preserved for our review by these motions, Pa.R.Civ.P. 227.1(b)(2); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). I agree with appellant’s third contention and believe she is entitled to a new trial on that basis.

The trial court permitted one of appellee’s bank managers to testify in violation of the parol evidence rule. The testimony was admitted to prove that appellee had not violated its regulations by the procedure followed in this case. There are fourteen numbered passbook regulations, which provide in relevant part (emphasis added):

THE FIRST PENNSYLVANIA BANKING AND TRUST COMPANY
SAVINGS PASSBOOK ACCOUNT
RULES AND REGULATIONS
2. All deposits in this savings passbook account (“account”) in The First Pennsylvania Banking and Trust Company (“Bank”) are received subject to the following rules and regulations.
3. The passbook evidencing the account must be presented with each deposit and withdrawal.
4. Withdrawals from the account may be made at any office of the Bank upon presentation of identification satisfactory to the Bank. Bank reserves the right to close the account by payment of the balance and all interest accrued thereon to the depositor____
9. In case the passbook is lost, destroyed, or stolen, immediate notice thereof must be given in writing to Bank. After the expiration of one month from the time the Bank receives such notice, a new passbook bearing a new number will be issued to replace the lost or destroyed passbook, provided Bank is furnished with a satisfactory bond of indemnity.

One of appellee’s bank managers was permitted to testify, over objection, that notwithstanding regulations three and nine, the regulations were not violated in this case. He testified that when savings accounts are closed entirely, only regulation four applies. Thus, even though the passbook was missing, appellee closed the account in conformity with its regulations since a bank employee verified Bruce’s signature on the letter with the signature on the card. This is satisfactory identification under regulation four.

Appellee argues that the testimony was permissible under the parol evidence rule since the regulations are ambiguous in that it appears from regulation four that withdrawals can be made without presentation of the passbook if the withdrawing party satisfactorily identifies himself. Appellee also argues that regulations nine and three do not apply to “closing” accounts, only to “withdrawals” from accounts. Thus, appellee permits a depositor to withdraw the entire account balance if the passbook is lost, notwithstanding regulations nine and three. It concedes that it would not permit the same person to withdraw a single dollar from the account if the passbook were lost since regulations nine and three would then apply.

I agree with appellant that these arguments are absurd and that the regulations are clearly unambiguous. Regulation two states that all the rules and regulations apply. Regulation three is therefore supplemented, not supplanted, by regulation four. Together, they require that both a passbook and identification be presented before withdrawals, regardless of amount, are permitted. Otherwise, regulation three would be meaningless. Regulation nine, together with regulation three, permit no withdrawals, regardless of amount, from the account for thirty days if a passbook is lost. Withdrawal of the entire account balance is a withdrawal, whatever else appellee may choose to call it.

The law is clear. A writing that is not reasonably capable of two different interpretations is not ambiguous and cannot be varied by parol. Merriam v. Cedarbrook Realty, Inc., 266 Pa.Super. 252, 404 A.2d 398 (1978). In interpreting the intent of parties in a written contract, when the words are clear and unambiguous, the intent is to be determined only from the express language of the agreement. Ormond Realty v. Ninnis, 341 Pa.Super. 101, 491 A.2d 169 (1985); Woytek v. Benjamin Coal Co., 300 Pa.Super. 397, 446 A.2d 914 (1982). In addition, a written agreement will be construed against the party who prepared it. Ormond Realty v. Ninnis, supra; Central Transportation v. Board of Assessment Appeals, 490 Pa. 486, 417 A.2d 144 (1980).

In this case, Bruce wrote that the passbook was lost. She did not present it. Regulations three and nine applied. A bank employee should not have been permitted to testify that they did not. Since the trial court permitted testimony in violation of the parol evidence rule, I believe that appellant is entitled to a new trial.

However, there is no case holding that a bank is automatically liable to its depositor for breaching its regulations. The converse is true in that a bank is not liable to a depositor if it has acted in conformity with its established, prudent procedure. Layman v. Western Savings Bank, 302 Pa.Super. 433, 448 A.2d 1119 (1982). In Layman, we held that a bank is not responsible to its depositor if it has exercised ordinary care, and we held that ordinary care is established where the bank has complied with its own regulations.

Parenthetically, however, I note that there was very credible evidence that appellee did not follow established bank procedure in this case. From testimony at trial, it appears that when a passbook for a joint account is lost, appellee normally requires that both signatories to the account present themselves at an office with identification. Once both signatories sign a lost passbook form, the bank releases the funds.

This procedure is logical, prudent and requires minimal effort by the bank.

This credible testimony conflicts with the bank manager’s testimony that normal bank procedure was followed in this case. Here, a bank teller, without a simple telephone inquiry to Ms. Weand (the person whose money was involved and who would possess the passbook) paid a passbook balance to Ms. Weand’s sister, whose name had been added to the account. This action was taken on the basis of mail correspondence from the sister whom the teller had never seen. The letter was not witnessed or notarized and was not accompanied by any identification. The letter specifically stated that the passbook was “lost,” and the money was sent even though the bank has a regulation requiring a passbook for withdrawals. I find incredible that appellee normally operates in such a careless manner.

Ms. Weand deposited her money with appellee and is entitled to expect some degree of care with respect to her funds from the bank. If appellee would have been dealing with its own money, would it have acted similarly?

For the reasons enumerated above, I respectfully dissent.

      . The signature card which both Mrs. Weand and Mrs. Bruce signed stated: "Each of the undersigned is the owner of the whole of this account and each shall have full power to draw against it ...”

      . Appellant calls our attention to 20 Pa.C.S. § 6303 which provides in part:
      § 6303. Ownership during lifetime
      (a) Joint account. — A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sum on deposit, unless there is clear and convincing evidence of a different intent.
      However, the effective date of the Act is September 1, 1976. The joint account in the instant case was established prior to the effective date of the Act which does not apply to our case. See Livingston v. Livingston, 275 Pa.Super. 285, 418 A.2d 724 (1980). Further, the Multi-Party Accounts Act, as this Act is called, states at 20 Pa.C.S. § 6302:
      The provisions of this chapter are applicable solely to the determination of property rights among parties to multiple-party accounts and all claims made through them but do not apply to and do not affect financial institutions or their rights and liabilities with respect to multiple-party accounts, which shall be determined exclusively by applicable law other than this chapter. No right or claim against a financial institution may be based on this chapter.

      . 42 Pa.C.S. § 6111 provides:
      (a) Opinion evidence as to handwriting. — Where there is a question as to any writing, the opinions of the following persons shall be deemed to be relevant:
      (1) The opinion of any person acquainted with the handwriting of the supposed writer.
      (2) The opinion of those who have had special experience with, or who have pursued special studies relating to, documents, handwriting, and alterations thereof, who are called experts in this section.
      (b) Comparison of handwriting. — It shall be competent for experts in giving their testimony under the provisions of this section, to make comparison of documents and comparison of disputed handwriting with any documents or writing admitted to be genuine, or proven to the satisfaction of the judge to be genuine, and the evidence of such experts respecting the same shall be submitted to the jury as evidence of the genuineness or otherwise of the writing in dispute.
      (d) Jury question. — The opinions of the witnesses to handwriting being submitted as competent testimony to the jury, the final determination as to whether any particular handwriting is genuine or simulated shall remain, as heretofore, a question for the jury on all the evidence submitted.

      . Observing a per.son sign his name "is not a necessary qualification in order to enable a non-expert to testify as to the genuineness of a disputed signature. The only requirement is that he be acquainted with the handwriting of the alleged signer, and such acquaintance may be obtained in many ways, for example from an assumption that signatures were genuine which he had long acted upon as such without challenge: ... (Citing cases)”. Hershberger v. Hershberger, 345 Pa. 439, 445, 29 A.2d 95, 98-99 (1942). While this statement is dictum in the cited case, it is applicable to the facts before us.

      . The bank manager testified concerning the regulations as follows:
      THE WITNESS: Okay. In this instance, it does state that the account is [sic] restriction expiration of one month, that a new passbook bearing a new account number is then executed after thirty days, but in this situation there was not going to be a new account number, there was not going to be an account with First Pennsylvania.

      BY MR. MATHEWSON:
      Q. And why is that a significant difference here?
      A. Because in this number [nine] it applies to — there is a bond of indemnity when a customer loses a passbook or it is destroyed or does not have it. The account is frozen for thirty days. They do sign. They fill out their Social Security and all. At the end of thirty days, we immediately will assign a new account number to that customer with a new passbook, so it would be an ongoing transaction with First Pennsylvania Bank, and in this case it was not that way. The account was being closed in its entirety. (Emphasis added).


author: OLSZEWSKI, Judge:

text:
    541 A.2d 388
    COMMONWEALTH of Pennsylvania v. Walter PERRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 16, 1988.
    Filed May 11, 1988.

      Louis A. Perez, Jr., Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, WATKINS and CERCONE, JJ.
   OLSZEWSKI, Judge:

Appellant Walter Perry seeks relief from the denial, without a hearing, of his petition under the Post Conviction Hearing Act (“PCHA”), 42 Pa.C.S. § 9541 et. seq. Perry’s court-appointed attorney simultaneously requests permission to withdraw on the basis that Perry presents no meritorious grounds for review. Since we agree with counsel’s assessment that this appeal is frivolous, we grant permission to withdraw, and affirm the dismissal of Perry’s PCHA petition.

The facts of this case are not in dispute. Perry was convicted by a jury on January 8, 1981 of robbery, theft, and criminal conspiracy. He was represented by an attorney from the Defender Association of Philadelphia. Following the denial of post-verdict motions, he was sentenced to a total of three and one half to seven years incarceration. On November 30, 1982, this court affirmed the judgment of sentence, finding that although the trial court erred in admitting a photograph of Perry’s accomplice, this error was harmless in light of the completeness of the witnesses’ testimony, the closing arguments and jury charge, and the tangential relevance of the photograph. See Commonwealth v. Perry, 307 Pa.Super. 327, 453 A.2d 608 (1982). The Pennsylvania Supreme Court denied Perry’s petition for Allocatur on March 13, 1983, 772 E.D. 82.

Perry filed a pro se PCHA petition on October 10, 1986, and Leonard Rubin, Esquire was appointed to represent him in connection with the issues raised therein. However, by letter of May 1, 1987, Mr. Rubin informed the court that after interviewing Perry, members of the Defender Association of Philadelphia, and conducting a review of the entire record, in addition to undertaking an independent examination of facts not previously contained in the record, he could find no issues of arguable merit to raise as a basis for post-conviction relief. Specifically, Rubin stated that the four issues which Perry sought to raise were either previously litigated, or refuted by the record. Following an independent review of the record, the PCHA court similarly concluded that the issues were frivolous and accordingly, dismissed Perry’s petition. Present counsel Louis Perez, Jr., Esquire was appointed to represent Perry on the appeal from the denial of PCHA relief. Perez likewise asserts that, after having conducted an exhaustive examination of the record, he can find no meritorious claims for the purposes of appeal, and therefore seeks leave to withdraw. However, Perez does set forth the claims upon which Perry seeks relief, the same claims which were presented by attorney Rubin to the PCHA court, and Perez addresses the frivolity of each issue. Perez has notified Perry of his position by certified letter.

Initially, we note that the method by which a court-appointed attorney seeks permission to withdraw is governed by the seminal case of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, the United States Supreme Court has recently held that the Anders procedures do not apply to state-created post conviction relief proceedings, as a matter of federal law. See Pennsylvania v. Finley, — U.S. —, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).

Whether Pennsylvania will follow Finley or will require more protection than the United States Supreme Court requires when counsel seeks withdrawal from PCHA representation is as of yet undecided. Although the Finley case has been remanded to our court en banc, no decision has been reached as of the filing of this opinion. However, while the result in Finley may be instructive, that case involved the dismissal of counsel in pending PCHA proceedings, and thus, is not dispositive of the issue in the instant case.

In the aftermath of the Finley decision, President Judge Cirillo, in a plurality decision by this court, held that a so-called Anders brief need no longer be filed in a PCHA appeal when effective counsel has determined that an appeal would be wholly frivolous. This rule strikes a proper balance between the duty to protect the rights of the individual and the avoidance of forcing attorneys into an ethical dilemma by requiring them to pursue a frivolous appeal. Commonwealth v. Rauser, 367 Pa.Super. 370, 385, 532 A.2d 1191, 1199 (1987) (Per Cirillo, P.J., and Rowley, J. and McEwen, J. concur in result and dissent). President Judge Cirillo enunciated a proposed standard, in substitution for the Anders requirements, to be used when court appointed attorneys are asked to file what they honestly believe to be a frivolous PCHA appeal:

First, counsel must conduct a thorough and comprehensive review of the record and relevant legal authority. Second, if the attorney in good faith and in his honest professional opinion believes after such a review that an appeal would be frivolous, he shall so advise the trial court and petition the trial court for leave to withdraw. Third, concurrent with his petition to withdraw, counsel shall inform his client of his petition to withdraw and the reasons therefor. Fourth, counsel shall advise his client of his right to another attorney and his right to raise issues on a pro se basis, as well as his right to an appeal. The next step is taken by the trial court. The trial court is to conduct a full examination of all the proceedings, and if it determines that the case is frivolous, should grant the petition to withdraw.

367 Pa.Superior Ct. at 384, 532 A.2d at 1198. Thus, the appellate system is specifically excluded from the initial finding of frivolity or the petition to withdraw. See Rauser, 367 Pa.Superior Ct. at 385, n. 5, 532 A.2d at 1198, n. 5. We note that since Rauser is a plurality opinion, the correct procedure to be followed where counsel seeks withdrawal from PCHA representation remains unsettled under Pennsylvania law.

Moreover, Rauser may be factually distinguished from the instant case. The former involved a PCHA petition which was initially filed pro se; when relief was denied, Rauser appealed, at which time counsel was appointed. Thus, Rauser was represented by counsel for the first time on appeal, and the attorney’s petition to withdraw was then brought before our court. Instantly, Perry’s PCHA petition was originally filed pro se, but counsel was appointed at the trial level, and was permitted to withdraw after filing a no-merit letter. Perry then appealed, and his second appointed attorney is now seeking withdrawal by filing an Anders brief. Thus, the situation in this case, that is, the withdrawal of appointed counsel from the appeal of a denial of PCHA relief where prior PCHA counsel’s request to withdraw was granted due to the frivolity of the appeal, appears to be one of first impression in the wake of Finley.

It is axiomatic that unrepresented petitioners have the right to appointed counsel in post-conviction proceedings, including any proceedings on appeal from the denial of collateral relief. Pa.R.Crim.P. 1503. However, Pennsylvania Rule of Criminal Procedure 1504 provides that the appointment of counsel shall not be necessary and petitions may be dismissed summarily when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented by counsel in proceedings thereon. Moreover, the PCHA statute, 42 Pa.C.S. § 9551(b) states that the appointment of counsel shall not be required if the petitioner’s claim is patently frivolous and without trace of support in the record.

Here, Perry has already received complete review of his case by two competent attorneys, in addition to the PCHA court, all of whom have found his assertions to be frivolous. Additionally, these attorneys independently could find no meritorious issues to raise. It seems futile to require attorneys, and this court, to nonetheless conduct an independent review of the record in these situations, as per Anders, or Rauser, should that standard be adopted in this Commonwealth. The Rules of Criminal Procedure clearly limit the right to appointed counsel for the filing of frivolous appeals. Therefore, we hold that, where prior counsel has been permitted to withdraw because the case is frivolous, subsequent appellate counsel, if so desired, is not required to utilize any formal procedures in order to withdraw, and does not have to continue representation on appeal. Thus, the second attorney is not placed in the position of either pursuing an appeal that has already been determined to be frivolous, or seeking withdrawal from the court. However, we emphasize that this holding refers only to the actions of counsel, and does not preclude a petitioner from appealing pro se. Moreover, we are not preventing the attorneys from finding and arguing new issues on appeal, if they choose to do so, and thus, the petitioner’s rights to counsel are not contravened.

Further, our decision today is limited to the unique factual scenario of the case sub judice, and we do not adopt it for implementation in situations concerning a PCHA petitioner’s first appointment of counsel, a right which is firmly entrenched. See, e.g. Pennsylvania Rule of Criminal Procedure 1503(a). See also Commonwealth v. Sawyer, 355 Pa.Super. 115, 512 A.2d 1238 (1986). Since in Perry’s case, appellate counsel has already been appointed, we further hold that this decision be applied prospectively.

Additionally, we note that our decision here is not inconsistent with the recent holding of our panel in Commonwealth v. Harris, 370 Pa.Super. 575, 537 A.2d 24 (1988). In Harris, Judge Olszewski opined that, although he agrees that Finley should be followed in Pennsylvania, the decision to make such an application is within the strict purview of our Supreme Court in its supervisory powers. Thus, the panel in Harris left for the Supreme Court the adoption of the procedure recommended by President Judge Cirillo in Rauser, and instead employed the pre-Finley “Anders ” analysis. Factually, however, Harris may be distinguished from the case at bar, since Harris’s first PCHA attorney did not seek withdrawal. Rather, Harris’s petition was denied, and the second attorney was appointed. It was the latter attorney who sought dismissal by filing an Anders brief on appeal. Thus, Harris is not analogous to this case, because in the former, there was no finding of frivolity prior to the second counsel’s appointment. Hence, we do not feel constrained to follow the reasoning used in Harris. Nor do we share the concern that, in holding as we do today, we are infringing upon the rule-making power of our Supreme Court. Here, we are not creating new procedures to be applied prospectively, as would be the case in Rauser; rather, we are merely implementing and enforcing the existing Rules of Criminal Procedure with reference to appointment of counsel for representation on frivolous appeals.

Based upon the foregoing, we affirm the order of the PCHA court denying Perry relief, and grant attorney Perez permission to withdraw.


author: WIEAND, Judge:

text:
    541 A.2d 391
    Della SHULTZ, Appellant, v. NATIONWIDE INSURANCE COMPANY and State Farm Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1988.
    Filed May 9, 1988.

      David J. Flower, Assistant District Attorney, Somerset, for appellant.
    R. Thomas Strayer, Johnstown, for Nationwide, appellee.
    Margaret A. O’Malley, Johnstown, for State Farm, appellee.
    Before BROSKY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

On January 17, 1985, a vehicle owned and operated by Della Shultz ran out of gas and was stopped in the southbound lane of Route 117 in Fayette County. Robert Geary, a passing motorist, observed Shultz’s predicament, stopped his vehicle, and parked it, facing north, behind Shultz’s vehicle in order to provide assistance. After gasoline had been obtained and while it was being poured into the tank of the Shultz vehicle, a vehicle operated by Mary Speelman struck the front of the Geary vehicle, pushing it backward into Della Shultz and pinning her between the rear of her vehicle and the rear of the Geary vehicle. As a result, Shultz was seriously injured.

On the date of the accident, the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19,1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., had been repealed and replaced, effective October 1, 1984, by the Motor Vehicle Financial Responsibility Law of February 12, 1984, P.L. 26, No. 11, § 8(a). The Motor Vehicle Financial Responsibility Law, however, only “applie[d] to insurance policies issued or renewed on or after the effective date of [the] act.” Section 9 of the Act of February 12, 1984, P.L. 26, No. II.

The Shultz vehicle was uninsured. The vehicle operated by Mary Speelman was insured by State Farm Insurance Company (State Farm) pursuant to a policy of insurance which had been issued under the Motor Vehicle Financial Responsibility Law of 1984. The vehicle owned by Robert Geary was insured by Nationwide Insurance Company (Nationwide) pursuant to a policy of insurance which had been issued under the No-fault law of 1974. It had not been renewed or reissued following repeal of the No-fault law and prior to the accident.

Shultz commenced an action for declaratory judgment against Nationwide seeking to determine Nationwide’s liability for medical expenses and work loss benefits under the No-fault Act. Nationwide caused State Farm to be joined as an additional defendant. Subsequently, both insurance companies filed motions for summary judgment. State Farm’s motion was granted because Shultz’s claim against it was barred by the Motor Vehicle Financial Responsibility Law which, at 75 Pa.C.S. § 1714, provides as follows:

An owner of a currently registered motor vehicle who does not have financial responsibility ... cannot recover first party benefits.

Nationwide’s motion for summary judgment was also granted. On appeal, Shultz does not challenge the trial court’s entry of summary judgment in favor of State Farm. She argues only that the summary judgment in favor of Nationwide was error.

In reviewing the summary judgment entered in favor of Nationwide, we need not determine whether an uninsured motorist who, following enactment of the Motor Vehicle Financial Responsibility Law, is involved in an accident with a vehicle insured under a policy of insurance still containing no-fault provisions is barred from recovering basic loss benefits from the insured vehicle’s insurance carrier by the provisions of the Motor Vehicle Financial Responsibility-Law. Even if we determined that a claim by an uninsured motorist was not barred, appellant nonetheless would not be entitled to recover medical expenses and work loss benefits against Nationwide in this case. Section 204(a) of the No-fault Act provided as follows:

(a) ... The security for the payment of basic loss benefits applicable to an injury to:
(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
(2) an insured is the security under which the victim or deceased victim is insured;
(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
(5) any other individual is the applicable assigned claims plan.

This section “in effect create[d] a hierarchy among potential sources of security” which were responsible for payment of basic loss benefits. “[T]he pertinence of. each subsection must be considered seriatim — that is, the applicability of each preceding subsection must be excluded before the next may be considered.” Tyler v. Insurance Company of North America, 311 Pa.Super. 25, 29-30, 457 A.2d 95, 97 (1983).

In the instant case, subsections (1) and (2) were clearly inapplicable. Appellant was not an employee and was not an insured under any policy of insurance at the time of the accident. Before proceeding further, it must be determined whether appellant was either the driver or occupant of her vehicle or a pedestrian or bystander at the time of the accident. If she were the driver or occupant of her vehicle, subsection (3) would require that she look to the security covering her vehicle and subsection (4) would have no application. Only if she were not an occupant of her vehicle, i.e., a pedestrian or bystander, could the security for the Geary vehicle become applicable and possibly require that Nationwide pay no-fault benefits. See: Hayes v. Erie Insurance Exchange, 261 Pa.Super. 171, 395 A.2d 1370 (1978).

In Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), the Supreme Court, in defining the term “occupying” found in an insurance policy, held that a person will be deemed an occupant of a motor vehicle if the following criteria are satisfied:

(1) there is a causal relation or connection between the injury and the use of the insured vehicle;
(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.

Id., 504 Pa. at 336, 473 A.2d at 1009. Appellant, although conceding that elements (1), (2), and (4) were present, argues that she was not vehicle oriented but highway oriented at the time of the accident. We disagree. Appellant was engaged in refueling her vehicle by pouring gasoline into the tank. Because she was engaged in a transaction essential to its use, it is beyond serious dispute that she was vehicle oriented. A similar result was reached by Gafni, J. in Porter v. CNA Ins. Co., 14 Phila. 276 (1986). Any other conclusion would be wholly unrealistic.

Appellant also argues that because subsection (3) of Section 204(a) of the No-fault Act can have no application, her vehicle having been uninsured, subsection (4) must be applicable and requires that Nationwide pay basic loss benefits. A similar argument was made and rejected in Schimmelbusch v. Royal-Globe Ins. Co., 247 Pa.Super. 28, 371 A.2d 1021 (1977). The Court said, “subparagraph (4) should be interpreted as written, and to apply to an uninsured claimant who was not an occupant of a car; namely, a pedestrian or bystander.” Id,., 247 Pa.Superior Ct. at 34, 371 A.2d at 1024.

Appellant in the instant case was not a pedestrian or bystander, but the driver and occupant of an uninsured vehicle which had been involved in an accident. As such, she was not entitled to recover from Nationwide Insurance Company. Therefore, the trial court properly entered judgment in favor of Nationwide Insurance Company.

Judgment affirmed.

      . See 75 Pa.C.S. § 1701 et seq.

      . See Comment to 75 Pa.C.S. § 1701.