The opinion
HOFFMAN, Judge,
concurring:
Appellants contend that the lower court erred in admitting into evidence and by sending out with the jury the adjudication and schedule of distribution ordered by the Orphans’ Court in a prior proceeding. 1 I agree and would, therefore, reverse and remand for a new trial.
George Tiernan died on May 7, 1933, leaving a will dated July 20, 1932. The will provided that his residuary estate be given to the Fidelity Bank, in trust, to pay the income to his widow for life and on her death to divide the principal into two equal shares, one for his son, Walter G. Tiernan, to pay him the income therefrom and then to his widow until her death or remarriage, and then to pay the income to “all my grandchildren then living and all issue of deceased grandchildren . . . until each of said grandchildren shall attain the age of twenty-five years. As each grandchild attains the age of twenty-five years, his or her share of principal shall be promptly distributed to him or her in the *232 same proportions as above provided for income payments.” The separate trust for Walter’s brother, Arnold, was identical to that described above.
Walter died on March 31, 1963, survived by his two children, appellants herein. Mr. Smithers, a trust officer and attorney for Fidelity Bank, met with appellants in 1963 and advised them that they were the sole beneficiaries under the terms of their grandfather’s will and that the entire principal and income would be distributed to them. Fidelity obtained the advice of another attorney, an expert in trusts and estates, who approved immediate distribution of the entire trust principal to appellants. Appellants state that they relied upon the representations of Fidelity Bank that they were the sole beneficiaries of the trust and that distribution to them would be proper. Appellants signed a release, receipt and waiver of audit. This agreement provides:
“We, the undersigned, being the sole parties in interest in this Trust, for the purpose of inducing the Trustee to make distribution without a Court audit,
“1. Acknowledge that we have examined the Trustee’s Account and approve the same, which approval shall have the same effect as if the Account had been audited and confirmed absolutely, specifically waiving the statement of income received and distributed prior to December 3, 1962;
“2. Acknowledge receipt of principal in the amount of $62,225.12, consisting of securities of the value of $35,052.19 and cash in the amount of $27,172.93, and income, consisting of cash in the amount of $1,118.84, being our share of the balances of principal and income as itemized therein, and release and discharge the Trustee from any liability in connection with this Trust;
“3. Agree to indemnify the Trustee against all liability, loss or expense which may be incurred as the result of the settlement of this Account, or of the distribution being made upon this Receipt and Release to the extent of our share, and
“4. Waive an accounting of this Trust in the Orphans’ Court of Philadelphia County.”
*233 The Bank distributed the trust principal to appellants. In fact, this distribution was contrary to the provisions in the will. The trust principal should have been distributed to all five grandchildren.
On November 19, 1968, testator’s second son, Arnold, died survived by his widow. The account of Arnold Tiernan was called for audit in 1972 at which time the bank discovered the overpayment to appellants. The orphans’ court ordered Fidelity to pay the principal of Walter’s share, amounting to $62,225.12 plus income, to all five grandchildren, less any previous distribution. Fidelity was also ordered to pay Arnold’s three children four percent interest computed from June 19, 1963, to the date of distribution.
Fidelity then requested that appellants reimburse them for the excess of their father’s trust which had been distributed to them. Appellants refused and Fidelity brought this action in assumpsit on the indemnity agreement. After a jury trial, a verdict was returned in favor of Fidelity in the amount of $37,964.70. The court en banc, with one judge dissenting, denied appellants motions for a judgment non obstante veredicto and for a new trial. This appeal followed.
Appellants argue that the lower court erred in admitting into evidence and sending out with the jury, over their objection, the adjudication and schedule of distribution ordered by the Orphans’ Court. 2
*234 Appellee offered the adjudication and schedule into evidence for several purposes: (1) to prove that Fidelity was surcharged and to show how much it paid, (2) to show that appellants were represented at the prior proceeding, (3) to show that an overpayment was made to appellants, and (4) to prove what the proper distribution to the other three grandchildren should be.
The entire opinion from the Orphans’ Court proceeding was received into evidence. This opinion contained a summary of George Tiernan’s will and a statement of the subsequent facts. The court found that appellants had received an “overpayment”; that they had signed a receipt and an agreement to indemnify the Trustee against any loss; that appellants were “unjustly enriched”; and that the distribution was contrary to the provisions of the will. The opinion referred to the other three grandchildren as the “injured persons”.
Initially, I note that records of judicial proceedings in a former action are competent to prove the proceedings therein. 3 However, judicial records are not admissible when the issues involved in a subsequent action are not the same. “Identity of subject matter, in whole or in part, and identity of parties in interest must unite, to render a disposition in one case admissible in another.” Seabury v. Fidelity Insurance Trust & Safe Deposit Co., 205 Pa. 234 , 54 A. 898 (1903), Walker v. City of Philadelphia, 195 Pa. 168 , 45 A. 657 (1900). Further, it is well settled that questions of fact are for the jury to resolve, whether based upon direct or circumstantial *235 evidence. Gordon v. Trovato, 234 Pa.Super. 279 , 338 A.2d 653 (1975).
In the instant case, the orphans’ court proceeding involved an accounting of Arnold Tiernan’s estate. The court interpreted George Tiernan’s will, determined that Fidelity Bank erred in its construction of the will and in its payment to appellants, and ordered Fidelity to pay the proper amount to the three other grandchildren. The validity of the indemnity agreement, which is the basis of the instant action, was not considered or decided in the orphans’ court proceeding. Although the opinion of the orphans’ court was relevant to show that Fidelity was surcharged the shares of the newly discovered beneficiaries; it was not necessary to introduce the entire opinion. Other, less prejudicial methods of proof, were readily available to the appellee. Because the issue actually litigated in the orphans’ court proceeding differed substantially from that of the case at bar, it was error to admit the opinion into evidence. Moreover, it was clearly an abuse of discretion by the lower court to permit the opinion to be taken out with the jury. The opinion contained findings of fact and conclusions of law that were highly prejudicial to appellants. The opinion stated that the appellants had entered into an indemnity agreement in which they agreed to compensate appellees for any loss they might suffer as a result of the waiver of a court audit. The jury, as laypeople, could have been influenced by the opinion of a judge. The facts were for the jury to decide, not to be read by them from an opinion in a collateral proceeding. Further, the opinion contained inflammatory language that undoubtedly resulted in prejudice to appellants. The use of the words “unjust enrichment” to describe appellant’s gain; and “injured persons” to describe the other grandchildren is clearly prejudicial.
I would hold that it was error to admit the opinion as evidence and error to send it out with the jury. I would, therefore, reverse and remand for a new trial.
Four judges of our Court agree with this result.
CERCONE, J., joins in this concurring opinion.
. Appellants also argue that the lower court erred in refusing to charge the jury on the validity of the indemnity agreement. I do not reach this issue.
. I note that the dissent treats the indemnity agreement as a contract under seal which creates a twenty-year statute of limitations. I am unable to agree with its analysis. Appellee did not allege in its complaint that the instrument was under seal. When the appellants raised the statute of limitations in new matter, appellees did not reply that the contract was under seal. Appellees introduced no evidence of a sealed instrument. The trial court, in its charge to the jury stated that the instrument was under seal which created a twenty-year statute of limitations. “It is hornbook law that instructions given to a jury must be confined to the issues raised in the pleadings and the facts developed by the evidence in support of such issues . . . Furthermore, where a particular issue is not raised by the pleadings, the fact that evidence on that issue has been received without objection does not authorize an instruction by the *234 court on that issue.” Heymann v. Elec. Service Mfg. Co., 412 Pa. 338 , 81 A.2d 442 (1963).
Thus, it was clear error to instruct the jury on a sealed instrument. Nonetheless, I agree that the appellee is not barred by the statute of limitations. Fidelity sued on an indemnity contract. No cause of action arises until the indemnitee actually suffers a loss. Ashley v. Lehigh and Wilkes Barre Coal Co., 232 Pa. 425 , 81 A. 442 (1911). Fidelity’s'cause of action arose when it was forced to pay Arnold’s children their share of Walter’s trust in 1972.
Thus, the instant action which was begun April 4, 1972, was filed within the six year statute of limitations.
. For example, a record of a divorce action is competent to prove a divorce. See, generally, P.L.E., Evidence § 193.